Joint Swedish-Vietnamese

Masters Programme

MASTERS THESIS

TRN THN NGC KIM

THE CRIMES OF TRAFFICKING IN

HUMAN BEINGS
IN INTERNATIONAL CRIMINAL LAW, VIETNAMESE
AND SWEDISH CRIMINAL LAW

SUPERVISORS:
Professor HELEN ORNEMARK HANSEN
Doctor TRN TH QUANG VINH

2
TABLE CONTENT
INTRODUCTION
Chapter 1: OVERVIEW ABOUT THE CRIMES
TRAFFICKING IN INTERNATIONAL CRIMINAL LAW

OF

HUMAN

1.1. Human trafficking A criminal act

1.1.1. The real situation about human trafficking in the world
1.1.1.1. The worldwide situation of human trafficking in recent years
1.1.1.2. The causes of human trafficking
a. Economic causes
b. Socio-cultural causes
c. Legal and political causes
1.1.2. The effects of human trafficking
1.2. Human trafficking crime in International criminal law
1.2.1. The legal concept of human trafficking crime in Protocol to prevent,
Suppress and Punish Trafficking in persons, Especially Women and Children
1.2.2. The fundamentals characteristic of human trafficking in Protocol to
prevent, Suppress and Punish Trafficking in persons, Especially Women and
Children
1.2.2.1. Acts
1.2.2.2. Means
1.2.2.3. Purposes
1.2.2.4. Sanction relating to human trafficking
1.2.3. The differences between human trafficking and smuggling of migrants
a. Consent
b. Exploitation
c. Transnational
Chapter 2: THE CRIMES OF HUMAN TRAFFICKING IN SWEDISH AND
VIETNAMESE CRIMINAL LAW SOME PETITION FOR IMPROVING
VIETNAMESE CRIMINAL LAW
2.1. Human trafficking crime in Swedish criminal law
2.1.1. The real situation about human trafficking in recent years in Sweden
2.1.2. The concept of human trafficking crime in Swedish criminal law
2.1.3. The characteristics of human trafficking crime in Swedish criminal law
2.1.3.1. Acts
2.1.3.2. Means
2.1.3.3. Purpose
2.1.3.4. Penalty
2.2. Human trafficking crimes in Vietnamese criminal law

PAGE
5
8
8
8
8
11
12
12
12
12
14
14
16

16
16
18
23
24
24
24
24
25

25
25
30
32
32
33
34
35
35

3
2.2.1. The real situation about human trafficking in recent years in Vietnam
2.2.2. The concept of human trafficking crimes in Vietnamese criminal law
2.2.3. Human trafficking crimes in Vietnamese criminal law
2.2.3.1. Trafficking in women (article 119)
2.2.3.2. Trafficking in children (article 120)
2.2.4. The differences between trafficking in women and children and
Organizing and/or coercing other persons to flee abroad or to stay abroad
illegally (Article 275)

35
38
39
39
40
41

2.3. Comparison between the Criminal Law of Vietnam and the

Criminal Law of Swedish regarding crimes on human trafficking.
2.3.1. The similarity
2.3.2. The differences
2.3.2.1. About the concept of human trafficking:
2.3.2.2. About the victims
2.3.2.3. About the crime acts
2.3.2.4. About the crime purposes
2.3.2.5. Penalty

42

2.4. Proposing some motions for improving Vietnamese criminal law

2.4.1. Proposing a motion for improving trafficking in women (art 119)
2.4.2. Proposing a motion for improving trafficking in children (art 120)
2.4.3.Proposing a motion for improving for amend the crime of trafficking
in person
CONCLUSION

42
42
42
43
44
44
45
46
46
47
48
50

Abbreviations

ILO

International Labour Organization

TOC
TRAFFICKING PROTOCOL

The Convention against Transnational

organized Crime
Protocol to prevent, suppress and punish
trafficking in persons, especially women and
children, supplementing the united nations
convention against transnational organized crime.

UNODC

United Nations Office on Drugs and Crime

INTRODUCTION
1.

The general background

5
The trafficking in human being has become a serious concern for many
countries in all parts of the world. Trafficking in persons, including both male and
female adults and children, especially for sexual purposes, is by no means a new
phenomenon and has been common practice in many societies throughout history.
However, in recent decades the trafficking in women and children has become one
component of a larger phenomenon of trafficking in persons, assuming different
forms and motives. Ethical, moral, political, economic, physical and business factors
are compounded, and the trafficking has been more organized. Human trafficking has
been considered a global business generating lucrative profits for traffickers as well
as criminal syndicates/organization, whose activities often include other forms of
illicit trade such as smuggling of drugs and weapons. Every region of the globe has
been more or less affected by this human trafficking, whether as a source of demand
or supply.
According to report of United Nations Office on Drugs and Crime (UNODC),
most trafficking victims are women and children. Normally they are transported to
foreign countries and forced into slavery or prostitution. 77% of trafficking victims
are women, 14% children and 9% men. There are 127 nations accommodating
people for trafficking and 137 countries receiving people from trafficking1.
Sweden is a developed country; however, it could not prevent from human
trafficking. According to the report of UNODC, Sweden ranks in medium level as a
destination country and in low level as a transit country for people trafficking2. Most
of women and children are trafficked into Sweden for sexual exploitation. Moreover,
Sweden is regarded as a transit country where the trafficking persons from some
countries in West- European, Russia, etc. are transferred to Denmark and other
countries in the Baltic Sea.
In spite of being emerged in Vietnam over one decade ago, trafficking in
human beings has been paid significant attention to and great concern about by the
State and Community because of its complicated and multiform character as well as
serious consequences caused to victims, their families and the society. In the past,
trafficking in human beings happened only in a few of cities and provinces, but
nowadays, this phenomenon has been expanding to many regions of the country.
Because of the serious and inhuman nature of trafficking in persons,
especially in women and children, the international community has throughout its
history created a set of international regulations and guidelines to prevent and
combat against human trafficking. There is a United Nations Convention against
Transnational Organized Crime (TOC) including two protocols, which focus on
1

United Nations Office on Drugs and Crime (UNODC) Trafficking in Persons: Global Patterns,
available at www.unodc.org/documents/human-trafficking/HT-globalpatterns-en.pdf
2
See note 1 above.

6
measures to combat the smuggling of migrants and measures to combat human
trafficking. One of them the protocol to prevent, suppress and punish trafficking in
persons, especially women and children, supplementing the TOC- is the most
important international instrument in the struggle to eliminate the trade in human
beings.
Since 2004 Sweden has been a member of TOC and the protocol on
preventing, suppressing and punishing trafficking in persons, especially women and
children, supplementing the TOC. As a result of this, the regulations on prevention
and combat against trafficking in persons must be included in Swedish criminal law.
Swedish legislators have struggled to introduce human trafficking in the criminal law
which shall cover all forms of trafficking, in consistency to the Protocol and they are
effective measures to combat and prevent from human trafficking.
Vietnam has been following its itinerary to become a member of TOC and the
Protocol relating to combat and prevention from human trafficking. On the
requirement of the protocol, the Vietnamese Penal Code must be amended to provide
a comprehension of trafficking in persons and the Swedish Criminal Code is a good
model of such issue on human trafficking legislation to be researched.
2.
The purposes:
From the general introduction about human trafficking in international law,
Vietnamese and Swedish criminal law, this thesis will demonstrate and compare the
human trafficking provisions in Vietnamese and Swedish criminal law.
This thesis will provide a brief about the real situation of human trafficking
crimes in the world, Vietnam and Sweden.
This thesis will provide some suggestions to improve Vietnamese criminal
law in human trafficking thanks to the experience of the international and Swedish
criminal law on the respective issue.
3.
Delimitation
For combating against human trafficking crimes, the legislators are highly
expected to determine a strategy for human trafficking control and strengthen
apparatus of government, the system of international and national law as well as
government offices ability in investigation, prosecution, judgment toward human
trafficking crimes, including protective measures for trafficking victims
However, in this thesis, the author only gives a general introduction to human
trafficking prescribed in international, Vietnamese and Swedish criminal law and
focuses on the TOC, the protocol to prevent, suppress and punish trafficking in
persons, especially women and children, supplementing the TOC, Vietnamese and
Swedish Penal Code.
Moreover, this thesis will search for the real situation about human
trafficking crimes in the world, Vietnam and Sweden in recent years.

7
4. The method
a.
b.
c.
d.
e.

Logical analysis
Case analysis
Traditional legal method
Comparative legal method
Statistical method

5.
The Structure
This thesis includes besides this introduction, two main chapters and a
conclusion:
Chapter 1: Overview about the crimes of trafficking in human beings in
international criminal law
Chapter 2: The crimes of trafficking in human beings in Vietnamese and
Swedish criminal law - Some motions for improving Vietnamese criminal law
Conclusion: Vietnam is as an origin country but Sweden is as an
destination country, so we only should study the way of amendment Swedish penal
code ratification in human trafficking of the TOC Convention and its Protocols.
Those recommendations in this thesis should be understood as a packed for both
purposes: ratification of the TOC and its Protocols on the one hand, and further
perfection of the relevant Vietnamese criminal code as a whole on the other hand.

Chapter 1: OVERVIEW ABOUT THE CRIMES OF HUMAN

TRAFFICKING IN INTERNATIONAL CRIMINAL LAW
1.1. Human trafficking A criminal act

8
1.1.1. The real situation about human trafficking in the world
1.1.1.1. The worldwide situation of human trafficking in recent years
Nowadays, the real situation about human trafficking in the world, especially
women and children, has been growing rapidly and became increasingly difficult to
control. It has become a global issue when human trafficking market brings a huge
source of income for the traffickers. According to the United Nation Office on Drugs
and crime (UNODC), human trafficking is a market with estimate annual global
income about 30-40 billion US dollars and often related with well-organized groups
of criminal. It is said that human trafficking is a profitable market just after drug
dealing3. Because of the huge income, the traffickers seek for every way to trick and
lure the victims and later sell them. Human trafficking is not only violate to human
rights but also threaten the domestic economy and political security-social order.
There are 127 nations accommodating people for trafficking, Albania,
Belarus, Bulgaria, China, Lithuania, Nigeria, Republic of Moldova, Romania,
Russian Federation, Thailand, Ukraine have been identified as major trafficking
source countries. There are 137 countries on the world are the destination for human
trafficking, Belgium, Germany, Greece, Israel, Italy, Japan, Netherlands, Thailand,
Turkey, United States of America rank very high as an destination country in citation
index. And there are 105 countries that have been identified as transit countries for
person trafficked, majority Albania, Bulgaria, Hungary, Italy, Poland, Thailand.4
Human trafficking has been growing taking advantages of the globalization
process. According to Antonio Costa, the Director of UNODC, there are different
types of exploitation all over the world. In Europe, there may exist the sexual
exploitation where the victims (especially women and children) are exploited for
prostitution, while in other countries (especially Africa, South America, Asia)
children are forced to dive for oyster or pearls, some are physically tortured like
slave, women are forced to work in mines. Currently, the exact figures of victims on
worldwide human trafficking is unknown. However, it is estimated that 2,5 million
of people are victims of human trafficking. Most of them are women and female
children who are trafficked into commercial sexual exploitation, while men are
forced to work in risky working conditions or working for free. Those labors receive
very low wages which neither afford for their minimum living standards nor allow
them to going home. They, therefore, become imprisoned by their owners.
According to the International Labour Organization (ILO), the United
Nations agency charged with addressing labor standards, employment and social
protections, it is estimated that there are 12,3 million of people are victims of forced
3

Hoang Van Lai, Manager of government about human trafficking, Master thesis, Law faculty,
National University, Hanoi, 2006, p.15.
4
See note 1 above.

9
labour, debt bondage, or children sexual exploitation. Another source of data
provides an estimated of 4 27 millions of victims. Research conducted by a project
sponsored by the United State of America completed in 2006, found that an
estimated of 800,000 men, women, and children are trafficked across international
borders each year, not to mention the domestic trafficking5. Approximately 70
percent are women and girls and up to 50 percent are minors6. Most of the female
victims are trafficked into commercial sexual exploitation. This figure does not
include million of victims trafficked within their own national borders which is for
the purpose of forced labour or debt bondage. Traffickers often seek for children and
young female.
Nowadays, approximately 77% of the victims are female and 14% are
children and there is a small percentage of men 9%7. The main reason is for sexual
exploitation therefore, the victims are often women. Men are used as forced labour,
even not much, mainly in developing countries; therefore the victims are mainly
women and children.

Reported profile of victims of human trafficking at the global level

chidren
14%
men
9%

women
77%

Research conducted by the United Nation on drugs and criminal found that
the main purposes of traffickers are for sexual exploitation and labour exploitation,
mainly sexual exploitation; forced labour is not popular in many countries but sexual
exploitation has been growing and accounted for a significant part in the countries
where human trafficking exists. Currently, sexual exploitation accounted for 87%,
5

Miller, John R, Slave trade Combating Human Trafficking, 27 Harvard International Review
(2006) 70.
6
Traficking in Persons Report, US State Department June 2008, available at
www.state.gov/documents/oranization/105501.pdf.
7
See note 1 above.

10
labour exploitation accounted for 13%8; There are other exploitations exist, which
are for the purpose of removal of organs or illicit international adoption. However,
the figures are not clear and there have been no research conducted so far.

Reported profile of the purpose of human trafficking

at the global level
forced labour
13%

sexual exploitation
87%

Statistic by areas showed a highest percentage of human trafficking victim is in

Western European (37%), the next is Southeast Asia (22%), South America (19%)
and Africa (19%), the last is Oceania (see the three diagram below)9. This data
shows that most of the victims are from poor countries, looking for better life in
wealthier countries, therefore they are easier to be lured to be the victim of
traffickers.

8
9

See note 1 above

See note 1 above.

11
Reported nationality of offenders
(% of total sources reporting the profile of the offender)

Latin America
19%

Ocian
3%

Africa
19%

Southest Asia
22%

Western Europe
37%

Human trafficking has been growing rapidly and become more critical even
though governments have all tried to end human trafficking but still cannot
completely erase this criminal. The United Nation adopted a Protocol on anti-human
trafficking in 2003 which was signed by 117 countries. This Protocol made human
trafficking an international criminal. It describes the criminal acts of human
trafficking which helped to improve the awareness of trafficking.
1.1.1.2. The causes of human trafficking
Trafficking in human beings is a global issue that facilitated by many causes.
Most of the victims are easily lured by the false opportunities for better lives in
wealthier countries. Besides, wars, armed conflict, poor living standard, natural
disaster etc. and other causes that also expose people to human trafficking. There are
many causes of human trafficking but we can see four main causes: Political,
economic, social and cultural factors and the interplay between them all play a part.
Global trafficking in human beings may be seen as a response to the
demand for people for various forms of exploitation, a product of poverty relative
as well as absolute, and as a consequence of the subordinate position of women and
children in society and the lack of respect for and protection of human rights.
Clearly, people are also more vulnerable and exposed in extreme situations, e.g. in
the wake of natural disasters or armed conflicts, where their lives have been severely
disordered and social structures and support systems have collapsed. This applies

12
particularly to women and children and especially those who already belong to
marginalized groups.10
a. Economic causes
The victims of human traffickers mainly originate from the poor countries,
where the poverty and lack of employment opportunities are critical issues. They
accept the risk of even being the victim of human trafficking, in exchange for a better
opportunity to earn more income or to have a better life.
Aside from the poor countries that are major trafficking sources, human
trafficking also exists in developed countries where the entertainment industries such
as restaurant, discotheque, karaoke, massage have inevitably come along with the
development of the economic. This causes an increase in sex trade towards women
and children. In addition, human trafficking is also popular in countries where sex
trade is officially considered as an entertainment service. Another cause of human
trafficking is the removal of human organs whish is exist in some countries; or cheap
labour being used in plantations.
b. Socio-cultural causes
The oppression of women and children within patriarchal family and social
structures, in which women are subordinated to men, boys are preferred than girls
ect. that lead families to willingly pay for having a boy in the family even though it
involves human trafficking. In some poor countries, women seek for a chance to be
married to a wealthy man in order to escape a dead-end life. They easily agree to be
married to a foreign man even though they have no idea about him or the life that is
awaiting for them. Other factors such as poor social benefits, runaway child etc.
have also expose people to fall prey for human trafficking.
c. Legal and political causes
The lack of adequate legislation, properly functioning administrative
machinery and an effective judiciary are the most obvious causes of human
trafficking in this category. Many countries lack both relevant legislation and explicit
policies on human trafficking. Where these do exist, they are often not applied or
followed up. In some countries where human trafficking or similar activities are
criminal offences, sentences on conviction may be relatively lenient. Those
mentioned factors are the main obstacles for ending human trafficking.
1.1.2. The effects of human trafficking
To the victims

10

Poverty and Trafficking in Human Beings: A strategy for combating trafficking in human beings
through Swedish international development cooperation, published by the Swedish Ministry of
Foreign Affais, Department for Global Development, Stockholm 2003.

13
The basic human rights are taken away such as the right to life and liberty,
the right to health and dignity protection. They are under mental intimidation or
physical abuse, they are forced into sex slavery, hard labour, slavery-like treating,
being tortured or removal of the organs for selling. Under the control of the
traffickers, victims are restricted from communication to the community, their
movements are strictly monitored, even their personal documents. They are under
constant threats of physical abuse and deprivation.
The victims are often found difficult to re-integrate into the society if they are
lucky to be rescued. What they have experienced severely affect their mental health,
especially women, who found it difficult to escape from their memory defects,
inability to establish healthy relationships, not to mention they are being shunned by
the community which can make it harder for them to re-integrate themselves.
The victims of human trafficking also suffer from different diseases such as
AIDS, drugs addiction, physical exhaustion or disabilities, especially children who
are constantly in threatens could get depression, constant stomach pains and
breathing diseases.
Harms to the society
To the society: Human trafficking encourages the increase of other social
criminals such as prostitution which leads to the breakdown of social structures.
Women risking their lives in marrying foreigners hoping for an opportunity to
change their lives. Upon reaching their destinations, some women learn that they
have been deceived and find themselves in coercive or abusive situations from which
they are forced into prostitution or sexual slavery, being sold as domestic servant. In
addition, women are also being traded as brides for men through illegal agencies;
then suffering from the differences in culture, education and language lead to the
breakdown of family structures when the women run away leaving her kids and
family, which in turn create burden for the society. Most of these marriage are
facilitated through agencies, some women are deceived which ends up being treated
as servant, or being forced into prostitution by the husbands; some victims become
criminal by being imprisoned by the local government from prostitution; some being
sold across the border lines but being considered as illegal immigration or marriage.
Moreover, the woman is even sold for sexual slavery to several members of a family,
which, again, showing a breakdown of social ethics and family values.
To the political security: Trafficking criminals often connect with other
criminals such as corruptions, document forgery for human trafficking. The
traffickers also connect with government officers in order to transfer people across
the borders, or operate in illegal industries such as prostitution, illegal marriage
broker via services such as restaurant, karaoke, tourism etc. Those criminal activities
also encourage other criminal acts such as physical abuse, murder, rape, kidnapping,

14
labour exploitation etc The increasing of those criminals weakens political and
social security, and in the long run, results in serious effects to the society.
To the economy: Trafficking is a fairly lucrative industry from which the
economic benefit is only after drug dealing. Estimated annual global income from
human trafficking is about 9 billion US dollars11. This source of income will be
turned into legal income through money laundering. After that, the money will be
integrated into the criminal organizations following a close cycle. This put the
economic growth into danger. Human trafficking also take away a potential labour
source of a country, decrease economic productivity and leaving an excessive
unskilled labour force. Victims who are able to return to their communities often
find themselves stigmatized and ostracized, and difficult to re-integrate into the
society. Besides, a long time experiencing exploitation has damage their mental life
which make it difficult for them to work as normal people. This, therefore, would
requires a huge investment of a country in order to combat human trafficking, as well
as invest into social services in order to support victims in their re-integration into
society. For example, Vietnamese Government has invested significantly into antitrafficking, specifically, in 2005, 15 billion dongs was paid for anti-trafficking12.
1.2. Human trafficking crime in International criminal law
1.2.1. The legal concept of human trafficking crime in Protocol to prevent,
Suppress and Punish Trafficking in persons, Especially Women and Children
According to Article 3
For the purposes of this Protocol:
(a) Trafficking in persons shall mean the recruitment, transportation,
transfer, harboring or receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse of power
or of a position of vulnerability or of the giving or receiving of payments or benefits
to achieve the consent of a person having control over another person, for the
purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of
the prostitution of others or other forms of sexual exploitation, forced labour or
services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended
exploitation set forth in subparagraph (a) of this article shall be irrelevant where any
of the means set forth in subparagraph (a) have been used;

11

See note 3 above.

Department of Project and Investment (2005), Report of the result of implement The Program
against trafficking in women and children 2004-2010, H Ni.

12

15
(c) The recruitment, transportation, transfer, harboring or receipt of a child
for the purpose of exploitation shall be considered trafficking in persons even if
this does not involve any of the means set forth in subparagraph (a) of this article;
(d) Child shall mean any person under eighteen years of age.
Under the Protocol definition, the core elements of trafficking in persons are:
1. act of recruitment, transportation, transfer etc, 2. by means of the deception,
coercion, fraud or abuse of power etc and 3. for the purpose of exploitation. Clause
(b) of the definition clarifies that if any of the improper means set out in the
definition (coercion, fraud, deception, etc) have been used, then any alleged consent
is irrelevant and cannot be used as a defense by the defendant. Therefore, even if
there is evidence that the victim consented to migrate, carry false documents and
work illegally abroad, offenders cannot argue that the victim consented to the
trafficking if the victim was subjected to force, coercion, fraud, deception, etc about
the work and conditions she would be subjected to.
Clause (c) clarifies that children under 18 cannot give a valid consent, and
any recruitment, transportation, transfer, harboring or receipt of a child for the
purpose of exploitation constitutes trafficking, even if there is no force, coercion,
abduction, fraud, etc.
This definition of trafficking is not limited to women and children, but
recognizes that, while not as common, men can also be victims of trafficking. The
definition also recognizes trafficking for a variety of purposes and not just sexual
exploitation. It focuses on the conditions of forced labour, servitude, slavery-like
practices and slavery, or removal of organs.
However, the terms exploitation of prostitution of others and sexual
exploitation were left undefined in the protocol because, due to the variety of ways
in which countries view prostitution, they were unable to come to a common
agreement. The protocol therefore leaves it to the discretion of individual states to
define sexual exploitation as appropriate. A government may choose to limit its
interpretation of these terms to forced participation in the sex industry (prostitution,
sexual servitude or the production of pornographic materials), or rather to interpret
these terms to apply to any and all participation in the sex industry by a consenting
adult. However, pursuant to the Convention on the Rights of the child (CRC) and the
Optional Protocol to the CRC, the definition of sexual exploitation should clarify that
any involvement of persons under 18 in prostitution, sexual servitude or the
production of pornographic materials constitutes sexual exploitation, regardless of
consent.

16
1.2.2. The fundamentals characteristic of human trafficking in Protocol to
prevent, Suppress and Punish Trafficking in persons, Especially Women and
Children
1.2.2.1. Acts
Human trafficking violated the human rights which are adopted under the
Chapter of United Nations and the United Nation Convention on human rights.
According to the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
especially women and children, the acts of human trafficking can be identified as
follow:

Recruitment: This is the act to find people for human

trafficking. This is the stage when traffickers find ways to approach the
victims. In this period, the traffickers can use any ways to have victims
(threats, use of force, coercion, abduction, fraud, deception). This period
begins when the traffickers approach the victims and end when the victims
are transported to place of assembly before they were trafficked.

Transportation: The traffickers use different types of transport

to bring the victims from place of assembly to place of trafficking. This stage
is well prepared by the traffickers through different steps to bring the victims
from this place to another place, especially sending them overseas. The
traffickers will bring victims by all means of transports through any ways13.
By land: car (truck, van, lorry, container truck), train, by
foot.
By sea: ship, boat, vessel, motor boat,
By air: plane.

Transfer: transferring starts after the victims were brought to

place of trafficking. At that time, the victims will presumed to be goods to
exchange and trade. The traffickers will examine each of the victim and
transferring will be carried out after the bargain is reached. If the negotiation
is done before, then this stage is simply transferring and receiving between
seller and buyer.

Harboring or receiving: receiving is carried out after

transferring, at that time the victims will be harbored to prepare for the
purpose of exploitation.
1.2.2.2. Means
Traffickers often use different ways to lure or trick the victims. According to
the Protocol to Prevent, Suppress and Punish Trafficking in Persons, there are some
means which are recognized as below:
13

See note 3 above.

17
Deception: this is the most common way that are used by the
traffickers. The victims are often lured by their promises without
knowing that they are the victim of human trafficking. The traffickers
often give them promises about a better life, or new opportunities with
decent job and higher income through married, another new job or
opportunities for education. Some victims leave their poor countries
to a wealthier one with the hope of better life even with less skilled
jobs. Other become victims of forced labour or debt bondage on their
own countries. Women, eager for a better future, are susceptible to
promises of jobs abroad as babysitters, housekeepers, waitresses, or
modelsjobs that traffickers turn into the nightmare of forced
prostitution without exit. Some families give children to adults, often
relatives, who promise education and opportunitybut sell the
children into exploitative situations for money.
Threats, Use of force, Coercion: Those who threaten to use
force or other tricks to mentally intimidate other persons in order to force
the victims to do the traffickers require. If the victims do not agree, they
will be threatened to physical abuse, being locked up or legal abuse etc.
beaten, destroy the victims personal papers, or force them out to the
streets in a strange country. In this case, the victims are frightened by the
difference in languages in a foreign country The use of force, coercion
can be physically or mentally.
Abduction: Traffickers also use or threaten to use of physical
force in order to force the victims following them. In case threatening is
not forthcoming, they will use physical force to the victims such as beat
them or use physical abuse.
Etc. When Aakesh was five years old, he was playing with friends in
his village when some men drove into his village and asked the boys if they
wanted to see a video. The boys piled into the back of the vehicle and were
driven 200 miles away. They were locked in a room for days without food and
were beaten. The traffickers had abducted these vulnerable children so they
could be forced to weave carpets. The boys were held captive for nine years.
Two of Aakeshs friends didnt surviveone was shot while trying to escape
and the other died from an untreated illness. The boys were 14 years old
when they were rescued, barely able to speak. They were malnourished and
wounded, but finally free.14

14

Trafficking in Persons Report, US State Department June 2007, available at

www.state.gov/documents/oranization/82902.pdf..

18
Abuse of power: these acts above will not be performed unless
there is assistant from the authorities. Relying on abuse of power, the
authorities join hands with the traffickers, so there are many recruitments
employee company to be established, in fact they are only bogus
company. They will recruit people and then sell them for the purpose
sexual exploitation, forced labour In addition, unless there is assistant
of authorities in customs boundary, the traffickers can not bring the
victims through across the borders to sell them. When the victims are
exploited in the destination country, if the authorities of that country
perform a thorough double-check all of business corporation, maybe
many the victims will be identified and the traffickers will be discovered.
The irresponsibility of the authorities has empowered the traffickers and
encouraging corruption.
Abuse a position of vulnerability: Human traffickers prey on
the vulnerable. Their targets are often children and young women, and
their ploys are creative and ruthless, designed to trick, coerce, and win the
confidence of potential victims. The traffickers often give them promises
about a better life, or new opportunities through married, another new job
or opportunities for education to lure the victims and use the physical
force while the victims are unable to protest.
Besides, trafficking of children under 18 in any case is considered as
criminal regardless of with or without victims consent, with or without
force, coercion, abduction, fraud, etc. Because children cannot give any
valid consent, they are unable to know the effects of human trafficking.
1.2.2.3. Purposes

Sexual exploitation: sexual exploitation often includes sexual

abuse in prostitution. Sex trafficking would not exist without the demand for
commercial sex flourishing around the world15. Sexual exploitation are
identified in various ways:
Victims are transferred to brothels, restaurants, discotheques, karaoke houses
etc. to force into prostitution.
In countries where prostitution is
acknowledged, these victims are transferred to the red light areas where
they will be forced to have sex with as many as a dozen men a day.
Etc. Lila, a 19-year-old Romanian girl who had already endured
physical and sexual abuse from her alcoholic father, was introduced by an

15

McClean, David, Transnational Organized Crimes, A Commentary on UN Convention and its

protocol, Oxfoxd, 2007.

19
acquaintance to a man who offered her a job as a housekeeper/salesperson
in the U.K. When she arrived in the U.K., the man sold her to a pimp and Lila
was forced into prostitution. She was threatened that she would be sent home
in pieces if she did not follow every order. After an attempted escape, her
papers were confiscated and the beatings became more frequent and brutal.
Months later, after being re trafficked several times, Lila was freed in a
police raid. She was eventually repatriated back to Romania where, after two
months, she fled from a shelter where she had been staying. Her whereabouts
are unknown16.
Sex tour: This is a popular way of sex trafficking. They recruit and
exploit victims through tourism. Through the agency or brokers, the
criminals organize tours to countries where the victims are being lured and
kept for sexual exploitation. This is a safer way for the criminals since they
dont have to move the victims from one place to another, especially to
oversea, in the meantime, sexual exploitation is covered under a legal aspect
of tourism.
Escort service: this is the safest and the most effective way that is
being used by the trafficker. This is because the sexual exploitation is carried
out directly between them and the customer without going through any
intermediate tier. The victim will be called by them and delivered to the
customer on a pre-defined place.
In other situation, the victims are exploited at the private house where
they are sold to, locked up, beaten and being treated as sexual slavery. There
are cases where the victims are sold to a family and forced to be sexual
slavery for 4-5 men in a family. In this case, they are not only the victim of
sexual exploitation, but also the slave for labour exploitation.

Forced labour or services, slavery or practices similar to

slavery: may be defined as work performed under compulsion and subject to
a penalty. Victims of human trafficking (including men, women and children)
are frequently forced against their will to perform various kinds of work, in
households, construction sites, factories, small plants or in plantations. In
addition, children are also forced to be child soldiers, street beggars or
thieves. The victims are trafficked from one country to another like animals.
They are forced to work very hard without any protection of their safety or
their lives; in exchange, they are equipped with only 2 pairs of clothes, lack
of foods and poor accommodation. If the victims try to protest or run away,
they might be strangled or murdered.
16

See note 7 above.

20
According to a research, there are nowadays 30 million of such victims all
over the world. In various extent, slave workers exist in at least 50 countries
from Europe to America. Some countries can be named as Sudan,
Mauritania, China, Brasilia even though they have all signed the Chapter
United Nation on ending slavery works.
According to the Organization Human Rights Education Associates
(HREA) there are eight main forms of forced labor in the world today. It
refers to the ILO's definitions and the countries it cites as examples of where
the practices exist are:17
Type
Slavery

Farm and
rural debt
bondage

Bonded
labor

People
trafficking

Abuse of
domestic
17

Definition
A "physical abduction"
followed by forced labor.
Workers see all their wages go
to paying for transportation,
food and shelter because
they've been "locked into debt"
by unscrupulous job recruiters
and landowners - and they can't
leave because of force, threats
or the remote location of the
worksites.
Another form of debt bondage,
it often starts with the worker
agreeing to provide labor in
exchange for a loan, but
quickly develops into bondage
as the employer adds more and
more "debt" to the bargain.

Countries
Congo, Liberia, Mauritania, Sierra
Leone and Sudan

Benin, Bolivia, Brazil, Cote d'Ivoire,

Dominican Republic, Guatemala,
Haiti, Mexico, Paraguay, Peru, Togo

Bangladesh, India, Nepal, Pakistan,

Sri Lanka

Albania, Belarus, Bosnia and

Herzegovina, Brazil, China,
Individuals are forced or
Colombia, Cote d'Ivoire, Czech
tricked into going somewhere Republic, Dominican Republic,
by someone who will profit
Ecuador, France, Ghana, Haiti,
from selling them or forcing
Honduras, Hungary, Israel, Italy,
them to work against their will, Republic of Korea, Laos, Latvia,
most often in sexual trades.
Malaysia, Moldova, Myanmar, the
Many countries are both
Netherlands, Nepal, Nigeria,
"origins" and "destinations" for Philippines, Poland, Romania,
victims.
Russia, Thailand, Ukraine, United
Kingdom, USA, Vietnam,
Yugoslavia
Maids and other domestic
Benin, Cote d'Ivoire, France, Haiti,
servants are sold to their
the Middle East

Slavery and Forced Labor, available at www.hrea.org/index.php?base_id=160#top.

21
employers or bonded to them
by debts.
The contracting out of prison
labor or forcing of prisoners to
Prison labor
work for profit-making
enterprises.
People are required by law to
Compulsory work on public construction
projects such as roads and
work
bridges.
Civilians are forced to do work
Military
for government authorities or
labor
the military.
workers

Australia, Austria, China, Cote

d'Ivoire, France, Germany, New
Zealand, Madagascar, Malaysia,
USA
Cambodia, the Central African
Republic, Kenya, Burma (also
known as Myanmar), Sierra Leone,
Swaziland, Tanzania, Vietnam
Burma (also known as Myanmar)

Etc. Abu Chol Alea, a 20 years old Sudan woman, remembered

during an interview posted by the Kommersant I was kidnapped when I
was 12 years old. The soldiers killed my father and all the men in our village,
then burned our houses. After that they gathered all of us and transferred us
to Hartum. There was a man here who paid for all of us. We had to work
from early morning to the evening without any wages. They gave us foods
and we slept outdoor. They carved our names on our faces so we would not
be able to escape. However, there was a boy who tried to escape. As a result
he was castrated for purnishment.18
According to a British organization, based in Sudan, to protect the
rights of the victims were enthralling, only in Mauritania and Ghana has
about 1 million due slavery of this, all of them are black people. In fact, the
Sudan government recognize the forms of slavery workers and most of the
Arab families are trying to "raise" at least 2 slaves, for one simple reason: it is
extremely easy to buy a slave with a very low cost of 15-20USD for one
slave. We can see that the victims of the traffickers once being exploited are
no different than slave whose lives are extremely hard. There was a shocking
incident in China when they discovered an abduction case for labour
exploitation. The victims were kidnapped by different ways, then transferred
to a brickyard to work like slaves.
In Tao Sinh village, Hong Dong province ( Lam Phan city, Son Tay,
China), the migrant workers worked for Vuong Vu Vus brickyard who is the
son of a Government officer named Vuong Dong Ky. All of the 31 workers
to the rescue by police from a brickyard has experienced 18 months spread to
18

Modern Slavery, available at

www. nhipcauthegioi.hu/modules.php?name=News&file=save&sid=351.

22
live in hell. They were forced to worked from 5am to 1am of the following
day. Their bodies full of wounds, burns from carrying the hot bricks without
protective clothing, their feet got burned from walking on the hot floor.
When being rescued, their bodies were reeking and thick with black
smokes.19
In addition, the Chinese government also discover other cases of
labour exploitation in brickyards, among the victims there was Tieu Hac who
is a student. He was tricked to work in a brickyard in Van Thanh (Son Tay)
in the year 2000. Luckily, he was able to escape 8 months later together with
other 6 workers. Hac remembered someone approached him to ask for
information when he was 100m near his house. This person then gave him a
bottle of water to thank him. After drinking the water, Hac was unconscious
and could not remember anything. When awoke, he was on the truck
together with 3 or 4 people who were crying. Few days later, he was
transferred to a brickyard in Luc Mau village (Van Thanh). Once arrived, he
was slashed and forced to work. One of the worker one day tried to hide
himself in the toilet to get some more sleep were found by the foreman and he
was beaten to death.20

Servitude or the removal of organs: when the needs of

organs transplant increase, it brings about source of gigantic income for the
traffickers so the traffickers will use any ruse to kidnap, fraud, coercion
victims in order to remove their organs for selling. This is the most inhuman
act since the victims will be killed by the trafficker to remove their organs
such as heart, kidney, liver, lung even the brain. Even if the victims still
alive, they will not enable to last for long due to the exhaustion from one of
their organs have been removed.
As with trafficking for other exploitative purposes, victims come from most
vulnerable groups (for instance, those who are suffering from extreme
poverty). Traffickers are often part of transnational organized crime
networks. In addition to the traffickers, several other actors can be identified
committing this type of crime, such as organ brokers, doctors and other
health-care practitioners, ambulance drivers and mortuary workers.
Furthermore, issues of consent and exploitation related to organ removal are
19

Modern Slavery, available at www.vietbao.vn/The-gioi/Nhung-no-le-thoi-hien-dai/40205097/159/

China judged modern slavery case, available at www.
tintuc.timnhanh.com/quoc_te/chau_a/20070622/35A61194/

20

23
complicated by the fact that often victims will consent to the removal of their
organs, and or will receive a payment for them. However, as it is common in
situations of trafficking in persons for any exploitative purpose, the provision
of the service is driven by extreme poverty21.
1.2.2.4. Sanction relating to human trafficking
The trafficking Protocol obliges state parties to establish trafficking in human
beings as a criminal offence, but does not provide guidelines for the severity of the
sanction to be imposed. Article 5 of the Trafficking Protocol requires State parties to
adopt legislative and other measures as may be necessary to criminalize the conduct
set forth in Article 3 of the Protocol, when committed intentionally. In addition, the
Protocol requires also State parties to adopt legislative and other measures to
criminalize attempting to commit trafficking, participating as an accomplice in
trafficking and organizing or directing other persons to commit a trafficking offence.
Article 5
Criminalization
1. Each State Party shall adopt such legislative and other measures as may
be necessary to establish as criminal offences the conduct set forth in article 3 of this
Protocol, when committed intentionally.
2. Each State Party shall also adopt such legislative and other measures as
may be necessary to establish as criminal offences:
(a) Subject to the basic concepts of its legal system, attempting to commit an
offence established in accordance with paragraph 1 of this article;
(b) Participating as an accomplice in an offence established in accordance
with paragraph 1 of this article; and
(c) Organizing or directing other persons to commit an offence established in
accordance with paragraph 1 of this article.22
Article 11 of the Trafficking Protocol states that State parties shell consider
taking measures to deny entry or to revoke the visas of persons implicated in the
commission of trafficking.
Article 11
Border measures

21

Aide Memoire from the workshop trafficking in persons for removal of organs and body parts
organized by the Vienna forum to fight human trafficking, Vienna, 13-15 February 2008. Available at:
www.unigift.org/docs/ungift/pdf/vf/aidmemoirs/transnational%20organised%20crime.pdf.
22
Protocol to prevent, suppress and punish trafficking in persons, especially women and children,
supplementing the United Nations convention against transnational organized crime.

24
1. Without prejudice to international commitments in relation to the free
movement of people, States Parties shall strengthen, to the extent possible, such
border controls as may be necessary to prevent and detect trafficking in persons.
1.2.3. The differences between human trafficking and smuggling of
migrants
The protocol against the smuggling of migrants by land, sea and air,
supplementing the United Nations Convention against transnational organized
Crime, there is clarification between trafficking in persons and smuggling of
migrants. According to the Protocol, the Smuggling of migrants is defined as: The
procurement, in order to obtain, directly, a finance or other material benefit, of the
illegal entry of a person into a State Party of which the person is not national or a
permanent resident. Illegal entry shall mean crossing borders without complying
with the necessary requirements for legal entry into receiving State.
While there are similar components within the crime of trafficking in persons
and smuggling of migrants, the two are distinguished by three essential factors23:
a.
Consent: the smuggling of migrants, while often undertaken
in dangerous or degrading conditions, involves migrants who have consented
to the smuggling. Trafficking victims, on the other hand, have either never
consented or, they initially consented, that consented, that consent has been
rendered meaningless by the coercive, deceptive or abusive actions of the
traffickers.
b.
Exploitation: Smuggling ends with the migrants arrival at
their destination, whereas trafficking involves the ongoing exploitation of the
victims in some manners to generate illicit profits for the traffickers. From a
practical standpoint, victims of trafficking also tend to affected more severely
and in greater need of protection from re victimization and other forms of
abuse than are smuggled migrants.
c.
Transnational: Finally, smuggling is always transnational,
whereas trafficking may not be. Trafficking can occur regardless of whether
victims are taken to another country or moved from one place to another
within the same country.

23

See note 1 above.

25
Chapter 2: THE CRIMES OF HUMAN TRAFFICKING IN
SWEDISH AND VIETNAMESE CRIMINAL LAW SOME
PETITION FOR IMPROVING VIETNAMESE CRIMINAL LAW
2.1. Human trafficking crime in Swedish criminal law
2.1.1. The real situation about human trafficking in recent years in Sweden
According to assessment of the migration organization international, every
year, there are about 200.000 people are trafficked to Europe. Most of them are
women and girls to serve for sexual exploitation. Europe is the region has the highest
traffickers rate in the world. Europe comprises of two major sub-regions: Western
Europe and Central and South Eastern Europe (CEE).
Central and South Eastern Europe (CEE) is frequently reported as an origin
sub-region. Four countries rank very high in the citation index as origin countries in
the global comparison such as: Albania, Bulgaria, Lithuania and Romania. Among
countries ranked high are the Czech Republic, Estonia, Hungary, Latvia, Poland and
Slovakia. Trafficked victims from countries in Central and South Eastern Europe are
reported to be trafficked mainly to Western Europe. Germany, Italy, the Netherlands,
Greece, the United Kingdom, Belgium, Austria, France and Spain are all frequently
reported to be destination countries for victims from the CEE sub-region. Poland,
Bosnia and Herzegovina and the Czech Republic are countries within the region that
are reported to be destinations for those trafficked from countries in Central and
South Eastern Europe. A small number of sources refer to victims from this subregion being exploited in Western Asia and Turkey (Turkey and Israel) and North
America. In addition, Central and South Eastern Europe as a destination sub-region.
Four countries within Central and South Eastern Europe are ranked high in the
citation index as a destination. These are, in alphabetical order, Bosnia and
Herzegovina, Czech Republic, Kosovo (Serbia and Montenegro) and Poland. The
majority of sources report that victims are trafficked into Central and South Eastern
Europe from the Commonwealth of Independent States. Ukraine, Moldova, the
Russian Federation and Belarus are the most frequently reported as origin countries
for victims trafficked into the CEE region. In the region, Romania, Bulgaria,
Lithuania and Latvia are also frequently indicated as origin countries for people
trafficked into Central and South Eastern Europe. Only a very few sources mention
victims from Asia and Africa as having been trafficked into countries within Central
and South Eastern Europe. In South Eastern Europe, much human trafficking is by

26
organized criminal groups, which is in contrast to regions such as South-East Asia
where trafficking is often informal and managed through personal connections24.
The majority of the trafficking victims in the in the sub-region indicate
women. Minors are also frequently reported to be victims of trafficking are children
and men and representing an important portion of the total number of sources
reporting human trafficking in Central and South Eastern Europe. 25
Reported profile of victims, Central and South Eastern Europe
children
15%
men
6%

women
79%

Sexual exploitation is reported as the main cause of the reported trafficking in

persons in the sub-region, indicating sexual exploitation as the purpose of the human
trafficking activity.26

24

Traffickers and trafficking in Southern and Eastern Europe, available at

http://euc.sagepub.com/cgi/content/abstract/5/1/39
25
See note 1 above.
26
See note 1 above.

27
Reported purpose of trafficking, Central and South Eastern

forced labour
12%

sexual exploitation
88%

These are Western Europe, that serves predominantly as a sub-region of

destination, and Western Europe comprises of 19 countries. Among these, five
countries are ranked very high as destination countries in the citation index. They
are, in alphabetical order, Belgium, Germany, Greece, Italy and the Netherlands.
Among Western European countries ranked high are Austria, Denmark, France,
Spain, Switzerland and the United Kingdom. The majority of the sources collected of
reported cases of trafficking of women, minor are children, at least are men. 27
Reported profile of victims, Western Europe

children
18%

men
11%

women
71%

27

See note 1 above.

28
Trafficking in persons occurring for the purposes of sexual exploitation is
mostly reported in the sub-region, whereas the reporting of trafficking for forced
labour occurs less frequently.28
Reported purpose of trafficking, Western Europe
(total number of sources =80)
forced labour
16%

sexual exploitation
84%

Sweden is a development country in Northern European, although the rate of

trafficking in persons in here is not as high as countries in European, Swedish
government can not prevent absolutely trafficking in persons. Sweden is a
destination and transit country for women from Nigeria, Estonia, Russia, Poland,
Romania, Hungary, Serbia, Montenegro, Macedonia, Venezuela, and Thailand
trafficked to Sweden or through Sweden to Norway, Denmark, Germany, Spain, and
the United Kingdom for the purpose of commercial sexual exploitation. Sweden is a
transit country for children trafficked from China to countries in Western Europe. In
2005 there were 348 cases in the Swedish National Criminal Intelligence Sys-tem
classified as trafficking in human beings/procuring and 462 cases classified as sex
crime/procuring or a total of 810 cases. 209 and 190 of the mentioned cases, or a
total of 399 cases, were reported to the Trafficking Team at the National Criminal
Police. Some of the cases that have not been reported have very likely been assessed
by local authority as being of a local nature and not relevant to the National Criminal
Police. In 2006, police noted a new trend of children from Romania and Poland
trafficked to Sweden for purposes of forced begging and petty theft and in this year,
police conducted 28 trafficking investigations, a decrease from 44 in 2005.
Authorities prosecuted and convicted 21 traffickers using the anti-trafficking law and
procurement statute, up from 15 prosecutions and convictions in 2005. All 21
28

See note 1 above.

29
traffickers were sentenced to time in prison, with no suspended sentences. Sentences
imposed on traffickers ranged from 10 months to 5 years imprisonment. In 2006, the
government conducted its first-ever trafficking in persons training for judges29.
In 2007, police noted an increase in women and children under the age of 15
trafficked from Romania and Bulgaria for the purposes of forced begging and petty
theft. Authorities also observed a renewed influx of unaccompanied Chinese
children, 23 of whom disappeared from Swedish asylum centers in June 2007;
authorities believe these children were eventually trafficked to the United Kingdom
for forced labor. Boys and young men from the United Kingdom were trafficked to
Sweden for the purpose of forced labor; these victims were forced to work on
construction sites, lay asphalt, do yard work, and perform other odd jobs30.
According to the National Criminal Investigation Department (NCID),
between 400 and 600 women who are victims of trafficking in human beings for
purposes of sexual exploitation arrive in Sweden every year31. Most of them come
from the Baltic countries, Eastern Europe or Russia. Traffickers often recruit women
with phony offers of employment as waitresses, dancers or domestic workers. When
the women or girls arrive at the country of destination, the pimps usually take their
passports and papers. They are frequently sexually abused and raped by the
traffickers as a way of initiation and then prostituted in brothels and sex clubs
where they are isolated from the rest of the community. They are guarded by pimps
who often pocket most of their earnings and whose control over them stranded as
they are in a strange country, unable to speak the language and without a permit to
stay is virtually absolute. Traffickers and pimps also deliver women to Swedish
border towns and villages where local men buy and sexually exploit them before they
are sent back to their countries of origin.
A total of 34 people, mostly from Vietnam, went on trial in southern Sweden
on Tuesday accused of trafficking people from Vietnam to Sweden, judicial sources
said. The suspects are accused of having set up a human trafficking ring, fraud
and entering fake marriages, Jan Waren, a judge at the Halmstad district court told
AFP. Of the 34, 15 are Vietnamese citizens, 18 are Swedes of Vietnamese origin and
one is a Swede. The police investigation, which lasted almost three years, unravelled
a vast trafficking ring, the head of the policy inquiry, Marianne Paulsson, said. She
said the smuggling continued for several years, although the investigation only
covered the period 2003 to 2007. Several individuals were paid to travel to Vietnam,
marry Vietnamese citizens and then bring them into Sweden, with the partners
29

See note 10 above.

See note 7 above.
31
Prostitution and trafficking in human beings, available at
http://www.sweden.gov.se/content/1/c6/01/87/74/6bc6c972.pdf
30

30
paying a large fee to be brought into the Scandinavian country. Others also brought
over children they claimed were their own but who were in fact children whose
parents had paid large sums of money for them to be brought to Sweden in search of
a better life. Once in the country, the Vietnamese were entirely dependent on their
smugglers, to whom they or their parents owed significant amounts of money. We
have examples of people who worked in restaurants where the conditions more or
less resembled slave labour, Paulsson said. Young people had to quit school to
help their parents repay their debt. The accused allegedly earned more than 10
million kronor (1.07 million euros, 1.62 million dollars) from the alleged racket and
now risk between six months and six years in prison, Paulsson said32.
The Swedish government tries to effort to combat and prevent trafficking in
person in Sweden, so it helps for decrease the crime of human trafficking rate yearly.
According to report of United State government, Sweden always is among the group
number 1 many years. This is a group include countries combat effectively with
trafficking in persons and their government satisfy all of conditions about protect
trafficking victims. In 2006, the Swedish government financed 2 billion dollars for
protection trafficking victim in South Eastern Europe. Now, Sweden continue
finance money for legislative and improve knowledge of judge and prosecutor in
combating trafficking in person. The Swedish government believe that they can
prevent and against effectively with trafficking in person in Sweden and other
countries.
2.1.2. The concept of human trafficking crimes in Swedish criminal law
Chapter 4 Section 1 a (Trafficking in human beings) of the Penal Code
(2004:406)
According to the Swedish Penal Code was adopted in 1962 and entered into
force on 1 January 1965, and takes account of amendments to the Penal Code up to 1
May 1999. Swedish criminal law was not any rule about the crime of trafficking in
human beings. It only had a section for kidnapping in Chapter 4, section 1:
A person who seizes and carries off or confines a child or some other person
with intent to injure him or her in body or health or to force him or her into service,
or to practice extortion, shall be sentenced for kidnapping to imprisonment for a
fixed period of at least four and at most ten years, or for life. If the crime is of a less
serious nature, imprisonment for at most six years shall be imposed. (Law
1998:393)

32

See a report on a Swedish Court case, posted on March 5, 2008 by tinquehuong

http://afp.google.com/article/ALeqM5h9hQLeuQl6NouTmnBn6tBHyVjjtQ

31
When Sweden joint TOC and its protocol, Trafficking protocol in 2004,
Sweden establishes the first definition of trafficking in persons in Swedish Penal
Code in Chapter 4, section 1a in Swedish Penal Code amended in 2004. This section
is intended to prevent and combat trafficking crime and it also highlights the problem
associated with trafficking in persons that often leads to inhuman, degrading and
dangerous exploitation of trafficked persons. As is the case with the TOC
Convention and Trafficking protocol, this section is expected to standardize
terminology, laws in Swedish Criminal law. The key definition trafficking in
persons in section 1a, chapter 4 Swedish Penal Code amended 2004, is intended to
include a range of cases where human beings are exploited by organized criminal
groups particularly where there is an element of duress involved and a transnational
aspect, such as the movement of people across borders. According to the definition,
the consent of the victim is irrelevant where illicit means are established:
A person who otherwise than as stated in Section 1, by unlawful coercion or
misleading, with exploitation of someones exposed situation or with other similar
undue means recruits, transports, accommodates, receives or takes other similar
measure and by this assumes control over this person for the purpose that this
person will be
1. Subjected to crime under Chapter 6, Sections 1, 2, 3, 4, 5 or 6, be
exploited for casual sexual relations or otherwise be exploited for sexual
purposes,
2. Exploited for active service or forced labour or other similar restraint,
3. Exploited for removal of organs, or
4. Otherwise exploited in a distressful situation, shall be sentenced for
trafficking in human beings to imprisonment for at least two and at most ten years.
The same applies to a person, who for such purpose that is referred to in the
first Section,
(1) transfers control to another person, or
(2) from another person receives control of a person.
A person who commits an act referred to in first the Section against a person
who has not attained the age of 18 shall be sentenced for trafficking in human beings
even if such undue means referred to have been used.
If crime referred to in the first- third Sections is of a less serious nature,
imprisonment for at most four years shall be imposed.
Trafficking in human beings is by definition a crime against a person and is
dealt with under Chapter 4 of the Penal Code relating to crime against liberty and
peace. The crime of trafficking in human beings differs from procuring by focusing
on the act against the liberty of the victim rather than an intended exploitation.

32
In this section, the acts of Trafficking crime are: recruits, transports,
accommodates, receives, by means of the coercion, misleading,, and for the
purpose of exploitation: be exploited for sexual purposes, forced labour or other
similar restraint, removal of organs, or otherwise exploited in a distressful situation.
Taking control over a person by undue means for the purpose of exploiting
this person is punishable. Casual connection must exist between the undue means
and the taking of control. The control should involve an obvious disadvantageous
position of the victim and an obvious influence by the perpetrator as to the actions of
the victim. Control is the prerequisite that is crucial for classifying an act as
trafficking in human beings or not. It is also punishable to transfer or receive control
over a person for the purpose of exploiting a person for sexual purposes, forced
labour, active service, donation of organs or for another purpose in a situation that is
a distressful concerning the person in question.
Sweden has a comprehension definition of trafficking in human beings and it
containing many similar points in comparison with the definition in the Trafficking
protocol, particularly in the defining concrete acts, manners and purposes of
trafficking. With respect to children, the term children shall mean persons have been
less than 18 years of age. This is similar point between Swedish law and Protocol.
Although under Swedish Criminal law, the term children shall mean persons under
15 years old, this is special rule in Swedish Penal Code. It helps to take part in
ensuring that all actors involved in the process are prosecuted, provision must be
made for the criminalization.
We can see that the section 1a, chapter 4 in Swedish Penal Code 2004
includes relatively comprehensive provisions on the trafficking crime and it meets
full mandatory requirements with respect to penalization of the conduct set forth in
Article 3 of the Trafficking Protocol and requirements respect to the penalization of
those who aid, abet, or instigate any crime under the Swedish Penal Code. Swedish
Penal Code studied criminalization of activities related to trafficking and propose
suitable amendments and supplements to the criminal law and take part in
implementation of United Nations Convention TOC and Trafficking protocol.
2.1.3. The characteristics of human trafficking crime in Swedish criminal
law
2.1.3.1. Acts

Recruitment: This is the act to find people of human

trafficking. In this period, the traffickers use any ways to have victims
(threats, use of force, coercion, abduction, fraud, deception). This period
begins when the traffickers get in touch with the victims and end when the
victims were moved to place of assembly before they were trafficked.

33

Transportation: This is the period, the traffickers will use any

transport to brings the victims from place of assembly to place of trafficking.
This period was prepared very carefully by the traffickers through different
steps to brings the victims from this place to that place, especially sending
them overseas. The traffickers will bring victims by any transports through
any ways.
The criminal act consists of making someone go to or be transported
to another country. Here the following persons are included: pimps, agents
and recruiters that for instance entice their victims by advertisements about
work in Sweden as well as organizers and persons in charge 12 of the
transports and that take care of the logistics with respect to the travel of the
victims, tickets and passports.

Transfer: transfer will do after the victims were brought to

place of trafficking. At that time, the victims will presumed to be goods to
exchange and trade. The traffickers will examine each the victim and transfer
will performed after the bargain they reached.

Harboring or receipt of a person: receipt will do after transfer,

at that time the victims will be harbored to prepare for the purpose of
exploitation.
2.1.2.2. Means

Coercion: Those who threaten to use force or other tricks to

spiritually intimidate other persons in order to force the victims to do the
traffickers require. If the victims do not agree, they will be used force, etc.
beat, detention or dispossess the victims personal papers So, the victims
will be frightened and do according to the traffickers request.

Misleading: including fraud, deception, very often these ruses

involve promises of a better life through employment, educational
opportunities, or marriage. Women, eager for a better future, are susceptible
to promises of jobs abroad as babysitters, housekeepers, waitresses, or
modelsjobs that traffickers turn into the nightmare of forced prostitution
without exit. Some families give children to adults, often relatives, who
promise education and opportunitybut sell the children into exploitative
situations for money. But poverty alone does not explain this tragedy, which
is driven by fraudulent recruiters, employers, and corrupt officials who seek
to reap unlawful profits from others desperation.

Other unlawful measures: including abuse of power, abuse a

position of vulnerability

34
2.1.2.3. Purpose
Sexual exploitation:
Some of the women that have been sent to Sweden for the purpose of
prostitution in the brothels, restaurants, hotels or they can be exploited
sexual in trafficking buyer home. The pimps communicate with
whoremonger by internet or phone to avoid detection of Swedish police.
After whoremonger order by internet and phone, the pimps will pick up the
prostitute to hotel. So it is difficult for police detect and arrest.33
Some of the women that have been sent to Sweden for the purpose of
prostitution have been subjected to robbery and rape etc. In March 2006 a
man was sentenced to six years imprisonment by the Stockholm City Court
for robbery and rape. In this case the police believe that there can have been
as many as about 30 victims.

Forced labour or services, slavery or practices similar to

slavery: Victims of human trafficking are frequently forced against their will
to perform various kinds of work, in households or in agriculture, where their
rights and movement are circumscribed. Most instances of forced labor occur
as unscrupulous employers take advantage of gaps in law enforcement to
exploit vulnerable workers. These workers are made more vulnerable to
forced labor practices because of unemployment, poverty, crime,
discrimination, corruption, political conflict, and cultural acceptance of the
practice. Immigrants are particularly vulnerable, but individuals are also
forced labor in their own countries. Female victims of forced or bonded labor,
especially women and girls in domestic servitude, are often sexually
exploited as well. Forced labor is a form of human trafficking that can be
harder to identify and estimate than sex trafficking. It may not involve the
same criminal networks profiting from transnational sex trafficking, but may
instead involve individuals who subject anywhere from one to hundreds of
workers to involuntary servitude, perhaps through forced or coerced
household work or work at a factory.
According to a report from the International Organization for
Migration from the year of 2005 a significant increase of the number of
children that have been forced to beg, sell their bodies, work within farming
and building has been observed. In 2005 information has been received by the
National Criminal Police according to which trafficking in children for the
purpose of begging and committing crimes also exists in Sweden34.

33
34

Report of Swedish National police, 2006.

See note 33 above.

35

Trafficking in organs or in another way exploiting a

person in a distressful situation: when the needs of organs transplant
increase, it brings about source of gigantic income for the traffickers so the
traffickers will use any ruse to kidnapping, fraud, coercion victims to
remove of their organs. This is the best inhuman act because normally, the
victims will be killed by the trafficker, and then they will remove of the
victims organs, etc. Heart, kidney, liver, lung even if the victims brain.
Unless the victims die, they cannot have a long life and their heath will be
exhausted when they were be lost their organs.
2.1.3.4. Penalty
The range of punishment lays down between two and ten years
imprisonment, at less serious crimes a maximum of four years imprisonment. The
fact that a minimum of two years imprisonment is laid down signifies that it is
possible to use telephone interception in the surveillance work, something that makes
the work of the police easier.
2.2. The crimes of Human trafficking in Vietnamese criminal law
2.2.1. The real situation about human trafficking in recent years in Viet
Nam
Asia is a highest region about trafficking in persons in the world, specially in
Southeast Asia. Asia is as a destination region and origin region too. In Asia, there
are two countries are as highest origin countries: China and Thailand, and lower are
Cambodia, India, Laos, Nepal, Vietnam35
These are fours countries are ranked very high as destination countries in the
world. They are Israel, Turkey, Japan, Thailand. There are four countries ranked high
are China, Cambodia, India, India, Arap Saudi.36
The greater number of the sources reporting trafficking in persons cases in
Asia refer to victims as being women. Minors, categorized separately as children and
men are also frequently reported as victims of trafficking.37

35

See note 1 above.

See note 1 above
37
See note 1 above.
36

36
Reported profile of victims, Asia

men
16%

children
24%

women
60%

The majority of sources reporting human trafficking cases in Asia refer to

victims trafficked for the purpose of sexual exploitation, while 20% of these sources
report trafficking for forced labour.38
Reported purpose of trafficking, Asia

forced labour
20%

sexual exploitation
80%

Vietnam is a source and destination country for men, women, and children
trafficked for the purposes of sexual exploitation and forced labor39. Vietnamese
38

See note 1 above.

37
women and girls are trafficked to Cambodia, the Peoples Republic of China
(P.R.C.), Thailand, Hong Kong, Macau, Malaysia, Taiwan, the United Kingdom, and
the Czech Republic for commercial sexual exploitation. Traffickers sometimes
disguise victims as tourists or workers under a labor export program and traffic them
to Hong Kong, Taiwan, or Malaysia, or recruit girls through job service centers and
then sell them to gangs based in the P.R.C. and Malaysia or use Internet chat rooms
to lure prospective victims. There continued to be credible reports that some
Vietnamese women married through international brokers have been trafficked or
abused. The number of fraudulent marriages to Taiwan nationals has decreased, due
to more stringed immigration regulations by the Taiwanese authorities, while the
number of South Korea-destined brides has more than doubled in the last five years.
Vietnamese women and girls are lured with promises of employment and trafficked
into sexual exploitation, forced labor, and forced marriage in the P.R.C. There were
some reported cases of Vietnamese children trafficked to the United Kingdom to
work in the drug trade. There are reports of Vietnamese women and men trafficked
to Malaysia, Taiwan, Thailand, Saudi Arabia, and the Middle East for forced and
bonded labor as domestics, factory workers, or in the construction industry. Some of
Vietnams licensed and unlicensed export migrant labor recruiting agencies have
contributed to trafficking, in some cases charging clients upward of $7,000 for the
opportunity to work abroad, and leading some men and women into debt bondage
and abusive labor situations abroad.
According to report of Vietnamese general Department of police, Ministry of
Public Security, from 2005 to now, the Vietnamese police detected 900 cases and
1600 offenders who trafficking in 2200 women and children. In 2006, increase 70%
cases and 90% offenders, in 2007, increase 9,1% cases and 10.5% offenders. Within
6 months of the beginning of 2008, the Vietnamese police detected 190 cases and
390 offenders who trafficking in 430 women and children. Now, in Vietnam, there is
not only trafficking in women and children but also trafficking in men.
Vietnam is a destination country for trafficked Cambodian children who are
taken to urban centers for forced labor or sexual exploitation. There is also
significant internal trafficking of women and children from rural areas to urban
centers and of street children for forced labor and sexual exploitation40.In 2007, an
Australian NGO uncovered 80 cases of commercial sexual exploitation of children
by foreign tourists in the Sapa tourist area of Vietnam alone.
Police say they've broken up Vietnam's largest network responsible for
trafficking women out of country. A Taiwanese man and five Vietnamese have been
jailed for up to 12 years for trafficking more than 100 Vietnamese women to
39
40

See note 1 above.

See note 10 above.

38
Malaysia - where a new law designed to combat the trade has recently come into
effect. The women believed they were to wed Malaysian men, but many were tricked
into working as sex slaves. Tran Thi My Phuong and her Taiwanese husband Tsai
Hsien are now behind bars after being found guilty by the Ho Chi Minh City People's
Court for trafficking women. They were the ringleaders of an operation responsible
for trafficking 126 women to Malaysia between April 2005 and March 2006. Andrew
Bruce, the Chief of Mission for the International Organization for Migration, deals
in the human cost of people trafficking. He tells the story of a Vietnamese woman
who found her self in a position similar to the women sold by Tran Thi My Phuong
and her accomplices to Malaysian men for a mere $US150041.
2.2.2. The concept of human trafficking crimes in Vietnamese criminal law
In Vietnamese criminal law, until now, there is not any legal documents point
out the definition about human trafficking. Vietnamese criminal law only point out
the definition about trafficking in women and children but it is not provide a clear
explanation. Trafficking in men is not committed crime defined by Vietnamese Penal
Code. Although the term trafficking in women and children is often used in the
legal documents, Vietnam has no official and comprehensive definition of
Trafficking/trading in women and children. Regarding these terms, some are not
fully explained, the others are not explained concretely and comprehensively. From
the criminal perspective, Article 119 and 120 of the Vietnamese Penal Code 1999
created the crimes of trafficking in women and trading in children. However,
these two Articles do not give any definition or explanation of these terms. To date,
there is only one legal document providing an interpretation of trading in children,
that is the Resolution No.04/HDTP by Judicial Council of Supreme Peoples Court
of 29/11/1986 on guidelines for applying a number of provisions of the Penal Code.
According to this resolution, trading in children shall mean the buying or selling a
child for personal profit, even buying a child from the stealer or the parents. The act
of buying a child knowing the child is stolen shall be also regarded as crime of
trading in children. From this interpretation, we could explain the term
trading/trafficking in women in a similar way. Hence, trafficking/trading in
women and children shall be understood as a transfer of a woman or child from one
person or group of people to another person or group of people for money or other
material profits.
In Vietnam the notion of trafficking in persons does not include conveying,
passing, concealing and receiving acts. The Vietnam law considers conveying,
passing, concealing and receiving person acts are supporting and abetting the
trafficking in persons. So, generally speaking, persons carrying out these acts can be
41

"Police break women trafficking ring in Vietnam, available at http:// www.radioaustralia.net.au/31

July 2007.

39
punished in accordance with provisions on these concrete violations. In cases where
there is proof that violators committed acts of conveying, passing, concealing and
receiving persons for the purpose of trafficking then they can be punished for being
an accessory to trafficking.
In addition, defining the age at which a person remains a child depends on
the legal, historical, cultural traditions and economic social conditions in each
country. According to Vietnam law, a child is a person under 16 ages, so that persons
from 16 to below the age of 18 are not considered as children, but they are not adult.
2.2.3. Human trafficking crimes in Vietnamese criminal law
2.2.3.1. Trafficking in women (article 119)
Article 119 - Trafficking in women
1. Those who traffic in women shall be sentenced to between two and seven
years of imprisonment.
2. Committing the crime in one of the following circumstances, the offenders
shall be sentenced to between five and twenty years of imprisonment:
a) Trading in women for the purpose of prostitution;
b) In an organized manner;
c) Being of professional characters;
d) For the purpose of sending them overseas;
e) Trafficking in more than one person;
f) Trafficking more than once.
3. The offenders may also be subject to a fine of between five million and
fifty million dong, to probation or residence ban for one to five years42
a. Objective: trafficking in women violated human right, especially freedom
right, human life, health, dignity and honor of women.
The victims are women aged full 16 or older.
b. Objective perspective
Trafficking in women shall be understood as a transfer of a woman from one
person or group of people for money or other material.
c. Perpetrator: Persons aged full 14 or older shall have to bear penal liability
for the women trafficking crimes they commit.
d. Subjective perspective
The offenders are aware that their acts about Trafficking in women are
dangerous to society, foresee the consequences of such acts and wish such
consequences to occur.
e. Penalty:

42

Vietnamese Penal code 1999.

40
The range of punishment lays down between two and twenty years of
imprisonment. Besides this, the traffickers may also be subject to a fine of between
five million and fifty million dong, to probation or residence ban for one to five
years.
2.2.3.2. Trafficking in children (article 120)
Article 120 - Trading in, fraudulently exchanging or appropriating
children.
1. Those who trade in, fraudulently exchange or appropriate children in
any form shall be sentenced to between three and ten years of imprisonment.
2. Committing such crimes in one of the following circumstances, the
offenders shall be sentenced to between ten and twenty years of imprisonment or life
imprisonment:
a) In an organized manner;
b) Being of professional character;
c) For despicable motivation;
d) Trading in, fraudulently exchanging or appropriating more than one
child;
e) For the purpose of sending them abroad;
f) For use for inhumane purposes;
g) For use for prostitution purposes;
h) Dangerous recidivism;
i) Causing serious consequences.
3. The offenders may also be subject to a fine of between five million and
fifty million dong, a ban from holding certain posts, practicing certain occupations
or doing certain jobs for one to five years or subject to probation for one to five
years.43
a. Objective: Trafficking in children violated children right, especially
freedom right, human life, health, their growing up.
The victims are children aged under 16 according to the Law on Protection,
Care and Education of children.
b. Objective perspective
According to the Resolution No.04/HDTP by Judicial Council of Supreme
Peoples Court of 29/11/1986 on guidelines for applying a number of provisions of
the Penal Code. Trading in children includes:
- The buying or selling a child for personal profit, even buying a child from the
stealer or the parents.

43

See note 29 above.

41
The act of buying a child knowing the child is stolen shall be also regarded as
crime of trading in children
c. Perpetrator: Persons aged full 14 or older shall have to bear penal liability
for the women trafficking crimes they commit.
-

d. Subjective perspective
The offenders are aware that their acts about Trafficking in children are
dangerous to society, foresee the consequences of such acts and wish such
consequences to occur.
e. Penalty:
The range of punishment lays down between three and twenty years of
imprisonment or life imprisonment. Besides this, the traffickers also be subject to a
fine of between five million and fifty million dong, a ban from holding certain posts,
practicing certain occupations or doing certain jobs for one to five years or subject to
probation for one to five years.
2.2.4. The differences between trafficking in women and children and
Organizing and/or coercing other persons to flee abroad or to stay abroad illegally
(Article 275)
In Vietnamese criminal law, the general term of smuggling of illegal
migrants is not used, instead we make it in details as an act of organizing and/or
coercing persons to flee abroad or to stay abroad illegally as provided in Article 275
of the Penal Code. There is also not yet an interpretation of this term, it may be
because the term organizing and/or coercing persons to flee abroad or to stay abroad
illegally seems quite clear about content and character of this crime.
There are two different points between trafficking in women and children and
Organizing and/or coercing other persons to flee abroad or to stay abroad illegally
(Article 275):
Firstly, toward to Organizing and/or coercing other persons to flee abroad or
to stay abroad illegally (article 275), the traffickers income illicit profits from the
migrants. By the contrast, towards to trafficking/trading in women and children
(article 119, 120), the traffickers income illicit from the migrants from the
exploitation of the victims.
Secondly, Organizing and/or coercing other persons to flee abroad or to stay
abroad illegally (article 275), the migrants have consented to the smuggling.
Trafficking/trading in women and children (article 119, 120), on other hand, have
either never consented or, they initially consented, that consent has been rendered
meaningless.

42
2.3. Comparison between the Criminal Law of Vietnam and
the Criminal Law of Swedish regarding crimes on human
trafficking.
2.3.1. The similarity
Although Vietnam does not have a comprehensive definition of trafficking
in women and children, according to a number of detailed provisions and general
understanding of law implementation, we can see that the term of trafficking in
women and children in Vietnamese law containing many similar points in
comparison with the definition in the Swedish penal code, such as: both of them
acknowledge trafficking in women and children are crimes, and trafficking victims,
on the other hand, have either never consented or, they initially consented.
2.3.2. The differences
However, the notion of the trafficking in Vietnam also has some different
point to the Swedish penal code 2004 definition, particularly in the definition
concrete acts of trafficking.
2.3.2.1. About the concept of human trafficking
Under Article 1a, Chapter 4 of the Swedish Penal Code, the term
trafficking meets full mandatory requirements in Article 3 of the Trafficking
Protocol about criminalization of acts concern the trafficking crime under the
Swedish Penal Code, the defining of trafficking in person include conveying,
harboring and receiving acts. Contrary to Trafficking crime in Swedish penal code,
Vietnamese penal code does not meet full mandatory requirements in Article 3 of the
Trafficking Protocol, it is only the buying or selling a women or a child for personal
profit, the defining of trafficking in person does not include conveying, passing,
concealing and receiving acts. These acts, depends on the specific situation, are
supporting and abetting the trafficking in persons. In summary, under the Swedish
Penal Code, human trafficking includes all the relevant acts in the trafficking
process. The Vietnamese criminal law, however, considers the other processes as
supporting and abetting and they are not part of human trafficking. Even though they
are also considered as criminal act, they are not clearly stipulated in the law, but only
under the circumstance where these acts directly involve in buying and selling
women and children. In order to effectively implement TOC and The Trafficking
Protocol, it is necessary to continue research in to the defining of trafficking in
persons in Vietnamese criminal law thanks to experiences of Swedish criminal law.
2.3.2.2. About the victims
According to the Swedish Penal Code, the victims of human trafficking
include men, women and children. Besides, the term children shall mean person
under 18 years old. However, the victims of human trafficking under Vietnamese

43
criminal law are only women and children. Children under the Vietnamese Law
on Protection, care and education of children shall mean person under 16 years old.
The Vietnamese criminal law does not consider buying and selling men as criminal
act. This difference is explained due to the Swedish Penal Code has been changed in
order to be in compliance with the Trafficking Protocol. In fact, there is rare case of
human trafficking in Sweden, even men. However, in order to be effective in antitrafficking, there have been a lot of changes in the Swedish Penal Code with regard
to this specific criminal. With regards to the Vietnamese Criminal Law, there has
been not so much case of men trafficking being identified before, only rare cases of
women and children trafficking which have been identified lately. Therefore, during
the establishment of the Criminal Law in the year 1999, only women and children
trafficking are considered as criminal acts.
With regard to the child victims of human trafficking, the Swedish Penal code
considered as the person under 18 years old, even though according to their legal
system, children are defined as person under 15 years old. However, with the only
specific case of human trafficking, the term children is considered as person under
18 years old. This is for the purpose of being compliance with The Trafficking
Protocol.
According to the Vietnamese Criminal Law, children victim is person who is
under 16 years old. If the victim is female and above 16 years old, the criminal act
will be considered under women trafficking (article 119 Vietnamese Criminal Law
1999). If, however, the victim is male and above 16 years old, he will not be
protected under the Vietnamese Criminal Law. This is due to according to the legal
system of Vietnam (the Vietnamese Law on Protection, care and education of
children) children are defined as person under 16 years old without any exception.
We can see that under the Vietnamese Criminal Law, only the criminal acts
that actually happened are criminalized. Therefore, during the establishment of the
criminal law on human trafficking, only women and children trafficking are
criminalized. Before joining TOC and The Trafficking Protocol, the Swedish Penal
Code was also incomplete with regard to human trafficking. The significant changes
were made only after joining TOC and The Trafficking Protocol in the Swedish
Penal Code for better compliance, even though this kind of criminal rarely happens
in Sweden, even men trafficking.
2.3.2.3. About the crime acts
Under the Swedish Penal Code, human trafficking is stipulated as the acts
involve in recruitment, transportation, providing people for the purpose of
exploitation. The Vietnamese Criminal Law only defines human trafficking as the
transferring of women or children from a person/group of person to another for
money or other personal benefits, meaning selling or buying women or children for

44
personal profit. The conveying, passing, concealing and receiving person acts are
considered as supporting and abetting the trafficking in persons.
According to the International Agency of Drugs and Crime, Sweden is a
transit and destination country for human trafficking. It is not a source for human
trafficking since it is a wealthy country where the people are not easily to be lured to
another country and being the victim of human trafficking. However, the article 1a,
Chapter 1 of the Swedish Penal Code 2004 also stipulates that the acts of
recruitment, transportation or providing people for trafficking are considered as
criminal acts. This complies to the requirement on criminalization of human
trafficking acts to the State parties of the Trafficking Protocol; even though, the acts
do not actually happen in that country.
The Vietnamese Criminal Law, however, considers trafficking as buying and
selling women or children for personal profit. The transportation, harboring and
receiving people are considered as supporting and abetting which are not even
clearly stipulated under the article 119 and 120 of Vietnamese Criminal Law
1999. Also according to the International Agency of Drugs and Crime, Vietnam is
not a source country that provides people for human trafficking but also a transit and
destination country for human trafficking. Therefore, it can be seen that the Criminal
Law of Vietnam is incomplete in the way it stipulate and criminalize this kind of
crime that are actually happening in Vietnam. This can lead to weakness in the
prosecution and punishment of this criminal act.
2.3.2.4. About the crime purposes
While the Swedish Penal Code 2004 states purpose exploitation as one
fundamental factors constituted the trafficking, including: sexual exploitation, forced
labour, removal of organs, According to Vietnamese Penal Code 1999, the
motivation and purpose of traffickers such as exploitation or removal of organs are
not stipulated. This means that the buying or selling of women or children under any
purpose is enough to constitute the crime of trafficking in women and children. The
sexual exploitation under Vietnamese Criminal Law is only considered as a
contributing factor of human trafficking.
Research on the human trafficking in Sweden shows that the purpose for
human trafficking in Sweden is mainly for sexual exploitation, only rare cases for
labour exploitation or children who are forced into beggars or thief. There is no case
on removal of organs happen in Sweden. However, law on human trafficking still
fully stipulates the purposes of this crime including sexual exploitation, forced
labour, removal of organs etc. This fully complies with the Trafficking Protocol and
contributes effectively in the combat of human trafficking. It ensures the
effectiveness in prosecution of this crime in Sweden.

45
In Vietnam, human trafficking is not only for the purpose of sexual
exploitation, but also forced labour such as people are trafficked to China for forced
labour or to remove their organs such as heart, liver, kidney etc. , or children in
Cambodia are trafficked to Vietnam and are forced into beggars However, the
Vietnamese Criminal Law (article 119, 120) on Human trafficking only stipulate
trafficking of women or children for sexual exploitation, or children trafficking for
adoption. It does not stipulate cases where trafficking for forced labour or removal
of organs even though such cases happen already in Vietnam. In summary, the
Vietnamese Criminal Law is incomplete for this kind of crime.
In order for Vietnam to join the TOC and Trafficking Protocol, it is essential
that changes to be implemented on Vietnamese criminal law on human trafficking.
2.3.2.5. Penalty
In Swedish criminal law, the penalty for Human Trafficking is to be
imprisoned for at least two years or ten years at the highest. If crime referred of a
less serious nature, imprisonment for four years shall be imposed. The Swedish
Penal Code does not stipulate supplementary penalty with regard to human
trafficking
In Vietnamese criminal law, trafficking in women shall be sentenced to
between three to twenty years of imprisonment or life sentence. Besides, there are
also other supplementary penalties such as fine or being put under surveillance. Such
difference between the Swedish Penal Code and the Vietnamese Criminal Law can
be explained due to differences in the legal system of the two countries. The legal
system of Sweden does not stipulate supplementary penalties. The highest imprison
penalty can be imposed on one criminal act is 10 years or life sentence and there is
no death sentence. This causes the difference in criminalization of human trafficking
in the criminal law between Vietnam and Sweden. However, according to The
Trafficking Protocol, it is essential that the human trafficking is criminalized; after
that it is up to the domestic legal system to stipulate the detailed acts. The Protocol
also requires this kind of criminal to be seriously punished, which are fully complied
by the criminal law of both Vietnam and Sweden thanks to the high penalties being
applied for this kind of crime (10 years for the Swedish Penal Code and 20 years or
life sentence for the Vietnamese Criminal Law). Even though they are differently
stipulated, but they are the highest penalties being applied in accordance to the legal
system of each country.

2.4. Proposing some motions for improving Vietnamese

criminal law

46
Perfection Vietnamese Criminal law to ratify of the TOC and Trafficking
Protocol, Vietnam should be considered to certain amendments in Vietnamese
Criminal law, such as:
2.4.1. Proposing a motion for improving trafficking in women (art 119)
Now, Vietnamese Criminal law has no official definition of trafficking in
women, although Vietnamese Criminal law created the crimes of trafficking in
women in Article 119 of the Vietnamese Penal Code 1999. It is difficult to the
Vietnamese authorities give exactly judgments when Vietnamese Penal Code and
legal documents do not providing an interpretation of trafficking in women. So
Vietnamese criminal law should have a definition of trafficking in women, it help
for judgment and consistently with the TOC and Trafficking protocol.
Moreover, Vietnamese Criminal law just use the term trafficking in women
and it is understood under narrow angle that trafficking in women shall mean
buying or selling for personal profit. The trafficking in women act does not include
conveying, passing, concealing and receiving acts. The Vietnamese Criminal law
considers conveying, passing, concealing and receiving person acts are supporting
and abetting the trafficking in women. According to the Trafficking Protocol,
trafficking in persons directly encompasses all those who are in the trafficking
chain, including recruitment, harboring, transferring of the victim, it is not only
selling or buying person. So thank to experience of Sweden when they amended
Swedish Penal Code, they had a big change, a new article about trafficking in person
was amended into Swedish Penal Code. This is a good and timely amendment
because the crime of human trafficking in Swedish Penal code consist with TOC and
Trafficking Protocol. It help for Sweden can prevent and suppress effectively
trafficking in person in Sweden. Vietnamese criminal law should have a unified
definition of Trafficking in women consist with the TOC and the trafficking
protocol.
The crime of Trafficking in Women only give circumstances aggravating
the penal liability, etc. Trading in women for the purpose of prostitution, in an
organized manner, but in fact, the crime of trafficking in women for many other
purposes, etc. forced labour or removal organs. If Vietnamese Criminal law have not
specific rule about these purposes in the article 119 trafficking in women, it is not
guarantee equal judgment when trafficking in women for forced labor and removal
organs as dangerous as exploitation sexual or organized manner because if
trafficking in women for forced labour or removal organs, the penalty for traffickers
is very slightly, they shall be sentenced to between two and seven years of
imprisonment according to section 1, article 119. So Vietnamese Criminal law has a
mistake about reasoning and reality too. On the one hand, trafficking in women for
forced labour and removal organs happened in Vietnam. On the other hand, this rule

47
of Vietnamese Criminal law is not consist with TOC and Trafficking protocol. When
researching the crime of human trafficking in article 1a, chapter 4, Swedish penal
code 2004, we known that it include all form of exploitation of trafficking: forced
sexual, forced labour and removal organs although in Sweden has not yet any report
about trafficking in person for forced labour and removal organs. However, for
consistent with TOC and Trafficking protocol, Sweden still introduced trafficking in
person for forced labour and removal organs into Swedish Penal Code 2004. This is a
big amendment, it helps to ensure all acts for any purpose relate trafficking in person
will be judged if it occurs. So Vietnam also consider should be given to including
offences relating to forced labour and removal organs with penalties that
appropriately reflect the gravity of this crime in a trafficking in women. It will help
Vietnam can join TOC and Trafficking Protocol as soon as possible.
There is a wide gap between frame of penalty in section 2, article 110 (from 5
years imprisonments to 20 imprisonments), it will make the judgment to be arbitrary.
Whereas, according to article 1a, chapter 4, Swedish Penal Code 2004, Trafficking in
persons to imprisonment for at least two and at most ten years, the gap between
frame of penalty is suitable, the judgment will be guaranteed when the gap between
frame of penalty is not very wide. Vietnam should be considered to divide the frame
of penalty into groups to help for judgment consists with the crime act if it happens.
Beside this, now in Vietnam happen trafficking in fetus, there are many
pregnant women are trafficked to China and forced give birth, if the baby is a boy,
the traffickers will keep him or the baby is a girl, her mother will be chased back to
Vietnam44. This is a very dangerous crime but Vietnam has no law to effect. So
Vietnam should be consider trafficking in pregnant women is circumstances
aggravating the penal liability in trafficking in women (article 119).
2.4.2. Proposing a motion for improving trading in children (art 120)
For consistency with the international law and Protocols, the term of
trafficking in children should be generally used instead of term trading in
children embraces buying or selling children and following acts, executed by any
means and for any purpose: conveying, passing, concealing children for selling
purpose.
Consideration should be given to including offences relating to force, the
removal of organs because they happened. It is not only trading in children for
exploitation or offer an orphan for adoption.

44

Vietnam has a trafficking in organs, available at http://vietnamnet.vn/xahoi/2008/08/801015/

48
2.4.3. Proposing a motion for improving for amend the crime of
trafficking in person
In order to implement the TOC and Trafficking Protocol and thank to
experiences of Sweden, it is necessary to continue research to supplement a new
article about trafficking in person into Vietnamese penal code 1999. The
Vietnamese Criminal law should improve notion trafficking in women and trading
in children in the direction of notion trafficking in person into Vietnamese penal
Code 1999. It has significance for both reasoning and reality:
Firstly, it is recommended that the Penal Code be amended to provide a
comprehensive definition of trafficking in persons in accordance with the definition
provided in the Protocol. The definition should be broad enough to cover all forms of
trafficking, including the following elements:
- Acts: recruitment, transportation, transfer, harboring or receipt of person.
- Means: threats, use of force, coercion, abduction, fraud, deception, or abuse
of power or a position of vulnerability.
- Purpose: sexual exploitation, forced labour, or services, slavery, slavery-like
practices or servitude and the removal of organs.
Secondly, it is necessary to acknowledge that the victims of trafficking in
persons are not only women and children but also men. In fact, there have been
reported case of trafficking in men in Vietnam, they should be provided equal
protection. Therefore, trafficking in men should be considered crime in Vietnamese
criminal law.
In a report of Police in Vietnam point out Now, in fact there are many cases
about fraud, trafficking in men to China. They must work in brick-klins, stone-pit or
hard work, harmful work. Recently, Quang Ninh provinces Police had received a
letter of denunciation of Nguyen Van Hoa, a man, 22 years old, live in Hai Duong
province, he denounced a person in Quang Ninh who cheated him and sold him to
China. Then, he escaped to come back Vietnam.45 Trafficking in men brings about
bad effect for society, it is not only violate morals and other law but also violate
criminal law. So it is very necessary to amend trafficking in men into Vietnamese
Penal code.
Thirdly, according to TOC and Trafficking protocol, the term children
shall mean persons under 18 years old. In Swedish Penal Code, about the crime
trafficking in persons, the term children shall mean persons under 18 years old too.
Although in Swedish law the term children shall mean persons under 15 years old.
This is an exception rule in Swedish Criminal law to effectively TOC and
Trafficking protocol. Under Vietnamese law (the law on protection, care and
45

See note 30 above.

49
education of children, the term children shall mean persons under 16 years old. So
toward to trafficking in children (article 120 Vietnamese Penal Cod 1999), the
victims are children who under 16 years old. However, because of particular of
Vietnamese law, the definition of children of children as persons under 16 years old
stipulated in the Law on Protection, Care and Education of children is not amended,
a provision on the crime of trafficking in minors (persons from 16 to 18 years old)
should be supplemented to the Penal Code in order to criminalize the trafficking in
such cases.

CONCLUSION
Trafficking in persons, including both male and female adults and children,
especially for sexual purposes has been a common practice in many society
throughout history. However, in recent decades the trafficking in women and
children is one component of a larger phenomenon of trafficking in persons,
assuming different forms and motives. Ethical, moral, political, economic, health and
business factors are compounded and trafficking has been more organized. Every
region of the globe is affected by it, whether as a source of demand or supply.

50
Because of the serious and inhuman nature of trafficking in persons,
especially in women and children, the international community has throughout
history created a set of international law, regulations, and guidelines to prevent and
combat against traffickers. There are also numerous efforts have been made. The
most significant global response to date, however, is embedded in the United Nations
Convention against Transnational Organized Crime. The convention is the first
legally binding UN instrument in the field of crime. It includes two protocols, which
focus on measures to combat the smuggling of migrants and measures to combat
human trafficking. One of them the protocol to Prevent, Suppress and Punish
Trafficking in Persons, especially women and children, supplementing the United
Nations Convention against Transnational Organized Crime is the most significant
advance in terms of international political and legal instruments on the topic and a
milestone in the struggle to eliminate the trade in human beings.
Summarily, the Trafficking Protocol and TOC Convention are important
international legal instruments containing comprehensive provision on combating
and cooperation for the purpose of prevention and suppression of transnational
organized crimes in the world, including trafficking in persons, women and children
cross international borders. These two instrument are a great contribution to the
process of codification of and progressive development of international criminal law
in general and the legal provision on combating trafficking in persons in particular.
In our view, the participation, by means of ratification and effective implementation,
in the Protocol and the TOC Convention would be an important step for Vietnam to
integrate into the international community and promote cooperation with other
countries to combat more effectively crimes, especially transnational organized
crimes, including trafficking in persons, especially women and children.
Overall, Vietnamese Law and policies are consistent with the provisions of
the TOC Convention and the Trafficking Protocol. However, a detailed comparison
between the two reveals some gaps in the Vietnamese legislative framework, and
some areas that could benefit from greater force and clarity in order to make the
Vietnamese legal framework fully respond to the requirements of such international
instruments. It is only necessary to ensure the implementation of the duties of a State
Party, but also very important to strengthen the capacity of the Nation in effectively
preventing and combating against such social evils, namely the trafficking in human
beings, especially in women and children.
This thesis has clearly shown that, only suppression and strict punishment of
the traffickers is not enough in order to effectively prevent and combat against such
social evils. Moreover, there is a need for a comprehensive system of legal
instruments as well as social, economic measures and common efforts of society to
prevent the potential for and eliminate the root causes of the transnational nature of

51
trafficking, the prosecution of traffickers cannot take place solely at the national
level, but requires multilateral cooperation among relevant national law enforcement
authorities. Therefore, there is a greater need of harmonizing between relevant
domestic laws and other regional and international legal basis to create conditions for
regional and international cooperation in this matter.
Thus, in addition to ratification of the TOC Convention and its Protocols, it is
recommended that consideration should be given to certain amendments in
Vietnamese penal code and the Swedish Criminal Code is a good model of such
issue on human trafficking legislation to be researched, such as harmonizing the legal
definition of trafficking with the definition in the Protocol, particular children.
Swedish legislators have struggled to introduce human trafficking in the criminal law
which shall cover all forms of trafficking, in consistency to the Protocol and they are
effective measures to combat and prevent from human trafficking. This is a good
model for Vietnam study, however, Vietnam must be consider some conditions
appropriate economic and social of Vietnam. Vietnam is as an origin country but
Sweden is as an destination country, so we only should study the way of amendment
Swedish penal code ratification in human trafficking of the TOC Convention and its
Protocols. Those recommendations in this thesis should be understood as a packed
for both purposes: ratification of the TOC and its Protocols on the one hand, and
further perfection of the relevant Vietnamese criminal code as a whole on the other
hand.

Table of Statutes and other Legal Instruments

International Treaties and Conventions

The Convention against Transnational organized Crime signed 2000, available
at:www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/conventio
n_eng.pdf

52
Protocol to prevent, suppress and punish trafficking in persons, especially women
and children, supplementing the United Nations Convention against Transnational
Organized Crime, available at:
www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_
%20traff_eng.pdf
Protocol against the smuggling of migrants by land, sea and air, supplementing the
United Nations Convention against Transnational Organized Crime, available at:
www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_
smug_eng.pdf

National Legislations
Sweden
Swedish Penal Code (Law 1998:393)
Swedish Penal Code (Law 2004:406)
Vietnam
Vietnamese Penal Code (1999) of the Socialist Republic of Vietnam
Resolution No.04/HDTP by Judicial Council of Supreme Peoples Court of
29/11/1986 on guidelines for applying a number of provisions of the Penal Code

Bibliography

Official Reports and other Documents

Report of the result of implement The Program against trafficking in women and
children 2004-2010, published by The Vietnamese Department of Project and
Investment ,H Ni 2005
Poverty and Trafficking in Human Beings: A strategy for combating trafficking in
human beings through Swedish international development cooperation, published
by the Swedish Ministry of Foreign Affais, Department for Global Development,
Stockholm 2003.
Trafficking in human beings, published by The Swedish National police, 2006.
Trafficking in Persons Report, US State Department June 2007, available at
www.state.gov/documents/oranization/82902.pdf
Traficking in Persons Report, US State Department June 2008, available at
www.state.gov/documents/oranization/105501.pdf
United Nations Office on Drugs and Crime (UNODC) Trafficking in Persons:
Global Patterns, available at www.unodc.org/documents/human-trafficking/HTglobalpatterns-en.pdf

Monographs
Aide Memoire from the workshop trafficking in persons for removal of organs and
body parts organized by the Vienna forum to fight human trafficking, Vienna, 1315 February 2008. Available at:
www.unigift.org/docs/ungift/pdf/vf/aidmemoirs/transnational%20organised%20cri
me.pdf
McClean, David, Transnational Organized Crimes, A Commentary on UN
Convention and its protocol, Oxfoxd, 2007.
Hoang Van Lai, Manager of government about human trafficking, Master thesis,
Law faculty, National University, Hanoi, 2006, p.15.

54
Articles in Journals, Anthologies etc.
China judged modern slavery case, available at
www.tintuc.timnhanh.com/quoc_te/chau_a/20070622/35A61194/
Miller, John R, Slave trade Combating Human Trafficking, 27 Harvard
International Review (2006) 70.
Modern Slavery, available at
www.nhipcauthegioi.hu/modules.php?name=News&file=save&sid=351
Modern Slavery, available at www.vietbao.vn/The-gioi/Nhung-no-le-thoi-hiendai/40205097/159/
Police break women trafficking ring in Vietnam, available at
www.radioaustralia.net.au/31 July 2007.
Potts, LeRoy G. Jr, Global Trafficking in human beings: Assessing the success of
the United Nations protocol to prevent trafficking in person, 35 George
Washington International Law Review (2003) 227.
Prostitution and trafficking in human beings, available at
www.sweden.gov.se/content/1/c6/01/87/74/6bc6c972.pdf
See a report on a Swedish Court case, posted on March 5, 2008 by tinquehuong
www.afp.google.com/article/ALeqM5h9hQLeuQl6NouTmnBn6tBHyVjjtQ
Slavery and Forced Labor, available at
http://www.hrea.org/index.php?base_id=160#top.
Traffickers and trafficking in Southern and Eastern Europe, available at
http://euc.sagepub.com/cgi/content/abstract/5/1/39
Vietnam has a trafficking in organs, available at
www.vietnamnet.vn/xahoi/2008/08/801015/