Human Rights Crisis at Shin-Ahn Salt Pan and the Need to Legislate a Special Law for Addressing Human Trafficking

In early 2014, the so-called ‘Slavery at Shin-Ahn Salt Pan’ was discovered. However, none of the actors complicit in the case was charged with the crime of human trafficking, despite the 2013 amendments to the Korean Criminal Code addressing human trafficking.  The amendments in 2013 had been proposed to implement he United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons(the Palermo Protocol), in response to pressure from the international community to ratify the protocol (as of July 10th, 2014, the Korean government has submitted the ratification consent bill of the protocol to the Legislative and Judiciary Committee at the National Assembly, which passed the bill in May 29th 2015). According to the protocol, individuals involved in the Shin-Ahn case could be prosecuted for the crime of human trafficking. However, under the Korean criminal law, it is not possible to even charge the perpetrators with the crime, since the 2013 amendments are not in accordance with the standards of the protocol. The Palermo Protocol defines human trafficking not as exploitation itself, but as the transportation of people with the purpose to exploit. This definition derives from a political understanding that since, historically, the act of trafficking people has made exploitation persistent, the illegality of moving people with the purpose of exploitation must also be deemed seriously. To establish a similar degree of illegality for the act of moving people and the act of exploitation, there must be a purpose of exploitation and unlawful method of transport. Thus, the Palermo Protocol defines human trafficking as " the recruitment, transportation, transfer, harboring or receipt of persons,” by unlawful means, for the purpose of exploitation.  However, if one takes too narrow a perspective of ‘unlawful means,’ acts that qualify as human trafficking become too few. The Palermo Protocol, therefore, deems a method ‘unlawful’ if it can be concluded that the victim was under involuntary situation. Furthermore, even if there was consent from the victim, if a method that is prescribed as illegal by the Palermo Protocol had been used, the victim is still assumed to have been under involuntary situation; moreover, if the victim is a child, the Palermo Protocol sees an act as human trafficking as long as there is an purpose to exploit, regardless of the method used. As for the amended Criminal Code in Korea, there is an addition of a clause that derives from changing the name of a related chapter from ‘Crime of Kidnapping and Luring’ to ‘Crime of Kidnapping, Luring and Human Trafficking’. However, there is no detailed definition of human trafficking aside from a simple regulation that “individuals who trade humans shall be prosecuted.” Since the fundamental principle of Criminal Code – the principle of legality, or nullum crimensine lege nulla poena sine lege – prevents extending the meaning of a Criminal Code clause beyond reasonable expectation of the accused, the phrase “individuals who trade humans shall be prosecuted” also cannot be interpreted beyond the dictionary definition of ‘trade’ (to buy and sell). Similar problems lie with kidnapping. While the expansion of the scope of ‘purposes of kidnapping’ to include “exploitive labor practices, prostitution, sexual exploitation, and organ harvesting” is commendable, the narrow reading of the definition of kidnapping persists. It is also problematic that, unlike the Palermo Protocol, in the Korean Criminal Code, there is no such clauses that deem the act as human trafficking regardless of method when the child is victim nor that even if there was consent from the victim, if illegal methods was used, the consent has no effect on judging whether the crime is human trafficking. Examples of countries that have ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons show that some states have human trafficking clauses in the Criminal Code and others in special laws. But most of the signatories have their laws designed for implementing the protocol defining human trafficking according to the protocol’s broad definition. Therefore, to deal with human trafficking cases like the one at Shin-Ahn Salt Pan and to have a functioning law that can implement the Palermo Protocol, Korea needs to have legislation in compliance with the protocol, in both the way it addresses and defines human trafficking. Different forms of legislation can be considered, but the most desirable is a special law that combines regulations for both prosecution and protection. First, a special law can effectively reflect the protocol’s inclusive definition of human trafficking. Secondly, prosecution of the human trafficker, prevention of human trafficking, and protection of the victim of human trafficking should together be systematically regulated in order to properly respond to human trafficking as suggested by the Palermo Protocol. If a special law that includes all aspects of prosecution, protection, and prevention is to be legislated, there may be disagreement on which ministry should be in charge. The Ministry of Labor and the Ministry of Gender Equality may be a candidate, but to prosecute human traffickers, prevent human trafficking, and protect victims of human trafficking, the Ministry of Justice is arguably the most appropriate since it typically serves as investigator and prosecutor of suspects. Furthermore, protecting victims of human trafficking is not dissimilar to protecting victims of other crimes, the Ministry is relevant here as well. Moreover, as examples of the United States and Australia demonstrate, recognized victims of human trafficking receive services that are provided to refugees; therefore, Ministry of Justice, which is in charge of not only determining refugee status but also protecting asylum seekers, would be able to determine and protect victims of human trafficking. Lastly, consistency in related policies is very important, considering that preventing human trafficking ultimately means finding and fixing the structure and legislations that make individuals vulnerable to exploitation. Since Ministry of Justice has several years of experience in creating and inspecting the practices of the National Action Plan, it would not be difficult for the Ministry to improve the consistency in related laws and institutions related to prevention of human trafficking.

Please find full text in the attached file in English aa well as Korean.

Shin Ahan Case and Human Trafficking 복사본.pdf


The article was prepared by Jong Chul Kim, a program director in APIL, translated by Ji Won Chun, a student in University of Toronto/APIL volunteer, and proofread by Hyun-Soo Lim, a student in Yale Law School/APIL intern in 2014 summer. 

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Posted by 공익법센터 어필 APIL

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