Article 4 deals with the scope of application and article 5 with the criminalisation.
4. The Protocol shall apply, except as otherwise stated herein, to the prevention,
investigation, and prosecution of the offences as established in accordance with article 5 of this
Protocol, where those offences are transnational in nature and involve an organised criminal group,
as well as to the protection of victims of such offences.
The application of article 4 establishes who can be prosecuted and what is the scope of the crime.
The crime should be transnational and should involve an organised criminal group10.
However, article 4 should be read together with article 5, defining the scope of criminalisation.
5.1 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.
Although article 4 covers only offences that are transnational in nature and involve an organised
criminal group, article 5 does not include these two links. Thus national law can criminalise trafficking
regardless of whether the conditions of transnationality and involvement of criminal organisations are met. In interpreting the Protocol States can ask for international assistance and co-operation from
other State Parties with reference to the Protocol only in cases that involve transnational elements and
organised crime groups. However, States may commit themselves to a broader scope of criminalisation
and also include crimes committed by a single perpetrator within the borders of that nation.
Additionally, article 5 requires State Parties to criminalise also:
• attempting to commit a trafficking offence
• the participation as an accomplice in such an offence, and
• the organisation or directing of other persons to commit such an offence
The legal provisions of article 5 are mandatory. The subparagraph defining attempt caused some
discussion during negotiations. Different penal systems have diverging views on attempt. The
interpretative notes thus highlight that “attempting to commit an offence” can in some countries be
understood as acts perpetrated in preparation for an offence, and also those acts carried out in an
unsuccessful attempt to commit the offence, when those acts are punishable under domestic law. It is
also important to recognise that “participating as an accomplice” ideally should not cover the victims of
trafficking.
The first part of the Protocol clearly outlines that trafficking can and should be considered as a
separate offence in criminal provisions.