Legal Instruments to combat child trafficking

Legal Instruments to combat child trafficking Dr. Stamatina Poulou Senior Investigator at the Greek Ombudsman Department of children’s rights Vietnam, 2008

Preamble • 600 000 to 800 000 men, women and children trafficked across international borders each year • Approximately 80 percent are women and girls and up to 50 percent are minors (According to the 2005 Trafficking in Persons Report by the US Department of State Office to Monitor and Combat Trafficking in Persons)

Successful Strategies to combat child trafficking • Successful strategies need to deal with the main causes of trafficking • It needs a holistic and integrated multidisciplinary approach

Phases of the process of trafficking • Recruitment or movement • Exploitation • Withdrawal by agreement escape outside intervention • Recovery • Possible reintegration

Determining and analyzing the causes of child trafficking • Hierarchical levels of causality • The economic model of “supply- demand” dynamic • The individual behavior model

Different types and levels of causality • Immediate causes: are related to decisions made by children, adolescents, their parents and other individuals around them that result in child trafficking • Underlying causes: are conditions that influence decisions taken by individuals that lead to trafficking in children • Structural or root causes: are factors contributing to a social and economic environment in which child trafficking and exploitation can flourish.

Immediate causes Knowing which factors have contributed to decisions of different individuals is the first step to revealing the underlying causes

Underlying causes Demand for certain services also fuels the prospect of profits by procuring individuals for such services

Structural or root causes They include economic crisis in the adolescent’s home country or community, social exclusion, gender discrimination and a weak legal and social protection system

“Supply and demand” logic as one of the causes of trafficking • The causes for child trafficking can be found simultaneously in two places, in: • Communities/ countries where children are recruited • Places/countries where they are exploited

Supply and demand” logic as one of the causes of trafficking “To discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking, each party shall adopt or strengthen legislative, administrative, educational, social, cultural or other measures.” Article 6 of the European Convention on Action against trafficking in Human Beings of the Council of Europe (2005)

The definition of “child trafficking” “ “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, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation forced labor or services, slavery or practices similar to slavery...” (Article 3 par. a of the Palermo Protocol)

Definition of an organized group An organized group is to be understood as a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in secondance with the convention, in order to obtain, directly or indirectly, a financial or other material benefit. (Art 2 par. a of UN Convention on Transnational Crime)

Definition of “structured group” A structured group shall mean a group that is not randomly formed for the immediate commission of an offence, and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure. (Art.2 par. c of UN Convention or Transnational Crime)

The protection of victims To avoid automatic repatriation the receiving State is requested to consider measures to allow for the victim to remain in its territory, temporarily or permanently. (Art. 7 Palermo Protocol) Stress the importance of voluntary repatriation, the country of origin or the country where the victim had permanent residence before he was trafficked, is requested to cooperate in order to ensure that the return of the person can be undertaken without undue or unreasonable delay, for instance by facilitating necessary travel documentation in case the persons personal documents have been confiscated by his/her traffickers. (Art. 8 par 4,5 Palermo Protocol)

UNHCHR Recommended Guidelines and principles on human Trafficking The document under lines that respect for human rights of trafficked persons should be at the centre of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims. Particularly relevant for this working paper is the section on “Special Measures for the Protection and support of child victims of trafficking’ Emphasis in dealing the children separately from adult trafficked persons in terms of laws, polices, programs and interventions (UNHCHR Guidelines on trafficking, guideline 8)

Child trafficking vs human rights and children’s rights Trafficking in persons is a matter of security and crime control, but it also implies flagrant violations of a wide range of fundamental human rights “….Violations of human rights are both a cause and a consequence of trafficking in persons.” Idem Guideline 8

The International Convention on the Rights of the Child State parties shall take all appropriate, national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form (Art. 35 Convention on Rights of Children)

Possible violations of children’s rights as a result of trafficking Child Child trafficking may violate a range of children’s rights: • The right to protection from discrimination and punishment (art.2.2 CRC) physical or mental violence(art 119.1.CRC) economic exploitation (art 32 CRC) Sexual exploitation (art 34 CRC) • The right to participation (art.12 CRC)

Possible violations of children’s rights as a result of trafficking • Best interests of the child (Art.3 CRC) • Right to life (Art 6.1CRC) • Right to survival and development ( Art. 6.2 CRC) • Right not to be separated from family (Art. 9 CRC) • Right not to be transferred to another country (Art.11 CRC) • Right to express views and be heard (Art 12 CRC) • Right not to be subjected to unlawful attack on honour and reputation (Art. 16 CRC) • Right to be protected from exploitation (Art. 32 CRC) • Right to be protected from sexual exploitation (Art.34 CRC)

Trafficking in persons as a labour issue The term worst forms of child labor comprises (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances (c) the use, procuring or offering of a child for illicit activities , in particular for the production and trafficking of drugs as defined in the relevant international treaties (d) work which , by its nature of the circumstances in which it is carried out, is likely to harm and health , safety or morals of children” (International Labor Organization, Convention 1982 art. 3)

Trafficking in persons as a migration issue The protocol against smuggling of Migrants, adopted simultaneously with the Palermo Protocol establishes that ‘… smuggling of migrants shall mean the procurement in order to obtain directly or indirectly a financial or other material benefit of the illegal entry of a person into a State party of which the person is not a national or a permanent resident.’ (art. 3a)

Definitions used by other entities • “Movement of children across country borders for exploitation, using the definition of the Palermo Protocol” UNICEF • “Trafficking occurs when: a migrant is illicitly engaged (recruited, kidnapped, sold, e.t.c) and/or moved, either within national or across international borders and intermediaries during any part of the process obtain economic or other profit by means of deception, coercion and/or other forms of exploitation under conditions that violate the fundamental human rights of migrants” IOM

Key elements to combat child trafficking • A human rights/child rights approach to combat child trafficking • The best interests of the child prevail at all times • A child can under no circumstances consent to their own trafficking and/or exploitation • Child trafficking implies a separation of the child from his/her community • Trafficking can be proven in one phase of the trafficking process in order to define the process as such. • International legal provisions call for prevention, protection, rehabilitation and social reintegration

Greek Penal Provisions • “ 1. Any person who by force, by threat or by other coercive means or by imposing or abusing authority hires, transports within or outside the country, harbors, hands over to somebody in exchange for something or nothing on receives from somebody a person with the aim of sexually exploiting that person himself or somebody else is punished by imprisonment of up to ten years..”(Art.351 Greek Penal Code)

Recommendations to the Governments • Criminalize all forms of trafficking of persons, not just trafficking into the sex industry • Make the consent of the victim of trafficking to the intended abuse irrelevant • Limit the definition of “sexual exploitation” to those situations involving deceptive of coercive practices • Create a separate penal provisions criminalizing the trafficking of children • Criminalize complicity and corruption by state officials, law enforcement officials and customs agents

Victim protection measures • Trafficked persons should not be detained or imprisoned • The governments should provide witness protection to those trafficking victims who agree to participate in criminal proceedings • Frozen assets of traffickers should be made available to victims, in accordance with due process protections, to settle financial claims of violations of their human and civil rights

Victim protection measures • The Governments should refrain from the immediate expulsion of trafficked persons, offering all victims of trafficking the opportunity to remain in the country while they weigh their legal options • The Governments should adopt provisions allowing for the permanent resettlement of trafficked persons, giving appropriate consideration to humanitarian and compassionate factors in determining these cases

Victim protection measures • Repatriation of trafficking victims to their countries of origin should only be undertaken with due regard for the safety and security of the trafficked person and should preferably be voluntary

Special Provisions for Child Victims of Trafficking • The Governments should take steps to locate the family members of the trafficked child, ascertain the circumstances under which the child became a victim of trafficking and make a determination about placement in accordance with the best interests of the child

Special Provisions for Child Victims of Trafficking • Children should receive special assistance, including legal counsel

Special Provisions for Child Victims of Trafficking • Under no circumstances should trafficked children be placed in punitive institutions, such as juvenile detention centers or remand homes for children

United Nations Sources • Office of the United Nations High Commissioner for Human Rights – OHCHR • United Nations High Commissioner for Human Rights • United Nations Human Rights Treaty Bodies Database • United Nations Information

Regional and Governmental Sources • Council of Europe • Council of Europe International legal Instruments – related documents • EU legislation against in human beings and the sexual exploitation of child • Euro Parliament - Trafficking in Human Beings • Europol Public Information (2005)

Legal Instruments to combat child trafficking