Trafficking in Human Beings – the international legal framework

Trafficking in Human Beings – the international legal framework IOM-UNITAR UN HQ NYC 9-11 June 2010 Kristina Touzenis.

Slavery and Trafficking • Slavery Convention 1926 • Convention Concerning Forced or Compulsory Labour 1930 • Convention for the Supression of Trafficking in Persons and the exploitation of the Prostitution of Others 1949 • UN Convention Against Transnational Organized Crime + Protocols (entered into force in 2003)

Trafficking – UN Protocol Trafficking in Persons: • The recruitment, transportation, transfer, harboring or receipt of persons, by means of threat, use of force or other means of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the receiving or giving of payment… to 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. (UN Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and Children)

The Trafficking process Recruitment Transfer EXPLOITATION EXPLOITATION COERCION DECEPTION ABUSEOF POWER Place of Origin Place of Destination

Concept of trafficking: - movement of a person - for the purpose of exploitation - organised by a trafficker Concept of trafficking movement exploitation organised by a trafficker trafficking

Consent • Theconsent ofa victim of trafficking in persons to the exploitation shall be irrelevant where any of the means of force, threat of, coercion, deception, have been used. • The recruitment, transportation, transfer, harbouring 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 the definition of trafficking in persons. • - agency

Force and coercion • There is always a point in the trafficking chain at which people are subjected to force or coercion: when they are recruited, during transportation, upon entry or during work. • Both overt and subtle forms of coercion are used, such as the confiscation of papers, non-payment of wages, induced indebtedness or threats to denounce irregular migrant workers to authorities if they refuse to accept the working conditions.

Fraud, deception, abuse of power • It is absolutely irrelevant if the victim apparently voluntarily entered or stayed in a situation or conditions of labour exploitation if they were put in that situation through the use of threats, force, coercion, abduction, deception or fraud or by an abuse of power or an abuse of their own position of vulnerability. • Most of these concepts will already be clear in national law however coercion and abuse of power/vulnerability are unlikely to be

The “abuse of a power or of a position of vulnerability” contained in Article 3 of the Protocol is understood to refer to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved.

Exploitation • The Protocol makes reference to some specific forms of exploitation; however the list is not exhaustive and it may include other forms as well. The choice made was to extend as much as possible the definition of trafficking in persons to include any possible – known or still unknown – form of exploitation.

The Protocol does not define any of the mentioned forms of exploitation related to forced labour. But a definition for each of them can be found in the relevant international convention. • Article 2, paragraph 1 of ILO Forced Labour Convention, 1930 (No. 29) defines forced labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.

The concept of forced labour as defined by ILO Convention 29 comprises three basic elements: • a. the activity exacted must be in the form of work or service; • b. the menace of a penalty • c. it is undertaken involuntarily by the victim

Slavery and servitude • The 1957 Supplementary Convention on the Elimination of Slavery, Slave Trade, and Institutions and Practice Similar to Slavery defines Slavery as “the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised”

Sexual exploitation • In 1949 the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others was adopted.

Neither “exploitation of the prostitution of others” nor “other forms of sexual exploitation” is defined in the Palermo Protocol, partly due to the discussion taking place regarding prostitution and the possibility of prostitution not always amounting to exploitation. • The TravauxPréparatoires mentions that the Protocol addresses the exploitation of prostitution and other forms of sexual exploitation only in the context of trafficking in persons

Removal of Organs • There is no definition of what constitute removal of organs, but the TravauxPréparatoires and the UNODC Legislative Guide explain that the removal of organs from a child with the consent of a parent or guardian for legitimate medical or therapeutic reasons is out of the scope of the Protocol.

Women and Children • Admittedly, looking at the numbers reported, trafficking in women and children is a big problem, but the prominent focus on the trafficking of women over men arguably has links to assumptions about gender and, in particular, a generalized notion of female vulnerability. That is, many female migrants are conceptualized as trafficked while male migrants are seen more commonly as irregular migrants.

The focus on women and children obviously is funded in three main factors: • that these two groups are considered more vulnerable in general; • that statistics underpin the need for this focus; • that trafficking is often linked to sexual exploitation even if trafficking is actually also for other forms of exploitation. • There is a concrete and urgent need to protect these two groups of victims, it is important not to create an invisible group of trafficked persons – both in reality and in research.

Palermo Protocol Continued • The Protocol gives, for the first time, a detailed and comprehensive definition of trafficking. • The Protocol applies to all people, but particularly women and children, since Member States have recognized their specific vulnerability. • It offers tools in order to empower law enforcement and strengthen border control, • The Protocol integrates this by also strengthening the response of the judiciary • The main goal is to catch and prosecute the trafficker, yet at the same time protect the victim. Assistance to victims is crucial to law enforcement, since he/she can provide for the evidence necessary to successfully prosecute the trafficker.

Scope of the Protocol • To prevent and combat trafficking in persons • To protect and assist victims • To respect the Human Rights of Victims • To prevent, investigate and prosecute • To promote cooperation

Trafficking and smuggling are criminal justice issues. They affect territorial integrity because they involve the facilitation of crossing of borders and remaining in a State in violation of national criminal and immigration laws. • Trafficking and smuggling also undermine the rule of law and political foundation of States, because traffickers and smugglers such as organised criminal groups resort to violence and corruption as means to advance their business.

The act of trafficking and the exploitation of their labour expose victims to a variety of criminal acts including deprivation of liberty, theft of identity documents, sexual, physical and psychological abuse and blackmail (threats to inform relatives or police about the victims’ activity). • Trafficking is itself a breach of the laws of many, if not most, states.

Victim Centred Criminal Law Approach • A victim-centred criminal justice response to trafficking is most effective in terms of achieving a successful prosecution of the traffickers and protecting and supporting the human rights of the trafficked victim. Prioritising the well-being of the trafficked victim and their recovery from a trafficking ordeal is compatible with achieving the desired results in a criminal prosecution.

A crime against humanity? • ICC Statute Article 7(2)(c) defined enslavement as “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such powers in the course of trafficking in persons, in particular women and children”.

Human Rights Law • Human rights issues are not only a concern upon arrival of the trafficked person but also during the transportation. Instances of torture, inhuman and degrading treatment are common during the process and many traffickers as well as smugglers and in some cases border officials may use physical or sexual violence as a means to demand payment for their services

Upon arrival restriction of movement, work conditions, consequences of racisms and law enforcement practices such as detention centres, repatriation and rights linked to legal processes are some of the issues with a human rights aspect in the trafficking context

Article 6.2 states thatEach State Party shall ensure that its domestic legal or administrative system contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative proceedings; (b) Assistance to enable their views and concerns to be presented and considered at appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights of the defence.

Palermo Protocol • art. 6.3 requires that states consider implementing measures to provide for the “physical, psychological and social recovery of victims of trafficking in persons (…) in particular the provision of: • (a) Appropriate housing, (b) Counselling and information, in particular as regards their legal rights (…) (c) medical, psychological and material assistance; and (d) employment, education and training opportunities.

The Protocol's comprehensive prevention policy also includes activities to prevent re-victimization, research, information campaigns, social and economic initiatives, and cooperation with civil society

Article 6, paragraph 4, of the Trafficking in Persons Protocol provides that States parties, in considering measures to assist and protect victims of trafficking, must take into account the special needs of child victims.

Other Relevant Instruments • International Convention on the Elimination of all forms of Racist Discrimination (1966) • International Convention on the Elimination of All form of Discrimination Against Women (1979) • The Convention on the Rights of the Child (1989) • ILO Convention 182 on the Worst Forms of Child Labour (1999) • Convention on the Rights of All Migrant Workers and Their Families (1990) • In some cases The UN Refugee Convention - 1951

CEDAW • Article. 6: States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. • But also other articles not specifically on trafficking are relevant;

CEDAW • Article 5: States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; • Equality in Education – article 10 • Participation (art. 7) and non-discrimination in general (also article 14 on rural women)

CRC • Art 35 : “States 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”. • The article does not elaborate the terms but the words “for any purpose or in any form” suggest that it is to be interpreted broadly. • The responsibility for taking measures to avoid trafficking is placed clearly on the State, which implies a State responsibility if it does not succeed in prosecuting offenders, thus making the international obligation applicable at the “trafficker-level”

CRC OPII • OP II Article 3, which provides that States Parties shall ensure the definition of the following acts as a crime, irrespective of whether they are committed domestically or trans-nationally, on an individual or organised basis: Offering, delivering or accepting, by whatever means, a child for the purpose of Sexual exploitation of the child; Transfer of organs of the child for profit; Engagement of the child in forced labour.

UN Migrant Worker Convention • Art. 68 obliges States Parties to collaborate for the purpose of preventing and eliminating illegal or clandestine movements as well as the employment of migrants who are in an irregular situation • The Convention protects migrants in the entire migration process

ICCPR and ICESCR • The two major general Human Rights Instrument are also valid for victims of trafficking • Trafficking is also about protecting from victimisation in the county of origin • Respect for human rights is needed both in countries of origin and in countries of destination and transit

Protocol Gaps • Identification • Non punishment of victims • Compensation • Return • Residence/reflection period

The United Nations High Commissioner for Human Rights has developed Recommended Principles and Guidelines on Human Rights and Human Trafficking (E/2002/68/Add.1), which provide an important framework guiding the criminalization of trafficking in persons and the development of a legislative framework.

Prevention • Need to focus on human rights in general • Discrimination • Migraton policies • Push and pull factors

Third parties • the state is not usually involved in the acts carried out by traffickers, although it may be through the activity of corrupt law enforcement and border officials who facilitate or ignore the work of traffickers. This may occur in origin, transit and destination state. The primary threat to victims however is clearly one of criminal acts at the hands of private persons and such acts are not necessarily human rights violations on the part of a state.

States have an obligation to protect horizontally – by having adequate laws, processes, punishments for the crime of trafficking (as for other crimes that affect the human rights of individuals). A failure in the context of trafficking by the state to protect and to impose that trafficking cannot flourish unchecked may be considered a failure to fulfil the obligation to protect against human rights abuse.

Horizontal application does not necessarily mean that the state is in breach of its human rights obligations just because a person has been trafficked. There must also be some failure on the part of the state to secure the rights and freedoms guaranteed.

Conclusions • Concept is NOT a human rights concept • A CRIMINAL law concept with a human rights aspect • Human rights must be included and the tow fields of law interact and overlap

THANK YOU!

Trafficking in Human Beings – the international legal framework