Transcript Trafficking in Human Beings – the international legal

Trafficking in Human Beings
– the international legal
framework
Kristina Touzenis.
IOM-UNITAR
UN HQ
NYC
9-11 June 2010
Slavery and Trafficking
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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
ABUSE OF POWER
Place of Origin
Place of Destination
Concept of trafficking
Concept of trafficking:
- movement of a person
- for the purpose of
exploitation
- organised by a trafficker
movement
exploitation
organised
by a trafficker
trafficking
Consent
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The consent of a 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
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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
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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
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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
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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.
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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”.
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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
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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
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In 1949 the Convention for the Suppression of
the Traffic in Persons and the Exploitation of
the Prostitution of Others was adopted.
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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 Travaux Préparatoires 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
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There is no definition of what constitute
removal of organs, but the Travaux
Préparatoires 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
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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.
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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
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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
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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
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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.
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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
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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?
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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
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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
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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
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Article 6.2 states that Each 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
Palermo Protocol
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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.
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The Protocol's comprehensive prevention
policy also includes activities to prevent revictimization, research, information
campaigns, social and economic initiatives,
and cooperation with civil society
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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
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International Convention on the Elimination of all forms of Racist
Discrimination (1966)
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International Convention on the Elimination of All form of Discrimination
Against Women (1979)
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The Convention on the Rights of the Child (1989)
ILO Convention 182 on the Worst Forms of Child Labour (1999)
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Convention on the Rights of All Migrant Workers and Their Families
(1990)
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In some cases The UN Refugee Convention - 1951
CEDAW
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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
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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
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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
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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
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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
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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
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Identification
Non punishment of victims
Compensation
Return
Residence/reflection period
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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
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Need to focus on human rights in general
Discrimination
Migraton policies
Push and pull factors
Third parties
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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.
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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.
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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
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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!