Legal Legal Instruments to Instruments to combat child combat child traffickingtrafficking

Dr. Stamatina PoulouDr. Stamatina PoulouSenior Investigator at the Greek OmbudsmanSenior Investigator at the Greek Ombudsman

Department of children’s rightsDepartment of children’s rightsVietnam, 2008Vietnam, 2008

PreamblePreamble

600 000 to 800 000 men, women and 600 000 to 800 000 men, women and children trafficked across international children trafficked across international borders each year borders each year

Approximately 80 percent are women Approximately 80 percent are women and girls and up to 50 percent are and girls and up to 50 percent are minors minors

((According to the 2005 Trafficking in Persons According to the 2005 Trafficking in Persons Report by the US Department of State Office to Report by the US Department of State Office to Monitor and Combat Trafficking in Persons)Monitor and Combat Trafficking in Persons)

Successful Strategies to Successful Strategies to combat child traffickingcombat child trafficking

Successful strategies need to Successful strategies need to deal with the main causes of deal with the main causes of traffickingtrafficking

It needs a holistic and integrated It needs a holistic and integrated multidisciplinary approachmultidisciplinary approach

Phases of the process of Phases of the process of traffickingtrafficking

Recruitment or movementRecruitment or movement ExploitationExploitation Withdrawal by Withdrawal by

agreementagreement

escapeescape

outside interventionoutside intervention

RecoveryRecovery Possible reintegrationPossible reintegration

Determining and analyzing Determining and analyzing the causes of child the causes of child

traffickingtrafficking

Hierarchical levels of causalityHierarchical levels of causality The economic model of “supply- The economic model of “supply-

demand” dynamicdemand” dynamic The individual behavior modelThe individual behavior model

Different types and levels of Different types and levels of causalitycausality

Immediate causes:Immediate causes:are related to decisions made by children, are related to decisions made by children,

adolescents, their adolescents, their

parents and other individuals around them that parents and other individuals around them that

result in child result in child traffickingtrafficking Underlying causes:Underlying causes:

are conditions that influence decisions taken by are conditions that influence decisions taken by individuals that lead individuals that lead to trafficking in childrento trafficking in children

Structural or root causes:Structural or root causes:are factors contributing to a social and economic are factors contributing to a social and economic environment in which child trafficking and exploitation environment in which child trafficking and exploitation can flourish.can flourish.

Immediate causesImmediate causes

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

Underlying causesUnderlying causes

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

Structural or root causesStructural or root causes

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

““Supply and demand” logic Supply and demand” logic as one of the causes of as one of the causes of

traffickingtrafficking The causes for child trafficking can The causes for child trafficking can

be found simultaneously in two be found simultaneously in two places, in:places, in:

Communities/ countries where children Communities/ countries where children are recruitedare recruited

Places/countries where they are Places/countries where they are exploitedexploited

Supply and demand” logic Supply and demand” logic as one of the causes of as one of the causes of

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

The definition of “child The definition of “child trafficking”trafficking”

“ ““ “Trafficking in persons” shall mean the recruitment, Trafficking in persons” shall mean the recruitment, transportation, transfer, harboring or receipt of persons transportation, transfer, harboring or receipt of persons by means of the threat or use of force or other forms of by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve giving or receiving of payments or benefits to achieve the consent of a person having control over another the consent of a person having control over another person, for the purpose of exploitation. Exploitation person, for the purpose of exploitation. Exploitation shall include, as a minimum, the exploitation of the shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual prostitution of others or other forms of sexual exploitation forced labor or services, slavery or exploitation forced labor or services, slavery or practices similar to slavery...”practices similar to slavery...”

(Article 3 par. a of the Palermo Protocol)(Article 3 par. a of the Palermo Protocol)

Definition of an Definition of an organized grouporganized group

An organized group is to be understood as a An organized group is to be understood as a structured group of three or more persons, structured group of three or more persons, existing for a period of time and acting in existing for a period of time and acting in concert with the aim of committing one or concert with the aim of committing one or more serious crimes or offences established more serious crimes or offences established in secondance with the convention, in order in secondance with the convention, in order to obtain, directly or indirectly, a financial to obtain, directly or indirectly, a financial or other material benefit.or other material benefit.

(Art 2 par. a of UN Convention on Transnational Crime)(Art 2 par. a of UN Convention on Transnational Crime)

Definition of “structured Definition of “structured group”group”

A structured group shall mean a group A structured group shall mean a group that is not randomly formed for the that is not randomly formed for the immediate commission of an offence, and immediate commission of an offence, and that does not need to have formally that does not need to have formally defined roles for its members, continuity defined roles for its members, continuity of its membership or a developed of its membership or a developed structure.structure.

((Art.2 par. c of UN Convention or Art.2 par. c of UN Convention or Transnational Crime)Transnational Crime)

The protection of victimsThe protection of victims

To avoid automatic repatriation the receiving State is To avoid automatic repatriation the receiving State is requested to consider measures to allow for the victim to requested to consider measures to allow for the victim to remain in its territory, temporarily or permanently.remain in its territory, temporarily or permanently.

(Art. 7 Palermo Protocol)(Art. 7 Palermo Protocol)

Stress the importance of voluntary repatriation, the country of Stress the importance of voluntary repatriation, the country of origin or the country where the victim had permanent residence origin or the country where the victim had permanent residence before he was trafficked, is requested to cooperate in order to before he was trafficked, is requested to cooperate in order to ensure that the return of the person can be undertaken without ensure that the return of the person can be undertaken without undue or unreasonable delay, for instance by facilitating undue or unreasonable delay, for instance by facilitating necessary travel documentation in case the persons personal necessary travel documentation in case the persons personal documents have been confiscated by his/her traffickers.documents have been confiscated by his/her traffickers.

(Art. 8 par 4,5 Palermo (Art. 8 par 4,5 Palermo Protocol)Protocol)

UNHCHR Recommended Guidelines and UNHCHR Recommended Guidelines and principles on human Traffickingprinciples on human Trafficking

The document under lines that respect for human The document under lines that respect for human rights of trafficked persons should be at the centre rights of trafficked persons should be at the centre of all efforts to prevent and combat trafficking and of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims. to protect, assist and provide redress to victims.

Particularly relevant for this working paper is the Particularly relevant for this working paper is the section on “Special Measures for the Protection and section on “Special Measures for the Protection and support of child victims of trafficking’support of child victims of trafficking’

Emphasis in dealing the children separately from Emphasis in dealing the children separately from adult trafficked persons in terms of laws, polices, adult trafficked persons in terms of laws, polices, programs and interventionsprograms and interventions

((UNHCHR Guidelines on trafficking, guideline UNHCHR Guidelines on trafficking, guideline 8)8)

Child trafficking vs human Child trafficking vs human rights and children’s rightsrights and children’s rights

Trafficking in persons is a matter of security and crime Trafficking in persons is a matter of security and crime control, but it also implies flagrant violations of a wide control, but it also implies flagrant violations of a wide range of fundamental human rightsrange of fundamental human rights

“…“….Violations of human rights are .Violations of human rights are both a cause and a consequence of both a cause and a consequence of trafficking in persons.”trafficking in persons.”

Idem Guideline 8Idem Guideline 8

The International The International Convention on the Rights of Convention on the Rights of

the Childthe Child

State parties shall take all State parties shall take all appropriate, national, bilateral and appropriate, national, bilateral and multilateral measures to prevent the multilateral measures to prevent the abduction of, the sale of or traffic in abduction of, the sale of or traffic in children for any purpose or in any children for any purpose or in any formform

((Art. 35 Convention on Rights Art. 35 Convention on Rights of Children) of Children)

Possible violations of Possible violations of children’s rights as a result children’s rights as a result

of trafficking Childof trafficking ChildChild trafficking may violate a range of children’s Child trafficking may violate a range of children’s rights:rights:

The right to protection from discrimination and The right to protection from discrimination and punishment (punishment (art.2.2 CRC)art.2.2 CRC)

physical or mental violencephysical or mental violence (art (art 119.1.CRC)119.1.CRC)

economic exploitationeconomic exploitation ( (art 32 CRC)art 32 CRC)

Sexual exploitation Sexual exploitation (art 34 CRC)(art 34 CRC)

The right to participationThe right to participation

(art.12 CRC)(art.12 CRC)

Possible violations of Possible violations of children’s rights as a result children’s rights as a result

of traffickingof trafficking Best interests of the child Best interests of the child (Art.3 CRC)(Art.3 CRC) Right to life Right to life (Art 6.1CRC)(Art 6.1CRC) Right to survival and development Right to survival and development ( Art. 6.2 CRC)( Art. 6.2 CRC) Right not to be separated from family Right not to be separated from family (Art. 9 CRC)(Art. 9 CRC) Right not to be transferred to another country Right not to be transferred to another country

(Art.11 CRC)(Art.11 CRC) Right to express views and be heard Right to express views and be heard (Art 12 CRC) (Art 12 CRC)

Right not to be subjected to unlawful attack on Right not to be subjected to unlawful attack on honour and reputation honour and reputation (Art. 16 CRC)(Art. 16 CRC)

Right to be protected from exploitation Right to be protected from exploitation (Art. 32 CRC)(Art. 32 CRC)

Right to be protected from sexual exploitation Right to be protected from sexual exploitation (Art.34 CRC)(Art.34 CRC)

Trafficking in persons as a Trafficking in persons as a labour issuelabour issue

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

((International Labor Organization, Convention International Labor Organization, Convention 1982 art. 3)1982 art. 3)

Trafficking in persons as a Trafficking in persons as a migration issuemigration issue

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

(art. 3a)(art. 3a)

Definitions used by other Definitions used by other entitiesentities

““Movement of children across country Movement of children across country borders for exploitation, using the definition borders for exploitation, using the definition of the Palermo Protocol” UNICEF of the Palermo Protocol” UNICEF

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

Key elements to combat Key elements to combat child traffickingchild trafficking

A human rights/child rights approach to combat A human rights/child rights approach to combat child traffickingchild trafficking

The best interests of the child prevail at all timesThe best interests of the child prevail at all times A child can under no circumstances consent to A child can under no circumstances consent to

their own trafficking and/or exploitationtheir own trafficking and/or exploitation Child trafficking implies a separation of the child Child trafficking implies a separation of the child

from his/her communityfrom his/her community Trafficking can be proven in one phase of the Trafficking can be proven in one phase of the

trafficking process in order to define the process trafficking process in order to define the process as such.as such.

International legal provisions call for prevention, International legal provisions call for prevention, protection, rehabilitation and social reintegrationprotection, rehabilitation and social reintegration

Greek Penal ProvisionsGreek Penal Provisions

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

Recommendations to the Recommendations to the GovernmentsGovernments

Criminalize all forms of trafficking of persons, Criminalize all forms of trafficking of persons, not just trafficking into the sex industrynot just trafficking into the sex industry

Make the consent of the victim of trafficking to Make the consent of the victim of trafficking to the intended abuse irrelevantthe intended abuse irrelevant

Limit the definition of “sexual exploitation” to Limit the definition of “sexual exploitation” to those situations involving deceptive of coercive those situations involving deceptive of coercive practicespractices

Create a separate penal provisions Create a separate penal provisions criminalizing the trafficking of childrencriminalizing the trafficking of children

Criminalize complicity and corruption by state Criminalize complicity and corruption by state officials, law enforcement officials and customs officials, law enforcement officials and customs agentsagents

Victim protection measuresVictim protection measures

Trafficked persons should not be Trafficked persons should not be detained or imprisoned detained or imprisoned

The governments should provide witness The governments should provide witness protection to those trafficking victims protection to those trafficking victims who agree to participate in criminal who agree to participate in criminal proceedingsproceedings

Frozen assets of traffickers should be Frozen assets of traffickers should be made available to victims, in accordance made available to victims, in accordance with due process protections, to settle with due process protections, to settle financial claims of violations of their financial claims of violations of their human and civil rights human and civil rights

Victim protection measures Victim protection measures

The Governments should refrain from the The Governments should refrain from the immediate expulsion of trafficked persons, immediate expulsion of trafficked persons, offering all victims of trafficking the offering all victims of trafficking the opportunity to remain in the country while opportunity to remain in the country while they weigh their legal optionsthey weigh their legal options

The Governments should adopt provisions The Governments should adopt provisions allowing for the permanent resettlement allowing for the permanent resettlement of trafficked persons, giving appropriate of trafficked persons, giving appropriate consideration to humanitarian and consideration to humanitarian and compassionate factors in determining compassionate factors in determining these casesthese cases

Victim protection measures Victim protection measures

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

Special Provisions for Child Special Provisions for Child Victims of Trafficking Victims of Trafficking

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

Special Provisions for Child Special Provisions for Child Victims of TraffickingVictims of Trafficking

Children should receive special Children should receive special assistance, including legal assistance, including legal counsel counsel

Special Provisions for Child Special Provisions for Child Victims of Trafficking Victims of Trafficking

Under no circumstances should Under no circumstances should trafficked children be placed in trafficked children be placed in punitive institutions, such as punitive institutions, such as juvenile detention centers or juvenile detention centers or remand homes for childrenremand homes for children

United Nations SourcesUnited Nations Sources

Office of the United Nations High Office of the United Nations High Commissioner for Human Rights – Commissioner for Human Rights – OHCHROHCHR

United Nations High Commissioner United Nations High Commissioner for Human Rights for Human Rights

United Nations Human Rights United Nations Human Rights Treaty Bodies Database Treaty Bodies Database

United Nations InformationUnited Nations Information

Regional and Governmental Regional and Governmental SourcesSources

Council of EuropeCouncil of Europe Council of Europe International legal Council of Europe International legal

Instruments – related documentsInstruments – related documents EU legislation against in human EU legislation against in human

beings and the sexual exploitation of beings and the sexual exploitation of childchild

Euro Parliament - Trafficking in Euro Parliament - Trafficking in Human BeingsHuman Beings

Europol Public Information (2005)Europol Public Information (2005)