Trafficking in Human Beings Trafficking in Human Beings – the international legal – the international legal

frameworkframework

IOM-UNITARIOM-UNITAR

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NYCNYC

9-11 June 20109-11 June 2010Kristina Touzenis. Kristina Touzenis.

Slavery and TraffickingSlavery and Trafficking

Slavery Convention 1926Slavery Convention 1926 Convention Concerning Forced or Convention Concerning Forced or

Compulsory Labour 1930Compulsory Labour 1930 Convention for the Supression of Trafficking Convention for the Supression of Trafficking

in Persons and the exploitation of the in Persons and the exploitation of the Prostitution of Others 1949Prostitution of Others 1949

UN Convention Against Transnational UN Convention Against Transnational Organized Crime + Protocols (entered into Organized Crime + Protocols (entered into force in 2003)force in 2003)

Trafficking – UN ProtocolTrafficking – UN Protocol

Trafficking in Persons: Trafficking in Persons: • TheThe recruitment recruitment,, transportation, transfer, harboring or receipt of transportation, transfer, harboring or receipt of

persons, persons, by means ofby means of threat, use of force or other means of coercion, threat, use of force or other means of coercion, of abduction, of fraud, of deception, of the abuse of power or of a 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 position of vulnerability or of the receiving or giving of payment… to a person having control over another person, a person having control over another person, for the purpose of for the purpose of exploitation.exploitation.

• ExploitationExploitation shall include, at a minimum, the exploitation of the shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or labour or services, slavery or practices similar to slavery, servitude or the removal of organs.the removal of organs.

((UN Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women UN Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and Childrenand Children))

The Trafficking processThe Trafficking process

Recruitment Recruitment

Transfer

EXPLOITATION EXPLOITATION

COERCION

DECEPTION

ABUSE OF POWER

Place of OriginPlace of Origin Place of DestinationPlace of Destination

organised by a trafficker

exploitationexploitationmovementmovement

traffickingtrafficking

Concept of traffickingConcept of trafficking

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

ConsentConsent

• TheThe consent ofconsent of a victim of trafficking in persons to a victim of trafficking in persons to the exploitation shall be irrelevant where any of the the exploitation shall be irrelevant where any of the means of force, threat of, coercion, deception, have means of force, threat of, coercion, deception, have been used.been used.

• The recruitment, transportation, transfer, harbouring The recruitment, transportation, transfer, harbouring or receipt of a or receipt of a childchild for the purpose of exploitation for the purpose of exploitation shall be considered ”trafficking in persons” even if shall be considered ”trafficking in persons” even if this does not involve any of the means set forth in the this does not involve any of the means set forth in the definition of trafficking in persons.definition of trafficking in persons.

• - agency- agency

Force and coercionForce and coercion

There is always a point in the trafficking chain at There is always a point in the trafficking chain at which people are subjected to force or coercion: when which people are subjected to force or coercion: when they are recruited, during transportation, upon entry they are recruited, during transportation, upon entry or during work. or during work.

Both overt and subtle forms of coercion are used, Both overt and subtle forms of coercion are used, such as the confiscation of papers, non-payment of such as the confiscation of papers, non-payment of wages, induced indebtedness or threats to denounce wages, induced indebtedness or threats to denounce irregular migrant workers to authorities if they refuse irregular migrant workers to authorities if they refuse to accept the working conditions. to accept the working conditions.

Fraud, deception, abuse of powerFraud, deception, abuse of power It is absolutely irrelevant if the victim It is absolutely irrelevant if the victim

apparently apparently voluntarily entered or stayed in a voluntarily entered or stayed in a situation or conditions of labour exploitation if situation or conditions of labour exploitation if they were put in that situation through the use they were put in that situation through the use of threats, force, coercion, abduction, of threats, force, coercion, abduction, deception or fraud or by an abuse of power or deception or fraud or by an abuse of power or an abuse of their own position of vulnerability.an abuse of their own position of vulnerability.

Most of these concepts will already be clear in Most of these concepts will already be clear in national law however national law however coercion coercion and and abuse of abuse of power/vulnerability power/vulnerability are unlikely to beare unlikely to be

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

ExploitationExploitation

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

The Protocol does not define any of the mentioned The Protocol does not define any of the mentioned forms of exploitation related to forced labour. But a forms of exploitation related to forced labour. But a definition for each of them can be found in the definition for each of them can be found in the relevant international convention.  relevant international convention. 

Article 2, paragraph 1 of ILO Forced Labour Article 2, paragraph 1 of ILO Forced Labour Convention, 1930 (No. 29) defines forced labour as Convention, 1930 (No. 29) defines forced labour as “all work or service which is exacted from any “all work or service which is exacted from any person under the menace of any penalty and for person under the menace of any penalty and for which the said person has not offered himself which the said person has not offered himself voluntarily”.voluntarily”.

The concept of forced labour as defined by The concept of forced labour as defined by ILO Convention 29 comprises three basic ILO Convention 29 comprises three basic elements:elements:

a. the activity exacted must be in the form a. the activity exacted must be in the form of work or service;of work or service;

b. the menace of a penaltyb. the menace of a penalty c. it is undertaken involuntarily by the c. it is undertaken involuntarily by the

victimvictim

Slavery and servitudeSlavery and servitude

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

Sexual exploitationSexual exploitation

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

Neither “exploitation of the prostitution of Neither “exploitation of the prostitution of others” nor “other forms of sexual exploitation” others” nor “other forms of sexual exploitation” is defined in the Palermo Protocol, partly due to is defined in the Palermo Protocol, partly due to the discussion taking place regarding the discussion taking place regarding prostitution and the possibility of prostitution prostitution and the possibility of prostitution not always amounting to exploitation.not always amounting to exploitation.

The Travaux Préparatoires mentions that the The Travaux Préparatoires mentions that the Protocol addresses the exploitation of Protocol addresses the exploitation of prostitution and other forms of sexual prostitution and other forms of sexual exploitation only in the context of trafficking in exploitation only in the context of trafficking in personspersons

Removal of OrgansRemoval of Organs

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

Women and ChildrenWomen and Children

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

The focus on women and children obviously is The focus on women and children obviously is funded in three main factors:funded in three main factors:

that these two groups are considered more that these two groups are considered more vulnerable in general; vulnerable in general;

that statistics underpin the need for this focus; that statistics underpin the need for this focus; that trafficking is often linked to sexual that trafficking is often linked to sexual

exploitation even if trafficking is actually also exploitation even if trafficking is actually also for other forms of exploitation. for other forms of exploitation.

There is a concrete and urgent need to protect There is a concrete and urgent need to protect these two groups of victims, it is important not these two groups of victims, it is important not to create an invisible group of trafficked to create an invisible group of trafficked persons – both in reality and in research.persons – both in reality and in research.

Palermo Protocol Palermo Protocol ContinuedContinued

The Protocol gives, for the first time, a detailed and The Protocol gives, for the first time, a detailed and comprehensive definition of trafficking. comprehensive definition of trafficking.

The Protocol applies to all people, but particularly women and The Protocol applies to all people, but particularly women and children, since Member States have recognized their specific children, since Member States have recognized their specific vulnerability. vulnerability.

It offers tools in order to empower law enforcement and It offers tools in order to empower law enforcement and strengthen border control,strengthen border control,

The Protocol integrates this by also strengthening the response The Protocol integrates this by also strengthening the response of the judiciary of the judiciary

The main goal is to catch and prosecute the trafficker, yet at The main goal is to catch and prosecute the trafficker, yet at the same time protect the victim. Assistance to victims is the same time protect the victim. Assistance to victims is crucial to law enforcement, since he/she can provide for the crucial to law enforcement, since he/she can provide for the evidence necessary to successfully prosecute the trafficker. evidence necessary to successfully prosecute the trafficker.

Scope of the ProtocolScope of the Protocol

To prevent and combat trafficking in personsTo prevent and combat trafficking in persons To protect and assist victimsTo protect and assist victims To respect the Human Rights of VictimsTo respect the Human Rights of Victims To prevent, investigate and prosecuteTo prevent, investigate and prosecute To promote cooperationTo promote cooperation

Trafficking and smuggling are criminal justice Trafficking and smuggling are criminal justice issues. They affect territorial integrity because issues. They affect territorial integrity because they involve the facilitation of crossing of they involve the facilitation of crossing of borders and remaining in a State in violation of borders and remaining in a State in violation of national criminal and immigration laws.national criminal and immigration laws.

Trafficking and smuggling also undermine the Trafficking and smuggling also undermine the rule of law and political foundation of States, rule of law and political foundation of States, because traffickers and smugglers such as because traffickers and smugglers such as organised criminal groups resort to violence organised criminal groups resort to violence and corruption as means to advance their and corruption as means to advance their business.business.

The act of trafficking and the exploitation of The act of trafficking and the exploitation of their labour expose victims to a variety of their labour expose victims to a variety of criminal acts including deprivation of liberty, criminal acts including deprivation of liberty, theft of identity documents, sexual, physical theft of identity documents, sexual, physical and psychological abuse and blackmail and psychological abuse and blackmail (threats to inform relatives or police about the (threats to inform relatives or police about the victims’ activity).victims’ activity).

Trafficking is itself a breach of the laws of Trafficking is itself a breach of the laws of many, if not most, states.many, if not most, states.

Victim Victim CentredCentred Criminal Law Criminal Law ApproachApproach

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

A crime against humanity?A crime against humanity?

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

Human Rights LawHuman Rights Law

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

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

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

Palermo ProtocolPalermo Protocol

art. 6.3 requires that states consider implementing art. 6.3 requires that states consider implementing measures to provide for the “measures to provide for the “physical, psychological physical, psychological and social recovery of victims of trafficking in and social recovery of victims of trafficking in persons (…) in particular the provision of: persons (…) in particular the provision of:

(a) Appropriate housing, (b) (a) Appropriate housing, (b) Counselling and Counselling and information, in particular as regards their legal information, in particular as regards their legal rights (…)rights (…) (c) medical, psychological and material (c) medical, psychological and material assistance; and (d) employment, education and assistance; and (d) employment, education and training opportunities.training opportunities.

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

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

Other Relevant InstrumentsOther Relevant Instruments• International Convention on the Elimination of all forms of Racist International Convention on the Elimination of all forms of Racist

Discrimination (1966)Discrimination (1966)

• International Convention on the Elimination of All form of Discrimination International Convention on the Elimination of All form of Discrimination Against Women (1979)Against Women (1979)

• The Convention on the Rights of the Child (1989)The Convention on the Rights of the Child (1989)• ILO Convention 182 on the Worst Forms of Child Labour (1999)ILO Convention 182 on the Worst Forms of Child Labour (1999)

• Convention on the Rights of All Migrant Workers and Their Families Convention on the Rights of All Migrant Workers and Their Families (1990)(1990)

• In some cases The UN Refugee Convention - 1951 In some cases The UN Refugee Convention - 1951

CEDAWCEDAW

• Article. 6: States Parties shall take all Article. 6: States Parties shall take all appropriate measures, including legislation, to appropriate measures, including legislation, to suppress all forms of traffic in women and suppress all forms of traffic in women and exploitation of prostitution of women. exploitation of prostitution of women.

• But also other articles not specifically on But also other articles not specifically on trafficking are relevant;trafficking are relevant;

CEDAWCEDAW

• Article 5: States Parties shall take all appropriate Article 5: States Parties shall take all appropriate measures: (a) To modify the social and cultural measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view patterns of conduct of men and women, with a view to achieving the elimination of prejudices and to achieving the elimination of prejudices and customary and all other practices which are based on customary and all other practices which are based on the idea of the inferiority or the superiority of either the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and of the sexes or on stereotyped roles for men and women; women;

• Equality in Education – article 10Equality in Education – article 10• Participation (art. 7) and non-discrimination in Participation (art. 7) and non-discrimination in

general (also article 14 on rural women)general (also article 14 on rural women)

CRCCRC

• Art 35 : “States Parties shall take all appropriate, Art 35 : “States Parties shall take all appropriate, national, bilateral and multilateral measures to national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in prevent the abduction of, the sale of or traffic in children for any purpose or in any form”children for any purpose or in any form”. .

• The article does not elaborate the terms but the words The article does not elaborate the terms but the words “for any purpose or in any form” suggest that it is to “for any purpose or in any form” suggest that it is to be interpreted broadly. be interpreted broadly.

• The responsibility for taking measures to avoid The responsibility for taking measures to avoid trafficking is placed clearly on the State, which trafficking is placed clearly on the State, which implies a State responsibility if it does not succeed in implies a State responsibility if it does not succeed in prosecuting offenders, thus making the international prosecuting offenders, thus making the international obligation applicable at the “trafficker-level”obligation applicable at the “trafficker-level”

CRC OPIICRC OPII

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

UN Migrant Worker ConventionUN Migrant Worker Convention

• Art. 68 obliges States Parties to collaborate for Art. 68 obliges States Parties to collaborate for the purpose of preventing and eliminating the purpose of preventing and eliminating illegal or clandestine movements as well as the illegal or clandestine movements as well as the employment of migrants who are in an employment of migrants who are in an irregular situationirregular situation

• The Convention protects migrants in the entire The Convention protects migrants in the entire migration processmigration process

ICCPR and ICESCRICCPR and ICESCR

The two major general Human Rights The two major general Human Rights Instrument are also valid for victims of Instrument are also valid for victims of traffickingtrafficking

Trafficking is also about protecting from Trafficking is also about protecting from victimisation in the county of originvictimisation in the county of origin

Respect for human rights is needed both in Respect for human rights is needed both in countries of origin and in countries of countries of origin and in countries of destination and transitdestination and transit

Protocol GapsProtocol Gaps

IdentificationIdentification Non punishment of victimsNon punishment of victims CompensationCompensation ReturnReturn Residence/reflection periodResidence/reflection period

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

PreventionPrevention

Need to focus on human rights in Need to focus on human rights in generalgeneral

DiscriminationDiscrimination Migraton policiesMigraton policies Push and pull factorsPush and pull factors

Third partiesThird parties the state is not usually involved in the acts the state is not usually involved in the acts

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

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

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

ConclusionsConclusions

Concept is NOT a human rights Concept is NOT a human rights concept concept

A CRIMINAL law concept with a A CRIMINAL law concept with a human rights aspecthuman rights aspect

Human rights must be included and Human rights must be included and the tow fields of law interact and the tow fields of law interact and overlapoverlap

THANK THANK YOU!YOU!