Trafficking in Human Beings International Conventions Protocols and

Trafficking in Human Beings: International Conventions, Protocols and Charters Susan Kreston Fulbright Professor of Law & Research Fellow University of the Free State krestons. rd@ufs. ac. za

INTRODUCTION

What is Trafficking In Human Beings? MODERN DAY SLAVERY

Scope o 12. 3 million people trafficked worldwide annually n n Broadest definition 1. 2 million are children o 800, 000 trafficked internationally n Approximately half are children and 80% female o 3, 160 + convictions for trafficking worldwide in 2006 n n 3, 800 in 2005 Most for commercial sexual exploitation p Most researched and responded to

Other types of trafficking o Labour (forced) n Male adults vs. female adults n Domestic work and/or CSE with kids p Cross-over n between labour & CSE Country to country variation important p Ex: In SA, more boys than girls exploited for labour n n Very atypical Labour may also include conscription p Child soldiers – girl children are 40% p May, again, also be exploited sexually

Sexual Trafficking of Children o Primary destination countries: n Secondary destination countries: p p Thailand p p Philippines Sri Lanka p p p Taiwan p p Brazil Cambodia Columbia Costa Rica India Indonesia Italy Nepal South Africa Vietnam

Trafficking of Children for Commercial Sexual Exploitation in Africa International Trafficking Routes Regional Trafficking Flows. Circular patterns

Other types of trafficking o Marriage (forced, illegal or age inappropriate) n Why would a 14 year old girl want a 64 year old man? o Organs (body parts) o Adoption (illegal) n n Abduction Sale

IOM Southern African study 2003 o Women and children, for sexual exploitation o Domestic & international trafficking o Sold by parents n Reality of friends, family and peers o Organized Crime n West African/Nigerian networks, Chinese Triad, Russian & Bulgarian mafia n Recruited primarily by lies p Employment p Marriage p Education

Trafficking in Human Beings, Especially Women and Children, in Africa – UNICEF (2003) o Trafficking (for any purpose) is a recognized problem in half of Africa n But only one third of southern & east Africa p Vs. n n 70% in west & central Africa Children trafficked at twice the rate as women @ 60% of trafficking victims in Africa are children

INTERNATIONAL INSTRUMENTS

Broad vs. Specific o CONVENTIONS & CHARTERS o Global n n n CEDAW CRC ILO o Regional - African n n Charter on Human and People’s Rights Charter on the Rights & Welfare of the Child o PROTOCOLS o New/emerging issues not focused on or adequately addressed in previous instrument n n n Trafficking (Palermo) Children in Armed Conflict Rights of Women in Africa

International Conventions, International Protocols, Regional Charters Regional Protocols Constitutions

#1 – The Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2003) n Underlying Convention p UN Convention Against Transnational Organized Crime p 3 rd highest grossing crime, after trafficking in guns and drugs n $10 billion annually

Protocol’s Definition o Trafficking in persons: n Recruitment, transportation, transfer, harboring or receipt of persons (what) n By means of threat or use of fraud, coercion, force (abduction), and abuse of power (how) n For the purpose of exploitation (why) o Versus smuggling persons n Pay before vs. after n Free upon delivery vs. exploited after arrival n Crime against a person vs. a state n Must be transnational vs. can be international or domestic

Article 2 – Statement of Purpose 1. Prevent trafficking in persons, especially women and children; 2. Protect and assist victims of trafficking; 3. Promote cooperation to combat trafficking more effectively.

Article 5 - Criminalization o Laws prohibiting trafficking o + Attempt o + Accomplice o + Organizing or directing others to traffick

Trafficking Crimes

Article 6 – Assistance & Protection to Victims 1. Ensure the privacy of the victims 2. Inform V of relevant court & admin proceedings 3. Physical, psychological & social recovery 1. Housing, counselling, medical & education/employment/training assistance 4. Special needs of kids 1. Appropriate housing, education, care 5. Witness Protection 6. Enable victims to seek compensation for damages, 1. fines, penalties or forfeited proceeds as well as restitution from offenders

Article 7 – Status of Victims 1. Legislative or other appropriate measures to allow victim to stay in the country, temporarily or permanently, in appropriate cases

Article 8 – Repatriation 1. Return of victim to country of nationality or permanent residency, without delay 2. Must assess safety of victim if returned 3. Issue needed ID/travel documents

Article 9 – Prevention 1. Prevent & combat trafficking 2. Protect V from revictimization 3. Include NGOs, civil society, media, academics in prevention policies & programmes 4. Discourage demand 5. Alleviate vulnerability factors 1. 2. Inequality Poverty

Public Awareness and Education o Prevention campaigns, to focus on: 1. Information about potential victims; 2. The penalties for trafficking as well as the risks -- to life and health -- faced by the victims; 3. The causes and consequences of trafficking.

CAUSES of TRAFFICKING: The Seven Deadly Sins o Violence against women and children o Concealment of incest and rape o Discrimination and devaluation of women and children o Ignorance (hope for a better life) o Greed o Poverty n May explain why children traffic themselves, but not an excuse for adults trafficking kids

CAUSES of TRAFFICKING o LACK OF ADULT PROTECTION n Political instability n Armed conflict n Orphans/child-headed households n HIV/AIDS n Natural disasters p Tsunami/Katrina

Article 10 - Information Exchange & Training 1. Whether individuals crossing international borders with false papers or no documents are traffickers or victims; 2. Methodology of Victimization 1. Methods used by criminals to transport trafficking victims under false identities; 3. Other trafficking techniques 1. recruitment practices 2. trafficking routes 3. links between/among individuals and trafficking groups

Article 10 - Information Exchange & Training 1. Training of all MDT members 2. Prevention 3. Prosecution 4. Protection

Overview of Other International/Regional Instruments

INTERNATIONAL CONVENTIONS

International Convention #1 o UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW 1981) n Sexism paralleled to racism p Both must go as they commit the same harm p Neither the shape not the shade of the skin n n Political, economic, social, cultural, civil Abolish/modify all laws, regulations, customs and practices that discriminate

CEDAW - Article 6 o States parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation or prostitution of women

International Convention #2 o Convention on the Rights of the Child (1989) o Most rapidly and widely ratified international human rights instrument in the world o Recognizes child as holder of rights and freedoms, as well as recognizing States’ obligation to protect the child

Article 3 o Best interests of the child are paramount

Article 4 o State must implement all rights recognized in this instrument

Article 11 o States must take measures to prohibit the illegal transfer and non-return of the child abroad

Article 19 o State must take all appropriate steps to protect children from mental or physical violence, injury or abuse, neglect, maltreatment or exploitation, including sexual abuse, while in the care of their parents

Article 32 o State must protect children from economic exploitation, performing work that is hazardous or that interferes with their education, or that is harmful to health, or physical, mental, spiritual, moral or social development o Min age for work, max hours o Conditions o Provide penalties for violation

Article 34 o State must protect children from sexual exploitation and sexual abuse: o Unlawful sexual activity o Prostitution o Pornographic performance or materials

Article 35 o State must protect children from abduction, sale or traffic in any form, for any purpose, by any person

International Convention #3 o ILO Convention 182 - Elimination of the Worst Forms of Child Labour Regulation vs. prohibition n It’s not labour, it’s torture w/ sexual abuse & exploitation n

ILO 182 o Article 1 n Each Member which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. o Article 2 n For the purposes of this Convention, the term "child" shall apply to all persons under the age of 18.

ILO 182 o Article 3 o For the purposes of this Convention, the term "the worst forms of child labour" comprises: o (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;

ILO 182 o (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; o (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; o (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

Protocols

International Protocols 2 o Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2000) o Underlying Convention - CRC

Sale of Children, Child Prostitution and Child Pornography o Art 3 – Must make certain activities a crime (these are only minimums – may criminalize others too) n n n Sexual exploitation Transfer of child organs Engagement in the forced labour of a child

Sale of Children, Child Prostitution and Child Pornography o Articles 4 -7 – International LEA co- operation through n n Jurisdiction Extradition Mutual assistance Seizure/confiscation of assets o Art 8 – Protect rights of child victims

International Protocol #3 o Optional Protocol on the Rights of the Child in Armed Conflict n Underlying Convention on the Rights of the Child

Articles 1 & 2 o 1 - Members of armed forces under 18 should not take direct part in armed conflict o 2 – No compulsory recruitment of under 18 s

Article 6 o State shall implement and enforce the protocol o Make these principles known (education and awareness raising) o States must take all feasible measures to demobilize/release child soldiers n State must assist in physical and psychological recovery and reintegration of the victim

Article 7 o States must implement this protocol and include prevention and reintegration of the victim in cooperation with other signatories

REGIONAL CHARTER #1 African Charter on the Rights and Welfare of the Child (2000)

African Charter on the Rights and Welfare of the Child (2000) n Article 4 – Best interests of the child are paramount n Article 15 – Child Labour – economic exploitation or work that is hazardous or that interferes with the child’s physical, mental spiritual, moral or social development p Min wage/max hours p Conditions of work p Penalties/sanction p Promote dissemination of this information

African Charter on the Rights and Welfare of the Child (2000) n Article 16 – Child Abuse & Torture p Prohibits torture, inhuman or degrading treatment, especially physical or mental injury or abuse, neglect or maltreatment, including sexual abuse

African Charter on the Rights and Welfare of the Child (2000) n Article 27 – Sexual Exploitation p Protect from and prevent: p Inducement, encouragement or coercion to engage in sexual activity p Prostitution or other sexual services p Pornographic activities, materials and performances

African Charter on the Rights and Welfare of the Child (2000) n Article 29 – Trafficking and Abduction n Abduction, sale, or traffic of children, for any purpose, in any form, by any person, including parents or legal guardians n Also prohibits begging

REGIONAL CHARTER #2 African Charter on Human and People’s Rights (1986)

African Charter on Human and People’s Rights Protects economic, social & cultural rights (in addition to civil & political rights) New & expanded scope

Article 2 – Non-discrimination o On grounds of: o Sex o Race o Ethnic group o Colour o Religion, etc…

Article 18 o Eliminate every discrimination against women o Ensure protection of rights of women and children as stipulated in international declarations and conventions o “International customary law”

REGIONAL PROTOCOL Protocol on the Rights of Women in Africa (2005)

Protocol on the Rights of Women in Africa - 2005 o Underlying document - African Charter on Human and People’s Rights o Behaviors, attitudes or practices that negatively affect life, health, dignity, education & physical integrity o Public & private sphere o Violence against women covers physical, sexual, psychological, & economic harm

Article 2 o Elimination of all forms of discrimination against women o Enshrine in constitutions, legislation, regulatory measures, policy and development plans o Modify social/cultural patterns to eliminate stereotype and female inferiority

Article 3 – Right to Dignity o Protection of Human and Legal rights o Prohibit degradation or exploitation o States shall ensure protection of women from all forms of violence, particularly sexual and verbal

Article 4 -Right to Life, Security and Integrity of the Person o States shall enact & enforce laws to prohibit all forms of violence against women, including unwanted or forced sex, whether it takes place in public or in private

Article 4 -Right to Life, Security and Integrity of the Person o Identify the causes and consequences of VAW, and take appropriate measures to prevent, punish & eradicate VAW o Punish the perpetrators and help rehabilitate the victims

Regional Charter-Trafficking o Article 4 (2)(g) n n n Prevent & condemn trafficking Prosecute the perpetrators Protect the victims

Victims Rights o UN Convention on Justice & Support for Victims of Crime and Abuse of Power o UN Declaration of Basic Principles of Justice for Victims of Crime & Abuse of Power

Prof Susan Kreston Fulbright Professor of Law & Research Fellow - UFS krestons. rd@ufs. ac. za susankreston@hotmail. com 076. 543. 7211 (cell)