Trafficking in Human Beings the international legal framework

Trafficking in Human Beings – the international legal framework OHCHR Geneva 25 May 2010 Kristina Touzenis.

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)

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

Consent • • • 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

Exploitation n 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.

Women and Children n 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.

n n n 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 l l l 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 Ø To protect and assist victims Ø To respect the Human Rights of Victims Ø To prevent, investigate and prosecute Ø To promote cooperation Ø

Human Rights Law n 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

n 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

n n 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.

n 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

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. The OP II also addresses the issues of protecting child victims recog nising their vulnerability but including as an important aspect that the views and concerns of the child are taken into consideration and that the child be informed of her or his rights

n n States are under an obligation to protect the child victim and his/hers family from retaliation, which in many cases is most relevant. Measures such as training of personnel and special treatment in criminal procedures are also included. Using awareness raising and education and social integration of victims are imposed on States avoid focusing exclusively on the criminal aspect but underlines that children should be at the centre of any actions against trafficking and it is necessary to take into consideration all aspects of this crime. Addressing root causes and international cooperation – on children’s rights

ILO Child Labour Convention (182) n n n For the purposes of this Convention, the term the worst forms of child labour comprises: (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; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (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; (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.

n n n n Each Member shall take all necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to this Convention including the provision and application of penal sanctions or, as appropriate, other sanctions. 2. Each Member shall, taking into account the importance of education in eliminating child labour, take effective and time bound measures to: (a) prevent the engagement of children in the worst forms of child labour; (b) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration; (c) ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour; (d) identify and reach out to children at special risk; and (e) take account of the special situation of girls.

ICCPR and ICESCR n n n 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

n 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.

Smuggling n n n Protection of Children in the smuggling process is the protection of irregular migrants’ human rights Consider the child as a child before consider him/her as a migrant Terminology and criminalisation

Why prevent irregular migration? Ø Ø Ø to avoid exploitation of irregular migrants by employers, smugglers and traffickers to prevent the existence of a marginalised group in society thus contributing to social cohesion and stability to ensure that migration is “managed” and the credibility of legal immigration policies to ensure satisfactory salary levels and working conditions for national workers and lawfully resident migrant workers, which are undermined by the employment of irregular migrants to avoid the existence of whole sectors /businesses dependent on irregular migrant labour

ILO Convention No. 143 of 1975, Part I Ø Ø Ø State obligation to respect the basic human rights of all migrant workers - Art 1 Irregular migrant workers to enjoy equal treatment with regular migrants in respect of rights arising out of past employment (remuneration, social security and other benefits) – Art 9(1) State obligations to Ø take measures, in collaboration with other States, to detect and prevent irregular migration and the abuses associated with the phenomenon – Arts 2, 3 Ø impose sanctions on traffickers, smugglers and employers – Arts 5, 6(1)

UN Migrant Workers Convention 1990 Ø Ø Part III on the human rights of all migrant workers and members of their families Ø Reiterates that fundamental civil and political rights and economic and social rights apply to all migrants Part VI – promotion of sound, equitable, humane and lawful conditions regarding international labour migration Ø State obligation to consult /cooperate to ensure labour migration takes place in humane and sound conditions Ø Provisions for sanctions against smugglers, traffickers and employers

Human rights of irregular migrants Ø Ø Safeguards in detention Procedural and substantive guarantees against expulsion and protection in the return process Access to economic and social rights Regularization and rights of residence

Conclusions n n Protection of children in both trafficking and smuggling is a protection of basic human rights in the entire migration process The international legal “attention” is most evident in the trafficking framework Need to emphasise the Human Rights aspects of Criminal Law concepts Attention on not focusing too much on one group – thus “invisibilising” another

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