Trafficking in Human Beings: International Conventions, Protocols and Charters

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Trafficking in Human BeingsInternational
Conventions, Protocols and Charters

• Susan Kreston
• Fulbright Professor of Law
• Research Fellow
• University of the Free State
• krestons.rd_at_ufs.ac.za

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INTRODUCTION
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What is TraffickingIn Human Beings?MODERN DAY
SLAVERY
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Scope

• 12.3 million people trafficked worldwide annually
• Broadest definition
• 1.2 million are children
• 800,000 trafficked internationally
• Approximately half are children and 80 female
• 3,160 convictions for trafficking worldwide in
  2006
• 3,800 in 2005
• Most for commercial sexual exploitation
• Most researched and responded to

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Other types of trafficking

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

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Sexual Trafficking of Children

• Primary destination countries
• Thailand
• Philippines
• Sri Lanka
• Taiwan

• Secondary destination countries
• Brazil
• Cambodia
• Columbia
• Costa Rica
• India
• Indonesia
• Italy
• Nepal
• South Africa
• Vietnam

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Trafficking of Children for Commercial Sexual
Exploitation in Africa
International Trafficking Routes Regional
Trafficking Flows- Circular patterns
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Other types of trafficking

• Marriage (forced, illegal or age inappropriate)
• Why would a 14 year old girl want a 64 year old
  man?
• Organs (body parts)
• Adoption (illegal)
• Abduction
• Sale

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IOM Southern African study 2003

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

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Trafficking in Human Beings, Especially Women and
Children, in Africa UNICEF (2003)

• Trafficking (for any purpose) is a recognized
  problem in half of Africa
• But only one third of southern east Africa
• Vs. 70 in west central Africa
• Children trafficked at twice the rate as women
• _at_ 60 of trafficking victims in Africa are
  children

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INTERNATIONAL INSTRUMENTS
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Broad vs. Specific

• CONVENTIONS CHARTERS
• Global
• CEDAW
• CRC
• ILO
• Regional - African
• Charter on Human and Peoples Rights
• Charter on the Rights Welfare of the Child

• PROTOCOLS
• New/emerging issues not focused on or adequately
  addressed in previous instrument
• Trafficking (Palermo)
• Children in Armed Conflict
• Rights of Women in Africa

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Effect of International or Regional Documents
when Ratified?

• Incorporated into Domestic Law

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EX SA Childrens Act

• Purposes -
• (a) to give effect to the UN Protocol to Prevent
  Trafficking in Persons and
• (b) generally to combat trafficking in children
• UN Protocol to Prevent Trafficking in Persons is
  in force in the Republic and its provisions are
  law in the Republic, subject to the provisions of
  this Act.

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International Conventions, International
Protocols,Regional ChartersRegional
ProtocolsConstitutions
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1 The Palermo Protocol

• Protocol to Prevent, Suppress and Punish
  Trafficking in Persons, especially Women and
  Children (2003)
• Underlying Convention
• UN Convention Against Transnational Organized
  Crime
• 3rd highest grossing crime, after trafficking in
  guns and drugs
• 10 billion annually

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Protocols Definition

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

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Article 2 Statement of Purpose

• Prevent trafficking in persons, especially women
  and children
• Protect and assist victims of trafficking
• Promote cooperation to combat trafficking more
  effectively.

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Article 5 - Criminalization

• Laws prohibiting trafficking
• Attempt
• Accomplice
• Organizing or directing others to traffick

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Trafficking Crimes
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Article 6 Assistance Protection to Victims

• Ensure the privacy of the victims
• Inform V of relevant court admin proceedings
• Physical, psychological social recovery
• Housing, counselling, medical
  education/employment/training assistance
• Special needs of kids
• Appropriate housing, education, care
• Witness Protection
• Enable victims to seek compensation for damages,
• fines, penalties or forfeited proceeds as well as
  restitution from offenders

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Article 7 Status of Victims

• Legislative or other appropriate measures to
  allow victim to stay in the country, temporarily
  or permanently, in appropriate cases

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Article 8 Repatriation

• Return of victim to country of nationality or
  permanent residency, without delay
• Must assess safety of victim if returned
• Issue needed ID/travel documents

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Article 9 Prevention

• Prevent combat trafficking
• Protect V from revictimization
• Include NGOs, civil society, media, academics in
  prevention policies programmes
• Discourage demand
• Alleviate vulnerability factors
• Inequality
• Poverty

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Public Awareness and Education

• Prevention campaigns, to focus on
• Information about potential victims
• The penalties for trafficking as well as the
  risks -- to life and health -- faced by the
  victims
• The causes and consequences of trafficking.

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CAUSES of TRAFFICKINGThe Seven Deadly Sins

• Violence against women and children
• Concealment of incest and rape
• Discrimination and devaluation of women and
  children
• Ignorance (hope for a better life)
• Greed
• Poverty
• May explain why children traffic themselves, but
  not an excuse for adults trafficking kids

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CAUSES of TRAFFICKING

• LACK OF ADULT PROTECTION
• Political instability
• Armed conflict
• Orphans/child-headed households
• HIV/AIDS
• Natural disasters
• Tsunami/Katrina

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Article 10 - Information Exchange Training

• Whether individuals crossing international
  borders with false papers or no documents are
  traffickers or victims
• Methodology of Victimization
• Methods used by criminals to transport
  trafficking victims under false identities
• Other trafficking techniques
• recruitment practices
• trafficking routes
• links between/among individuals and trafficking
  groups

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Article 10 - Information Exchange Training

• Training of all MDT members
• Prevention
• Prosecution
• Protection

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Overview of OtherInternational/Regional
Instruments
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INTERNATIONAL CONVENTIONS
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International Convention 1

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

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CEDAW - Article 6

• States parties shall take all appropriate
  measures, including legislation, to suppress all
  forms of traffic in women and exploitation or
  prostitution of women

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International Convention 2

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

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Article 3

• Best interests of the child are
  paramount

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Article 4

• State must implement all rights recognized in
  this instrument

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Article 11

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

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Article 19

• 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

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Article 32

• 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
• Min age for work, max hours
• Conditions
• Provide penalties for violation

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Article 34

• State must protect children from sexual
  exploitation and sexual abuse
• Unlawful sexual activity
• Prostitution
• Pornographic performance or materials

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Article 35

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

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International Convention 3

• ILO Convention 182 - Elimination of the Worst
  Forms of Child Labour
• Regulation vs. prohibition
• Its not labour, its torture w/ sexual abuse
  exploitation

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ILO 182

• Article 1
• 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.
• Article 2
• For the purposes of this Convention, the term
  "child" shall apply to all persons under the age
  of 18.

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ILO 182

• Article 3
• 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

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ILO 182

• (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.

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Protocols
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International Protocols 2

• Optional Protocol on the Sale of Children, Child
  Prostitution and Child Pornography (2000)
• Underlying Convention - CRC

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Sale of Children, Child Prostitution and Child
Pornography

• Art 3 Must make certain activities a crime
  (these are only minimums may criminalize others
  too)
• Sexual exploitation
• Transfer of child organs
• Engagement in the forced labour of a child

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Sale of Children, Child Prostitution and Child
Pornography

• Articles 4-7 International LEA
  co-operation through
• Jurisdiction
• Extradition
• Mutual assistance
• Seizure/confiscation of assets
• Art 8 Protect rights of child victims

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International Protocol 3

• Optional Protocol on the Rights of the Child in
  Armed Conflict
• Underlying Convention - Convention on the
  Rights of the Child

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Articles 1 2

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

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Article 3

• States shall raise their age limit to reflect the
  CRC (should be 18, but not specifically stated as
  such)
• If under 18s are to be recruited must
• Ensure volunteering is truly voluntary
• Informed consent of parents or legal guardian
• Recruits will be fully informed of their duties
• Must provide proof of age at time of recruitment

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Articles 4 5

• 4 - Armed groups (distinct from the State) shall
  also abide by the protocol
• State must criminalize armed groups activities
• 5 Nothing in the protocol shall preclude
  greater protection being given by a state to the
  realization of the rights of the child

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Article 6

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

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Article 7

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

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

• Article 4 Best interests of the child are
  paramount
• Article 15 Child Labour economic exploitation
  or work that is hazardous or that interferes with
  the childs physical, mental spiritual, moral or
  social development
• Min wage/max hours
• Conditions of work
• Penalties/sanction
• Promote dissemination of this information

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African Charter on the Rights and Welfare of the
Child (2000)

• Article 16 Child Abuse Torture
• Prohibits torture, inhuman or degrading
  treatment, especially physical or mental injury
  or abuse, neglect or maltreatment, including
  sexual abuse

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African Charter on the Rights and Welfare of the
Child (2000)

• Article 27 Sexual Exploitation
• Protect from and prevent
• Inducement, encouragement or coercion to engage
  in sexual activity
• Prostitution or other sexual services
• Pornographic activities, materials and
  performances

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African Charter on the Rights and Welfare of the
Child (2000)

• Article 29 Trafficking and Abduction
• Abduction, sale, or traffic of children, for any
  purpose, in any form, by any person, including
  parents or legal guardians
• Also prohibits begging

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REGIONAL CHARTER 2African Charter on Human and
Peoples Rights (1986)
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African Charter on Human and Peoples
RightsProtects economic, social cultural
rights(in addition to civil political
rights)New expanded scope
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Article 2 Non-discrimination

• On grounds of
• Sex
• Race
• Ethnic group
• Colour
• Religion, etc

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Article 18

• Eliminate every discrimination against women
• Ensure protection of rights of women and children
  as stipulated in international declarations and
  conventions
• International customary law

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

• Underlying document - African Charter on Human
  and Peoples Rights
• Behaviors, attitudes or practices that negatively
  affect life, health, dignity, education
  physical integrity
• Public private sphere
• Violence against women covers physical, sexual,
  psychological, economic harm

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Article 2

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

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Article 3 Right to Dignity

• Protection of Human and Legal rights
• Prohibit degradation or exploitation
• States shall ensure protection of women from all
  forms of violence, particularly sexual and verbal

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Article 4-Right to Life, Security and Integrity
of the Person

• 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

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Article 4-Right to Life, Security and Integrity
of the Person

• Identify the causes and consequences of VAW, and
  take appropriate measures to prevent, punish
  eradicate VAW
• Punish the perpetrators and help rehabilitate the
  victims

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Regional Charter-Trafficking

• Article 4 (2)(g) -
• Prevent condemn trafficking
• Prosecute the perpetrators
• Protect the victims

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(South African) Constitution

• Sec. 28 recognition of childrens unique
  vulnerabilities and, therefore, rights
• Best interests of the child are paramount

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Child Abuse Exploitation

• Protection from
• Maltreatment, neglect, abuse or degradation
• Exploitative labour practices
• Age inappropriate work or services
• Work or services that places the childs
  education, physical or mental health, or
  spiritual, moral or social development

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Victims Rights

• UN Convention on Justice Support for Victims of
  Crime and Abuse of Power
• UN Declaration of Basic Principles of Justice for
  Victims of Crime Abuse of Power

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Prof Susan KrestonFulbright Professor of Law
Research Fellow - UFSkrestons.rd_at_ufs.ac.zasusank
reston_at_hotmail.com076.543.7211 (cell)