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Title: Smuggling and Trafficking in Human Beings


1
Smuggling and Trafficking in Human Beings the
international legal framework
  • IOM-UNITAR
  • UN HQ
  • NYC
  • June 2011

Kristina Touzenis.
2
Why prevent irregular migration?
  • 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

3
International responses a brief chronology
  • 1970s
  • UN Resolutions against migrant smuggling
    /trafficking
  • ILO Convention No. 143 of 1975
  • 1980s - 1990
  • UN Migrant Workers Convention drafted (adopted 18
    December 1990 entry into force 1 July 2003)
  • 2000
  • UN International Convention against Transnational
    Organised Crime and Palermo Protocols

4
United Nations Convention Against Transnational
Organized Crime, 2000
  • Protocol to Prevent, Suppress and Punish
    Trafficking in Persons, Especially Women and
    Children (2000)
  • Protocol Against the Smuggling of Migrants by
    Land, Sea and Air (2000)

5
The Causes of smuggling
  • Poverty, unemployment, and lack of opportunities
  • Political and humanitarian crises
  • In many less developed regions of the world,
    children are entrusted to more affluent friends
    or acquaintances with the intention to improve
    their lives and relieve their families of
    economic burden
  • Demand for inexpensive labour
  • Restrictive immigration policies in traditional
    countries of destination
  • Criminal networks and transnational organized
    crime

6
The Smuggling process
  • Transfer

Agreement with the smuggler (consent)

Destination
BORDER
SMUGGLING
END OF RELATION WITH SMUGGLER
(Eventual Transit Country)
7
  • Trafficking is
  • A Crime against the Individual
  • Smuggling is
  • A Crime against the State

8
The Concept
  • While, by definition, migrants cooperate with
    their smugglers even seeking them out and
    paying themthe act of smuggling can often be a
    dangerous and abusive one.
  • Smuggling operations have many of the following
    characteristics
  • a broad transnational reach
  • networks of service providers to help in various
    stages of the operationsinfluence on government
    officials at many levels
  • access to large sums of money at many locations
  • ties with other criminal enterprises
  • the ability to shift areas of operation according
    to "market" conditions
  • an association with persons capable of violence
    within their networks

9
Article 3 of the Protocol AGAINST THE SMUGGLING
OF MIGRANTS BY LAND, SEA AND AIR
  • (a) Smuggling of migrants shall mean the
    procurement, in order to obtain, directly or
    indirectly, a financial or other material
    benefit, of the illegal entry of a person into a
    State Party of which the person is not a national
    or a permanent resident
  • (b) Illegal entry shall mean crossing borders
    without complying with the necessary requirements
    for legal entry into the receiving State

10
Scope of the Protocol
  • To prevent and combat smuggling in persons
  • To respect the Human Rights of smuggled migrants
  • Investigation and prosecution
  • To promote cooperation

11
  • Requires States to
  • Criminalise smuggling
  • Co-operate to prevent smuggling
  • Strengthen border controls to detect smuggling
  • Address root causes
  • Appropriate measures to preserve and protect
    rights
  • Cooperate in return

12
Non-criminalisation of migrants
  • Art. 5 Criminal liability of migrants
  • Migrants shall not become liable to criminal
    prosecution under this Protocol for the fact of
    having been the object of conduct set forth in
    article 6 of this Protocol.

13
Criminalisation of smugglers
  • 1. Each State Party shall adopt such legislative
    and other measures as may be necessary to
    establish as criminal offences, when committed
    intentionally and in order to obtain, directly or
    indirectly, a financial or other material
    benefit
  • (a) The smuggling of migrants
  • (b) When committed for the purpose of enabling
    the smuggling of migrants
  • (i) Producing a fraudulent travel or identity
    document
  • (ii) Procuring, providing or possessing such a
    document
  • (c) Enabling a person who is not a national or a
    permanent resident to remain in the State
    concerned without complying with the necessary
    requirements for legally remaining in the State
    by the means mentioned in subparagraph (b) of
    this paragraph or any other illegal means.

14
  • (a) The smuggling of migrants
  • (b) When committed for the purpose of enabling
    the smuggling of migrants
  • (i) Producing a fraudulent travel or identity
    document
  • (ii) Procuring, providing or possessing such a
    document
  • (c) Enabling a person who is not a national or a
    permanent resident to remain in the State
    concerned without complying with the necessary
    requirements for legally remaining in the State
    by the means mentioned in subparagraph (b) of
    this paragraph or any other illegal means.

15
Cont.
  • Participating as an accomplice in an offence ()
  • Organizing or directing other persons to commit
    an offence

16
Aggravating Circumstances
  • Circumstances
  • That endanger, or are likely to endanger, the
    lives or safety of the migrants concerned or
  • That entail inhuman or degrading treatment,
    including for exploitation, of such migrants.

17
Prevention, cooperation and other measures
  • Information
  • Border measures
  • Security and control of documents
  • Legitimacy and validity of documents
  • Training and technical cooperation
  • Protection and assistance measures (see upcoming
    slide)
  • Agreements and arrangements
  • Return of smuggled migrants (see upcoming slide)

18
Protection
  • Each State Party shall take, all appropriate
    measures, including legislation if necessary, to
    preserve and protect the rights of persons, in
    particular the right to life and the right not to
    be subjected to torture or other cruel, inhuman
    or degrading treatment or punishment.
  • Each State Party shall take appropriate measures
    to afford migrants appropriate protection against
    violence
  • Each State Party shall afford appropriate
    assistance to migrants whose lives or safety are
    endangered

19
  • 4. States Parties shall take into account the
    special needs of women and children.
  • 5. In the case of the detention each State Party
    shall informe the person concerned without delay
    about the provisions concerning notification to
    and communication with consular officers.

20
Return
  • Return of smuggled migrants
  • Each State Party agrees to facilitate and accept,
    without undue or unreasonable delay, the return
    of a person who is its national or who has the
    right of permanent residence in its territory at
    the time of return.
  • 2. Each State Party shall consider the
    possibility of facilitating and accepting the
    return who had the right of permanent residence
    in its territory at the time of entry into the
    receiving State in accordance with its domestic
    law.

21
  • 3. a requested State Party shall, verify whether
    a person is its national or has the right of
    permanent residence in its territory.
  • 4. In order to facilitate the return of a person
    who is without proper documentation, the State
    Party of which that person is a national or in
    which he or she has the right of permanent
    residence shall agree to issue, at the request of
    the receiving State Party, such travel documents
  • 5. Each State Party involved with the return of a
    person shall take all appropriate measures to
    carry out the return in an orderly manner and
    with due regard for the safety and dignity of the
    person.

22
Prevention and Root Causes
  • Each State Party shall take measures to ensure
    that it provides or strengthens information
    programmes to increase public awareness of the
    fact that smuggling is a criminal activity
    frequently perpetrated by organized criminal
    groups for profit and that it poses serious risks
    to the migrants concerned.
  • States Parties shall cooperate in the field of
    public information for the purpose of preventing
    potential migrants from falling victim to
    organized criminal groups.
  • Each State Party shall promote or strengthen, as
    appropriate, development programmes and
    cooperation at the national, regional and
    international levels, taking into account the
    socio-economic realities of migration and paying
    special attention to economically and socially
    depressed areas

23
Slavery and Trafficking
  • Slavery Convention 1926
  • Convention Concerning Forced or Compulsory Labour
    1930
  • Convention for the Supression of Trafficking in
    Persons and the exploitation of the Prostitution
    of Others 1949
  • UN Convention Against Transnational Organized
    Crime Protocols (entered into force in 2003)

24
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)

25
The Trafficking process
  • Recruitment

Transfer

EXPLOITATION
EXPLOITATION
COERCION
DECEPTION
ABUSE OF POWER
Place of Origin
Place of Destination
26
Concept of trafficking

exploitation
movement
organised by a trafficker
trafficking
27
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

28
Force and coercion
  • There is always a point in the trafficking chain
    at which people are subjected to force or
    coercion when they are recruited, during
    transportation, upon entry or during work.
  • Both overt and subtle forms of coercion are used,
    such as the confiscation of papers, non-payment
    of wages, induced indebtedness or threats to
    denounce irregular migrant workers to authorities
    if they refuse to accept the working conditions.

29
Fraud, deception, abuse of power
  • It is absolutely irrelevant if the victim
    apparently voluntarily entered or stayed in a
    situation or conditions of labour exploitation if
    they were put in that situation through the use
    of threats, force, coercion, abduction, deception
    or fraud or by an abuse of power or an abuse of
    their own position of vulnerability.
  • Most of these concepts will already be clear in
    national law however coercion and abuse of
    power/vulnerability are unlikely to be

30
  • The abuse of a power or of a position of
    vulnerability contained in Article 3 of the
    Protocol is understood to refer to any situation
    in which the person involved has no real and
    acceptable alternative but to submit to the abuse
    involved.

31
Exploitation
  • 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.

32
  • The Protocol does not define any of the mentioned
    forms of exploitation related to forced labour.
    But a definition for each of them can be found in
    the relevant international convention. 
  • Article 2, paragraph 1 of ILO Forced Labour
    Convention, 1930 (No. 29) defines forced labour
    as all work or service which is exacted from any
    person under the menace of any penalty and for
    which the said person has not offered himself
    voluntarily.

33
  • The concept of forced labour as defined by ILO
    Convention 29 comprises three basic elements
  • a. the activity exacted must be in the form of
    work or service
  • b. the menace of a penalty
  • c. it is undertaken involuntarily by the victim

34
  • Penal law often does not place the emphasis on
    coercion, and often have rather subjective
    criteria as to what constitutes forced labour.
  • . It is however important to underline that
    simply poor working conditions do not alone
    constitute forced labour, there must be an
    element of intention to exploit.
  • with the Protocol the focus was broadened and so
    was the understanding of what forced labour is
    now it is shown that 80 of forced labour is in
    the private sector.

35
  • Trafficking violates the most basic rights of any
    person in relation to a work situation the
    freedom from coercion at work, the freedom to set
    up associations and bargain collectively, and the
    freedom from discrimination at work. Further
    trafficking of children has been defined by the
    ILO as one of the worst forms of child labour,
    which seriously harms the development of the
    child.

36
Slavery and servitude
  • The 1957 Supplementary Convention on the
    Elimination of Slavery, Slave Trade, and
    Institutions and Practice Similar to Slavery
    defines Slavery as the status or condition of a
    person over whom any or all of the powers
    attaching to the rights of ownership are
    exercised

37
  • The Supplementary Convention, art. 1(c) defines
    marriage as a form of slavery in certain cases.
    Any institution or practice, whereby (i) a
    woman, without the right to refuse, is promised
    or given in marriage on payment of a
    consideration in money or in kind to her parents,
    guardian, family or any other person or guys,
    (ii) the husband of a woman, his family, or his
    clan has the right to transfer her to another
    person for value received or otherwise, or (iii)
    a woman on the death of her husband is liable to
    be inherited by another person

38
Prosecutor v. Kunarac
  • The ICTY elaborated on the meaning of slavery and
    enslavement noting that a mere ability, among
    others, to buy, sell or trade people, although an
    important factor to be taken into consideration,
    is in itself insufficient in determining whether
    or not the enslavement is committed.

39
  • Trafficking may then be treated as slavery
    simultaneously mainly when people are exploited
    afterwards by the traffickers themselves or the
    same organisation as this ensures the
    continuous exercise of the right of ownership.
    The duration of the suspected exercise of powers
    attaching to the right of ownership is another
    factor that may be considered when determining
    whether someone was enslaved.

40
Sexual exploitation
  • In 1949 the Convention for the Suppression of the
    Traffic in Persons and the Exploitation of the
    Prostitution of Others was adopted.

41
  • Neither exploitation of the prostitution of
    others nor other forms of sexual exploitation
    is defined in the Palermo Protocol, partly due to
    the discussion taking place regarding
    prostitution and the possibility of prostitution
    not always amounting to exploitation.
  • The Travaux Préparatoires mentions that the
    Protocol addresses the exploitation of
    prostitution and other forms of sexual
    exploitation only in the context of trafficking
    in persons

42
Removal of Organs
  • There is no definition of what constitute removal
    of organs, but the Travaux Préparatoires and the
    UNODC Legislative Guide explain that the removal
    of organs from a child with the consent of a
    parent or guardian for legitimate medical or
    therapeutic reasons is out of the scope of the
    Protocol.

43
Women and Children
  • 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.

44
  • This notion may to some extent at least also
    influence statistics. And yet there are
    significant signals in many countries and regions
    that male migrants are also severely exploited
    and violated in ways that constitute human
    trafficking

45
  • Most identified human trafficking victims have
    been women and children who seem to be
    particularly vulnerable to sexual exploitation
    and the identification of male victims who might
    be expected to be trafficked for forced labour
    purposes has not been successful in many
    countries.
  • Far fewer sources have identified either male
    victims or victims who have been subjected to
    forced labour, when the popular perception, at
    least, is that it is men especially who might be
    expected to be trafficked for forced labour
    purposes.

46
  • One reason for the low numbers of reported cases
    involving forced labour and male victims is
    connected to trafficking legislation which, in
    many countries, is restricted only to sexual
    exploitation.

47
  • 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.

48
Palermo Protocol Continued
  • 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.

49
Scope of the Protocol
  • To prevent and combat trafficking in persons
  • To protect and assist victims
  • To respect the Human Rights of Victims
  • To prevent, investigate and prosecute
  • To promote cooperation

50
Criminal Law
  • Is criminal law and human rights law linked?
  • Rule of law
  • Protection
  • Prosecution
  • Wictims/witness rights

51
  • Trafficking and smuggling are criminal justice
    issues. They affect territorial integrity because
    they involve the facilitation of crossing of
    borders and remaining in a State in violation of
    national criminal and immigration laws.
  • Trafficking and smuggling also undermine the rule
    of law and political foundation of States,
    because traffickers and smugglers such as
    organised criminal groups resort to violence and
    corruption as means to advance their business.

52
  • The act of trafficking and the exploitation of
    their labour expose victims to a variety of
    criminal acts including deprivation of liberty,
    theft of identity documents, sexual, physical and
    psychological abuse and blackmail (threats to
    inform relatives or police about the victims
    activity).
  • Trafficking is itself a breach of the laws of
    many, if not most, states.

53
  • The lack of specific legislation against
    trafficking in persons is arguably the most
    serious obstacle in countering the crime. In the
    absence of legislation, it is very difficult to
    punish human trafficking and bring the
    traffickers to justice. However, even where
    provisions against trafficking in persons exist
    under national law, these often cover only parts
    of the crime in trafficking in persons as defined
    in the UN Protocol.

54
Offenders
  • Article 2 and 3 of the TOC determines who can be
    prosecuted
  • 2(a) Organized criminal group shall mean a
    structured group of three or more persons,
    existing for a period of time and acting in
    concert with the aim of committing one or more
    serious crimes or offences established by the
    Convention or Trafficking Protocol, in order to
    obtain, directly or indirectly, a financial or
    other material benefit.

55
  • An offence is transnational in nature if (a) It
    is committed in more than one State (b) It is
    committed in one State but a substantial part of
    its preparation, planning, directing or control
    takes place in another State (c) It is committed
    in one State but involves an organized criminal
    group that engages in criminal activities in more
    than one State or (d) It is committed in one
    State but has substantial effects in another
    State.

56
Internal Trafficking
  • Discussion as to whether the Protocol is
    applicable to internal trafficking since it does
    not contrary to the Smuggling Protocol
    mention borders in its definition. During the
    drafting stage of the Protocol, a discussion
    arose as to whether or not trafficking should be
    confined to international movements. All drafts
    of the Protocol refer to international
    trafficking

57
  • It has however to be taken into consideration
    that the Protocol is a protocol to the Convention
    on International Organised Crime and therefore
    cannot be seen outside the scope of this
    Convention. But the Convention and the Protocol
    must be interpreted together.

58
Victim Centred Criminal Law Approach
  • A victim-centred criminal justice response to
    trafficking is most effective in terms of
    achieving a successful prosecution of the
    traffickers and protecting and supporting the
    human rights of the trafficked victim.
    Prioritising the well-being of the trafficked
    victim and their recovery from a trafficking
    ordeal is compatible with achieving the desired
    results in a criminal prosecution.
  • Balance defence and prosecutors rights in trial

59
Related offences
  • Trafficking is often only one of the crimes
    committed against trafficked persons. Other
    crimes may be committed to ensure the compliance
    of victims, maintain control, protect trafficking
    operations or maximize profits

60
A crime against humanity?
  • ICC Statute Article 7(2)(c) defined enslavement
    as the exercise of any or all of the powers
    attaching to the right of ownership over a person
    and includes the exercise of such powers in the
    course of trafficking in persons, in particular
    women and children.

61
Human Rights Law
  • 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

62
  • Upon arrival restriction of movement, work
    conditions, consequences of racisms and law
    enforcement practices such as detention centres,
    repatriation and rights linked to legal processes
    are some of the issues with a human rights aspect
    in the trafficking context

63
Palermo Protocol on HR
  • 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 defence.

64
  • 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.

65
  • Four years after the adoption of the Protocol the
    Legislative Guide intervened on the discretionary
    character of many of the provisions dealing with
    the protection of victims and clarified the issue
    of some of these measures being mandatory while
    others are only optional.

66
  • The Protocol's comprehensive prevention policy
    also includes activities to prevent
    re-victimization, research, information
    campaigns, social and economic initiatives, and
    cooperation with civil society

67
  • 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.

68
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

69
CEDAW
  • Article. 6 States Parties shall take all
    appropriate measures, including legislation, to
    suppress all forms of traffic in women and
    exploitation of prostitution of women.
  • But also other articles not specifically on
    trafficking are relevant

70
CEDAW
  • Article 5 States Parties shall take all
    appropriate measures (a) To modify the social
    and cultural patterns of conduct of men and
    women, with a view to achieving the elimination
    of prejudices and customary and all other
    practices which are based on the idea of the
    inferiority or the superiority of either of the
    sexes or on stereotyped roles for men and women
  • Equality in Education article 10
  • Participation (art. 7) and non-discrimination in
    general (also article 14 on rural women)

71
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

72
  • Trafficking in children is a violation of a
    number of rights It is a violation of the
    childs right to education (Art. 28/29) to
    health (Art. 24) to family life (Art. 9) to
    leisure and play (Art. 31) of the right to be
    protected against exploitation (economic Art.32
    sexual Art.34) the right to life Art 6.1 and to
    survival and development Art 6.2 the right to
    protection from discrimination and punishment
    Art. 2.2 and from physical and mental violence,
    Art 19 and the right to participation

73
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.

74
UN Migrant Worker Convention
  • Art. 68 obliges States Parties to collaborate for
    the purpose of preventing and eliminating illegal
    or clandestine movements as well as the
    employment of migrants who are in an irregular
    situation
  • The Convention protects migrants in the entire
    migration process

75
ICCPR and ICESCR
  • 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

76
Protocol Gaps
  • Identification
  • Non punishment of victims for illegal activity
  • Residence/reflection period

77
  • 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.

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Prevention
  • Need to focus on human rights in general
  • Discrimination
  • Migraton policies
  • Push and pull factors

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

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

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  • Respect
  • Protect/ensure
  • Facilitate
  • Fulfill
  • Examples the right to life, the right to
    political participation, the right to work

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  • The CoE Convention on Action Against Trafficking
    in Human Beings refers to trafficking as a
    violation of human rights and an offence of the
    dignity and the integrity of the human being

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

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  • Protect
  • Prosecute/Investigate Velasquez Rodiguez v.
    Honduras (Interamerican Court) and in Assenouv
    and Others v. Bulgaria the European Court of
    Human Rights held that States have a positive
    duty to investigate cases involving a breach of
    Art 3 (prohibition of torture and ill treatment),
    in line with the duty to Secure rights and
    freedoms to all persons in their jurisdiction

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Victims/witness
  • The role of witnesses and the evidence they
    provide in criminal proceedings is often crucial
    in securing the conviction of offenders,
    especially in respect of organized crime such as
    human trafficking. This tool presents the
    provisions of the Organized Crime Convention
    relating to the protection of witnesses (art. 24)
    and obstruction of justice (art. 23, subpara.
    (a)).

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Soft trafficking
  • Retention of passports
  • Confinement at the workplace
  • Control over contacts with the outside world
  • Long working houes of up to 60-70 h/w
  • One day off per week, working holidays without
    overtime

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Conclusions
  • Concept is NOT a human rights concept
  • A CRIMINAL law concept with a human rights aspect
  • Human rights must be included and the two fields
    of law interact and overlap as does other
    fields of law (migration, labour, social welfare)

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