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Trafficking in Human Beings

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Title: Trafficking in Human Beings the international legal framework Author: iom Last modified by: United Nations Created Date: 6/3/2007 11:05:17 AM – PowerPoint PPT presentation

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Title: Trafficking in Human Beings


1
Trafficking in Human Beings the international
legal framework
  • IOM-UNITAR
  • UN HQ
  • NYC
  • 9-11 June 2010

Kristina Touzenis.
2
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)

3
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)

4
The Trafficking process
  • Recruitment

Transfer

EXPLOITATION
EXPLOITATION
COERCION
DECEPTION
ABUSE OF POWER
Place of Origin
Place of Destination
5
Concept of trafficking

exploitation
movement
organised by a trafficker
trafficking
6
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

7
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.

8
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

9
  • 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.

10
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.

11
  • 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.

12
  • 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

13
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

14
Sexual exploitation
  • In 1949 the Convention for the Suppression of the
    Traffic in Persons and the Exploitation of the
    Prostitution of Others was adopted.

15
  • 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

16
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.

17
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.

18
  • 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.

19
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.

20
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

21
  • 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.

22
  • 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.

23
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.

24
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.

25
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

26
  • 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

27
  • 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.

28
Palermo Protocol
  • 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.

29
  • 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

30
  • 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.

31
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

32
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

33
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)

34
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

35
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.

36
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

37
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

38
Protocol Gaps
  • Identification
  • Non punishment of victims
  • Compensation
  • Return
  • Residence/reflection period

39
  • 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.

40
Prevention
  • Need to focus on human rights in general
  • Discrimination
  • Migraton policies
  • Push and pull factors

41
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.

42
  • 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.

43
  • 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.

44
Conclusions
  • Concept is NOT a human rights concept
  • A CRIMINAL law concept with a human rights aspect
  • Human rights must be included and the tow fields
    of law interact and overlap

45
THANK YOU!
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