Trafficking in Human Beings Trafficking in Human Beings – the international legal – the international legal

frameworkframework

OHCHROHCHRGenevaGeneva

25 May 201025 May 2010

Kristina Touzenis. Kristina Touzenis.

Trafficking – UN ProtocolTrafficking – UN ProtocolTrafficking in Persons: Trafficking in Persons: • TheThe recruitment recruitment,, transportation, transfer, harboring or receipt of transportation, transfer, harboring or receipt of

persons, persons, by means ofby means of threat, use of force or other means of coercion, 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 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 of vulnerability or of the receiving or giving of payment… to a person having control over another person, having control over another person, for the purpose of exploitation.for the purpose of exploitation.

• ExploitationExploitation shall include, at a minimum, the exploitation of the shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or labour or services, slavery or practices similar to slavery, servitude or the removal of organs.the removal of organs.

((UN Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and UN Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and ChildrenChildren))

organised by a trafficker

exploitationexploitationmovementmovement

traffickingtrafficking

Concept of traffickingConcept of trafficking

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

ConsentConsent• TheThe consent ofconsent of a victim of trafficking in persons to a victim of trafficking in persons to

the exploitation shall be irrelevant where any of the the exploitation shall be irrelevant where any of the means of force, threat of, coercion, deception, have means of force, threat of, coercion, deception, have been used.been used.

• The recruitment, transportation, transfer, harbouring The recruitment, transportation, transfer, harbouring or receipt of a or receipt of a childchild for the purpose of exploitation for the purpose of exploitation shall be considered ”trafficking in persons” even if shall be considered ”trafficking in persons” even if this does not involve any of the means set forth in the this does not involve any of the means set forth in the definition of trafficking in persons.definition of trafficking in persons.

• - agency- agency

ExploitationExploitation The Protocol makes reference to some specific The Protocol makes reference to some specific

forms of exploitation; however the list is not forms of exploitation; however the list is not exhaustive and it may include other forms as exhaustive and it may include other forms as well. The choice made was to extend as much well. The choice made was to extend as much as possible the definition of trafficking in as possible the definition of trafficking in persons to include any possible – known or persons to include any possible – known or still unknown – form of exploitation. still unknown – form of exploitation.

Women and ChildrenWomen and Children Admittedly, looking at the numbers reported, Admittedly, looking at the numbers reported,

trafficking in women and children is a big trafficking in women and children is a big problem, but the prominent focus on the problem, but the prominent focus on the trafficking of women over men arguably has trafficking of women over men arguably has links to assumptions about gender and, in links to assumptions about gender and, in particular, a generalized notion of female particular, a generalized notion of female vulnerability. That is, many female migrants are vulnerability. That is, many female migrants are conceptualized as trafficked while male migrants conceptualized as trafficked while male migrants are seen more commonly as irregular migrants.are seen more commonly as irregular migrants.

The focus on women and children obviously is The focus on women and children obviously is funded in three main factors:funded in three main factors:

that these two groups are considered more that these two groups are considered more vulnerable in general; vulnerable in general;

that statistics underpin the need for this focus; that statistics underpin the need for this focus; that trafficking is often linked to sexual that trafficking is often linked to sexual

exploitation even if trafficking is actually also exploitation even if trafficking is actually also for other forms of exploitation. for other forms of exploitation.

There is a concrete and urgent need to protect There is a concrete and urgent need to protect these two groups of victims, it is important not to these two groups of victims, it is important not to create an invisible group of trafficked persons – create an invisible group of trafficked persons – both in reality and in research.both in reality and in research.

Palermo Protocol Palermo Protocol ContinuedContinued The Protocol gives, for the first time, a detailed and The Protocol gives, for the first time, a detailed and

comprehensive definition of trafficking. comprehensive definition of trafficking. The Protocol applies to all people, but particularly women and The Protocol applies to all people, but particularly women and

children, since Member States have recognized their specific children, since Member States have recognized their specific vulnerability. vulnerability.

It offers tools in order to empower law enforcement and It offers tools in order to empower law enforcement and strengthen border control,strengthen border control,

The Protocol integrates this by also strengthening the response The Protocol integrates this by also strengthening the response of the judiciary of the judiciary

The main goal is to catch and prosecute the trafficker, yet at The main goal is to catch and prosecute the trafficker, yet at the same time protect the victim. Assistance to victims is the same time protect the victim. Assistance to victims is crucial to law enforcement, since he/she can provide for the crucial to law enforcement, since he/she can provide for the evidence necessary to successfully prosecute the trafficker. evidence necessary to successfully prosecute the trafficker.

Scope of the ProtocolScope of the Protocol To prevent and combat trafficking in personsTo prevent and combat trafficking in persons To protect and assist victimsTo protect and assist victims To respect the Human Rights of VictimsTo respect the Human Rights of Victims To prevent, investigate and prosecuteTo prevent, investigate and prosecute To promote cooperationTo promote cooperation

Human Rights LawHuman Rights Law Human rights issues are not only a concern Human rights issues are not only a concern

upon arrival of the trafficked person but also upon arrival of the trafficked person but also during the transportation. Instances of torture, during the transportation. Instances of torture, inhuman and degrading treatment are common inhuman and degrading treatment are common during the process and many traffickers as during the process and many traffickers as well as smugglers and in some cases border well as smugglers and in some cases border officials may use physical or sexual violence officials may use physical or sexual violence as a means to demand payment for their as a means to demand payment for their servicesservices

Article 6.2 states thatArticle 6.2 states that Each State Party shall ensure Each State Party shall ensure that its domestic legal or administrative system that its domestic legal or administrative system contains measures that provide to victims of contains measures that provide to victims of trafficking in persons, in appropriate cases: (a) trafficking in persons, in appropriate cases: (a) Information on relevant court and administrative Information on relevant court and administrative proceedings; (b) Assistance to enable their views proceedings; (b) Assistance to enable their views and concerns to be presented and considered at and concerns to be presented and considered at appropriate stages of criminal proceedings against appropriate stages of criminal proceedings against offenders, in a manner not prejudicial to the rights offenders, in a manner not prejudicial to the rights of the defence.of the defence.

art. 6.3 requires that states consider implementing art. 6.3 requires that states consider implementing measures to provide for the “measures to provide for the “physical, psychological physical, psychological and social recovery of victims of trafficking in and social recovery of victims of trafficking in persons (…) in particular the provision of: persons (…) in particular the provision of:

(a) Appropriate housing, (b) (a) Appropriate housing, (b) Counselling and Counselling and information, in particular as regards their legal information, in particular as regards their legal rights (…)rights (…) (c) medical, psychological and material (c) medical, psychological and material assistance; and (d) employment, education and assistance; and (d) employment, education and training opportunities.training opportunities.

Article 6, paragraph 4, of the Trafficking in Persons Article 6, paragraph 4, of the Trafficking in Persons Protocol provides that States parties, in considering Protocol provides that States parties, in considering measures to assist and protect victims of trafficking, measures to assist and protect victims of trafficking, must take into account the must take into account the special needs of child special needs of child victims.victims.

Other Relevant InstrumentsOther Relevant Instruments• International Convention on the Elimination of all forms of Racist International Convention on the Elimination of all forms of Racist

Discrimination (1966)Discrimination (1966)

• International Convention on the Elimination of All form of Discrimination International Convention on the Elimination of All form of Discrimination Against Women (1979)Against Women (1979)

• The Convention on the Rights of the Child (1989)The Convention on the Rights of the Child (1989)• ILO Convention 182 on the Worst Forms of Child Labour (1999)ILO Convention 182 on the Worst Forms of Child Labour (1999)

• Convention on the Rights of All Migrant Workers and Their Families Convention on the Rights of All Migrant Workers and Their Families (1990)(1990)

• In some cases The UN Refugee Convention - 1951 In some cases The UN Refugee Convention - 1951

CRCCRC• Art 35 : “States Parties shall take all appropriate, Art 35 : “States Parties shall take all appropriate,

national, bilateral and multilateral measures to national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in prevent the abduction of, the sale of or traffic in children for any purpose or in any form”children for any purpose or in any form”. .

• The article does not elaborate the terms but the words The article does not elaborate the terms but the words “for any purpose or in any form” suggest that it is to “for any purpose or in any form” suggest that it is to be interpreted broadly. be interpreted broadly.

• The responsibility for taking measures to avoid The responsibility for taking measures to avoid trafficking is placed clearly on the State, which trafficking is placed clearly on the State, which implies a State responsibility if it does not succeed in implies a State responsibility if it does not succeed in prosecuting offenders, thus making the international prosecuting offenders, thus making the international obligation applicable at the “trafficker-level”obligation applicable at the “trafficker-level”

CRC OPIICRC OPII• OP II Article 3, which provides that States Parties shall ensure OP II Article 3, which provides that States Parties shall ensure

the definition of the following acts as a crime, irrespective of the definition of the following acts as a crime, irrespective of whether they are committed domestically or trans-nationally, whether they are committed domestically or trans-nationally, on an individual or organised basis: on an individual or organised basis: Offering, delivering or Offering, delivering or accepting, by whatever means, a child for the purpose of accepting, by whatever means, a child for the purpose of Sexual exploitation of the child; Transfer of organs of the Sexual exploitation of the child; Transfer of organs of the child for profit; Engagement of the child in forced labour.child for profit; Engagement of the child in forced labour.

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

States are under an obligation to protect the child States are under an obligation to protect the child victim and his/hers family from retaliation, which in victim and his/hers family from retaliation, which in many cases is most relevant. many cases is most relevant.

Measures such as training of personnel and special Measures such as training of personnel and special treatment in criminal procedures are also included.treatment in criminal procedures are also included.

Using awareness raising and education and social Using awareness raising and education and social integration of victims are imposed on States- avoid integration of victims are imposed on States- avoid focusing exclusively on the criminal aspect but focusing exclusively on the criminal aspect but underlines that children should be at the centre of any underlines that children should be at the centre of any actions against trafficking and it is necessary to take actions against trafficking and it is necessary to take into consideration all aspects of this crime. into consideration all aspects of this crime.

Addressing root causes and international cooperation Addressing root causes and international cooperation – on children’s rights– on children’s rights

ILO Child Labour Convention (182) For the purposes of this Convention, the term the worst forms of For the purposes of this Convention, the term the worst forms of

child labour comprises: child labour comprises: (a) all forms of slavery or practices similar to slavery, such as the (a) all forms of slavery or practices similar to slavery, such as the

sale and sale and traffickingtrafficking of children, debt bondage and serfdom and of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; recruitment of children for use in armed conflict;

(b) the use, procuring or offering of a child for prostitution, for the (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; production of pornography or for pornographic performances;

(c) the use, procuring or offering of a child for illicit activities, in (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in particular for the production and trafficking of drugs as defined in the relevant international treaties; the relevant international treaties;

(d) work which, by its nature or the circumstances in which it is (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 carried out, is likely to harm the health, safety or morals of children.children.

Each Member shall take all necessary measures to ensure the Each Member shall take all necessary measures to ensure the effective implementation and enforcement of the provisions effective implementation and enforcement of the provisions giving effect to this Convention including the provision and giving effect to this Convention including the provision and application of penal sanctions or, as appropriate, other application of penal sanctions or, as appropriate, other sanctions. sanctions.

2. Each Member shall, taking into account the importance of 2. Each Member shall, taking into account the importance of education in eliminating child labour, take effective and time-education in eliminating child labour, take effective and time-bound measures to: bound measures to:

(a) prevent the engagement of children in the worst forms of (a) prevent the engagement of children in the worst forms of child labour; child labour;

(b) provide the necessary and appropriate direct assistance for (b) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour the removal of children from the worst forms of child labour and for their rehabilitation and social integration; and for their rehabilitation and social integration;

(c) ensure access to free basic education, and, wherever (c) ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children possible and appropriate, vocational training, for all children removed from the worst forms of child labour; removed from the worst forms of child labour;

(d) identify and reach out to children at special risk; and (d) identify and reach out to children at special risk; and (e) take account of the special situation of girls.(e) take account of the special situation of girls.

ICCPR and ICESCRICCPR and ICESCR The two major general Human Rights The two major general Human Rights

Instrument are also valid for victims of Instrument are also valid for victims of traffickingtrafficking

Trafficking is also about protecting from Trafficking is also about protecting from victimisation in the county of originvictimisation in the county of origin

Respect for human rights is needed both in Respect for human rights is needed both in countries of origin and in countries of countries of origin and in countries of destination and transitdestination and transit

The United Nations High Commissioner The United Nations High Commissioner for Human Rights has developed for Human Rights has developed Recommended Principles and Recommended Principles and Guidelines on Human Rights and Guidelines on Human Rights and Human Trafficking (E/2002/68/Add.1), Human Trafficking (E/2002/68/Add.1), which provide an important framework which provide an important framework guiding the criminalization of trafficking guiding the criminalization of trafficking in persons and the development of a in persons and the development of a legislative framework.legislative framework.

Smuggling 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?

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

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 take measures, in collaboration with other

States, to detect and prevent irregular migration and the abuses associated with the phenomenon – Arts 2, 3

impose sanctions on traffickers, smugglers and employers – Arts 5, 6(1)

UN Migrant Workers Convention 1990

Part III on the human rights of all migrant workers and members of their families 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 State obligation to consult /cooperate to ensure

labour migration takes place in humane and sound conditions

Provisions for sanctions against smugglers, traffickers and employers

Human rights of irregular migrants

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 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

THANK THANK YOU!YOU!