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Fulbright Professor of Law University of the Free State

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1 Fulbright Professor of Law University of the Free State
Trafficking in Human Beings: International Conventions, Protocols and Charters Susan Kreston Fulbright Professor of Law & Research Fellow University of the Free State

2 INTRODUCTION

3 What is Trafficking In Human Beings? MODERN DAY SLAVERY

4 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

5 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

6 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

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

8 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

9 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

10 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 @ 60% of trafficking victims in Africa are children

11 INTERNATIONAL INSTRUMENTS

12 Broad vs. Specific PROTOCOLS
CONVENTIONS & CHARTERS Global CEDAW CRC ILO Regional - African Charter on Human and People’s 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

13 Effect of International or Regional Documents when Ratified?
Incorporated into Domestic Law

14 EX: SA Children’s 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.”

15 International Conventions, International Protocols, Regional Charters Regional Protocols Constitutions

16 #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

17 Protocol’s 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

18 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.

19 Article 5 - Criminalization
Laws prohibiting trafficking + Attempt + Accomplice + Organizing or directing others to traffick

20 Trafficking Crimes

21 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

22 Article 7 – Status of Victims
Legislative or other appropriate measures to allow victim to stay in the country, temporarily or permanently, in appropriate cases

23 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

24 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

25 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.

26 CAUSES of TRAFFICKING: The 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

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

28 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

29 Article 10 - Information Exchange & Training
Training of all MDT members Prevention Prosecution Protection

30 Overview of Other International/Regional Instruments

31 INTERNATIONAL CONVENTIONS

32 International Convention #1
UN Convention on the Elimination of all forms of Discrimination Against Women (CEDAW ) 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

33 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

34 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

35 Best interests of the child are paramount
Article 3 Best interests of the child are paramount

36 Article 4 State must implement all rights recognized in this instrument

37 Article 11 States must take measures to prohibit the illegal transfer and non-return of the child abroad

38 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

39 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

40 Article 34 State must protect children from sexual exploitation and sexual abuse: Unlawful sexual activity Prostitution Pornographic performance or materials

41 Article 35 State must protect children from abduction, sale or traffic in any form, for any purpose, by any person

42 International Convention #3
ILO Convention Elimination of the Worst Forms of Child Labour Regulation vs. prohibition It’s not labour, it’s torture w/ sexual abuse & exploitation

43 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.

44 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;

45 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.

46 Protocols

47 International Protocols 2
Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2000) Underlying Convention - CRC

48 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

49 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

50 International Protocol #3
Optional Protocol on the Rights of the Child in Armed Conflict Underlying Convention - Convention on the Rights of the Child

51 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

52 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

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

54 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

55 Article 7 States must implement this protocol and include prevention and reintegration of the victim in cooperation with other signatories

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

57 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 child’s physical, mental spiritual, moral or social development Min wage/max hours Conditions of work Penalties/sanction Promote dissemination of this information

58 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

59 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

60 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

61 REGIONAL CHARTER #2 African Charter on Human and People’s Rights (1986)

62 African Charter on Human and People’s Rights Protects economic, social & cultural rights (in addition to civil & political rights) New & expanded scope

63 Article 2 – Non-discrimination
On grounds of: Sex Race Ethnic group Colour Religion, etc…

64 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”

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

66 Protocol on the Rights of Women in Africa - 2005
Underlying document - African Charter on Human and People’s 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

67 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

68 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

69 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

70 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

71 Regional Charter-Trafficking
Article 4 (2)(g) - Prevent & condemn trafficking Prosecute the perpetrators Protect the victims

72 (South African) Constitution
Sec. 28 – recognition of children’s unique vulnerabilities and, therefore, rights Best interests of the child are paramount

73 Child Abuse & Exploitation
Protection from: Maltreatment, neglect, abuse or degradation Exploitative labour practices Age inappropriate work or services Work or services that places the child’s education, physical or mental health, or spiritual, moral or social development

74 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

75 Prof Susan Kreston Fulbright Professor of Law
Prof Susan Kreston Fulbright Professor of Law & Research Fellow - UFS (cell)


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