Trafficking in Human Beings: Definition and Legal Framework “Training for Diplomatic and Consular Personnel” Berlin 10 June 2010 Tatiana Jardan IOM Moldova

10/06/2010THB: Definition and Legal Framework 2 Objectives: To learn about: IOM’s approach to Counter Trafficking Basics of Human Trafficking phenomenon International Legal Framework EU Legal Framework Trafficking vs. smuggling;

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10/06/2010THB: Definition and Legal Framework 4 IOM’s approach in Counter Trafficking Governing Principles: Respect for human rights Physical, mental and social well-being of the individual and his or her community Sustainability through institutional capacity building of governments and civil society Operational Standards: provide protection and empower trafficked women, men, girls and boys raise awareness and understanding of the issue bring justice to trafficked persons Since 1994: 500 projects in 85 countries approximately 15,000 trafficked persons assisted

10/06/2010THB: Definition and Legal Framework 5 What is Trafficking in Human Beings? Trafficking is exploitation of people People are exploited for sexual, labor, removal of organs, servitude or other purposes Trafficking should be seen as a process, starting with the recruitment and ending with the exploitation of the victim

How does THB Work? Recruitment: Abduction, forcible recruitment, fully deceptive recruitment, partially deceptive recruitment Transportation: Country of origin, country of transit, country of destination; Types: Legal or illegal; Means: Plane, bus, car, train, ship; Exploitation: Sexual exploitation, forced labor, forms of slavery, begging, organ transplant, armed conflicts, organized crime, surrogate mother; Trafficking is No. 3 in the world after the illegal sales of arms and narcotics in terms of profit. 10/06/ THB: Definition and Legal Framework

10/06/2010THB: Definition and Legal Framework 7 The Causes Human trafficking is a highly profitable crime that is based on the principles of supply and demand and which exploits a series of “push and pull” factors in the countries of origin and destination A continuous supply of victims within the countries of origin A constant and growing demand for the services of the victims in the countries of destination The criminal exploitation of these two factors by international organised criminals

10/06/2010THB: Definition and Legal Framework 8 Push Factors: Poverty – and the feminisation of poverty Lack of education Unemployment Gender discrimination Domestic violence Life within dysfunctional families Impact of conflict or transition on countries Lack of opportunity for legal migration Lack of opportunity or alternatives

10/06/2010THB: Definition and Legal Framework 9 Pull Factors: Expectation of employment and financial reward In the sex industry, expectation of rich financial rewards Access to material benefits associated with the West Improved social position and treatment Perceived ‘glamour’ of Western European daily life Demand of reproductive work of women Demand of the “exotic” women as prostitute Demand of cheap labour men and women

10/06/2010THB: Definition and Legal Framework 10 Home (country of origin) Abroad (country of destination) Exploited & Trapped Circumstances of Trafficking Circumstances of Return Causes of Trafficking  Forced Migration? Few job opportunities for women Limited legal alternatives to work abroad Growth of women as sole supports of families Gender and youth issues Lack of social safety nets Domestic violence Prostitution Substance abuse Unequal access to opportunities due to corruption  Re-integration into the same socio- economic environment? Areas covered by counter-trafficking activities

10/06/2010THB: Definition and Legal Framework 11 Legal Framework Convention on the Elimination on all Forms of Discrimination agstint Women (CEDAW), 1979 – Article 6 Convention on the Rights of the Child (CRC), 1989 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (entered into force on 18 January 2002) Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000)- supplementing the UN Convention Against Trans-national Organised Crime 2000 The Council of Europe Convention on Action against Trafficking in Human Beings (entered into force in February 2008) National/Domestic Law plus EU directives

10/06/2010THB: Definition and Legal Framework 12 Palermo Protocol “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children” Article 2 - purpose of the protocol is: Prevent and combat trafficking in persons, particular attention to women and children Protect and assist the victims of such trafficking, with full respect for their human rights Promote co-operation amongst States in order to meet the two above-mentioned objectives.

10/06/2010THB: Definition and Legal Framework 13 Article 3 of the Protocol A) ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of 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. (B) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph 3A of this article shall be irrelevant where any of the means set forth in subparagraph 3A have been used. (C) 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 subparagraph (A) of this article. (Child – Under 18 years)

The Crime Human Trafficking Trafficking in Human Beings Actions Recruitment Transportation Transfer Harboring/Receipt Exploitation Means Threat/use of force Forms of coercion Abduction Fraud Deception Abuse of power Situation of vulnerability Receiving of payments/benefits Purpose Sexual exploitation Forced labor or services Slavery/practices similar to slavery Servitude Begging Organ/tissue removal Armed conflicts Organized crime Surrogate mother Combined 10/06/ THB: Definition and Legal Framework

The THB Process 1. Recrutiment 2. Transport transfer 3. Harbouring 4. Receipt Abduction or abuse of power Fraud Deception Exploitation Threat or use of violence What are the illicit means? What is the purpose? What is the act? Forced labour Sexual Exploitation Organ removal Domestic Servitude/ Slavery 10/06/ THB: Definition and Legal Framework

10/06/2010THB: Definition and Legal Framework 16 The added value of CoE Convention on action against THB Came into force in the beginning of 2008 THB - an affront to human dignity and a violation of human rights; Definition of the term “Victim” – any natural person who is subject to THB; Proper balance between respect for human rights and prosecution; Comprehensive scope of application: national/ transnational; linked or not with organised crime; Comprehensive legal framework for the protection of and assistance to victims and witnesses GRETA - an efficient and independent monitoring mechanism; Mainstreaming gender equality in its provisions.

Schengen Agreement and EU Acquis Schengen Agreement: 25 countries - eliminated border controls with other Schengen members while simultaneously strengthening border controls with non- member states EU Acquis and free movement of people, one of the four basic freedoms + The Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely (Freedom of movement for workers) 10/06/2010THB: Definition and Legal Framework 17

EU Action against THB Council Framework Decision on Combating THB (July 2002) – New proposal under revision – a more integrated and holistic approach in the fight against THB; Council Directive on the residence permit issued to third-country nationals who are victims of THB or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (April 2004) - define the conditions for granting residence permits of limited duration; Council Directive relating to compensation to crime victims (April 2004 ) EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings ( Dec. 2005) - coordination of EU action, scoping the problem, prevention, reducing the demand, investigating and prosecuting, protecting and supporting victims of trafficking, returns and reintegration, external relations. 10/06/2010THB: Definition and Legal Framework 18

EU Action against THB New Council Framework Decision on Combating THB- Directive (taken by the Council on 4 June) Objectives of the new EU directive: More integrated and holistic approach centred on human rights Victim-centred approach, including protection and assistance to potential victims, especially children and other at-risk groups New legislative measures in prevention and prosecution of THB crimes (non-punishment, the right to compensation, minimum standard for sentences) An EU anti-trafficking coordinator to coordinate EU action and policies in this field to be established 10/06/2010THB: Definition and Legal Framework 19

UN Protocol against the Smuggling of Migrants by Land, Sea and Air (2000) Article 2 – Purpose: to prevent and combat the smuggling and promote international cooperation Article 3 – Definition: “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 10/06/2010THB: Definition and Legal Framework 20

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10/06/2010THB: Definition and Legal Framework 22 SMUGGLED MIGRANTS:  Want to cross a border into another state without visa/residence permit  Active participants in the process  Dependent on the smuggler for the duration of the journey, otherwise independent  Usually know about the conditions of travel  Take part voluntarily  Can become victims of exploitation if can not pay for the journey or the smuggler/intermediary is also a trafficker TRAFFICKED PERSONS:  Often physical and psychological abuse  Often denied freedom of movement and other basic rights  Often illegal / irregular migrants  Always coerced/subservient/ dependent  May have consented to the job/journey but not to the exploitation Definitions of Trafficked and Smuggled Persons: Differences/Similarities

10/06/2010 THB: Definition and Legal Framework 23 Thank you for your kind attention! Mission to The Republic of Moldova Ciuflea 36/1 str., Chisinau, MD 2001, Republic of Moldova Tel ; ; Fax Web: IOM International Organization for Migration