Introduction to Human Trafficking Deslie Billich Iowa, January 2016

Protocols In October 2000 the Ad Hoc Committee on the Elaboration of United Nations Convention against Transnational Organized Crime approved the draft Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children The Ad Hoc Committee also finalised the draft protocol against Smuggling of Migrants by Land, Sea and Air. They were signed at the High-level Political Signing Conference in Palermo, Italy, in December Commonly referred to as the Palermo Protocol It is now 15 years since it came into existence

CONSEQUENCES OF THE INTERNATIONAL PROTOCOLS Trafficked persons, especially women in prostitution and child labourers, were no longer viewed as criminals but as victims of a crime Rather than individual national responses to this criminal activity or related criminal activity there was now a global response in recognition of the links with organised crime There was an internationally accepted definition of trafficking

CONSEQUENCES (cont’d) The international and uniform acceptance of a trafficking definition provided a comprehensive coverage of criminal means by which trafficking takes place, including not only force, coercion, abduction, deception or abuse of power, but also less explicit means, such as abuse of a victim’s vulnerability (Article 3(a)) From an evidentiary point of view the definition of trafficking helped ensure that victims of trafficking did not bear the burden of proof (Article 3(b))

CONSEQUENCES (cont’d) That the exploitation of prostitution and trafficking cannot be separated. The Protocol acknowledges that much trafficking is for the purpose of prostitution and for other forms of sexual exploitation (Article 3(a)) That it is not necessary for a victim to cross a border so that women and children who are domestically trafficked for prostitution and forced labour within their own countries, are also protected subject to provisions listed in Article 3

DEFINITIONS 6

TRAFFICKING IN PERSONS Article 3 (a) of The United Nations Convention against Transnational Organized Crime (2000) defines Human Trafficking as: “the recruitment, transportation, transfer, harboring 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” 7

EXPLOITATION “Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or service, slavery or practices similar to slavery, servitude or the removal of organs.” 8

CONSENT Article 3(b) provides that the consent of the trafficked person to the intended exploitation is irrelevant where any of the means defined have been used The UNODC Expert Group in 2014 authored an Issue Paper on The Role of Consent in within the International Legal Definition of Trafficking in Persons

CHILDREN Article 3 (c) "The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered 'trafficking persons' even if this does not involve any of the means set forth in subparagraph (a) of this article”. Child means any person under the age of 18 years

OBLIGATION OF STATES Individual elements, such as sexual exploitation, forced labor, slavery-like practices, are not further defined in the Convention However signatory states are obligated to further define these terms under their domestic legislation.

SLAVERY Article 1 of the UN Slavery Convention (1926) defines slavery as: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”

DEBT BONDAGE Article 1(a) of the UN Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (1956) "the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined".

VICTIM The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) defines victims as: "persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power" (Para. 1)

VICTIM WITNESS “victim witness” is a term used to refer to a victim of trafficking who becomes a witness in criminal justice proceedings The use of the term of victim witness means a victim of trafficking is to be afforded all the support provided to a victim of any crime as well as evidentiary protection as a witness. The essential concern for stakeholders in the criminal justice process is that a person, who is a witness/victim, cooperates in the prosecution of the offenders. The less effective the protection of victims/witnesses, the more likely the cooperation will be withdrawn

SMUGGLING Article 3 of the Palermo Protocol, defines smuggling of migrants as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person” into a country of which “the person is not a national or a permanent resident” “Illegal entry” is the crossing of borders without complying with the necessary requirements for legal entry into the country 16

TRAFFICKING AND SMUGGLING There is often confusion with the use of these terms Factually there is often overlap Factually a smuggled migrant can become a trafficking victim They differ in three key areas Given the definitions I have provided- can you identify the differences?

BORDERS Migrant smuggling necessarily involves the crossing of international borders Human trafficking may involve the crossing of international borders but can also occur within the borders of one country- domestic trafficking

CONSENT migrant smuggling occurs with the consent of the person(s) being smuggled. In contrast, victims of human trafficking need not necessarily consent. They may have agreed to migrate to work initially in another country but once there they can be prevented from leaving. In those circumstances they then become a victim of trafficking. Often they are then coerced to continue to work through physical or psychological abuse/pressure, their travel documents may have been confiscated and they are told they must pay off a debt Whatever initial consent may have existed becomes irrelevant when any of the means (threat, force, coercion, fraud, etc.) are used to enslave the trafficked person

PURPOSE Migrant smuggling involves illegal entry of a person into a country for financial or other material benefit only Human trafficking trafficking occurs for some exploitative purpose- such as labour, sexual and prurient purposes, begging, prostitution or the removal of organs

Elements of Human Trafficking ProcessMeansPurpose Recruitment Transportation Transfer Harbouring Receipt of persons Threat Force Coercion Abduction Fraud Deception Abuse of power Abuse of vulnerability Giving and receiving of power Exploitation which includes: i.Prostitution and other forms of sexual exploitation ii.Forced labour and services iii.Slavery and similar practices iv.Involuntary services v.Removal of organs 21

Human TraffickingMigrant Smuggling Action (s)  Recruitment, transportation, transfer, harbouring or receipt of a person 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 vulnerability or of the giving or receiving of payments or benefits  Procurement of illegal entry of a person into a country of which the person is not a national or permanent resident Transnationality  Not required  Required Consent of the smuggled or trafficked person Irrelevant once the means are established  For children, the consent is irrelevant regardless of the means  The smuggled person consents to the smuggling Purpose  Exploitation includes: a) Prostitution and other forms of sexual exploitation b) Forced labor and services c) Slavery and similar practices d) Involuntary servitude e) Removal of organs  For financial or other material benefit

Highlighted Issues It is important to highlight the following aspects: the international definition of trafficking in persons does not require “exploitation” to have actually occurred it is sufficient that the intention to exploit is present the apparent consent of the victim does not alter the offender’s criminal liability trafficking does not require a transnational element: States are required to criminalise trafficking taking place within their borders as well as cross border trafficking 23

INTERNATIONAL STANDARDS 24

WHAT DOES THIS MEAN They are internationally recognised norms They are the minimum acceptable legal and policy requirements/standards compliant with relevant international conventions and practice It is best practice International standards do not vary from country to country They do not vary according to cultural norms or practices 25

International Framework International law, also known as the law of nations, is a body of rules and principles that govern the relations and dealings of States with one another International law, both in practice, and conventions, imposes specific obligations on, and provides rights to, States, in the same way that domestic law functions with a country’s citizens

What are the Sources of International Law There are several accepted ‘types’ or sources of international law. The primary sources, in order of importance, are: i)treaties/conventions ii)custom/and accepted usual practice, and iii) general principles of law as enunciated by scholars, and judicial bodies such as the International Court of Justice

INTERNATIONAL STANDARDS FOR TRAFFICKING IN PERSONS 28

Legal framework for trafficking in persons-international standards A country’s national penal/criminal code (and other harmonising legislation) must criminalise all aspects of trafficking in persons as defined by the international convention, and community The national framework must go beyond the crime of trafficking to ensure that related crimes are also adequately criminalised Sanctions provided for trafficking must take account of, and be proportionate to the gravity of the offence and There must be no safe havens for traffickers or their assets by (a) enabling the State to either extradite or prosecute; (b) providing for the effective investigation, sequestration, and confiscation of the proceeds of trafficking; and (c) mandating effective international investigative and judicial cooperation. Article 5 of the Convention provides for the criminalisation of the offence of trafficking, as well as offences of attempt, accomplice and organisation 29

REQUIREMENT FOR A SPECIALIST LAW ENFORCEMENT AGENCY Article 9 provides for the prevention of trafficking in persons and sets up a framework of policies and procedures to be adopted It includes measures such as bilateral and multilateral cooperation, dedicated training of law enforcement and border agencies, and the establishment of a dedicated, specialised anti-trafficking capacity – saying that these aspects are essential to an effective investigative response to trafficking The mandated unit should have the authority and power to supervise and/or advise on all trafficking investigations The mandated unit should have the legal and procedural powers necessary to ensure that it can adequately combat trafficking and access the full range of reactive, proactive, and disruptive investigative techniques The mandated unit must also work closely and supportively with prosecutors and victim support agencies 30

International Investigative and Judicial Co-operation This is a critical aspect to transnational crimes- corruption, wildlife trafficking, and trafficking in persons. Articles 6, 7 and 8 (inter alia)provide for cooperation between State Parties as to the protection and repatriation of victims Article 9 (inter alia)provides for cooperation between State Parties as to the prevention and investigation of offences This includes such aspects as: Extradition powers should be incorporated in national legislation, mutual legal assistance between State Parties, and border control measures Jurisdiction that allows for prosecution of and extradition for trafficking offences committed abroad International legal co-operation so evidence can be moved across national borders (mutual legal assistance) provide strong legislative powers to enable the effective investigation, sequestration and confiscation of the profits generated by trafficking networks 31