Smuggling and Trafficking in Human Beings the

Smuggling and Trafficking in Human Beings – the international legal framework Kristina Touzenis. IOM-UNITAR UN HQ NYC June 2011

Why prevent irregular migration? Ø Ø Ø 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

International responses: a brief chronology Ø 1970 s Ø Ø Ø 1980 s - 1990 Ø Ø UN Resolutions against migrant smuggling /trafficking ILO Convention No. 143 of 1975 UN Migrant Workers Convention drafted (adopted 18 December 1990; entry into force 1 July 2003) 2000 Ø UN International Convention against Transnational Organised Crime and Palermo Protocols

United Nations Convention Against Transnational Organized Crime, 2000 l l Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) Protocol Against the Smuggling of Migrants by Land, Sea and Air (2000)

The Causes of smuggling • • • Poverty, unemployment, and lack of opportunities Political and humanitarian crises In many less developed regions of the world, children are entrusted to more affluent friends or acquaintances with the intention to improve their lives and relieve their families of economic burden Demand for inexpensive labour Restrictive immigration policies in traditional countries of destination Criminal networks and transnational organized crime

The Smuggling process Transfer Agreement with the smuggler (consent) Destination BORDER SMUGGLING END OF RELATION WITH SMUGGLER (Eventual Transit Country)

• Trafficking is … A Crime against the Individual • Smuggling is… A Crime against the State

The Concept • While, by definition, migrants cooperate with their smugglers – even seeking them out and paying them—the act of smuggling can often be a dangerous and abusive one. Smuggling operations have many of the following characteristics: a broad transnational reach networks of service providers to help in various stages of the operationsinfluence on government officials at many levels access to large sums of money at many locations ties with other criminal enterprises the ability to shift areas of operation according to "market" conditions an association with persons capable of violence within their networks • •

l l (a) “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; (b) “Illegal entry” shall mean crossing borders without complying with the necessary requirements for legal entry into the receiving State; Article 3 of the Protocol AGAINST THE SMUGGLING OF MIGRANTS BY LAND, SEA AND AIR

Scope of the Protocol Ø To prevent and combat smuggling in persons Ø To respect the Human Rights of smuggled migrants Ø Investigation and prosecution Ø To promote cooperation

Requires States to: l Criminalise smuggling l Co-operate to prevent smuggling l Strengthen border controls to detect smuggling l Address root causes l Appropriate measures to “preserve and protect” rights l Cooperate in return

Non-criminalisation of migrants • • Art. 5 Criminal liability of migrants Migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been the object of conduct set forth in article 6 of this Protocol.

Criminalisation of smugglers • • • 1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit: (a) The smuggling of migrants; (b) When committed for the purpose of enabling the smuggling of migrants: (i) Producing a fraudulent travel or identity document; (ii) Procuring, providing or possessing such a document; (c) Enabling a person who is not a national or a permanent resident to remain in the State concerned without complying with the necessary requirements for legally remaining in the State by the means mentioned in subparagraph (b) of this paragraph or any other illegal means.

• • • (a) The smuggling of migrants; (b) When committed for the purpose of enabling the smuggling of migrants: (i) Producing a fraudulent travel or identity document; (ii) Procuring, providing or possessing such a document; (c) Enabling a person who is not a national or a permanent resident to remain in the State concerned without complying with the necessary requirements for legally remaining in the State by the means mentioned in subparagraph (b) of this paragraph or any other illegal means.

Cont. • Participating as an accomplice in an offence (…) • Organizing or directing other persons to commit an offence

Aggravating Circumstances • • • Circumstances: That endanger, or are likely to endanger, the lives or safety of the migrants concerned; or That entail inhuman or degrading treatment, including for exploitation, of such migrants.

Prevention, cooperation and other measures: l l l l Information Border measures Security and control of documents Legitimacy and validity of documents Training and technical cooperation Protection and assistance measures (see upcoming slide) Agreements and arrangements Return of smuggled migrants (see upcoming slide)

Protection • Each State Party shall take, all appropriate measures, including legislation if necessary, to preserve and protect the rights of persons, in particular the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment. • Each State Party shall take appropriate measures to afford migrants appropriate protection against violence • Each State Party shall afford appropriate assistance to migrants whose lives or safety are endangered

4. States Parties shall take into account the special needs of women and children. 5. In the case of the detention each State Party shall informe the person concerned without delay about the provisions concerning notification to and communication with consular officers.

Return n 1. Return of smuggled migrants Each State Party agrees to facilitate and accept, without undue or unreasonable delay, the return of a person who is its national or who has the right of permanent residence in its territory at the time of return. 2. Each State Party shall consider the possibility of facilitating and accepting the return who had the right of permanent residence in its territory at the time of entry into the receiving State in accordance with its domestic law.

3. a requested State Party shall, verify whether a person is its national or has the right of permanent residence in its territory. 4. In order to facilitate the return of a person who is without proper documentation, the State Party of which that person is a national or in which he or she has the right of permanent residence shall agree to issue, at the request of the receiving State Party, such travel documents 5. Each State Party involved with the return of a person shall take all appropriate measures to carry out the return in an orderly manner and with due regard for the safety and dignity of the person.

Prevention and Root Causes Each State Party shall take measures to ensure that it provides or strengthens information programmes to increase public awareness of the fact that smuggling is a criminal activity frequently perpetrated by organized criminal groups for profit and that it poses serious risks to the migrants concerned. States Parties shall cooperate in the field of public information for the purpose of preventing potential migrants from falling victim to organized criminal groups. Each State Party shall promote or strengthen, as appropriate, development programmes and cooperation at the national, regional and international levels, taking into account the socio-economic realities of migration and paying special attention to economically and socially depressed areas

Slavery and Trafficking l l 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)

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)

The Trafficking process Recruitment Transfer EXPLOITATION COERCION DECEPTION ABUSE OF POWER Place of Origin Place of Destination

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

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

Force and coercion n n 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.

Fraud, deception, abuse of power n n 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

n 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.

Exploitation n 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.

n n 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”.

n n 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

n n n Penal law often does not place the emphasis on coercion, and often have rather subjective criteria as to what constitutes forced labour. . It is however important to underline that simply poor working conditions do not alone constitute forced labour, there must be an element of intention to exploit. with the Protocol the focus was broadened and so was the understanding of what forced labour is – now it is shown that 80% of forced labour is in the private sector.

n Trafficking violates the most basic rights of any person in relation to a work situation – the freedom from coercion at work, the freedom to set up associations and bargain collectively, and the freedom from discrimination at work. Further trafficking of children has been defined by the ILO as one of the worst forms of child labour, which seriously harms the development of the child.

Slavery and servitude n 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”

n The Supplementary Convention, art. 1(c) defines marriage as a form of slavery in certain cases. “Any institution or practice, whereby (i) a woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or guys, (ii) the husband of a woman, his family, or his clan has the right to transfer her to another person for value received or otherwise, or (iii) a woman on the death of her husband is liable to be inherited by another person”

Prosecutor v. Kunarac n The ICTY elaborated on the meaning of slavery and enslavement noting that a mere ability, among others, to buy, sell or trade people, although an important factor to be taken into consideration, is in itself insufficient in determining whether or not the enslavement is committed.

n Trafficking may then be treated as slavery simultaneously mainly when people are exploited afterwards by the traffickers themselves – or the same organisation – as this ensures the continuous exercise of the right of ownership. The duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved.

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

n n 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

Removal of Organs n 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.

Women and Children n 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.

n This notion may to some extent at least also influence statistics. And yet there are significant signals in many countries and regions that male migrants are also severely exploited and violated in ways that constitute human trafficking

n n Most identified human trafficking victims have been women and children who seem to be particularly vulnerable to sexual exploitation and the identification of male victims who might be expected to be trafficked forced labour purposes has not been successful in many countries. Far fewer sources have identified either male victims or victims who have been subjected to forced labour, when the popular perception, at least, is that it is men especially who might be expected to be trafficked forced labour purposes.

n One reason for the low numbers of reported cases involving forced labour and male victims is connected to trafficking legislation which, in many countries, is restricted only to sexual exploitation.

n n n 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.

Palermo Protocol Continued l l l 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.

Scope of the Protocol To prevent and combat trafficking in persons Ø To protect and assist victims Ø To respect the Human Rights of Victims Ø To prevent, investigate and prosecute Ø To promote cooperation Ø

Criminal Law n n n Is criminal law and human rights law linked? Rule of law Protection Prosecution Wictims/witness rights

n n 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.

n n 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.

n The lack of specific legislation against trafficking in persons is arguably the most serious obstacle in countering the crime. In the absence of legislation, it is very difficult to punish human trafficking and bring the traffickers to justice. However, even where provisions against trafficking in persons exist under national law, these often cover only parts of the crime in trafficking in persons as defined in the UN Protocol.

Offenders n n Article 2 and 3 of the TOC determines who can be prosecuted: 2(a) Organized criminal group shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established [by] the Convention [or Trafficking Protocol], in order to obtain, directly or indirectly, a financial or other material benefit.

n An offence is transnational in nature if: (a) It is committed in more than one State; (b) It is committed in one State but a substantial part of its preparation, planning, directing or control takes place in another State; (c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or (d) It is committed in one State but has substantial effects in another State.

Internal Trafficking n Discussion as to whether the Protocol is applicable to internal trafficking since it does not – contrary to the Smuggling Protocol – mention borders in its definition. During the drafting stage of the Protocol, a discussion arose as to whether or not trafficking should be confined to international movements. All drafts of the Protocol refer to “international trafficking”

n It has however to be taken into consideration that the Protocol is a protocol to the Convention on International Organised Crime and therefore cannot be seen outside the scope of this Convention. But the Convention and the Protocol must be interpreted together.

Victim Centred Criminal Law Approach n n 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. Balance defence and prosecutor’s rights in trial

Related offences n Trafficking is often only one of the crimes committed against trafficked persons. Other crimes may be committed to ensure the compliance of victims, maintain control, protect trafficking operations or maximize profits

A crime against humanity? n 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”.

Human Rights Law n 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

n 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

Palermo Protocol on HR n 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

n n 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.

n Four years after the adoption of the Protocol the Legislative Guide intervened on the discretionary character of many of the provisions dealing with the protection of victims and clarified the issue of some of these measures being mandatory while others are only optional.

n The Protocol's comprehensive prevention policy also includes activities to prevent revictimization, research, information campaigns, social and economic initiatives, and cooperation with civil society

n 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.

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

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;

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)

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”

n Trafficking in children is a violation of a number of rights: It is a violation of the child’s right to education (Art. 28/29); to health (Art. 24); to family life (Art. 9); to leisure and play (Art. 31); of the right to be protected against exploitation (economic Art. 32; sexual Art. 34); the right to life Art 6. 1 and to survival and development Art 6. 2; the right to protection from discrimination and punishment Art. 2. 2 and from physical and mental violence, Art 19; and the right to participation

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.

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

ICCPR and ICESCR n n n 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

Protocol Gaps n n n Identification Non punishment of victims for illegal activity Residence/reflection period

n 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.

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

Third parties n 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.

n 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.

n n n Respect Protect/ensure Facilitate Fulfill Examples: the right to life, the right to political participation, the right to work

n The Co. E Convention on Action Against Trafficking in Human Beings refers to trafficking as a “violation of human rights and an offence of the dignity and the integrity of the human being”

n 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.

n n Protect Prosecute/Investigate – Velasquez Rodiguez v. Honduras (Interamerican Court) – and in Assenouv and Others v. Bulgaria the European Court of Human Rights held that States have a positive duty to investigate cases involving a breach of Art 3 (prohibition of torture and ill treatment), in line with the duty to “Secure” rights and freedoms to all persons in their jurisdiction

Victims/witness n The role of witnesses and the evidence they provide in criminal proceedings is often crucial in securing the conviction of offenders, especially in respect of organized crime such as human trafficking. This tool presents the provisions of the Organized Crime Convention relating to the protection of witnesses (art. 24) and obstruction of justice (art. 23, subpara. (a)).

“Soft” trafficking n n n Retention of passports Confinement at the workplace Control over contacts with the outside world Long working houes of up to 60 -70 h/w One day off per week, working holidays without overtime

Conclusions n n n Concept is NOT a human rights concept A CRIMINAL law concept with a human rights aspect Human rights must be included and the two fields of law interact and overlap – as does other fields of law (migration, labour, social welfare)

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