Towards a Comprehensive International Legal Approach to Combat Trafficking:
The 2000 United Nations Protocol to Prevent, Suppress, and Punish
Trafficking in Persons, Especially Women and ChildrenThe Protection Project
Dr. Mohamed MattarJuly 22, 2002 | | | | | Trafficking in person, especially women and children is a human rights violation that constitutes a contemporary form of slavery. The Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children supplementing the United Nations Convention Against Transnational Organized Crime[1] is the first universal treaty law that covers all aspects of trafficking in persons. Trafficking in Women and Children: The Early Conventions: Early conventions addressed trafficking in women or trafficking in children separately. For example, the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others[2] provided for the punishment of “any person who, to gratify the passions of another, (1) procures, entices or leads away, for the purposes of prostitution, another person (or) (2) exploits the prostitution of another person…”[3]. The 1949 Convention also criminalized the action of any person who “(1) keeps or manages or knowingly finances or takes part in financing of a brothel (or) (2) knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others.”[4] A somewhat similar approach was followed by the 1979 Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)[5], which prohibited the “exploitation of prostitution of women.”[6] It also prohibited “all forms of traffic in women.”[7] Whether the 1979 Convention intended to recognize a more comprehensive definition of trafficking, which includes all types of slavery practices, is not entirely clear, although a strict interpretation of the language used may support this conclusion.[8] Trafficking of children and child prostitution are explicitly prohibited by the 1989 Convention on the Rights of the Child[9] which mandates that State Parties must take all appropriate measures to prevent “the abduction of, sale of, or traffic in children for any purpose or in any form,”[10] “the inducement or coercion of a child to engage in any unlawful sexual activity,”[11] “the exploitative use of children in prostitution or other unlawful sexual practices,”[12] and “the exploitative use of children in pornographic performances and materials.”[13] The 1999 Convention to Eliminate the Worst Forms of Child Labour[14] similarly prohibits “the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances.”[15] Thus while each of these four conventions addresses some aspects of trafficking in persons, none cover all issues raised in trafficking cases. In addition, early conventions focused on the “criminalization” of trafficking and thus failed to fully address the various means of combating trafficking including prevention, protection of the causes of trafficking, and the protection of victims of trafficking. The new 2000 U.N. Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, mandates State Parties to take the necessary measures not only to criminalize the offense of trafficking but also to prevent trafficking and protect the victims of trafficking. Criminalization of “Trafficking in Persons,” A Limited Application and a Narrow Definition: According to article 4, the Protocol applies to the offences of trafficking in persons “where those offenses are transnational in nature and involves an organized criminal group.”[16] The Protocol, therefore, is limited in scope to international trafficking. It does not apply to domestic trafficking, i.e. trafficking that takes place within national borders. However, trafficking is considered of a transnational nature not only if it is committed in more than one state, but also if a “substantial part of its preparation, planning, direction, or control takes place in another state,”[17] or if it “involves an organized criminal group that engages in criminal activities in more than one state,”[18] or if it “has (a) substantial effect in another state.”[19] The protocol is also limited to trafficking offenses, which involve an “organized criminal group.”[20] This is defined as “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 to obtain, directly or indirectly, a financial or other material benefit.”[21] Consequently, the Protocol does not apply to individual trafficking, nor does it apply to trafficking conducted by only two persons, although such trafficking may constitute a serious offense.[22] However, it must be noticed that the transnationality of trafficking and the involvement of an organized criminal group are not requirements for the establishment of the offense of trafficking under the domestic law of a particular country.[23] Moreover, not every instance of trafficking constitutes an offense under the Protocol. First, for the “recruitment, transportation, transfer, harboring or receipt of persons”[24] to be considered trafficking in persons, the protocol requires first that such acts be committed “by means of the threat or use of force or other forms of coercion, of abduction, or fraud and deception, of the abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”[25] Existence of any of these means, renders consent either lacking altogether or defective. In either case, it becomes “irrelevant.”[26] The Protocol, thus, draws a distinction between voluntary prostitution and forced prostitution, although it adopts a broad definition of what constitutes forced prostitution to include all cases of vulnerability where the person “has no real and acceptable alternative but (to) submit to the abuse involved.”[27] One may argue that economic hardship constitutes a form of coercion and a source of exploitation under this broad definition In the absence of such means the offense of trafficking may not be established except in cases where the trafficked person is a child. The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation is considered trafficking in persons under the Protocol even in the absence of any of the above-mentioned means.[28] Second, those acts, perpetuated through unlawful means, must be committed for the purpose of exploitation. The Protocol adopts a broad definition of exploitation to include “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.” Moreover the Protocol addresses the exploitation of the prostitution of others and other forms of sexual exploitation “only in the context of trafficking in persons.”[29] The Protocol, therefore, avoids the issue “how State Parties address prostitution in their respective domestic laws.”[30] Early drafts of the Protocol made special references to specific forms of trafficking such as “forced marriage” or “marriage of convenience,” “illegal adoption,” “sex tourism,”and “forced domestic labor.”[31] Inclusion of these specific forms of trafficking by the Protocol would have filled the gap in existing conventional law which does not adequately address the problems associated with them and does not address any in the context of trafficking. Earlier drafts addressed pornography as a form of sexual exploitation. It has also been observed that the Convention on the Rights of the Child does not directly address the issue of child marriage.[32] Moreover, although the Convention on the Elimination of all Forms of Discrimination against Women provides that child marriages shall have no legal effect, the Convention fails to prescribe a minimum age at which a girl can be married.[33] The 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages,[34] advises states to prescribe a minimum age at marriage,[35] but it does not expressly ban child marriage. Similarly, existing international treaty law is inadequate in addressing adoption for illicit purposes[36] in the context of trafficking. The 1993 Hague Convention on Protection of Children and Cooperation in respect to inter-country adoption[37] does not expressly provide for an international stipulation against trafficking for the purpose of adoption, although the Hague Convention provides that “no one shall deprive improper financial or other gains from an activity related to an inter-country adoption.”[38] In the context of the sale of children, the Protocol to the Convention of the Rights of the Child, child prostitution and child pornography merely prohibits “…improperly inducing consent, as an intermediary, for the adoption of a child in violation of applicable international legal instruments on adoption.”[39] Thus important questions about child trafficking in the context of adoption are left unaddressed by treaty law. Sex tourism is part of the trafficking industry. The 1985 World Tourism Organization adopted The Tourism Bill of Rights and the Tourism Code, which stated “states are reminded of the need to prevent any possibility of using tourism to exploit others for prostitution purposes.” “Tourism professionals and suppliers of tourism and travel services are asked to refrain from encouraging the use of tourism for all forms of exploitation of others. Tourists themselves are requested to refrain from exploiting others for prostitution purposes.” These are important stipulations which must be recognized and implemented.[40] Trafficking in domestic labor is widespread. While the exploitation of immigrant females for domestic or labor services[41] may be addressed under the 1990 U.N. Convention on the Protection of the Rights of all Migrant Workers and Members of their Families,[42] unfortunately the number of ratifications of this important international document is still few. Again the conventional law does not specifically address the issue of trafficking in domestic labor. As indicated, the final draft of the Protocol does not explicitly address any of these or other issues as they relate to trafficking, although they may fall within the “other forms of sexual exploitation,”[43] or they may be considered a form of “forced labor or services, slavery of practices similar to slavery” as stated in the Protocol.[44] Moreover, State Parties to the Protocol may add other forms of exploitation since its definition only covers the “minimum”[45] of these forms. In the final analysis, the drafters of the Protocol set a floor of offenses in the final document. One may argue that they balanced expanding offenses, which would be considered criminal in nature against the importance of obtaining the maximum number of signers to the Protocol and international consensus on the issue of trafficking. Criminalization of Trafficking in Persons: The State Parties’ Obligations Under the Protocol: Criminalizing the trafficking offenses does not require a State Party to criminalize the act of prostitution itself since the Protocol does not outlaw prostitution, but only the “exploitation of the prostitution of others.”[46] As the Protocol’s definition of “trafficking in persons”[47] might indicate that, prostitution itself, in the absence of unlawful means does not amount to exploitation. One may also assume that the Protocol does not consider the legalization of prostitution as a contributing factor to the proliferation of trafficking in persons. “Practicing prostitution,” or “engaging in prostitution” is considered a criminal offense in a number of countries.[48] For instance, the criminal code of Northern Marina Island provides that promoting prostitution, permitting prostitution and the sexual exploitation of any person or the employment of any person for the purpose of offering or providing sexual services for pay are prohibited.[49] Under the Code, a person is guilty of prostitution if such person engages or agrees or offers to engage in sexual conduct with another person for a fee.[50] Similarly the criminal law of Mozambique explicitly stipulates, “the practice of prostitution is prohibited.”[51] This is also the rule in most Moslem countries[52] that strictly adhere to the Islamic Law of crimes and punishment and literally apply the sentence of lashing or stoning to cases of prostitution.[53] In addition to the Saudi Arabian legal system,[54] the Pakistani Zina ordinance,[55] the Iranian Penal Code,[56] and the Criminal Code of Mauritania,[57] all follow the Islamic rule. The vast majority of legal systems, however, draw a distinction between the act of prostitution and prostitution related activities. While prostitution is legal in most countries,[58] only prostitution related activities, including advertisement,[59] procurement,[60] pimping,[61] pandering,[62] establishing a brothel,[63] or living on the profits of a prostitute,[64] are considered criminal activities. The Protocol, as previously indicated, does not mandate the State Parties to include prostitution in their list of criminal activities. The Preventive Measures of the Protocol: Is Prevention of Prostitution a Means of Preventing Trafficking? On the prevention level, the Protocol calls on State Parties to “establish comprehensive policies, programs and other measures…to prevent and combat trafficking in persons.”[65] Interestingly, the Protocol, however, does not consider the prevention of prostitution as a means of preventing trafficking. Unlike the 1949 Convention which provides for “measures for the prevention of prostitution,”[66] which the convention regarded as “incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community,”[67] the Protocol shifts the focus to the “prevention of trafficking.”[68] The supply side of trafficking is not addressed by the Protocol, which focuses instead on the demand side mandating the states to adopt measures “to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.”[69] Prevention of Trafficking in Persons: Preventing “Revictimization” and Addressing the Issue of Vulnerability In addition to the prevention of trafficking, the Protocol calls upon State Parties to take the necessary measure to prevent “revictimization” of trafficked persons[70], which, as cases of trafficking, indicate, poses a significant and repeated problem. For instance in a case decided by the Cambodian Criminal Court,[71] a young girl had been discovered in a brothel where her mother worked as a cook. She was placed in the care of a child protective agency, and then reunited with her mother who then sold her to another brothel where workers from World Vision International discovered her. The family was relocated and reunited. The child was once again trafficked by her mother who was arrested on charges of trafficking. She was found guilty and sentenced to 15 years in prison under the Cambodian law on Suppression of the Kidnapping and Trafficking of Persons.[72] This and other cases[73] should be addressed not only by prosecuting the trafficker, but also as the Protocol mandates by adopting the necessary measures “to alleviate the factors that make persons, especially women and children vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.”[74] This vulnerability is illustrated in the recent case of United States v. Castaneda,[75]where appellant, a co-owner of the Mood and Music Night Club in Saipan, Northern Mariana Islands, recruited three young women from the Philippines for waiting tables and singing. They were told at the time of their hiring, that their job included “greeting customers at the door of the club with a kiss, sitting with customers and perhaps holding their hands.” They signed a booklet entitled “Personnel Rules and Policies” which prohibited employees from engaging in prostitution. However, once hired, they were forced to provide male customers with sexual services in private rooms after being selected by them. Then a prostitute filed a complaint with the FBI, an arrest was made and the defendant was found guilty. The defendant was convicted and sentenced to 12 months imprisonment. In supporting the application of the “vulnerable victim enhancement”[76] doctrine to this case, Judge Silverman, dissented, stating “The victim in this case was tricked into leaving a foreign country on the promise of a legitimate job. As a direct result of this deception, she was stranded in a foreign country and as found by the district judge, ‘couldn’t just pack up and go home.’[77] Because the victim was an indentured non-resident alien worker, she could not work elsewhere…she was forced to participate in the prostitution activity.”[78] Similarly, in United States v. Kedjumnong, the U.S. Court of Appeals[79] affirmed the decision against defendants transporting women from Thailand to New York City, holding them prisoners at a brothel and forcing them to have sex with hundreds of men, physically threatening them, and preventing them from leaving the brothel except under supervision. The Court stated that “ (T)he vulnerability enhancement was clearly warranted because the victims were young, unable to speak English, unfamiliar with their surroundings and fearful of going to authorities for fear of deportation.” Granting Victims of Trafficking A Residency Status: The Immigration Law Implications Under the Protocol The Protocol addresses some of these immigration law implications of trafficking in persons. The Protocol calls on State Parties to “consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases”[80] giving “appropriate consideration to humanitarian and compassionate factors.”[81] Traditional immigration laws, however, consider alien victims of trafficking in violation of the immigration law. For instance, under the Alien and Nationality Law of Liberia “Aliens who are prostitutes or who have been engaged in prostitution, or aliens coming to Liberia solely, principally or incidentally to engage in prostitution…”[82] are considered “prohibited immigrants” and are subject to deportation. This deportation rule similarly applies in other countries such as Zambia,[83] Uganda,[84] Tanzania,[85] Swaziland,[86] Sri Lanka,[87] Mauritius,[88] Malta,[89] Ethiopia,[90] and Zimbabwe,[91] and is the common approach in most countries today. On the other hand, the status of victims of trafficking in receiving states has recently changed in some countries including the United States, Austria, Belgium, Canada, Italy, the Netherlands, Spain, the Czech Republic, Hungary and Lithuania, all of which grant a trafficked victim some kind of residency status.[92] For instance, the U.S. Trafficking Victims Protection Act allows the temporary residency to victims of severe forms of trafficking who may be potential witnesses to such trafficking[93] and also after three years of issuance of their temporary visas, grants permanent resident status for up to 5,000 victims of trafficking a year,[94] who would suffer “extreme hardship involving unusual and severe harm upon removal from the United States.”[95] The importance of this new visa status of a trafficked person is that it does not have to satisfy the strict conditions for asylum as set by U.S. Courts.[96] It also signifies a shift in the immigration law policy, which traditionally treats a trafficked person as an illegal alien who is subject to deportation. [97]The Act also prohibits the admission to the United State of an alien if “there is substantial reason to believe that the alien has committed an act of a severe form of trafficking in persons” as defined by the Act.[98] In compliance with the Protocol other countries should “consider” granting victims of trafficking the appropriate residency status to enable them to testify against their traffickers and protect them from retribution or other hardships, which they may face in case of deportation. The Protocol requires all State Parties to take the necessary measures to prevent immigration for the purpose of trafficking. The Protocol explicitly provides that “(E)ach State Party shall consider taking measures that permit, in accordance with its domestic law, the denial of entry or revocation of visas of persons implicated in the commission of offenses established in accordance with this Protocol.”[99] The Protocol also mandates that State Parties “strengthen to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons.”[100] The Protocol also calls on State Parties to assist victims of trafficking in obtaining travel documents for the purposes of repatriation in the event that they do not have the proper documentation.[101] The Protocol, however, does not provide for the protection of victims of trafficking who may falsify or unlawfully alter such documents[102] “if that conduct is caused by or incident to that trafficking.”[103] This is the rule under the U.S. Trafficking Victims Protection Act which states that when a person “destroys, conceals, removes, confiscates, or possesses any adult or purported passport or other immigration document, or any other actual or purported government identification document of another person in furtherance of trafficking, the punishment is a fine or imprisonment for not more than 5 years, or both.[104] However, this punishment does not apply to victims of trafficking.[105] Protecting and Assisting Victims of Trafficking: Witness Protection and the Right to Compensation The issue of the privacy and credibility of a prostitute as a witness has been debated in foreign courts. For instance, the Supreme Court of India,[106] overturning the decision of the appellate court, by ruling that even a woman of “easy virtue” is entitled to privacy and equal protection of the law and that the testimony of the victim of sexual abuse should be regarded as valid despite her past history and immoral character. Similarly the criminal court of Honduras[107] rejected the defendant’s assertion that the victim engaged in “street prostitution” thus disregarding her testimony. The protocol calls on State Parties to “protect the privacy and identity of victims of trafficking in persons, including, inter alia, by making legal proceedings relating to such trafficking confidential.”[108] The Protocol, however, mandates this obligation only “in appropriate cases and to the extent possible under…domestic law.”[109] The Protocol also calls on the State Parties to adopt measures which provide “(A)ssistance to enable their views and concerns to be presented at appropriate stages of criminal proceedings against offenders.”[110] Providing victims of trafficking who are witnesses to instances of trafficking as well as their relatives and other persons close to them with effective protection from potential retaliation or intimidation is imperative[111] if we want their testimony regarding the trafficking crimes committed against them. Without such protection it is difficult to prosecute cases of trafficking. The U.S. Trafficking Victims Protection Act of 2000[112] for instance, adequately implements this mandate. The Act includes victims of trafficking in the Witness Protection Program covered by the Victim and Witness Protection Act.[113] The Act provides for protection to a witness in proceedings concerning “an organized criminal activity or other serious offense”[114] if “an offense involving (the) crime of violence directed at the witness with respect to that proceeding…is likely to be committed.”[115] For the purpose of applying this rule to the victims of trafficking in persons, the Act categorizes any trafficking offense as “an organized criminal activity or other serious offense.”[116] Protection under the Victim and Witness Protection Act covers financial assistance,[117] such as housing,[118] living expenses,[119] employment,[120] and “other services necessary to assist that person in becoming self-sustaining.”[121] Protection also includes ensuring confidentiality of the identity of the witness during or when testifying.[122] The Protocol recognizes that the rights of victims of trafficking to civil compensation. The Protocol also states “(E)ach state party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damages suffered.”[123] In the United States such possibility was not certain until the enactment of the 2000 Trafficking Victims Protection Act. It was suggested[124] that a victim of trafficking should have a civil remedy under the Racketeering Influenced and Corrupt Organization Act (RICO).[125] RICO requires a “pattern of racketeering,” which may be difficult to prove in the absence of organized trafficking. It also requires an injury to the person’s “business or property, a requirement which is hard to be satisfied by the trafficked person.[126] It was also argued[127] that a victim of trafficking should be permitted to bring a suit under the Alien Tort Claims Act (ATCA).[128] ATCA provides for the jurisdiction of federal courts over any civil action filed by an alien, based on a tort “committed in violation of the law of nations or a treaty of the United States.”[129] However, ATCA was never utilized in cases of trafficking in persons. The 2000 Act recognizes the right of the trafficking victim to a court order of restitution, to compensation for “the full amount of the victim’s losses,”[130] in addition to any other civil sanctions authorized by law.[131] Other countries should consider recognizing the rights of victims of trafficking to civil compensation. Domestic Trafficking Laws of the Various Countries of the World: A Limited Criminal Law Approach Unfortunately, most trafficking statutes are enacted as a part of the Penal Code[132] or the Criminal Code[133], rather than as separate comprehensive acts, and as such, they address sex trafficking as a criminal offense. Trafficking in persons, within this context, is prohibited as a prostitution related activity, whether it is domestic or international in nature[134], for the purpose of prostitution or other slavery-like practices[135], in women or children[136], or whether it is recognized as a separate offense or merely an aggravated circumstance which warrants an increased penalty[137]. A different approach has recently been adopted by few legal systems. This approach addresses the issue of trafficking as part of a special act protecting women and children from commercial sexual exploitation[138]. While the function of criminal law is to prescribe crimes and punishments, in some of these special acts the legislator shifts the focus from criminalizing the behavior of the prostituted women to protecting her as a victim of trafficking in addition to providing a more effective punishment for the traffickers. For instance, the 1973 Women and Girls Protection Act of Malaysia[139] provides for the removal of the women in prostitution to “a place of refuge”[140], especially if such woman “is in urgent need of protection as there is reasonable cause to believe that she is being threatened or intimidated for purpose of prostitution”[141]. The Act affords the same protection to the trafficked woman who “has been brought into or is to be sent out of Malaysia” for the purpose of prostitution[142]. The Act also provides for the “Protection of informers” of traffickers. According to Section 32 (1), “… no witness in any proceeding under this Act shall be obliged or permitted to disclose the name and address of an informer or the substance of the information received from him or to state any matter which might lead to his discovery”[143]. The Measures in Prevention and Suppression of Trafficking in Women and Children Act of 1997 in Thailand also provides for “appropriate assistance” to the trafficked women or child, including food, “primary shelter” and repatriation.[144] However, the victim protection programs in Thailand only apply to Thai citizens. Under the 1973 Women and Girls Protection Act of Brunei, the women and girls who may be considered in “moral danger” or believed to have been ill-treated and in need of protection, may be detained in a “place of safety.”[145] In compliance with the mandates of the Protocol, countries must shift the focus of their domestic laws from criminalizing the behavior of the women and children to providing them with assistance and protection. Law Enforcement of Trafficking in Persons’ Offenses: A Need for Expanding the Extraterritorial Jurisdiction of Domestic Courts Countries should also consider expanding their extraterritorial jurisdiction to cover trafficking offenses irrespective of where such offenses are committed or the nationality of the offender. Although manly limited to cases of trafficking in children, recently there has been an encouraging movement in this direction in some countries. For instance, in the Bolin case, which was decided by a Swedish court,[146] a Swedish national was arrested in Thailand while having sexual contact with a 13 year-old Thai boy. After being bailed out, he fled from Thailand. Later, the Swedish authorities arrested him. The child victim was brought to testify in the Swedish court, which sentenced him to three months imprisonment and a fine. In another case, decided in Belgium,[147] a Belgian teacher was arrested in Thailand for exploiting a 14 year-old Thai boy, but he escaped to Europe. Upon cooperation between Thailand and Belgium, he was arrested in Belgium and sentenced to one-year imprisonment. In Australia, the District Court of New South Wales[148] tried an Australian who sexually assaulted a 5-year-old girl in the Philippines and sentenced him to 6 years in prison, under the sex tourism legislation, which was designed to apply to sexual offenses committed outside Australia. The Court stated that the exploitation of the vulnerability of children in foreign countries must be punished under domestic law. In France, the extraterritoriality principle was applied[149] to a French citizen who committed crimes in France and Romania, sexually abusing children in Romania and trafficking children into France from Romania. In the Netherlands, the High Court of Appeals affirmed the decision of the District Court in the Hague[150] sentencing a Dutch businessman to 5 years imprisonment for pornography and sexual abuse of young girls in the Philippines. The Court recognized the application of the double criminality requirement since the offenses are illegal in both countries, the Netherlands and the Philippines. In Switzerland, a Swiss national was convicted for the sexual abuse of children in Sri Lanka.[151] In this case, the defendant was arrested by the Sri Lankan authorities who deported him. Extradition was not legally possible as there was no extradition agreement between Switzerland and Sri Lanka. The Swiss authorities arrested him upon arrival in Zurich. In a significant provision, the Convention Against Transnational Organized Crime provides that “if a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another state party with which it has no extradition treaty, it may consider this treaty the legal basis for extradition.”[152] This Convention also calls for mutual legal assistance in investigations, prosecutions, and judicial proceedings.[153] The implementation of these international rules by State Parties is imperative in the battle against international trafficking in persons. Conclusion The Preamble of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime states that the “effective action to prevent and combat trafficking in persons, especially women and children, requires a comprehensive international approach in the countries of origin, transit and destination that includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking, including by protecting their internationally recognized human rights.” As indicated, most trafficking legislative texts are enacted as part of the criminal law. Since the function of criminal law is mainly to prescribe crimes and punishments, trafficking in persons must be addressed as part of a special act protecting women and children from various forms of trafficking. Only then may the legislator shift the focus from criminalizing the behavior of the trafficked person to protecting such a person as a victim of trafficking, in addition to providing for a more effective punishment of the trafficker. By criminalizing trafficking in persons, prescribing effective measures to prevent trafficking, and protecting the victims of trafficking, the Protocol provides a comprehensive legislative enactment, which State Parties must fully implement to prevent, suppress and punish trafficking in persons. | [1] The Preamble to the Protocol states that “…supplementing the United Nations Convention against Transnational Organized Crime with an international instrument for the prevention, suppression and punishment of trafficking in persons especially women and children, will be useful in preventing and combating that crime.” For discussion of the Protocol see e.g. Kelly E. Hyland, The Impact of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 8 Hum. Rts. Br. 30 (2001). [2] Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Dec. 2, 1949, opened for signature March 21 1950, 96 U.N.T.S. 272, 282 (entered into force July 25, 1951) (hereinafter 1949 Convention) The 1949 Convention superceded the International Agreement for the Suppression of the White Slave Trade (1904), the International Convention for the Suppression of the White Slave Traffic (1910), the International Convention for the Suppression of the Traffic in Women and Children (1921), and the International Convention for the Suppression of the Traffic of Women of Full Age (1933). Article 28 of the 1949 Convention provides that the 1949 Convention shall supercede the 1904, 1910, 1921, and 1933 treaties which shall be considered terminated, 96 U.N.T.S. at 289. [3] 1949 Convention, Id, art. 1 at 274. The word “procure” which means to obtain or acquire, was the legal term of art to describe the offense of trafficking. [4] 1949 Convention, art. 2 at 274 [5] Convention of the Elimination of all Forms of Discrimination Against Women, opened for signature March 1, 1980, 1249 U.N.T.S. 14,17 (entered into force September 3 1981) (hereinafter the 1979 Convention). [6] Article 6. For criticism of article 6, see, Susan Jeanne Toepfer & Bryan Stuart Well, The Worldwide Market for Sex: A Review of International and Regional Legal Prohibitions Regarding Trafficking in Women, 2 Mich J. Gender & Law 83, 101 (1994) [8] See Janie Chuang, Redirecting the Debate over Trafficking in Women: Definitions, Paradigms, and Contexts, 11 Harv. Hum. Rts. J 65, 76 (1998) [9] Convention on the Rights of the Child: Report of the Third Committee, U.N. GAOR, 44th Sess., Agenda Item 108, U.N. Doc A/44/736 (1989). For the purpose of the Convention, “a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. [10] Convention on the Rights of the Child, Id, art 35, see also the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which provides that “State Parties shall prohibit the sale of children, child prostitution, and child pornography…” [art 1] [11] Convention on the Rights of the Child, Id, art 34(a) [12] Convention on the Rights of the Child, Id, art 34(b) [13] Convention on the Rights of the Child, Id, art 34(b) [14] Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, adopted on 06/17/1999, entered into force 11/19/2000 [15] Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, Id, art 3 (c). For the purposes of the Convention, the term the worst forms of child labor also comprises, under article 3 “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 labor, including forced or compulsory recruitment of the children for use in armed conflict” [art 3(a)], “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” [art 3(c)], and “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’ [art 3(d)] [16] Article 4 of the Protocol [17] Article 3 (b) of the Convention [18] Article 3 (c) of the Convention [19] Article 3 (d) of the Convention [20] Article 4 of the Protocol [21] Article 2 (a) of the Convention [22] For instance in the Costa Rican case no. 579-99, decided on May 14, 1999 by the Criminal Court of the First Judicial Circuit of San Jose, an American citizen and his wife ran a brothel in San Jose for a number of years. They recruited women and girls by advertising for models and tour guides. Upon meeting with applicants, they would explain the real nature of the work. They also knowingly recruited children. The Court found the husband guilty of the offense of aggravated pimping and sentenced him to eight years imprisonment. [23] This rule under Article 34 (2) of the Convention which provides that “the offenses established in accordance with articles 5, 6, 8 and 23 of this Convention shall be established in the domestic law of each state party independently of the transnational nature or the involvement of an organized criminal group as described in article 3, paragraph 1 of this convention, except to the extent that article 5 of this Convention would require the involvement of an organized criminal group. [24] Article 3 (a) of the Protocol [26] According to Article 3 (b) of the Protocol “The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.” This however, should not be interpreted as “imposing any restriction on the right of the accused person to a full defense and to the presumption of innocence” [section 68 of the Tranx preparatories of the Protocol] [27] Traveaux preparatoires, section 68 [28] Article 3 (c) of the Protocol. Child means “any person under eighteen years of age.” (Art 3(d) ). [29] Section 64 of the Traveaux preparatories of the Protocol [31] See the Proceeding of the Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime [32] See Ladan AsKari, Note: The Convention on the Rights of the Child: The Necessity of Adding a Provision to Ban Child Marriages, 5 IUSA J Int’l & Comp L 123, 127 (1998). Although it can be argued that the practice of child marriage violates article 2 (2) of the Convention which mandates state parties to “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members”, articles 24 (3) “State Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children”, article 37(a) “States Parties shall ensure that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.” [Id at 129-132] [33] Id. Article 16(2) of the Convention on the Elimination of all forms of Discrimination Against Women states that “the betrothal and the marriage of a child have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and make the registration of marriages in an official registry compulsory”, 19 I.L.M. 34(1980). [34] Convention on Consent to Marriages, Minimum Age for Marriage and Registration of Marriages, 521 U.N.T.S., Dec. 10, 1962, [35] Article 2 of the Marriage Convention which provides that “States Parties to the present Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.” [36] For a discussion of intercountry adoption in the context of trafficking, see generally, Nicole Bartner Graff, Note: Intercountry Adoption and the Convention on the Rights of the Child: Can the Free Market in Children be Controlled?, 27 Syracuse J. Int’l and Comp. 405 (2000), Lisa M. Katz, Comment: A Modest Proposal? The Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, 9 Emory Int’l Law Rev. 283 (1995), Jorge L. Carro, Regulation of Intercountry Adoption: Can Abuses Come to an End? 18 Hastings Int’l and Comp Law Rev. 121 (1994), Ahilemah Jonet, Legal Measures to Eliminate Transnational Trading of Infants for Adoption: AN Analysis of Anti-Infant Statutes in the United States, 13 Loy L.A. Int’l and Comp L.J. 305 (1990) [37] Hague Convention on Private International Law: Final Act of the 17th Session, Including the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, 32 I.L.M. 1134 (1993) (hereafter the Hague Convention) [38] The Hague Convention, Id, art 32(1). The article also provides that “only costs and expenses, including reasonable professional fees of person involved in the adoption, may be changed or paid” [art 32 (2)], and “the directors, administrators and employees of bodies involved in an adoption shall not receive remuneration which is unreasonably high in relation to services rendered” [art 32 (3)]. For criticism of the article, see Holly C. Kennard, Comment: Curtailing the Sale and Trafficking of Children: A Discussion of the Hague Conference Convention in Respect of Intercountry Adoption, 14 U. Pe. J. Int’l Econ L. 623 (1994) [39] Article 3 (1) (a) (ii). The Convention on the Rights of the Child provides in article 21 for several measures which states must recognize to ensure that adoption is processed in the best interests of the child, including taking “all appropriate measures to ensure that in intercountry adoption the placement does not result in improper financial gain for those involved in it.” [art 21 (d)] [40] See generally Elizabeth Bevilacque, Child Sex Tourism and Child Prostitution in Asia: What can be done to Protect the Rights of Children Abroad Under International Law? 5 I.L.S.A. J. Int’l & Comp L. 171 (1998), Eric Thomas Berkman, Note: Response to the International Child Sex Tourism Trade, 19 B.C. Int’l & Comp L. Rev. (1996), Margaret Healy, Note: Prosecuting Child Sex Tourist at Home: Do Laws in Sweden, Australia, and the United State Safeguard the Rights of the Child as Mandated by International Law? 18 Fordham Int’l L. J 1852 (1995), Jonathan Todres, Prosecuting Sex Tour Operators in U.S. Courts in an Effort to Reduce the Sexual Exploitation of Children Globally, 9 B.U. Pub. Int’l L. J. 1 (1999). [41] See generally Joan Fitzpatrick & Katrina R. Kelly, Gendered Aspects of Migration Law and Female Migrants, 22 Hastings Int’l & Comp L. Rev. 47 (1998), Dan Gutmaytan, Death and the Maid: work, violence, and the Filipina in the International Labor Market, 20 Harv. Women’s L.J. 229 (1997), Charles R. Chaiyarachta, Comment: El Monte Is the Promised Land: Why Do Asian Immigrants Continue to Risk Their Lives to Work for Substandard Wages and Conditions?, 19 Loy. L.A., Int’l & Comp. L.J. 173 (1996). [42] GA Res. 45/158, International Convention on the Protection of the Rights of all Migrant workers and Members of Their Families, reprinted in 30 Int’l Legal Materials 1519-53 (1991), adopted on December 18, 1990, and opened for signature on May 2, 1991. Migrants and their families have the rights including not to be held in slavery or servitude (art 11), not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment (art 10), to liberty and security of person (art 16), to human treatment (art 17), and to equality with nationals of the state (art. 18). In articles 64 through 71 the Convention mandates state parties to take measures to prevent and eliminate illegal entry and illegal employment of migrant workers. These measures include imposition of sanctions against persons who organize irregular movements and against employers of undocumented workers [art. 68]. [43] Article 3 (a) of the Protocol [44] The Protocol avoided the definition of “forced labor” or “slavery” which are defined by existing treaty law. “Forced or compulsory labour” is defined by article 2(2) of the 1930 International Labor Organization Convention No. 29 Concerning Abolition of Forced or Compulsory 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.” The 1956 Supplementary Convention of the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, in article 7 (a) 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.” [45] Article 3 (a) of the Protocol [46] Article 3 (a) of the Protocol [48] Prostitution is illegal in the following countries: Afghanistan, Albania, Algeria, American Samoa, Armenia, Australia, The Bahamas, Bahrain, Belarus, Botswana, Brunei, Burundi, Cambodia, Cameroon, China, Christmas Island, Comoros, Egypt, Eritrea, Gabon, Gambia, Ghana, Guinea, Honduras, Hungary, Iceland, Iran, Iraq, Jamaica, Jordan, Kuwait, Kyrgystan, Laos, Lebanon, Libya, Lichtenstein, Lithuania, Macua, Malaysia, Maldives, Mali, Malta, Mauritania, Micronesia, Mongolia, Morocco, Mozambique, Northern Mariana Island, Oman, Pakistan, Papua New Guinea, Philippines, Puerto Rico, Qatar, Romania, Russia Federation, Rwanda, St. Pierre Et Miquelon, St. Vincent and Grenadines, Saudi Arabia, Singapore, Slovenia, Somalia, South Africa, Sri Lanka, Sudan, Syria, Thailand, Tunisia, Ukraine, United Arab Emirates, United States, Vanuatu, Yemen. For a copy of the statutes prohibiting prostitution, see The Protection Project, http://www.protectionproject.org [49] See Article 1342 of the Criminal Code of Northern Marina Island [50] See Article 1343 of the Criminal Code of Northern Marina Island [51] Article 1(1) of the Criminal Code of Mozambique [52] While prostitution has always been illegal in accordance with traditional Islamic Law, it is currently legal in a number of Muslim countries. See e.g. The Oppression of Women and Children Act of 1995 and the Suppression of Immoral Traffic Act of 1993 of Bangladesh, the Criminal Code of Djibouti, ch. 6 (1973), the Criminal Code of Indonesia, ch 14 (1964), and the Criminal Code of Turkey, ch8 (1972). [53] The Quran does not provide for the stoning punishment; only flogging. The relevant text is 24:2 which states that “As for the adulteress and the adulterer, flog each of them with a hundred stripes, and let not compassion with them keep you from (carrying out) this Law of God, if you believe in God and the last, and let a group of the believers witness their chastisement.” The prophet defines the scope of the application of the Quranic verse by applying to cases involving unmarried men or women while applying the greater sentence of stoning to the married. See generally; Matthew Lippman, Islamic Criminal Law and Procedure: Religious Fundamentalism v. Modern Islamic Law, 12 B.C. Int and Com. L. Rev. 29 (1989) [54] Saudi Arabia does not have a specific criminal code. The Saudi Arabian courts apply the rules of crimes and punishments as stipulated in the Quranic text and the tradition of the prophet, which are considered the source of the law. See e.g. Michael A. Tarazi, Saudi Arabia’s New Basic Law: The Struggle for Participating Islamic Government, 34 Harv. Int L.J. 258 (1992) [55] According to Article 2 of the 1979 Zina [Enforcement of the Hudood] Ordinance “whoever is guilty of Zina shall be liable to hadd…(a) if he or she is muhsan (married) be stoned to death at a public place, or (b) if he or she is not muhsan (married) be punished, a public place, with whipping numbering 100 stripes.” It must be noted that Islamic Law requires very strict proof of the act of prostitution “at least 4 Moslem male adults witnesses (must)…give evidence as eye-witnesses of the act of penetration necessary to the offense” [article 8]. For a discussion of these punishments in the Pakistani Law, see, Julie Dror Chadbourne, Never Wear Your Shoes After Midnight: Legal Trends Under Pakistani Zina Ordinance, 17 Wis. Int’l L.J. 170 (1999) [56] In accordance with Article 88 of the Iranian Penal Code of 1979 “The punishment for fornication for a woman or a man who does not qualify as married is one hundred lashes”. Article 83 of the Code provides that “The punishment for fornication in the following situations is stoning : (a) fornication by a married man…”. The Iranian legal system, however, permits pleasure or “muta” marriages for a certain period of time in consideration for a sum of money. For discussion of this form of marriages and the debate as to whether it is considered a valid marriage contract or a form of prostitution, see Tamilla F. Ghodsi, Note, Typing a Slipknot: Temporary Marriages in Iran, 15 Mich. J. Int’I L. 645 (1994). The Islamic practice of early marriages has also been subject to criticism, see e.g. Shannon S. Ragsdale and Vanessa D. Campbell, Comment: Protection of the Female Child: The Mothers of our Future – Case Studies of India, Pakistan, Bangladesh and Sri Lanka, 7 Tulsa J. Comp & Int’I L. 177 (1999). [57] Article 307 of the Criminal Code of Mauritania stipulates that “[A]ny adult Muslem of either sex found guilty of the crime of Zina… shall be punished publicly, if the person is unmarried, by whipping with 100 lashes and one year of imprisonment… Nevertheless, the penalty of death by stoning… shall be imposed upon a guilty party who is married or divorced”. [58] Prostitution is legal in the following countries: Andorra, Angola, Antigua/Barbuda, Argentina, Aruba, Azerbaijan, Bangladesh, Barbados, Belgium, Belize, Benin, Bermuda, Bhutan, Bolivia, Bosnia and Herzegovina, Brazil, Burkina Faso, Burma, Canada, Cape Verde, Cayman Islands, Central African Republic, Chad, Chile, Columbia, Democratic Republic of Congo, Republic of Congo, Costa Rica, Cote D’Ivoire, Croatia, Cuba Cyprus, Czech Republic Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, El Salvador, Equatorial New Guinea, Estonia, Ethiopia, Eruopa Island, Falkland Islands Faroe Islands, Fiji, Finland, France, French Guiana, French Polynesia, French So and Antarctica Lands, French and South Antigua, Gaza Strip, Georgia, Germany, Guatemala, Guinea-Bisau, Guyana, Haiti, Hong Kong, India, Indonesia, Ireland, Italy, Japan, Kazakhstan, Kenya, Kiribati, Latvia, Lesotho, Liberia, Luxembourg, Macedonia, Madagascar, Malawi, Marshall Islands Martinique, Mauritius, Mayotte, Mexico, Moldova, Monaco, Montenegro, Montserrat, Namibia, Naura, Nepal, Netherlands, Netherlands Antilles, New Caledonia, New Zealand, Nicaragua, Niger, Niue, Norfolk Islands, North Korea, Norway, Palau, Panama, Papua New Ginuea, Paracel Islands, Paraguay, Peru, Pitcaim Island, Poland, Portugal, Reunion, St. Kitts and Nevis, Saint Lucia, Samoa, San Marino, Sao Tome and Principe, Senegal, Serbia, Seychelles, Sierra Leone, Slovak Republic, So. Georgia and So. Sandwich Islands, South Korea, Spain, Suriname, Svalbard, Swaziland, Switzerland, Taiwan, Tajikistan, Tanzania, Togo Tokelau, Tonga, Trinidad and Tobago, Turkey, Turkmenistan, Turks/Calcous Island, Tuvalu, Uganda, United Kingdom, Uruguay, Uzbekistan, Venezuela, Vietnam, Virgin Islands (BK), Virgin Islands (US) Wallis and Futuna, Yugoslavia, Zambia, Zimbabwe. In many of these countries, prostitution is subject to special regulations. For statutes regulating prostitution, see The Protection Project, http://www.protectionproject.org [59] See e.g. Section 219 of the Criminal Code (1974) of Austria “Any person, who publishes an advertisement that is intended to lead to indecent sexual practices and that, by its contents, causes unjustifiable nuisance shall be punished…”, Section 7 of the Prostitution Prevention and Suppression Act (1996) of Thailand “whoever advertises or agrees to advertise, induces, or introduces with documents or printed materials, or acts by any other means to distribute information to the public in an obvious manner of solicitation or communication for prostitution of that person or of any other person, shall be punished…”. [60] Article 206 of the Criminal Code of Norway “Any person who misleads another person into engaging in prostitution or continuing such an occupation, or who is accessory thereto, shall be liable…”. [61] See e.g. Article 230 of the Penal Code of Georgia “… pimping with pecuniary purposes… is punishable…”. [62] See e.g. Section 9 of the Criminal Code of Finland “(1) a person who, in order to gain economic benefit to himself/ herself or to someone comparable sexual acts are offered for remuneration, (2) otherwise takes advantage of the performance of such an act by someone else, or entices or intimidates another to such an act, shall be sentenced for pandering…”. [63] See e.g. Article 22 of the Criminal Code of Trinidad and Tobago “A person who (a) keeps or manages or act or assists in the management of a brothel, or (b) being the tenant, lessee, occupier or person in charge of any premises, knowingly permits the premises or any part thereof to be used as a brothel or for the purposes of prostitution or (c) being the lessor or landlord of any premises, or the agent of the lessor landlord, lets the same or any part thereof with the knowledge that the premises or some part thereof are or is to be used as a brothel,…”. [64] See e.g. Article 148(a) of the Crime Act of 1961 of New Zealand “A person is liable… who knowingly… lives wholly or in part on the earnings of the prostitution of another person”. [65] Article 9(1)(a) of the Protocol [66] Article 16 of the 1949 Convention. The article states that “(T)he parties to the present convention agree to take or to encourage, through their public and private educational, health, social, economic and other related services measures for the prevention of prostitution and for the rehabilitation and social adjustment of the victims of prostitution and of the offences referred to in the present convention.” [67] Preamble to the 1949 Convention [68] See article 9 of the Protocol [69] Article 9(5) of the Protocol [70] Article 9(b) of the Protocol [71] The case was decided by the Cambodian Criminal Court on August 1999 [72] See Chapter 3, Article 4 and 5 and Chapter, article 3 of the Law on Suppression of the Kidnapping and Trafficking of Persons [73] For instance in a notable case decided by the Supreme Court of India on July 9, 1997, the Court, after considering the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discrimination Against Women decided that children of prostitution should be included in the definition of “neglected juvenile” stated in the Juvenile Justice Act so that they may be entitled to live in hostels with other youth. The decision suggests that children of prostitutes should be separated from their mothers. [74] Article 9(4) of the Protocol [75] 239 F. 3d 978 (2001) [76] Section 3 A1.1 of the Federal Sentencing Guidelines establishes a sentencing enhancement in cases of victimizing unusually vulnerable persons. For a discussion of the doctrine of “vulnerable victim enhancement,” see, Jay Dyckman, Note: Brightening the Line: Properly Identifying a Vulnerable Victim for the Purpose of Section 3 A.1.1 of the Federal Sentencing Guidelines, 98 Colum. L. Rev. 1460 (1998), John Garry, Note: Why Me? Application and Misapplication of 3 A.1.1, The Vulnerable Victim Enhancement of the Federal Sentencing Guidelines, 79 Cornell L. Rev. 143 (1993). [80] Article 7(1) of the Protocol [81] Article 7 (2) of the Protocol [83] See section 22 of the Immigration and Deportation Act of Zambia [84] See Section 8 of the Immigration Act of Uganda [85] See Article 10 of the Tanzania Citizenship Act [86] See Section 9 of the Immigration Act of Swaziland [87] See Section 31 of the Immigration and Emigration Act of Sri Lanka [88] See Section 8 of the Immigration Act of Mauritius [89] See Section 5 of the Immigration Law of Malta [90] See Section 3 of the Proclamation Regulation the Issuance of Travel Documents and Visas and Registration of Foreigners of Ethiopia [91] See Section 14 of the Immigration Act of Zimbabwe [92] See the 2001 Trafficking in Persons Report submitted by the Secretary of State on July 12, 2001 in compliance with section 110(b)(1) of the Trafficking Victims Protection Act 2000. The report evaluated the problem of trafficking in persons in 83 countries, 12 of which were included in tier 1 which contained a list of those countries to which the minimum standards for the elimination of trafficking were applicable and whose governments filly complied with such standards and 47 countries were included in tier 2, which contains a list of those countries to which minimum standards for the elimination of trafficking were applicable and whose governments did not fully comply with such standards but were making significant to bring themselves into compliance. Lastly, 24 countries were included in tier 3 which contains a list of those countries to which the minimum standards for the elimination of trafficking were applicable and whose governments did not fully comply with such standards and were not making significant efforts to bring themselves into compliance. [94] Section 107 (e) (Protection from Removal for Certain Crime Victims) [95] Section 107 (f) (Adjustment to Permanent Resident Status) [96] U.S. Courts have not decided whether a trafficked woman satisfies the conditions for asylum. It must be proven that sexual slavery is a form of gender persecution on the account of the woman’s membership in a particular social group, see Maya Ragtu, Note: Sex Trafficking of Thai Women and the United States Asylum Law Respons, 12 Geo Immigr. L.J. 145 (1997), Anjana Bahi, Home is Where the Brute Lives: Asylum Law and Gender-based Claims of Prosecution, 4 Cardozo Women’s L.J. 33 (1997). See also, Nancy Kelly, Gender-Related Persecution, Assessing the Asylum Claims of Women, 26 Cornell Int’l L.J. 625 (1993). [97] See supra note and accompanying text [99] Article 11(5) of the Protocol. The U.S. Trafficking Victims Protection Act provides in this context that “No alien shall be eligible for admission to the United States…if there is no substantial reason to believe that the alien has committed an act of a severe form of trafficking in persons…”[section 107] [100] Article 11 (1) of the Protocol. [101] See article 8(4) of the Protocol [102]The Protocol mandates that “Each state party shall take such measures as may be necessary within available means (a) to ensure that travel or identity documents issued by it are of such quality that they cannot easily be misused and cannot readily be falsified or unlawfully altered, replicated, or issued, and (b) to ensure the integrity and security of travel or identity documents issued by or on behalf of the state party and to protect their unlawful creation, issuance or use.” [103] Section 112 of the U.S. Trafficking Victims Protection Act. [104] Section 112 (a) (2) [105] Section 112 (a) (2) [106] Supreme Court of India, case no 1, S.C.C. 57, decided on October 23, 1990 [107] Appellate Criminal Court of Honduras, case no 012-97, decided on April 4, 1998 [108] Article 6 of the Protocol [110] Article 6(2)(b) of the Protocol [111] See Article 24 of the Convention [112] See Section 112 of the Act [113] Victim and Witness Protection Act of 1982, Pub. L. No 97-291, 96 Stat. 1249 (1982) (codified as amended in 18 U.S.C., Chapter 224 ) (West 1984 and 1997 Supp) [114] Section 3521 (Witness Relocation and Protection) (Id) [116] Section 112 of the Act [117] The Victim and Witness Protection Act, 18 U.S.C. Sec 3521(b) [118] Section 3521(b)(1)(B) [119] Section 3521(b)(1)(D) [120] Section 3521(b)(1)(E) [121] Section 3521(b)(1)(F) [122] Section 3521(b)(1)(A) [123] Article 6(6) of the Protocol [124] See Lan Cao, Note: Illegal Traffic in Women: A Civil RICO Proposal, 96 Yale L.J. 1297 (1987) [125] 18 U.S.C. 1961-1968 (1994) [127] See Christopher M. Pikerton, Traffic Jam: Recommendations for Civil and Criminal Penalties to Curb the Recent Trafficking of Women and Children from Post Cold War Russia, 6 Mich. J. Gender and Law 221 (1999) [128] 28 U.S.C. 1350 (1994) [130] Under section 1593(b)(3) “as used in this subsection, the term ‘full amount of the victim’s losses’ as the same meaning as provided in section 2259(b)(3) and shall in addition include the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum age and overtime guarantees of the Fair Labor Standards Act (29 U.S.C. 201 et seg.) It had been observed that the application of the Fair Labor Standards Act [FLSA] in the trafficking context requires the existence of an employer-employee relationship which may be difficult to prove in labor trafficking cases and which does not exist in sex trafficking instance since prostitution is not recognized as a legitimate form of employment. See Becki Young, Note: Trafficking of Humans Across United States Borders: How United States Laws can be Used to Punish Traffickers and Protect Victims, 13 Geo. Immigr. L.J. 73, 84 (1998) [132] See e.g. The Penal Code of Cambodia, ch.2 and 3 (1996), the Penal Code of Cote d’lvoire, ch.2 and 3 (1983), the Penal Code of Croatia, ch.6 (1998), the Penal Code of Fiji, ch.17 (1978), the Penal Code of Guatemala, ch.1.3.4 and 5 (1996), the Penal Code of Guinea, ch.4 (1965), the Penal Code of Italy, ch.7 (1958), the Penal Code of Kiribati, ch.16 (1977), the Penal Code of Luxembourg, ch.6 (1999), the Penal Code of Malawi, ch.15 (1968), the Penal Code of Singapore, part 11 (1997), the Penal Code of Sweden, ch.6 (1984), the Penal Code of United Arab Emirates, ch.5 (1987), [133] See e.g. The Criminal Code of Albania, ch.6, 7 and 8 (1995), the Criminal Code of Bahrain, ch.3 (1976), the Criminal Code of Belarus, ch.8 (1995), the Criminal Code of Belize, ch.84 (1987), the Criminal Code of Bolivia, ch.2, 3 and 4 (1996), the Criminal Code of Burkina Fasco, ch.4 (1958), the Criminal Code of Burundi, ch.2 (1981), the Criminal Code of Central African Republic, ch.4 to 7 (1964), the Criminal Code of China, ch.8 and 9 (1992), the Criminal Code of Columbia, title 4, ch.2, 3 and 4, and title 6, ch.2 and 3 (1980), the Criminal Code of Djibouti, ch.6 (1973), the Criminal Code of France, ch.5 (1982), the Criminal Code of Gambia, ch.10 (1964), the Criminal Code of Greece, ch.18 and 20 (1981), the Criminal Code of Jordan, ch.7 (1988), the Criminal Code of Kuwait, ch.2 (1976), the Criminal Code of Moldova, ch.2 and 11 (1961), the Criminal Code of Panama, ch.3 (1995), the Criminal Code of Portugal, ch.5 (1995), the Criminal Code of Sierra Leone, ch.30 and 31 (1959), the Criminal Code of Turkey, ch.8 (1972), the Criminal Code of Uruguay, ch.1 to 5 (1986). [134] International trafficking is recognized as a separate criminal offense in a number of Criminal Codes. See e.g. Article 231 of the Criminal Code of Brazill (1990) “Promoting or facilitating the entry into the national territory of women who come for purposes of prostitution, or the exit from the national territory of women to do so abroad shall be punished…” Article 2 of the Criminal Code of Austria “Any person who entices an individual to go to another country with the intent of engaging in prostitution in a country other than the country in which the individual holds citizenship or maintains his or her usual residence, through deception,… or by force or… threat, … shall be punished with imprisonment of one to ten years”, Article 2 of the Criminal Code of Benin (1947) “The same penalties shall apply to the act of smuggling or attempted smuggling of individuals or attempted smuggling of individuals into the territories of French West Africa and the (French Congo)…, and to the act of making someone leave, or attempting to make someone leave these territories for purposes of (prostitution)…”, Section 229G of the Criminal Code of Queensland, Australia “(1) A person who (a) procures another person to engage in prostitution, either in Queensland or elsewhere, or (b) procures another person (i) to leave Queensland for the purpose of engaging in prostitution elsewhere, or (ii) to come to Queensland for the purpose of engaging in prostitution,… comitts a crime…”. Article 226 (1) of the Criminal Code (1995) of Japan “ A person who kidnaps or abducts another for the purpose of transporting the same to a foreign country shall be punished with penal servitude for a limited period of not less than two years”. [135] See e.g. Article 124 (1) of the Criminal Code of Ukraine (1995) “An undisguised or concealed seizure of a person related to any legal or illegal transference of that person abroad with or without the person’s consent or without such transference for further sale or paid – for passing of the person to a third party to be sexually exploited, used in pornographic business, involved in criminal activities, put in bondage to somebody, adopted to make profit, used in armed conflicts, exploited as forced labor is punishable…”. Article 1 of the Penal Code of Cambodia (1996) “Any person who lures a human person, even male or female, minor or adult of whichever nationality by way of enticing or by any other means, promising to offer any money or jewelry, (when) there is no consent, by way of forcing, threatening or using of hypotic drugs, in order to kidnap him/her for trafficking, sale or for prostitution, shall be subjected to imprisonment for ten to fifteen years of imprisonment”. In the absence of such illegal purposes, there is no crime. See e.g. Article 2 of the Women and Girls Protection Act of 1973 “No person shall be charged with an offence under this section if he satisfies the Commissioner that the women or girl brought into to taken out of Brunei by him or intended to be brought into or taken out of Brunei by him was so brought into or taken out of Brunei for the purpose of her marriage or adoption and that such marriage or adoption can be solemnized or made and has been or will be solemnized or made under the laws and customs for the time being in force in Brunei”. [136] Trafficking of minors may warrant a different rule of prohibition and punishment. For instance, the Law of Malta draws a distinction between trafficking of persons who has attained the age of 21 and those who are underage. In the former case, compelling the person “by means of violence or threats” or inducing such a person by “deceit” is required for the criminalization of the act of trafficking, while in the later case, there is no such requirement. However, if the offence is committed by these means, the sentence is to be increased. See The White Slave Traffic Suppression Act (1930) and the Penal Code, Sec. 5 and 6 (1994). [137] See e.g. Article 225 to 227(4) of the Criminal Code of the Democratic Republic of Congo (1978) “Procuring shall be punished by ten years of imprisonment and a fine… if it is committed with respect to a person who has been incited to engage in prostitution either outside the territory of the Republic, or upon their arrival within the territory of the Republic”, Article 323 of the Criminal Code of Comoros “The Penalty shall be imprisonment of two to five years and a fine… in cases where the victims of crime were forced into or incited to engage in prostitution outside the national territory… (or)… upon their arrival or within a short period following their arrival in the national territory”. [138] The trafficking in persons issue appears in a number of special acts in various legal systems although few of these acts adopt a protective rather than a penalizing approach to the problem. These special acts include The 1995 Sexual Offences Act of Antigua/Barbuda, The 1999 Sexual Slavery Act of Australia, The 1995 Oppression of Women and Children Act and The 1993 Suppression of Immoral Traffic Act of Bangladesh, The 1973 Women and Girls Protection Act of Brunei, The 1998 Combating of Trafficking in Persons and Sexual Exploitation of Children Acts of 1998, The 1961 Combating Prostitution Act of Egypt, The 1956 Suppression of Immoral Traffic in Women and Girls Act of India, The 1949 Women and Girls Protection Act of Lesotho, The 1973 Women and Girls Protection Act of Malaysia, The 1980 Combating of Immoral Practices Act of 1980, The 1997 Sexual Offenses Act of South Africa, The 1996 Prostitution Prevention and Suppression Act of Thailand and The 2000 Trafficking Victims Protection Act of the United States. [139] The Act repealed The Women and Girls Protection Enactment of the Federal Malay States and the Women and Girls (Appointment of Places of Safety Act of 1996). [140] Section 7 of The Women and Girls Protection Act (1973) of Malaysia states that “(1) If the Protector has reasonable cause to believe that any female person under the age of twenty-one years (a) is being trained or used for purpose of prostitution or any immoral purposes, or (b) lives in or frequents any brothels, or (c) is habitually in the company or under the control of brothel-keepers or procures or persons employed or directly interested in business carried on in brothels or in connection with prostitution, he may… order such female person to be removed to a place of refuge and there temporarily detained and brought before the Court of a Magistrate within twenty-four hours”. Under Section 8 of the same Act she may be detained in a place of refuge for a period of three years, then placed under the supervision of the “social welfare” officer appointed by the protector for that purpose. [141] See Section 9 of The 1973 Women and Girls Protection Act of Malaysia “any female may on her own application in writing be received by the Protector into a place of refuge if the Protector is satisfied that such female is in urgent need of protection as there is reasonable cause to believe that… she is being threatened or intimidated for purpose of prostitution or for purpose of having carnal knowledge with another or for any immoral purpose”. [142] Section 10 of The Women and Girls Protection Act (1973) of Malaysia. [143] The Section further provides that “If any books, documents or papers which are evidence or liable to inspection in any civil or criminal proceeding whatsoever contain any entry in which any informer is named or described or which might lead to his discovery by the Court shall cause all such passages to be concealed from view or to be obliterated so far as may be necessary to protect the informer from discovery” [Section 32(2)]. [144] Under Section 1 “This Act shall be called the Measure in Prevention and Suppression of Trafficking in Women and Children Act B. E. 2540 (1977)”. The Act repealed the Trafficking in Women and Girls Act B. E. 2471 (1928). For discussion of the problem of trafficking in persons, especially children in Thailand, see generally, Patricia D. Levan, Note: Curtailing Thailand’s Child Prostitution Through International Conscience, 9 Am. L. J. Int’I and Pol’y 869 (1994). In this regard Section 11 of the Act provides that “The official shall use his/her judgment in giving appropriate assistance to the women and child, who is the victim of the offense as specified in Section 5, in providing food, shelter and repatriation to her/his original country or residence. In providing assistance according to the first paragraph, the official may arrange for the woman and child to be in the care of a “primary shelter” provided by the Law on Prostitution Prevention and Suppression, or a “primary shelter for children” provided by the Law on child and Juvenile Safety and welfare, or other governmental and non-governmental welfare institutions” [Section 11 of the Measures in Prevention and Suppression of Trafficking in Women and Children Act of 1997]. [145] See Section 15 of the 1973 Women and Girls Protection Act of Brunei. Under Section 25 (1) “the Minister may make rules for and in respect of … the care detention, temporary absence, maintenance and education of women and girls detained under this Act”. [146] The case was decided by the Stockholm District Court on June 22, 1995 [147] The case was decided by the Correctional Tribunal in Brunges, Belgium on May 18, 1998 [148] The case was decided on April 26, 1996 [149] The case was decided by the Tribunal de Grande Instance in Draguigan, France on October 29, 1997 [150] The case was decided on October 8, 1996. This was the first conviction of a sex crime on the basis of extraterritorial law [151] This case, which was the first to apply the extraterritoriality principle, was decided by the District Court of Zurich on June 25, 1998 [152] Article 16(4) of the U.N. Convention Against Transnational Organized Crime [153] Article 18 of the U.N. Convention Against Transnational Organized Crime. The Convention also calls for Joint Investigations (art 19), Special Investigative Techniques (art 20), and Transfer of Criminal Proceedings (art 21). |
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