Article 35 of the New Iraqi Constitution: Recognition of Trafficking in Women and Children as a Specific Crime Mohamed Mattar Adjunct Professor of Law and Executive Director The Protection Project of The Johns Hopkins School of Advanced International Studies (SAIS) For the first time, with article 35 of the new Iraqi constitution, an Arab constitution explicitly prohibits “trade in women or children” and the “sex trade.”[1] Article 35 states that “Forced labor, slavery and the commerce in slaves is forbidden, as is the trading in women or children or the sex trade.”[2] Traditionally, Arab and Moslem constitutions prohibited “forced labor” or “slavery”. For instance, the Constitution of Jordan provides that "compulsory labour may not be imposed on any person."[3] The Constitution of the United Arab Emirates states that "no person shall be enslaved."[4] The Constitution of Afghanistan provides that “forced labor is forbidden.”[5] Iran’s Constitution states that Iranians should have the right to choose freely an occupation and that every citizen should refrain “from compelling anyone to engage in a particular job.”[6] Similarly, the Constitution of Oman states that “Every citizen has the right to engage in the work of his choice within the limits of the Law. It is not permitted to impose any compulsory work on anyone […]”[7] The Constitution of Kuwait also prohibits forced labor, “except in the cases specified by law for national emergency and with just remuneration.”[8] The Pakistani Constitution prohibits slavery, all forms of forced labor and traffic in human beings.[9] The Palestinian Constitution prohibits slave labor[10] and the Constitution of Sudan states that “Everyone shall be free and no one shall be held in slavery or servitude or degraded or tortured.”[11] Now, with the enactment of the new Iraqi constitution, I believe that article 35 requires the Iraqi legislator to enact a law explicitly prohibiting “trade in women and children,” especially the “sex trade.” Iraqi Law n. 8 of 1988 only prohibits prostitution, the exploitation and facilitation of prostitution and maintaining a brothel.[12] The 1998 law states that “prostitution [is] prohibited”[13] and that “[w]hoever owns or manages a house, rooms or a hotel allowing others to practice the prostitution therein or facilitating or assisting same” shall be punished.[14] In 1955, Iraq accessed to the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, which requires state parties to punish exploiting the prostitution of others and maintaining a brothel.[15] The 1988 law complies with the provisions of the 1949 Convention, which was limited to prohibiting trafficking for the purpose of prostitution. The 2000 United Nation Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Conventions Against Transnational Organized Crime, expanded the definition of trafficking, which is defined as “[…] the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”[16] Iraq ratified both the 1979 Convention on the Elimination of all Forms of Discrimination against Women in 1986 and the 1989 Convention on the Rights of the Child. Iraq is also expected to ratify the UN Protocol. Compliance with the Protocol would require the enactment of a specific anti-trafficking law. A specific anti-trafficking law is needed because criminalization of the offense of trafficking in persons should include all forms of trafficking, whether for the purpose of prostitution, forced labor, or other forms of slavery. Trafficking in persons should be recognized as a separate offense. While using existing laws related to prostitution as a means to prosecute traffickers may be necessary in the absence of a more comprehensive anti-trafficking legislation, trafficking in persons must be recognized as a separate offense.[17] This limited criminal law approach, however, is not sufficient. A comprehensive law must be enacted recognizing the trafficked persons as victims and protecting their rights. Extensive research is needed in many countries of the Middle East.[18] Iraq, Jordan and Tunisia are listed in the Special Cases Section of the TIP Report. In classifying countries in the TIP Report, the Department of State first determines whether a country is "a country of origin, transit, or destination for a significant number of victims of severe forms of trafficking."[19] Some countries for which such information is not available are not listed in the tier placement, but are included in the Special Case section of the TIP Report, as they exhibited indications of trafficking. More research is therefore needed in these countries, especially in Iraq. As stated in the 2005 TIP Report “As Iraq moves forward on the path to democracy and builds its internal security, administration, and infrastructure, the government should develop and integrate mechanisms for combating trafficking. This process must begin with an assessment of the situation.” On July 19, 2005, the Protection Project hosted a seminar entitled "The New Iraqi Constitution: Discussion of Constitutional Rights and Constitutional Review." On that occasion, I met the Iraqi Minister for Women's Affairs who confirmed the existence of the problem and the need for more research on trafficking in Iraq. I believe that civil society should play a role in conducting such research, especially now that the government allows civil society organizations to work freely in the country. In fact, article 43 of the new Iraqi constitution states that: “The state is keen to strengthen the role of civil society groups and to support, develop them and preserve their independence in accordance with peaceful means to realize legitimate goals.”[20] Civil society organizations should also be consulted in any legislative process to enact an anti-trafficking legislation that complies with the constitutional mandate to prohibit trafficking in women and children. --------------------------------------------------------------------------------
[1] Constitution of the Republic of Iraq, Article 35.
[2] The word trafficking is translated into the Arabic language as “trade.” [3] Jordan Const. ch. II, art. 13-1 (1952) (stating that compulsory labor may be imposed on a person in a state of necessity or as a result of conviction by a court of law). [4] U.A.E. Const., art. 34/3 (1971). [5] Constitution of Afghanistan, Article 49. [6] Constitution of Iran, Article 43. [7] Constitution of Oman, Article 12. [8] Constitution of Kuwait, Article 42. [9] Constitution of Pakistan, Article 11. [10] Constitution of the State of Palestine, Article 53. [11] Constitution of Sudan, Article 20. [12] Law N. 8 of 1988, Combating Prostitution . (Alwaqai Aliraqiya, The Official Gazette of the Republic of Iraq, Vol. 31, No. 13, 30 March 1988, pp.3-4. Article 1 The following expressions shall have the meaning stated there against: The prostitution: exercising the adultery or sodomy with a wage with more than one person. The Jobbery: the mediation between two persons with the intention of facilitating adultery by any means whatsoever including incitement even though by the approval of one of the two persons or upon his request as it includes a prostitution of a person by consent or compulsion. The brothel: the place prepared for adultery or facilitating it or making propaganda thereto or instigating same or achieving any other act o[r] practices which help the prostitution. Article 2 The prostitution and jobbery are prohibited. Article 3 There shall be punished with imprisonment for a period not exceeding seven years: A- every mediator or whoever shared or assisted him in the action of jobbery. B- Every exploiter or a manager of a public place or any other place allowing the public to enter in it and [using] persons practicing prostitution… C- Whoever owns or manages a house, rooms or a hotel allowing others to practice the prostitution therein or facilitating or assisting same. Article 5 1- Whoever keeps a male or female for the prostitution and sodomy in any place by the deceit, compulsion, force or threat, and the age of the victim is more than 18 years, shall be punished by imprisonment for a period not to exceed 10 years. 2- The penalty shall be with imprisonment for a period not exceeding 15 years [if] the age of the victim (male or female) is under 18 years. 3- The Court should pass a judgment with just compensation against the victim in the two previous [13] Law N. 8 of 1988, Combating Prostitution . (Alwaqai Aliraqiya, The Official Gazette of the Republic of Iraq, Vol. 31, No. 13, 30 March 1988, pp.3-4, Article 2. [14] Law N. 8 of 1988, Combating Prostitution . (Alwaqai Aliraqiya, The Official Gazette of the Republic of Iraq, Vol. 31, No. 13, 30 March 1988, pp.3-4, Article 3. [15] Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 96 U.N.T.S. 271, entered into force July 25, 1951. Article I states that: “The Parties to the present Convention agree to punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person; (2) Exploits the prostitution of another person, even with the consent of that person. “ Article 2 states that: “The Parties to the present Convention further agree to punish any person wh (1) Keeps or manages, or knowingly finances or takes part in the financing of a brothel; (2) Knowingly lets or rents a building or other place or any part thereof for the purpose of the prostitution of others. [16] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 25, annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001), article 3.[17] Mohamed Mattar, Trafficking in Persons, Especially Women and Children, in Countries of the Middle East: The Scope of the Problem and the Appropriate Legislative Response, 26 Fordham Int'l L.J. 721, 744. [18] The United States Department of Sates 2005 Report on Trafficking in Persons (TIP Report) contains information on severe forms of trafficking in only some countries of the Middle East. The TIP Report places the countries of Kuwait, Qatar, Saudi Arabia, Sudan, and the United Arab Emirates in Tier 3. These countries do not fully comply with the minimum standards and are not making significant efforts to bring themselves into compliance. Only Morocco is in Tier 1 and Afghanistan, Egypt, Iran, Oman, Syria, Turkey, Bahrain and Yemen are in Tier 2. [19] United States Department of State, Victims of Trafficking and Violence Protection Act of 2000: Trafficking in Persons Report, 2005, at http://www.state.gov/g/tip/rls/tiprpt/2005/ [20] Constitution of the Republic of Iraq, Article 43.
| 
