The Protection Project - INCORPORATING THE CONCEPT OF HUMAN SECURITY IN NATIONAL LEGAL RESPONSES TO TRAFFICKING IN PERSONS

INCORPORATING THE CONCEPT OF HUMAN SECURITY IN NATIONAL LEGAL RESPONSES TO TRAFFICKING IN PERSONS

Mohamed Y. Mattar

I. Introduction

Trafficking in persons,[1] especially women and children, can be analyzed as a crime control issue, as an immigration policy issue, or as a violation of human rights, including the right to security. This paper will shift the focus of consideration from international legal responses to how the national legal systems incorporate the concept of human security in designing a legal response to trafficking in persons.[2] I maintain that traditional international legal instruments defined human security narrowly, mainly to include the right to personal security and safety. However, for the concept of human security to be implemented fully and applied effectively, it is not sufficient to address it only on the international level. What is more important is for the concept of human security to be recognized by and incorporated into domestic legal systems. I will also argue that a change in the concept from personal security to human security warrants a shift in the focus from prohibition to prevention and from addressing trafficking in persons as a crime against the state to the crime against the individual. Further, an extended concept of human security goes hand in hand with an extended definition of several other concepts, namely who should be treated as victim of trafficking, what constitutes trafficking, who should be held criminally liable for the act of trafficking, and who should be responsible for implementing the counter-trafficking measures.

II. Personal Security and Safety vs. Human Security

Addressing the security of the trafficked person as a part of a person’s right to security is limited in scope. Security, in that sense, is confined to “personal security” as opposed to “human security.” That was the approach adopted by traditional international law. The concept of “security” of the individual was defined as personal in nature. For instance, the Universal Declaration of Human Rights (UDHR) states that “[e]veryone has the right to … security of person.” [3] Similarly, the International Covenant on Civil and Political Rights (ICCPR) states that “[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.”[4]

Similarly, when the right to individual security is addressed in the national constitutions, the definition is generally limited to the right to liberty and security of a person and the protection from bodily harm. Perhaps, the most extensive definition of this right is contained in the 1996 Constitution of South Africa, which interprets it as

the right – (a) not to be deprived of freedom arbitrarily or without just cause; (b) not to be detained without trial; (c) to be free from all forms of violence from either public or private sources; (d) not to be tortured in any way; and (e) not to be treated or punished in a cruel, inhuman or degrading way.[5]

Limited definitions of the right to personal security are also provided under Article 18 of the Constitution of Armenia, Article 31 of the Constitution of Azerbaijan, Article II.3(d) of the Constitution of Bosnia and Herzegovina, Article 32 of the Constitution of Cambodia, Article 11 of the Constitution of Cyprus, Article 20 of the Constitution of Estonia, Article 14 of the Constitution of Ethiopia, Article 7 of the Constitution of Finland, Article 55 of the Constitution of Hungary, Article 94 of the Constitution of Latvia, Article 20 of the Constitution of Liberia, Article 32(a) of the Constitution of Malta, Article 9 of the Constitution of Paraguay, Article 41 of the Constitution of Poland, Article 27 of the Constitution of Portugal, Article 23 of the Constitution of Romania, Article 17 of the Constitution of Spain, Article 19 of the Constitution of Turkey, and Article 47 of the Constitution of Yemen.[6]

Thus, when the right to security was addressed as a part of human rights discourse, it was mainly defined as “personal security,” which was interpreted basically as the right to “liberty” and “safety” from bodily harm. By contrast, the new concept of human security is broader than merely personal security, personal safety, or the right to security.[7] The concept was first introduced in the United Nations Development Program’s 1994 Human Development Report: New Dimensions of Human Security (Report), with the intent “to bridge the concepts of the freedom from want and freedom from fear[, which] lay at the heart of the philosophy of the United Nations.”[8] The former freedom has been interpreted to mean freedom from violence, while the latter freedom from poverty.[9] Presenting human security as the “safety from chronic threats as hunger, disease and repression [and the] protection from sudden and hurtful disruptions in the patterns of daily life,”[10] the Report also defined seven different dimensions of human security, which include economic, food, health, environmental, personal, community, and political security.[11] Alternatively, International Commission’s on Intervention and State Sovereignty report on The Responsibility to Protect covers “the security of people against threats to life, health, livelihood, personal safety, and human dignity.”[12] Thus, human security, in an extended definition of the concept, “encompasses human rights, good governance, access to education and health care and ensuring that each individual has opportunities and choices to fulfill his or her own potential.”[13] It seeks to protect “the vital core of all human lives in ways that enhance human freedoms and human fulfillment.”[14] In essence, human security can encompass almost anything related to people’s lives, as it includes “freedom from death, poverty, pain, fear or whatever else makes people feel insecure.”[15]

III. How Can a Legislation Protect the Rights of a Trafficked Victim?

The right to safety of the trafficked person may be protected by defining trafficking in persons as a violent crime. In many cases, trafficking in persons involves “violent commodities,” where those who demand or supply a particular commodity frequently practice violence in order to satisfy their demand or to protect their supply.[16] Typically, this occurs in the so-called “violent entrepreneur model of trafficking,” where the trafficker relies on violence in all stages of the trafficking operation.[17] Trafficking in persons, as well as many of its aspects such as forced prostitution, necessarily involves violence against women. Therefore, under the UN Declaration on the Elimination of Violence against Women, violence against women is defined to include trafficking in persons.[18] Consequently, a national legal system may protect the right to personal security and personal safety of the trafficked person by making violence, or threat of violence, an “illegal means,” the existence of which makes trafficking in persons a crime.[19]

The legislation may also protect the right to safety of the trafficked person by making violence and threat of violence, as well as bodily harm or death, an aggravated circumstance that enhances the penalty for the crime of trafficking.[20] Further, fear of violence may be designated as a ground for enrolling a trafficked person in a witness protection program. Finally, the right to safety of the trafficked person may be protected by making the fear of reprisal from her trafficker a ground for granting her a residency status in the country of destination.

IV. Causes of Human Insecurity

Applying the extended concept of human security means that it is necessary to address not only the right of the trafficked person to personal safety, but the other aspects of human security as well, including economic security, political security, legal security, and community or cultural security. Thus, it is imperative that the causes of insecurity of the trafficked person are explored. In the context of trafficking in persons, the primary causes of insecurity are economic, social, legal, cultural, and political insecurities.

Economic insecurity is addressed directly in the UN Protocol, which mentions poverty, underdevelopment, and lack of equal opportunities as being among the root causes of trafficking in persons.[21] Economic insecurities may also be extended to include unemployment and the lack of access to basic health care, education, and social welfare.

Social insecurity is concerned with the low status of women in society. This involves gender inequality and sex discrimination in education, employment practices, access to legal and medial services, and access to information, as well as violence against women, sexual violence or abuse, and domestic violence.

Cultural insecurity is related to social insecurity in a number of ways. For example, in many societies, there exist harmful cultural practices, such as arranged marriages, early marriages, temporary marriages, marriages by catalog or mail order brides, and other forms of sexual exploitation, all of which contribute to the trafficking infrastructure.[22] Further, in many societies, cultural norms affect the manner in which women respond to trafficking. For instance, women from Moslem countries who are trafficked into prostitution would find it more difficult to reintegrate into their families and communities after being freed from exploitation.[23] Many trafficked women may also have contracted HIV/AIDS or other sexually transmitted diseases, reporting of which is considered shameful in these traditional societies.

Legal insecurity is manifested in the lack of access to the criminal justice system, which occurs either because the trafficked person is a foreigner or lacks access to legal representation, or the system itself does not offer an appropriate remedy. In addition, the insecurity is fostered by the double witness rule or the corroborative evidence rule, which is still applied in criminal procedure of many countries. The double witness rule does not allow treating victims of trafficking as credible witnesses, since it prohibits the admission of evidence of only one witness unless her testimony is corroborated by another witness or other material evidence implicating the accused. As a result of this insecurity, trafficked persons are not heard in court or the judges who review their cases are corrupted.

In addition to economic, social, and cultural insecurity, political insecurity may be a reason behind trafficking in persons. This is particularly the case in the former Soviet republics, where transition from communism to democracy, civil unrest, loss of national identity, and political instability all have created a favorable environment for organized crime, including trafficking in persons.[24]

V. Trafficking in Persons: From Prohibition to Prevention and Protection

A human security approach to the problem of trafficking in persons requires addressing the aforementioned causes of insecurity and taking the appropriate steps to eliminate those causes. In this respect, prevention of the contributing factors to trafficking in persons, or of the causes of human insecurity that make women and children vulnerable to trafficking, becomes the key. Prevention and protection are implied by a broad definition of human security, as opposed to the prohibition approach, which is the focus of a limited concept of personal safety.[25]

The limited prohibition approach to trafficking in persons was reflected in the traditional international law that existed prior to the UN Protocol. For instance, UDHR stated that “[n]o one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”[26] The Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery outlawed practices such as debt bondage, serfdom, bride price, and exploitation of child labor.[27] The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibits “exploitation of prostitution of women” and “all forms of traffic in women.”[28] The United Nations Convention on the Rights of the Child mandates that state parties prohibit “the abduction of, the sale of or traffic in children for any purpose or in any form.”[29] Similarly, the Convention on the Elimination of the Worst Forms of Child Labor similarly prohibits “the use, procuring or offering of a child for prostitution…”[30] Finally, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict prohibits “recruit[ment] and use in hostilities [of] persons under the age of 18 years.”[31]

However, it was the UN Protocol[32] that shifted the focus from prohibition to prevention of the act of trafficking and protection of the victims of trafficking. The UN Protocol became international law in December 2003, after it was ratified by forty countries.[33] It is necessary to urge more countries not only to ratify the UN Protocol, but to also change their law and policy to meet their international obligations. This is especially important given that the UN Protocol had a significant impact in various countries in creating the international consensus as to what should be considered trafficking. In addition, the UN Protocol will create a reporting mechanism different from the sanctions that are now being imposed by the United States under TVPA.

VI. Threat Against the Individual, Not the State

While addressing the issue of trafficking in persons as a threat to human security requires focusing on prevention in addition to prohibition, such approach also requires recognizing trafficking in persons not only as a crime against the state but also, and mainly, as a crime against the individual,[34] thereby shifting the concept of security from the concept of “state security” to the concept of “human security.”[35] Several important questions arise in this respect. Should internal trafficking acquire the same importance as international trafficking? Should victims of trafficking be eligible to receive the residency status on humanitarian basis even if it places a burden on state’s immigration policy? Should they be penalized for commission of unlawful acts that are incident to their trafficking? Should they be eligible for witness protection programs if they agree to testify against their traffickers? The answers to these questions depend on the type of protected interest threatened by trafficking in persons.

a. Internal trafficking

If trafficking in persons is considered mainly as a threat to the state, then addressing internal trafficking becomes less important, although in many cases it poses a real threat to human security. For instance, it is estimated that 100,000 women and children are sexually exploited annually within the borders of Brazil, and 40,000 children are bought and sold every year for work in domestic service or in agriculture.[36] There are also reports of internal trafficking in such countries as Afghanistan, Haiti, India, the Philippines, Russia, and Thailand. Nevertheless, many countries still consider only transborder trafficking and refuse to recognize internal trafficking as an offense.[37] While crossing of international borders should not be an element of the crime of trafficking itself, it may warrant a different response, such as transnational cooperation or an enhanced penalty.[38]

b. From deportation to a residency status

If trafficking in persons is considered as a crime against the state, then the state should have the right to deport the trafficked persons. This deportation policy is the policy that is followed in most countries today.[39] Immigration laws in most countries still treat the victim of trafficking as a prohibited immigrant and provide for her deportation, ignoring the distinction between smuggling of migrants and trafficking in persons. This is the case, for instance, under Article 10 of the Tanzania Citizenship Act and Section 37 of the Foreigner Act of Finland.

By contrast, if trafficking in persons is considered as a threat to the person, then reconsideration or a review of this deportation policy is warranted as a matter of principle. Indeed, about 30 countries have changed their immigration policy to grant a victim of trafficking some kind of residency status (temporary or permanent).[40] However, in most of these countries, the underlying basis for this status is the protection of state security and not the security of the trafficked person. Such an approach is manifested in the laws of many countries such as Belgium, where the residency status is dependent upon the legal proceedings and is temporary in nature.[41] Once the legal proceedings are concluded, the victim returns to her country of origin. The same is true in Germany, although permanent residency may be granted on very rare occasions where the victim’s return to her country of origin would present a risk to her life.[42] In all of these cases, the focus is on trafficking as a threat to the state security and the need to protect the state. However, if trafficking is considered as a crime against the individual and as a threat to human security, it is necessary to consider granting a victim of trafficking temporary or permanent immigration status on a “humanitarian basis.” Moreover, once the victim of trafficking has been identified, the benefits granted to her should not depend on her immigration status, but nevertheless, in many cases, foreign victims of trafficking fall outside the protection of the national legal system of the destination countries.

The humanitarian approach to the residency status of victims of trafficking is manifested in the UN Protocol stating that “each State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking to remain in its territory, temporarily or permanently, in appropriate cases … giv[ing] appropriate consideration to humanitarian and compassionate factors.”[43] Such approach is taken by the Netherlands, which may grant a victim a residency permit on humanitarian grounds that include the risk of reprisals against the victim or her family, the risk of persecution in the victim's country of origin for committing an offense related to prostitution, and the difficultly of social reintegration in the country of origin.[44] This approach is also reflected in the TVPA, as amended by the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003. The TVPA uses the term “extreme hardship” upon removal from the United States as the “human insecurity” that constitutes the basis for granting a victim of trafficking a special T Visa.[45] While the T Visa is temporary in nature and lasts for three years, it may be adjusted to a permanent residency status.[46]

One can interpret the “extreme hardship” standard of the TVPA as one that is based on the concept of “human insecurity,” whether this means medical, legal, personal, or social insecurity. Medical insecurity refers to the medical status of a victim of trafficking and implies that the required medical care is not available in the victim’s country of origin. Legal insecurity means that if a victim is denied access to the U.S. legal system, she would be left without any effective legal remedy. Personal insecurity refers, most likely, to the issue of the victim being subjected to reprisals from her trafficker or to criminal or other punishment because her country of origin penalizes the trafficked person. Finally, social insecurity means the likelihood of a victim’s re-victimization, especially in the absences of any assistance to her in her country.[47]

Ultimately, however, whether trafficking in persons is considered mainly as a threat to the state security or to the human security, it would affect the immigration law approach to trafficking in persons and the immigration status that should be granted to victims of trafficking.

c. The principle of non-criminalization

The distinction between state security and human security also affect the criminal justice policy, in particular, the application of the principle of non-criminalization of the acts of a trafficked victim that are incident to trafficking, such as illegal entry, falsification of travel documents, or prostitution.[48] Unfortunately, existing domestic laws in most countries fall short of this endeavor. The use of the abovementioned traditional immigration law approach results in punishing the victims through deportation. Further, in countries where prostitution is illegal, victims may also be held criminally responsible for engaging in this unlawful act. For example, in August 2002, 10 Vietnamese girls ranging from ages 12 to 18 were arrested and convicted on immigration violations in Cambodia. The girls were sentenced to three months in prison and subsequently deported, even though they were trafficked into the country against their will and forced to engage in prostitution.[49]

The human security approach to the victims of trafficking implies that they should not be penalized solely for unlawful acts committed as a direct result of being trafficked, such as illegal entry, falsifying travel documents, prostitution, illegal presence, or unauthorized employment. This is the rule, for instance, exemplified in the United Nations Regulation on the Prohibition of Trafficking in Persons in Kosovo, stating that “[a] person is not criminally responsible for prostitution or illegal entry, presence or work in Kosovo if that person provides evidence that supports a reasonable belief that he or she was the victim of trafficking.”[50] Likewise, this rule was introduced into the American criminal justice system in accordance with TVPA, which provides for 5 years of imprisonment for the trafficker who falsifies immigration documents and explicitly provides that this rule “does not apply to the conduct of a person who is or has been a victim of a severe form of trafficking in persons if that conduct is caused by, or incident to, trafficking.”[51]

Still interpreting trafficking in persons as a crime against a state, some countries make the application of the principle of non-criminalization contingent upon the victim’s willingness to cooperate with the state law enforcement officials in investigating and prosecuting the trafficking offense and testifying against the traffickers. This is the case under Article 165(4) of the Criminal Code of Moldova, Article 124 of the Criminal Code of the Kyrgyz Republic, and Article 8 of the Dominican Republic’s Law No. 137-03 Regarding Illegal Trafficking of Migrants and Trade in Persons. These laws do not reflect the rule that the victim’s immunity from liability for trafficking-related offenses should not be contingent upon the victim serving as a witness on behalf of the state. While the victim’s testimony should be encouraged, it should not be a requirement for granting the immunity.

d. Witness protection

If the country does require the victim of trafficking to testify against her traffickers, then the victim should be provided with witness protection as a prerequisite to coming forward and testifying. This requirement, perhaps, is the best illustration of trafficking as a threat against a mixed protected interest: the safety of the person needs to be protected while she is testifying for the state. Thus, for the purpose of allowing the application of the 1982 Victims and Witness Protection Act to trafficking in persons, the TVPA recognizes trafficking as an organized criminal activity and as a serious offense.[52] At the same time, in most of the European countries that have witness protection laws the criteria for application of such programs are so strict that victims of trafficking can rarely meet the standard. Moreover, countries such as Belgium, Denmark, Finland, France, Luxemburg, Sweden, and most of the countries in Eastern and Southeast Europe do not have any formal witness protection programs at all.[53]

VII. Extended Definitions of Victim of Trafficking and Identification of Victims

A human security approach to trafficking in persons requires that a trafficked person must be recognized as a victim[54] who is entitled to basic human rights under the law and not as a criminal who is subject to the punishment under the law.[55] In addition, this approach requires an extended definition of who should be considered a trafficking victim. In particular, this definition should include not only the victim herself, but also derivative victims, i.e., members of the victim’s family who should either be covered by the witness protection programs or be granted a residency status.[56] There are several reasons behind the need for application of the derivative victim doctrine to trafficking in persons. First, traffickers commonly use threats not only against the victim herself but also against her family members. Secondly, the migration of trafficked persons, in many cases, is dictated by the need to support their families. And lastly, the stigma associated with trafficking attaches not only to the victim herself but to her entire family.

The definition of a victim of trafficking should also be extended to include the potential victims of trafficking as a group, i.e., the vulnerable population, or the population at risk, especially women and children under the age of 18. In many cases, victims of trafficking are among the most vulnerable social groups in the population even before they are trafficked and “their human security is already compromised … due to factors ranging from dire poverty, the status of women in society, and war and conflict.”[57] Therefore, preventive responses addressing the causes of vulnerability of women and children are crucial. These responses should include economic and social reforms aimed at poverty alleviation, creation of educational and employment opportunities, and elimination of gender discrimination, as well as child protection measures such as birth registration.[58]

Yet the real problem that most of the countries face today is finding the victims of trafficking, including the extended victims, the vulnerable victims, and the potential victims. Thus, according to the U.S. government estimates, between 14,500 and 17,500 persons are trafficked annually into the United States, and between 600,000 and 800,000 people are trafficked annually across the international borders.[59] The U.S. authorities are required, under the provisions of TVPA, to identify these victims of trafficking and provide them with information about the rights and protections available to them.[60] However, since the passage of TVPA in 2000 through the end of 2003, a total of only 448 victims have been certified or issued refugee benefits eligibility letters from the Department of Health and Human Services, including 151 certifications and letters issued in the year 2003.[61] Moreover, although there are 5,000 T visas available every year in the under the TVPA, a total of only 757 T visa applications have been received since the passage of the Act until the end of 2003, of which 328 visas were issued, 38 denied, and the remaining applications pending. Of this total, 297 T visas were issued in 2003.[62]

Another example of a poor record of identifying the victims of trafficking comes from a recent study estimating that while 90 percent of foreign sex workers in the Balkan countries are victims of trafficking, only 30 percent are recognized as such, and only 7 percent have been identified for receiving assistance and support.[63] Therefore, any response to the problem of trafficking in persons, from a human security perspective, should begin with identifying the victims of trafficking. Identification of victims of trafficking is crucial because it would allow granting them residency status and applying to them the principle of non-criminalization. In addition, the witness protection programs and services would be available to victims, thus enhancing the state’s ability to prosecute cases of trafficking while also protecting the victim’s privacy and safety. Sadly, however, while most victims are reluctant to come forward, most states fail to take the necessary measures to reach the victims.

A collective effort by 12 countries in Southeastern Europe and neighboring regions deserves mentioning in this respect.[64] In September 2003, these countries participated in a joint operation MIRAGE, which was carried out by the Southeast European Cooperative Initiative Regional Center for Combating Transborder Crime (SECI) with the assistance of the United States. The ten-day-long operation targeted over 20,000 border crossings, bars, and nightclubs in the region and identified a total of 463 victims of sex trafficking and 595 suspected traffickers. The operation resulted in launching 319 new criminal investigations, with 207 traffickers charged under the specific anti-trafficking provisions of national legislation.[65] As of February 2004, a total of 31 traffickers identified during the operation have been convicted.[66]

VIII. Recognition of All Forms of Trafficking

Understanding the extended concept of human security requires not only an extended definition of a victim of trafficking, but also an extended definition of the forms of trafficking. This definition should not be limited to trafficking for the purpose of prostitution or forced labor. That is why article 3 of the UN Protocol is important, since it created an international consensus as to what constitutes trafficking in persons. According to the UN Protocol, “[e]xploitation shall include, at a minimum, the exploitation of prostitution of others, or other forms of sexual exploitation, forced labor services, slavery or practices to slavery, servitude or the removal of organs.”[67]

Thus, any adequate response to trafficking in persons as a threat to human security must recognize all forms of trafficking, including trafficking for the purpose of commercial sexual exploitation, such as prostitution, pornography, and sex tourism; trafficking for the purpose of non-commercial sex, such as marriages for the purpose of child-bearing, forced marriages, early marriages, temporary marriages, and mail-order brides (i.e., bride trafficking); trafficking for the purpose of forced labor, in particular domestic service, street begging, and camel jockeying; trafficking for the purpose of illicit inter-country adoption (i.e., baby trafficking); trafficking for military purposes; trafficking for the purpose of involvement in illegal activities, such as drug trafficking; and trafficking in human organs.

A number of countries provide in their anti-trafficking laws for such a broad definition of the act of trafficking. For example, the Criminal Code of Serbia criminalizes trafficking “for the purpose of obtaining some gain, exploitation of labor, criminal activities, prostitution or begging, for pornographic purposes, removal of organs, and for exploitation in armed conflicts.”[68] A similarly broad definition is adopted by the Criminal Code of Tajikistan, which also prohibits trafficking for the purpose of “further sale, involvement in sexual or criminal activity, use in armed conflicts, pornography, forced labor, slavery or likewise activity, debt related detention, or adoption of children with commercial aims.”[69]

On the other hand, many laws contain a very limited definition of trafficking. Some laws cover only trafficking for the purposes of prostitution and other forms of sexual exploitation. For example, under Article 246 of the Criminal Code of the Czech Republic, Article 169 of the Criminal Code of Portugal, Article 250(a) of the Penal Code of the Netherlands, and Sections 61-63 of the United Kingdom’s Sexual Offences Act, which has just entered into force in May 2004. Similarly, TVPA is limited in criminalizing only “severe forms of trafficking in persons,” which include only sex trafficking, narrowly defined to include solely trafficking “for the purpose of a commercial sex act,” and labor trafficking defined as “involuntary servitude, peonage, debt bondage, or slavery.”[70]

IX. Confronting All Actors in the Trafficking Enterprise

Any adequate and comprehensive approach to trafficking in persons, in addition to recognizing all forms of trafficking as criminal offenses, must involve going after all the actors that are involved in the trafficking enterprise. In this respect, several important distinctions are warranted.

The first distinction is that between the private person and the public person. While the offense of trafficking may be committed by a private individual or a group, many cases involve a public official, an immigration officer, a law enforcement agent, a border patrol officer or other officials who facilitate the act of trafficking or refrain from prosecuting such an act. In such case, public corruption, abuse of office or abuse of power must be recognized as an illegal means that gives rise to the offense of trafficking and must warrant an enhanced penalty. Such aggravating circumstances in trafficking-related offenses are provided, for instance, under Article 173 of the Criminal Code of Azerbaijan, Article 181 of the Criminal Code of Belarus, Article 172 of the Criminal Code of Georgia, Article 379bis of the Criminal Code of Luxembourg, Article 127-1 of the Criminal Code of Russia, Article 111b of the Criminal Code of Serbia, and Article 149 of the Criminal Code of Ukraine.

The second distinction is that between the natural person and the legal person. First, it implies that an anti-trafficking law must provide for the liability of the legal, or the corporate, person that facilitates the act of trafficking committed by a natural person. This includes establishing the responsibility of the facilitators involved in the trafficking act, such as the strip club, the escort service, the massage parlor, the travel agency, the advertisement agency, the employment agency, the adoption agency, the matchmaking organization, as well as hotels, restaurants, bars, and taxi companies. The responsibility of the legal person is established, for instance, under the Irish legislation, which provides that

[w]here an offense under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary or other similar officer of such body, or a person who was purporting to act in any such capacity … the body corporate shall be guilty of an offense and shall be liable to be proceeded against and punished as if [it] were guilty of the first-mentioned offense.[71]

Second, the distinction between the natural person and the legal person means that the law must address the responsibility of the customer who purchases the services, mainly commercial sexual services, from the trafficked person. In other words, the human security approach to combating trafficking in persons requires the countries to address the harmful demand that encourages the thriving trade in human beings. The link between the demand and trafficking in persons is made in the UN Protocol, according to which “[s]tate parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures … to discourage the demand that fosters exploitation of persons, especially women and children, that leads to trafficking.”[72] Thus, if the customer is a tourist, a sex tourism law must apply to him regardless of whether the act is a crime in the place where it is committed. Similarly, if the customer is a peacekeeper, the UN Code of Conduct must apply to him and the country that has jurisdiction to prosecute him must do so.

Most countries in the world that outlaw prostitution punish only the woman in the prostitution, while some legal systems, most notably those of the Islamic legal family, penalize both the customer and the woman in prostitution.[73] By contrast, the 1998 Swedish Law on the Prohibition of Purchase of Sexual Services criminalizes only the purchase, and the attempted purchase, of casual sexual services, while selling sex is not considered a crime. The punishment for the customer is a fine or imprisonment for up to 6 months. However, the number of prosecutions under the Swedish law has been low. The available statistics show that 10 convictions resulted out of 94 cases tried in 1999, 29 convictions out of 92 cases in 2000, and 38 convictions out of 86 cases in 2001.[74] Nevertheless, similar laws have been enacted in Norway[75] and Finland.[76] However, both laws only criminalize buying sexual services from a person under the age of 18.[77]

A slightly different approach is adopted by the Criminal Code of Macedonia, which provides for a penalty of imprisonment from 6 months to 5 years if the customer who is using or procuring the sexual services from a person in prostitution with the knowledge that such person is a victim of trafficking.[78] The same model is followed by the May 2003 law of Croatia.

X. Involvement of NGOs and Civil Society: An International Obligation of Cooperation

While prosecution of cases of trafficking is the responsibility of the state, a proper response to trafficking in persons as a threat not only against the state but also against the person requires the involvement of non-state actors. The UN Protocol provides: “[e]ach State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons, including, in appropriate cases, in cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.”[79] The Protocol also provides that “policies, programmes and other measures established in accordance with [Article 9] shall, as appropriate include cooperation with non-governmental organizations, other relevant organizations and other elements of civil society.”[80] These provisions, obviously, established an international obligation on state parties to cooperate with non-governmental organizations.

However, many countries, unfortunately, do not recognize the important role for the NGO’s. Many governments do not allow the NGOs the freedom to perform their functions in assisting and protecting victims of trafficking. For example, it has been reported that in Togo, there have been complaints of poor coordination between the government and NGOs, sometimes disrupting the provision of needed services to repatriated child victims of trafficking.

NGOs must be allowed to participate in providing the victims of trafficking with the necessary protection and empowering them to be independent and self-sufficient. In addition to protection and empowerment, NGOs play an important role in repatriation of victims of trafficking, their reintegration into the society, and preventing their revictimization after the return to the country of origin. Civil society organizations can also prove important actors in strengthening the capacity of the criminal justice system to enhance the human security of trafficking victims. The role of the NGOs becomes more important with the failure of the government to “facilitate and accept, with due regard for the safety of [the trafficked] person, the return of that person without undue or unreasonable delay.”[81] For example, according to the Hotline for Migrant Workers, an Israeli NGO, women from Uzbekistan have to wait for an average of 39 days in Israeli prisons to receive the necessary travel papers in order to travel to their home country. The most dramatic example is that of one victim from Tajikistan who, due to the lack of Tajik diplomatic presence in the country, spent 290 days in a prison in Israel waiting for her documents.

XII. Recommendations

Based upon the discussion contained in this paper, the following recommendations for addressing trafficking in persons as a human security issue can be made.

1) Addressing not only the personal security and safety of the trafficked persons but all aspects of their human security;

2) Addressing the primary causes of human insecurity in the context of trafficking in persons, including economic, social, cultural, legal, and political insecurity;

3) Shifting the focus from the prohibition approach to trafficking in persons to a more expansive approach that requires prevention of trafficking in persons and protection of the victims of trafficking;

4) Shifting the focus from recognizing trafficking in persons as a threat against the state security to trafficking as a threat to human security, which means recognizing internal trafficking as a form of trafficking, replacing the current deportation policy with the policy of granting the victims the residency status irrespective of a burden this may impose on a state’s immigration policy, applying the principle of non-criminalization to the acts of victims of trafficking, and extending the application of witness protection programs for victims of trafficking testifying against the traffickers;

5) Recognizing a trafficked person as a victim of the crime, including applying the derivative victim, the potential victim, and the vulnerable victim doctrine to trafficking, as well as taking appropriate measures to identify the victims;

6) Recognizing all forms of trafficking in persons as offenses under the national criminal law;

7) Penalizing all actors in the trafficking enterprise, including the private persons, the public persons, the legal persons, and the natural persons;

8) Allowing the NGOs and civil society to function freely in a society, while at the same time emphasizing the state responsibility in combating trafficking in persons.

References
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[1] The concept is also commonly referred to as “human trafficking” or “trafficking in human beings.” For an overview of various definitions of trafficking, see generally Everts (2003), Joshi (2002), and Stewart (1998).

[2] This paper has chosen to analyze only one of the levels of government responses to trafficking in persons as a human insecurity. It has been suggested that human insecurities comprise a five-level vertical structure consisting of insecurities at the individual, community, national, regional, and global levels. See Commission on Human Security (2002), at 7.

[3] UDHR, Dec. 10, 1948, art. 3.

[4] ICCPR, Dec. 16, 1966, art. 9.1.

[5] Constitution of South Africa, Oct. 11, 1996, art. 12(1).

[6] The English texts of these and other national constitutions are available from the International Constitutional Law Project at the University of Bern Institute of Public Law, at <http://www.oefre.unibe.ch/law/icl/index.html> (accessed May 28, 2004). It should be noted that the trend towards including the right to personal security in domestic constitutions is relatively recent; most of the constitutions listed in this paragraph were adopted or fundamentally revised during the 1990s.

[7] There are about 25 different definitions of human security. See generally Alkire (2003), at 15-17.

[8] Alkire (2003), at 18.

[9] Alkire (2003), at 18.

[10] UNDP (1994), at 23.

[11] See generally UNDP (1994), at 24-33 (describing each of these dimensions of human security).

[12] International Commission on Intervention and State Sovereignty (2001), at 15 (emphasis in original).

[13] Commission on Human Security (2003), at 4.

[14] Alkire (2003), at 32.

[15] Ogata, at 1.

[16] See generally Seita (1997) (analyzing how the market forces of supply and demand can lead to transnational violence).

[17] See generally Shelley (2003) (presenting various business models of trafficking in women).

[18] UN Declaration on the Elimination of Violence against Women, Dec. 20, 1993, art. 2(b) (“[v]iolence against women shall be understood to encompass, but not be limited to, the following: … (b) Physical, sexual and psychological violence occurring within the general community, including … trafficking in women and forced prostitution.”).

[19] “Illegal means” should be defined very broadly to include debt bondage, disclosure of confidential information to the victim’s family or to other persons, confiscation of travel documents, abuse of power, abuse of office, bribery, abuse of a position of vulnerability and other illegal or improper means. For example, Article 3(a) of the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Protocol), supplementing the United Nations Convention against Transnational Organized Crime defines “illegal means” to include the threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, or giving or receiving of payments or benefits to achieve the consent of a person having control over another person. Under Section 103 of the United States Trafficking Victims Protection Act (TVPA) of 2000 “illegal means” include the use of force, fraud, or coercion, and “coercion” is further defined to include “(A) threats of serious harm to or physical restraint against any person; (B) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (C) the abuse or threatened abuse of the legal process.”

[20] The new anti-trafficking articles in the Criminal Codes of many countries contain such provisions. This is the case, for instance, under Article 227 of the Criminal Code of Austria, Article 181 of the Criminal Code of Belarus, Article 204 of the Criminal Code of the Czech Republic, Article 181 of the Criminal Code of Germany, Article 165 of the Criminal Code of Moldova, Article 201a of the Criminal Code of Montenegro, Article 250a of the Criminal Code of the Netherlands, Article 127-a of the Criminal Code of Russian Federation, Article 111b of the Criminal Code of Serbia, and Article 167 of the Criminal Code of Tajikistan.

[21] See UN Protocol, art. 9.4.

[22] See Mattar (2003), at 730-733 (discussing the Islamic institutions of early marriage and temporary marriage and their role in the trafficking infrastructure of some countries of the Middle East).

[23] See, e.g., Ball (2001).

[24] It has been suggested that threats to human security of the former Soviet countries arise from four interrelated transitions: “1) identity and nation-state building, 2) economic liberalization, 3) social reform, and 4) political liberalization.” See Collins (2002), at 2.

[25] Numerous writings have suggested that prevention of human insecurities and protection of human security should be the preferred responses to these issues. See, e.g., Annan (2000), at 44-45 (“[t]here is near-universal agreement that prevention is preferable to cure, and that strategies of prevention must address the root causes of conflicts, not simply their violent symptoms”) (emphasis added); Department of Foreign Affairs and International Trade of Canada (2002), at 7 (stating that “the responsibility to protect has three dimensions: to prevent, to react, and to rebuild[,]” the most important of them being prevention); International Commission on Intervention and State Sovereignty (2001), at 6 (“there is growing recognition worldwide that the protection of human security, including human rights and human dignity, must be one of the fundamental objectives of modern international institutions”) (emphasis added).

[26] UDHR, art. 4.

[27] Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, Sept. 7, 1956, art. 1.

[28] CEDAW, Dec. 18, 1979, art. 6.

[29] United Nations Convention on the Rights of the Child, Nov. 20, 1989, art. 35. Sale of children, child prostitution and child pornography are also prohibited pursuant to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography (May 25, 2000).

[30] International Labor Organization Convention No. 182, On the Elimination of the Worst Forms of Child Labor, June 17, 1999, art. 3(b).

[31] Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict, May 25, 2000, art. 4.

[32] UN Protocol, Nov. 15, 2000.

[33] At present, 54 countries have ratified the UN Protocol. The information regarding the status of the UN Protocol is available at <http://www.unodc.org/unodc/en/crime_cicp_signatures_trafficking.html> (accessed May 28, 2004).

[34] It should be emphasized that trafficking in persons has to be classified as a crime that threatens two distinct protected interests: the human security of women and children and the state security.

[35] It should be noted that until recently, the notion of security in international law has most commonly been presented in terms of nation states protecting their borders, people, institutions, and values from foreign military aggression. This notion of security assumed that achieving state security automatically assured the security of the citizens and disregarded the fact that states can be “both a major threat to human security and a major vehicle for guaranteeing human security.” Ball (2001). Therefore, a more appropriate approach is to look at human security as complimentary to the state security.

[36] Corradini (2001).

[37] The examples include Article 217 of the Criminal Code of Austria, Article 187 of the Criminal Code of Bosnia and Herzegovina, Article 177 of the Criminal Code of Croatia, Article 246 of the Criminal Code of the Czech Republic, Article 81-2 of the Criminal Code of Estonia, Article 246 of the Criminal Code of Slovakia, and Article 149 of the Criminal Code of Ukraine.

[38] Crossing national borders as an aggravated circumstance for trafficking in persons is provided, for instance, under Article 173 of the Criminal Code of Azerbaijan, Articles 128 and 133 of the Criminal Code of Kazakhstan, Article 124 of the Criminal Code of the Kyrgyz Republic, and Article 127-1 of the Criminal Code of Russian Federation.

[39] In fact, it has been estimated that as of 2001, 44 percent of developed countries and 39 percent of developing countries had restrictive immigration policies. See Commission on Human Security (2003), at 42.

[40] These include, for example, Australia, Austria, Bahrain, Belgium, Bosnia and Herzegovina, Bulgaria, the Canada, Czech Republic, Denmark, France, Germany, Hong Kong, Hungary, Israel, Italy, Macedonia, Moldova, the Netherlands, Norway, Pakistan, Portugal, Romania, Russian Federation, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States.

[41] Details on Belgium’s requirements and procedure for granting the temporary residence status to victims of trafficking are available from the Daphne Program’s Committee against Modern Slavery, at <http://www.esclavagemoderne.org/VOT/UK/belgique.html> (accessed May 28, 2004).

[42] Sections 54-56 of the Aliens Act. Details on Germany’s procedure for granting the temporary residence status to victims of trafficking are available from the Daphne Program’s Committee against Modern Slavery, at <http://www.esclavagemoderne.org/VOT/UK/allemagne.html> (accessed May 28, 2004).

[43] UN Protocol, art. 7.

[44] See generally Aliens Act, as revised in 2000.

[45] TVPA, Sections 107(e)(1)(C) and 107(f) (amending the Immigration and Nationality Act).

[46] TVPA, Section 107(f).

[47] The eligibility criteria for T visa are specified in Immigration and Naturalization Service’s Final Rule on New Classification for Victims of Severe Forms of Trafficking in Persons: Eligibility for “T” Nonimmigrant Status, Jan. 31, 2002, Section 9 (adding Part 214.11(i) to Title 8, Code of Federal Regulations).

[48] In fact, it has been suggested that trafficking in persons is an illustration of a situation where the state itself may create dangers for human security of its citizens. Because trafficking often involves illegal crossing of state borders, corrupt government officials commonly assist traffickers and protect them rather than the victims, because trafficked persons are rarely treated as victims of a crime. As a result, victims are commonly arrested, penalized, and deported, while the perpetrators go undetected and unpunished.

[49] Victims of Sex Trafficking Imprisoned for Immigration Violations, Feminist Daily News Wire, Aug. 8, 2002, available at <http://www.feminist.org/news/newsbyte/uswirestory.asp?id=6774> (accessed May 28, 2004).

[50] United Nations Interim Administration Mission in Kosovo, Regulation No. 2001/4, On the Prohibition of Trafficking in Persons in Kosovo, Jan. 12, 2001, Section 8.

[51] TVPA, Section 112(a)(2) (addition Section 1592 to Chapter 77, Title 18, United States Code). Note that according to the draft TVPA as introduced in the House of Representatives, victims of trafficking could not be imprisoned, fined or otherwise penalized merely because they were trafficked. However, under the TVPA as passed by the Senate and signed into law by the President, victims are not to be detained in facilities inappropriate to their status as crime victims. It was concluded during the deliberations that the original provision that prohibited penalizing victims of trafficking by virtue of their status as crime victims or for conduct committed under duress incident to such status restated existing criminal law and, therefore, was unnecessary. See Victims of Trafficking and Violence Protection Act of 2000: Conference Report to Accompany H.R. 3244, at 93.

[52] TVPA, Section 112(a)(2) (adding Section 1594(d) to Chapter 77, Title 18, United States Code). Section 1208 of the Victim and Witness Protection Act provides only for protection of a witness in criminal proceedings concerning only “an organized criminal activity or other serious offense.”

[53] See Lehti (2003), at 35 (criticizing the lack of formal witness protection programs for victims of trafficking in Europe).

[54] Although the term “victim of trafficking” is not defined in the UN Protocol, an appropriate definition can be found in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Nov. 29, 1985), Sections A.1 and A.2 of which define the term “victim of crime” to mean

persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws[, including,] where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

Section A.6(d) of the Declaration also calls for “taking measures to minimize inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation.”

[55] Victims of trafficking should be entitled to such rights as the right to safety, the right to privacy, the right to information, the right to legal representation, the right to be heard in court, the right to compensation for damages, the right to medical assistance, the right to social assistance, the right to seek residence, the right to return to their country of origin, and the right to be treated with dignity, fairness, compassion and respect for their human rights. See Mattar (2002), at 47 (presenting the Bill of Rights for Victims of Trafficking).

[56] This is the case under the United States law. Thus, section 107(e)(1)(C) of the TVPA grants residency status to spouse and children of the victim over the age of 21, as well as to parents of the victim under the age of 21. Section 2153 of the Victim and Witness Protection Act allows for application of witness protection programs to a victim’s or witness’s immediate family members if they may be endangered because of the participation of the witness in the judicial proceeding.

[57] Thouez (2002), at 6.

[58] The right to birth registration is guaranteed to every child under Article 7 of the Convention on the Rights of the Child. However, this guarantee is not enforced in many countries. Thus, according to UNICEF, some 50 million births are not registered annually in the world – or about 30 percent of the estimated number of births. See UNICEF, Child Protection: Birth Registration, available at <http://www.unicef.org/protection/index_birthregistration.html> (accessed May 29, 2004). For instance, according to some statistics, over 200,000 children do not officially exist in the countries of Dominican Republic, El Salvador, Guatemala, Haiti, Honduras, and Nicaragua. See Inter-American Children’s Institute (2002).

[59] United States Department of Justice (2004), at 3.

[60] See TVPA, Section 107(c).

[61] United States Department of Justice (2004), at 9.

[62] United States Department of Justice (2004), at 15-16.

[63] See Commission on Human Security (2003), at 43.

[64] The countries taking part included Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Macedonia, Greece, Hungary, Moldova, Romania, Serbia and Montenegro, Slovenia, and Ukraine.

[65] For more details regarding the outcomes of operation “Mirage,” see generally SECI Center (2003).

[66] SECI Center (2004).

[67] UN Protocol, art. 3(a).

[68] Article 111b.

[69] Article 130.

[70] TVPA, Sections 103(8)-103(9).

[71] Act to Extend the Criminal Law of the State to Sexual Acts Involving Children Done Outside the State by Citizens of the State or by Persons Ordinarily Resident in the State and to Provide for Related Matters (Sexual Offenses Jurisdiction Act), Dec. 19, 1996, Section 5.

[72] UN Protocol, art. 9.5.

[73] The countries that criminalize both the act of prostitution and the act of purchasing sexual services include Saudi Arabia, Iran, Pakistan, Yemen, Mauritania, Jordan, Bahrain, Sudan, Tunisia, Malaysia, Brunei, and the United Arab Emirates. For a general overview of anti-prostitution laws in the Middle East, see Mattar (2003). A general discussion regarding the lack of consensus on the legislative approach to prostitution and its role in the trafficking infrastructure is available in Smith and Mattar (2004), at 169-171.

[74] See Smith and Mattar (2004), at 170.

[75] Penal Code, Section 203 (amended by the Act No. 76 of August 11, 2000).

[76] Penal Code, Section 20:8 (amended in 1998); Sections 20:6-7 (additionally criminalizing the purchase of sexual services from a person under the age of 16 as sexual exploitation of a child).

[77] At the same time, based on the Swedish experience, a special task force at the Finnish Ministry of Justice had recommended to prohibit the purchase of all sexual services. The draft law has been prepared and is expected to become effective sometime in 2005. See Finland Prepares Complete Ban on Sex for Sale, Agence France Press, March 7, 2004. Similarly, the government of Norway decided to consider whether it should impose a general ban on the purchase of sexual services following the completion of a study of the effect of such ban on the extent of trafficking. Because such study should take into account the Swedish experience, it will be conducted only after the Swedish law had been in force for a sufficient period of time to allow some certain conclusions. See Norwegian Ministry of Justice and the Police (2003), at 15.

[78] Article 418-A (added in January 2002).

[79] Article 6.3. Reference to the cooperation between the government and the NGOs is also made in article 9.3 of the UN Protocol (regarding prevention of trafficking) and article 10.2 (regarding training of law enforcement and other government officials).

[80] UN Protocol, Art. 9.3

[81] UN Protocol, Art. 8.1.