Omissions and Gaps: 

From the 

United Nations Protocol to the 

Council of Europe Convention 

Against Trafficking in 

Human Beings 
 

March 25, 2006 
 

Conference: From the United Nations Protocol to the Council of

Europe Convention Against Trafficking in Human Beings: Recent Development and New Challenges 

Johns Hopkins University (SAIS)

Bologna Center

Bologna, Italy 
 
 
 

Mohamed Mattar

Executive Director, The Protection Project of

The Johns Hopkins University SAIS 
  

On behalf of the Protection Project at the Johns Hopkins University School of Advanced International Studies

I would like to welcome our distinguished guests and participants to this conference that we are devoting to a discussion on

“The Council of Europe Convention against trafficking in Human Beings.” 

I am privileged to be here with all of my good friends and those who helped the Protection Project. 

Michelle Clark:  who used to co-direct the Protection Project with me.  I am sure they are lucky to have her at OSCE. 

Linda Smith:  whom I have been working with for almost five years now and during those years has been a supporter and a friend. 

Almost five years ago an international Consensus has been created to prevent, suppress, and punish trafficking in persons, especially women and children. 

This international Consensus was reached in the United Nations Protocol that was adopted in 2000. And on Christmas day, 2003 it became international law. 

So it took only 3 years for countries to satisfy article 17 of the Protocol that required forty instruments of ratification. 

And since then the anti-trafficking movement made significant legislative changes. 

If you take a look at the legal map today,

  • At least 29 countries have comprehensive anti-trafficking laws
  • 11 countries are considering drafting such laws (Mexico)
  • and at least 68 countries have amended their laws to include a specific anti-trafficking provision in the criminal or penal code (Ecuador)

If you move from the national level to the regional level, to me:

The Council of Europe Convention on action against trafficking in human beings presents the most significant legal instrument. 

The Convention was adopted on May 3, 2005. And from May 6-15 I was in Brussels, Belgium talking about recent developments in the anti-trafficking movement in the United Nations and Europe and I was handed a copy of the Convention and I was overwhelmed. I found a more comprehensive and a more sensitive legal document. A legal document that reflects many of the lessons that we learned since the passage of the United Nations Protocol. 

And hence was the birth of the ideas of this conference:

  • I approached the Johns Hopkins University, our partners here in Bologna, Italy, and they welcomed the idea.  So I have to thank you for hosting this conference.
  • I sought the partnership of the OSCE and they agreed to co-sponsor the conference.  So, I have to say thank you to Helga Konrad and I wish her well since to due to sudden illness she was unable to join us

The European Convention complements the United National Protocol. 

So we are not talking about two rivals here. 

  • In fact article 4 of the Convention adopts the same definition as article 3 of the Protocol.
  • The two definitions are identical

Both create what I call the “20 plus formula” distinguishing between the two phases of trafficking: 

  • The recruitment phase: 5 acts: 8 illegal means
  • The exploitation phase: 7 forms that are stated at a minimum and this is why I call this the 20 plus formula

And according to both, “consent” is irrelevant.  I make the argument that:

  1. Consent is a requirement of a continuous nature
  2. Every case of trafficking is a case of a vulnerable victim
  3. Is it impossible to consent to exploitation

But as Article 39 of the Convention tells us: 

…While the convention shall not affect the rights and obligations of the Protocol, “it is intended to enhance the protection afforded by it…”

To me, however, the Convention does not only enhance such protection, it first and foremost fills the gaps in the Protocols to supply the missing terms. 

The Protocol was silent as to the very important issues that the Convention addresses explicitly. And I am pleased to have with us the Special Rapporteur to the United Nations, Ms. Sigma Huda. 

Ms. Sigma:  you are welcome to question any of the assumptions.  I am making four of them, what I call omissions and three instances where the Protocol speaks but inadequately what I call “GAPS”. 

Four Omissions and Three Gaps: 

This is how I want to share with you the Protocol and the Convention and I want you think about these seven issues as a basis for our discussion in this conference. 

The Four Omissions: 

  1. The Protocol is silent as to how victims of trafficking are to be identified and if you have no means to identify the victim, how can you reach her with any protection?
  • Article 10 of the Convention is devoted to the identification process and call upon countries not to remove victims of trafficking from their territories until the identification process is complete.
  1. The Protocol is silent as to the status of the victim of trafficking who commits a “trafficking related offense”. (illegal entry, prostitution, forgery of travel documents, improper stay)
  • Article 26 of the Convention provides for the principle of “Non-punishments of the victims of trafficking”.
  • The principle of excuse from liability or immunity from liability.
  • Causation is easier to prove than coercion or duress “to the extent that they have been compelled to do so”.

Although I like the language of the United States Trafficking Victims Protection Act that Linda and Laura use here, so I have to say something nice about the U.S. law that exempts the victim from liability if her act is “incident to” or “caused by” the act of trafficking itself. 

  1. The Protocol is silent as to the criminal sanction.  It only covers in article 5 criminalization of the offense of trafficking, but not to the sanction for such offense. 
  • Article 23 of the Convention calls for “effective, proportionate and dissuasive sanctions”
  • And in Article 24 calls for enhancing such sanctions when there is an aggravated circumstance.
  • When a public official is facilitating the act of trafficking
  • Or when you are trafficking a child

And the convention details what the Protocol refers to as special needs for children:

  • Especially in cases where the child is a witness (Article 28)
  • And when the child is issued a residency status, the Convention calling for taking the best interest of the child into consideration under Article 14
  • I here again prefer the US approach that grants a child such status regardless of her cooperation with the authorities.
  1. The Protocol is silent as to any monitoring mechanism.
  • The Convention under Article 36 calls for the establishment of what it calls “A group of experts” (Greta) between 10-15 members who will be charged with such an important task.
  • In addition, the Convention under Article 37 calls for “A committee of the parties” which shall convene by the Secretary-General of the Council of Europe.
  • I understand that the Parent Convention against organized transnational crime establishes in Article 32 a “Conference of parties” which is responsible for the periodic examination of the implementation of the Convention.

In addition to these important issues that the Protocol fails to address, the Protocol addresses some issues inadequately. 

These are what I call “Gaps”. 

The Three Gaps:

  1. The issue of demand
    • Under the Protocol, Demand is addressed as an issue of prevention.

It is not part of articles 3 or 5. 

Article 9/5 calls upon states to adopt legislative or other    measures, such as educational, social, or cultural measures to discourage demand. 

The Convention while supporting the preventive approach under article 5, also considers demand as an issue of criminalization and prosecution. 

Article 19, which is my favorite article of all the articles of the Convention, calls upon the state parties to “consider” - and I understand the “non-binding” language here - establishing as an offense “use of the services of a victim […] with the knowledge that the person is a victim of trafficking in human beings” 

  • How do you prove Knowledge?
    • Article 418 of the Criminal Code of Macedonia provided for a similar rule
    • I sent a letter to the Ambassador of Macedonia to the US inquiring about the implementation of Article 418.
    • On November 1, 2005, I received the following letter

“Dear Mr. Mattar,

In regard to your request for information on the application of Article 418 of the Criminal Code of Macedonia, I can provide you the following statistical data:

  • In 2002:  12 persons indicted, 1 person charged, no person convicted
  • In 2003: 19 persons indicted, 5 persons charged, 5 persons convicted
  • In 2004: 45 persons indicted, 9 persons charges, 9 persons convicted 

Should you have any questions, I will be glad to be of your assistance.” 

So, perhaps it is difficult to prove knowledge, but the explanatory notes to the Convention make it clear that “The difficulty of finding evidence is not necessarily a conclusive argument for not treating a given type of conduct as a criminal offense.” 

I just came from Bahrain, where I had the pleasure of addressing the issue again with a colleague and good friend, Elizabeth Markovic, and the good news is that the government is considering adopting an anti-trafficking law. If passed, it will be the first in the Arab world. 

How do you reconcile the Convention’s approach with those who advocate for legalization of prostitution? 

The explanatory notes to the Convention make it clear that: “Article 19 is intended not to prevent victims of trafficking from carrying on an occupation…” 

And I get this question all of the time: “If we punish the customer, prostitutes will be out of work” 

We have to be careful here

  • this is not a prostitution law as the case under the Swedish law
  • It is only a trafficking law.
  1. The issue of the immigration status of a victim of trafficking.
  • The Protocol in Article 7 does not provide for a binding obligation on states to grant victims of trafficking a residency status.
  • The Protocol merely asks states to consider, in “appropriate cases”, such a measure.
  • This non-binding, discretionary, non-obligatory language is the language used by the Protocol in regarding to all protective measures that are provided in Article 6.
  • They are to be provided in “appropriate cases” and to the “extent possible under domestic law”

The legislative guide to the Protocol explicitly states that “there is no obligation to legislate measures relating to the status of victims”. 

However, in several countries where measures have been adopted for the temporary or permanent residence of victims of trafficking such as Belgium, Italy, the Netherlands, and the United States of America, such measures have had a positive effect on victims coming forward to testify against traffickers and on non-governmental organizations encouraging victims to whom they provide services to report incidents to the government. 

On the other hand:

  • Article 13 of the Convention provides that “each party shall provide in its internal law a recovery and reflection period…”
  • Article 14 states that “each party shall issue a renewable residence permit to victims of trafficking…
  1. Civil Society
    • The Protocol calls upon states to adopt the protective measures of Article 6 and the preventive measures of Article 9 in cooperation with NGOs and other members of civil society.

I argue that the Protocol establishes an international obligation of cooperation. The Convention in Article 35 addresses the role of civil society more explicitly providing that:

“Each party shall encourage state authorities and public officials to cooperate with non-governmental organizations, other relevant organizations and members of civil society, in establishing strategic partnerships with the aim of achieving the purpose of this Convention.” 

The Convention

  • In Article 16 calls upon states to make available to victims contact information of NGOs.
  • And in Article 28 calls upon states to protect NGOs offering assistance to victims of trafficking from retaliation or intimidation.

This is the missing “P” in a  “5P” approach to trafficking - Prevention, Protection, Provision, Prosecution, Participation - that you have in your materials that Marina Elefante prepared for you, thank you Marina. 

I know that the Iraqi War is unpopular here.  You may talk about it on Pennsylvania Avenue but not in Bologna. 

But I am proud that the Iraqi Constitution provides in Article 43 for such a role in civil society and in Article 35 explicitly prohibits trafficking in persons. 

This is the only constitutional provision that does so in the whole Arab world. 

I understand that our distinguished scholars will cover all of these issues in detail so I will stop here. 

I wish all of you a very successful conference.    

Thank you.





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