Theories, Practices and Promises: Human Trafficking Laws and Policies in Destination States of the Council of Europe

Eliza eth !"ana #uko, $%, &%

LL& Du lin Cit' (ni"ersit' Dr %dam &c%ule' and Dr )onaldo &unck School of Law and *o"ernment

Septem er +,,-

! here ' certif' that this material, which ! now su mit for assessment on the programme of stud' leading to the award of LL&, is entirel' m' own work, that ! ha"e e.ercised reasona le care to ensure that the work is original, and does not to the est of m' knowledge reach an' law of cop'right, and has not een taken from the work of others, sa"e as to the e.tent that such work has een cited and acknowledged within the te.t of m' work/ Signed00000000000000000000 Candidate 1o 22343564 Date 35 Septem er +,,-

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TABLE OF CONTENTS List of a re"iations7777777777777777777777777/"ii %cknowledgements777777777777777777777777773 % stract777777777777777777777777777777//+ 3/ !ntroduction77777777777777777777777777778 3/3/ %im and Scope777777777777777777777/7///8 3/+ &ethodolog'7777777777777777777777778 3/+a Theor'77777777777777777777777/4 3/+ %nal'sis of international human trafficking law77777774 3/+c Case stud' selection7777777777777777///72 3/8/ Definitions777777777777777777777777//2 3/8a Human Trafficking7777777777777777772 3/8 State so"ereignt'7777777777777///77777/9 3/8c Criminal Law77777777777777777777//6 3/8d Human )ights77777777777777///7777732 3/8e :rigin, transit and destination States77777777777+3 +/ Theories77777777777777777777777777777++ +/3 Theories7777777777777777777777777//++ +/3a Criminal model777777777777/7777777+8 +/3 Human rights model77777777/777777777++/+ !nterrelationship etween the models77777777777777/82 8/ !nternational human trafficking law, pre;modern human rights law, 366,s;3-42///4, 8/3 Trafficking for prostitution of women and children, 366,s;3-3-777//4, 8/3a The 3-,4 %greement7777777777777777748 8/3 The 3-3, Con"ention7777777777777777///49 8/+ The League of 1ations and trafficking for prostitution of women and children, 3-3-;3-42777777777777777777746 8/+a The 3-+3 Con"ention7777777777777777//48/+ The 3-88 Con"ention7777777777/777777/23 8/8 %nal'sis of the pre;human rights law treaties7//777777777/28 iii

8/4 Conclusion777777777777777777777777/24

4/ !nternational human trafficking law in the modern human rights law era, 3-42; present 777777777777777///77777777777777//22 4/3 Post;war conditions leading to international human trafficking law, 3-4-; 3-257777777777777777777777777777//22 4/3a %mendments to the 3-,4 %greement, 3-3, Con"ention, 3-+3 Con"ention and 3-88 Con"ention, 3-49 and 3-4-777777//725 4/3 The 3-4- Con"ention7777777777777777///29 4/+ Human trafficking, 3-29;present777777777777777///5+ 4/+a Transnational organised crime7777777777777/52 4/+ Human trafficking returns to the international agenda777755 4/+c %ccommodation of human rights in international human trafficking law 777777777777777777777/93 4/+d The +,,, (1 Con"ention77777777777777794 4/+e The +,,, Palermo Protocol77777777777777/99 4/+f European (nion measures77777777777777764 4/+g The +,,2 Council of Europe Con"ention77777777765 4/8 %nal'sis of modern human rights law era treaties777//77777///-8 4/4 Conclusion777777777777777777777777/-5 2/ Case studies777777777777777777777777777/-2/3 Case selection, indicators, application and anal'sis77777777/-2/+ C'prus7777777777777777777777777//3,, 2/+a !ntroduction777777777777777777773,2 2/+ Legislation and go"ernment7777777777777//3,5 2/+c Criminal law7777777777777777777//3,9 2/+d Human rights7777777777777777777/3,2/+e <iews of !*:s and 1*:s77777777777777/333 2/+f %nal'sis777777777777777777777//338 2/8 =rance77777777777777777777777/77//332 2/8a !ntroduction77777777777777777777332 2/8 Legislation and go"ernment77777777777/77//335 i"

2/8c Criminal law77777777777777777/77//339 2/8d Human rights77777777777777777/77/3+, 2/8e <iews of !*:s and 1*:s77777777777/777/3+8 2/8f %nal'sis77777777777777777/7777/3+2 2/4 !reland7777777777777777777777777///3+9 2/4a !ntroduction777777777777777777773+9 2/4 Legislation and go"ernment7777777/777777//3+9 2/4c Criminal law7777777777777/777777//3+2/4d Human rights7777777777777777777//383 2/4e <iews of !*:s and 1*:s77777777777777//384 2/4f %nal'sis777777777777777777777///389 2/2 Lu.em ourg77777777777777777777777/382/2a !ntroduction77777777777777777777382/2 Legislation and go"ernment777777777777/7//34, 2/2c Criminal law7777777777777777777///343 2/2d Human rights7777777777777777777//34+ 2/2e <iews of !*:s and 1*:s77777/777777777/342 2/2f %nal'sis777777777777777777777///349 2/5 &alta777777777777777777777777/77342/5a !ntroduction77777777777777777777342/5 Legislation and go"ernment7777777777777///342/5c Criminal law7777777777777//77/777732, 2/5d Human rights777777777777777/7777/328 2/5e <iews of !*:s and 1*:s777777/77777777/325 2/5f %nal'sis77777777777777777/7777//329 2/9 1orwa'7777777777777777777777777/322/9a !ntroduction77777777777777777777322/9 Legislation and go"ernment77777777/77777//322/9c Criminal law77777777777/77777777//353 2/9d Human rights77777777777777777/77/35+ 2/9e <iews of !*:s and 1*:s77777777777/777/359 2/9f %nal'sis777777777777777777/777//356 2/6 Conclusions77777777777777777777777//39, "

5/ Conclusions7777777777777777777777777////739+ 5/3 The transnational parado.77777777777777777739+ 5/+ Criminal law77777777777777777777777/399 5/8 Human rights7777777777777777777777736, 5/4 !mplementation of laws and policies in the case studies777777//365 $i liograph'77777777777777777777777777//7/366 1ational laws777777777777777777777777777//3-)ele"ant court cases and opinions7777777777777777777//+,3 )ele"ant intergo"ernmental reports and documents777777777777//+,+ )ele"ant international instruments7777777777777777777/+,2 Tables Ta le 37777777777777777777777777777//7//3,, Ta le +//7777777777777777777777777777//73,+ Ta le 87777777777777777777777777777773,6 Ta le 477777777777777777777777777777/// 336 Ta le 277777777777777777777777777777733Ta le 577777777777777777777777777777733Ta le 977777777777777777777777777777734+ Ta le 677777777777777777777777777777732+ Ta le -77777777777777777777777777777735+

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List of abbreviations %TC > %nti;Human Trafficking C'prus CED%? > Con"ention on the Elimination of %ll =orms of Discrimination against ?omen CPT > European Committee for the Pre"ention of Torture and !nhuman or Degrading Treatment or Punishment C)C > Con"ention on the )ights of the Child ECH) > European Con"ention on Human )ights E( > European (nion E():P:L > European Law Enforcement :rganisation *1!$ > *arda 1ational !mmigration $ureau *)ET% > *roup of E.perts on %ction %gainst Trafficking in Human $eings HSE > Health Ser"ice E.ecuti"e !CC > !nternational Criminal Court !CCP) > !nternational Con"ention on Ci"il and Political )ights !CESC) > !nternational Con"ention on Economic, Social and Cultural )ights !*: > !ntergo"ernmental organisation !L: > !nternational La our :rganisation !1TE)P:L > !nternational Criminal Police :rganisation !:& > !nternational :rganisation for &igration &!*S > &editerranean !nstitute of *ender Studies &)C! > &igrant )ights Centre !reland 1%T: > 1orth %tlantic Treat' :rganisation

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1*: > 1ongo"ernmental organisation OCRETH Central Office for the Suppression of Trafficking in Human Beings :HCH) > :ffice of the (nited 1ations High Commissioner for Human )ights :SCE > :rganisation for Securit' and Cooperation in Europe P=C > People for Change =oundation (D! > Directorate of !mmigration (1 > (nited 1ations (1HC) > (nited 1ations High Commissioner for )efugees (1:DC > (nited 1ations :ffice on Drugs and Crime

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Acknowledgements ! sincerel' appreciate the assistance, ad"ice, support and patience gi"en to me ' man' people throughout m' work on this dissertation/ =irst, ! would like to thank m' famil' and friends for their support/ ! am also grateful to %dam &c%ule', who has een "er' patient and helpful throughout this process/ ! would also like to thank )onnie &unck for his assistance and feed ack/ ! am grateful to e"er'one that has pro"ided with me with information for the case studies in this dissertation, including go"ernmental agencies, nongo"ernmental organisations and intergo"ernmental organisations/ Special thanks to %rmelle Loiseau for her translating assistance and to Claire De"lin and Carol Staunton for their helpful remarks/

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ABSTRACT ?ith the rapidl' increasing rate of migration > a ';product of a more glo alised world > human traffickers ha"e greater opportunities to e.ploit those who migrate to other States/ % destination State can adopt one of two theoretical models when responding to human traffickers and trafficked persons: a criminal model and@or a human rights model/ This dissertation e.amines whether international human trafficking law and destination States adopt a criminal or human rights model/ Chapter 3 introduces human trafficking, descri es the methodolog' and defines ke' terms/ Chapter + esta lishes two theoretical models that a destination State can emplo' to regulate human trafficking/ Chapter 8 discusses the de"elopment of international human trafficking treaties in the pre;human rights law era, from the 366,s until 3-42/ Chapter 4 discusses the de"elopment of international human trafficking treaties in the human rights law era, from 3-42 until the present and anal'ses this period in terms of the criminal and human rights models/ Chapter 2 uses a set of indicators to determine which model the si. destination States ha"e adopted/ Chapter 5 draws conclusions/

CHA TER !" #NTRO$%CT#ON Chapter 3 sets out the dissertationAs aim, methodolog' and definitions/ ?hile human trafficking has recentl' come to the forefront the international agenda, international law on human trafficking has, in fact, een in e.istence for more than a centur'/ This dissertation will e.amine the t'pes of human trafficking laws and policies in e.istence on oth an international and national le"el in si. case studies, and consider the e.tent of their implementation/ This will include pro"iding a sur"e' of e.isting human trafficking law and the e"olution of the laws from eing solel' criminal to including "ar'ing le"els of human rights/ !&! A#' AN$ SCO E The aim of this dissertation is to e.amine whether destination States adopt a criminal and@or human rights model in relation to traffickers and trafficked persons/ ! ha"e not included persons trafficked within a State ecause the' are not as "ulnera le ecause the' are citizens of the State in which the' are trafficked and therefore entitled to a different le"el of assistance and protection from the StateB nor ha"e ! included trafficked persons who could e considered refugees/3 ! decided not to include refugees ecause the' are entitled to a certain set of rights that trafficked persons not deemed refugees are not/ !&( 'ETHO$OLO)* ! used three different methodologies: de"eloping theoretical models, anal'sis of international human trafficking law and case studies/

!n order to e considered a refugee, a trafficked person must ha"e a Cwell;founded fear of persecutionD linked to one or more of the grounds in the 3-23 Con"ention )elating to the Status of )efugees > including race, religion, nationalit', mem ership of a particular social group and political opinion/ (nited 1ations High Commissioner for )efugees/ C*uidelines on !nternational Protection: The application of %rticle 3%E+F of the 3-23 Con"ention and@or 3-59 Protocol relating to the Status of )efugees to "ictims of trafficking and persons at risk of eing trafficked/D HC)@*!P@,5@,9, 9 %pril +,,5, pp 5B 3+;38/

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These methodologies are applied on a gender;neutral asis/ This is ecause the most recent international human trafficking law does not grant an' specific pro"isions to women that are not granted to men/ This is not to contradict the generall';accepted fact that a "ast maGorit' of trafficked persons are women/ !&(a $evelo+ing t,eoretical models ! de"eloped theoretical criminal and human rights models of how destination States can respond to human trafficking/ !n order to do this, ! considered all of the actions a destination State could take to respond to human trafficking and categorised them as coming under either a criminal or human rights model/ !&(b Anal-sis of international ,.man trafficking law !nternational human trafficking law is found in international treaties/ Chapter 8 anal'ses earl' international human trafficking law adopted etween 3-,4 and 3-88/+ Chapter 4 e.amines the international human trafficking treaties adopted etween 3-42 and +,,2 and their de"elopment in order to assess whether the' adopt a criminal and@or human rights model/8 ! anal'sed the con"entions, assessed their impact efore and after the introduction of international human rights law, and identified three components: criminal law, human rights and pre"ention and monitoring/ Criminal pro"isions in international human trafficking law criminalise e"er' aspect of human trafficking, and components of the trafficking process/ This is accomplished '
+

The !nternational %greement for the Suppression of the C?hite Sla"e TrafficD Ethe C3-,4 %greementDFB the !nternational Con"ention for the Suppression of the C?hite Sla"e TrafficD Ethe C3-3, Con"entionDFB the !nternational Con"ention for the Suppression of the Traffic in ?omen and Children Ethe C3-+3 Con"entionDFB the !nternational Con"ention for the Suppression of the Traffic of ?omen of =ull %ge Ethe C3-88 Con"entionDF/ 8 The (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers Ethe C3-4- Con"entionDFB the (nited 1ations Con"ention %gainst Transnational :rganised Crime Ethe C+,,, (1 Con"entionDFB the (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children Ethe C+,,, Palermo ProtocolDFB and the Council of Europe Con"ention on %ction against Trafficking in Human $eings Ethe C+,,2 Council of Europe Con"entionDF/ =urthermore, se"eral soft law instruments also address human trafficking, for e.ample: Declaration of the )ights of the Child, 3-2-, Principle -B (nited 1ations Declaration on the Elimination of <iolence against ?omen, 3--8, %rt + B $eiGing Declaration and Platform for %ction, 3--2B (nited 1ations High Commissioner =or Human )ights Principles and *uidelines on Human )ights and Trafficking, +,,+B :ffice of (nited 1ations High Commissioner for )efugees, *uidelines on !nternational Protection: *ender;)elated Persecution within the Conte.t of %rt 3aE+F of the 3-23 Con"ention and !ts 3-59 Protocol )elating to the Status of )efugees E36F, +,,+B :ptional Protocol to the Con"ention on the )ights of the Child on the sale of children, child prostitution and child pornograph', +,,+/ =or a further discussion of soft law on human trafficking, see =itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law/ <ol +4, +,,+, p 3326/

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reIuiring States parties to introduce criminal human trafficking legislation/ Human rights pro"isions in international human trafficking law pro"ide asic human rights to trafficked persons, who are in a particularl' "ulnera le position eing the "ictims of a transnational crime, as well as eing in a State illegall'/ ! e.amined the international human trafficking treaties in their social and historical conte.t in order to identif' the StatesA moti"ations to enact international human trafficking law/ !&(c Case st.d- selection ! decided to e.amine si. destination States for trafficked persons in the Council of Europe: C'prus, =rance, !reland, Lu.em ourg, &alta and 1orwa'/ ! then de"eloped a set of indicators to determine whether a destination State has adopted a criminal and@or human rights model/ ! contacted the rele"ant go"ernmental ministries and agencies to o tain information on each StateAs laws and policies/ To counter alance that information, ! o tained the opinions of nongo"ernmental organisations E1*:sF, and referred to reports ' intergo"ernmental organisations E!*:sF/ !&/ $EF#N#T#ONS !&/a H.man trafficking Human trafficking is a comple. process, and does not in"ol"e one single act which is easil' distinguisha le or recognisa le/ !t is clandestine and operates within illegal s'stems and structures, which makes it difficult to trace and prosecute/ The internationall';accepted definition of human trafficking is found in the (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, ratified ' 399 States/ This definition is used in the Council of Europe Con"ention on %ction against Trafficking in Human $eings, which was ratified ' +2 mem er States and signed ' 35 mem er States/4 The definition states that the process of human trafficking can e di"ided into three related components: the mo"ement of people, the means of controlling people, and the purpose of e.ploitation/

Council of Europe/ http:@@www/coe/int@t@D*+@T)%==!CJ!1*@campaign@default0en/asp/ Last accessed 83 %ugust +,,-/ This is the definition used for the purposes of this dissertation ecause all the case studies e.amined are mem ers of the Council of Europe/

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=irst, the mo"ement of people includes the Crecruitment, transportation, transfer, har ouring or receipt of persons/D2 Secondl', the means of controlling the "ictims includes the Cthreat or use of force or other forms of coercion, of a duction, of fraud, of deception, of the a use of power or of a position of "ulnera ilit' or of the gi"ing or recei"ing of pa'ments or enefits to achie"e the consent of a person ha"ing control o"er another person/D5 Lastl', the purpose of trafficking in persons > e.ploitation > includes, at a minimum, Cthe e.ploitation of the prostitution of others or other forms of se.ual e.ploitation, forced la our or ser"ices, sla"er' or practices similar to sla"er', ser"itude or the remo"al of organs/D9 !t also stipulates that the recruitment, transportation, transfer, har ouring or receipt of a child6 for the purpose of e.ploitation is considered Ctrafficking in personsD e"en if it does not in"ol"e an' of the means set out in the criteria a o"e/- The Protocol goes on to state that whene"er an' trafficking acti"ities take place, the consent of the "ictim is irrele"ant,3, and does not nullif' a personAs claim of "ictimisation/ % human trafficker is one who participates in one or more stages of the human trafficking process descri ed a o"e/ %s pre"iousl' descri ed, human trafficking is a process with "arious stages, which transcends orders/ % person can e considered a human trafficker if he or she takes part in an' step of the human trafficking process, including recruitment, transportation, transfer, har ouring or receipt of persons/ %lthough participation in the process of human trafficking at an' le"el categorises a person as a human trafficker, the le"el of participation does affect the e.tent of a personAs criminal lia ilit'/ =or e.ample, someone might recei"e a harsher punishment for forcing someone else into prostitution, than transporting a trafficked person within a State/

(nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, Supplementing the (nited 1ations Con"ention %gainst Transnational :rganized Crime, +,,,, %rt 8/ This definition is used ' the :SCE, Council of Europe, 1%T:, E(, !L:, !:&, E():P:L and !1TE)P:L/ 5 ! id/ 9 ! id/ 6 % CchildD is an' person under the age of 36/ (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, Supplementing the (nited 1ations Con"ention %gainst Transnational :rganized Crime, +,,,, %rt 8/ (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, Supplementing the (nited 1ations Con"ention %gainst Transnational :rganized Crime, +,,,, %rt 8/ 3, ! id/

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!&/b State Sovereignt% State is a self;go"erning political entit' or communit' that has legal Gurisdiction and authorit' o"er a defined territor'/33 % State can take an' action deemed necessar' or eneficial to the population residing within its orders/3+ So"ereignt' is the supreme power, dominion, authorit' or rule that a State e.ercises o"er a population and territor' and all persons or things found under or a o"e this territor'/ 38 !t also in"ol"es independence, autonom' and freedom from interference from a foreign State/34 There are four wa's in which human trafficking ma' affect State so"ereignt'/ =irst, a State e.ercises its so"ereignt' ' determining the criteria and period of time non;citizens ma' enter and remain in State territor'/ Secondl', a State e.ercises its so"ereignt' ' making human trafficking a criminal offence in its criminal, la our and immigration law/ ?hen non;nationals, including traffickers and trafficked persons, attempt to gain entr' to the State working outside the confines of the StateAs laws and regulations, it ecomes a criminal matter, as well as a threat to the State/ States that e.perience a loss of control in other areas ma' tighten restrictions on immigration as a wa' of asserting internal and e.ternal so"ereignt'32 and controlling the mo"ement of people as a means of controlling the territor'/35 Thirdl', State so"ereignt' reIuires a State to protect its own citizens/ %ccording to this concept, non;nationals, including trafficked persons, are not entitled to all of the same rights as citizens, ut are protected ' uni"ersal human rights, such as the prohi ition on
33

&onte"ideo Con"ention on the )ights and Duties of States, 3-88, %rt 3/ *arner, $r'an %/ Blacks Law Dictionary, Deluxe Seventh Edition/ 3---, p 3432B &iriam ?e sterAs Dictionar' of Law, 3--5/ %"aila le at http:@@dictionar'/lpfindlaw/com@scripts@results/plK coLdictionar'/lpfindlaw/comMtopicL -@ -3cf433-cc+33af2af3-+da,-d68445B Doolan, $rian/ rinci!les of Irish Law, 5th ed/ *ill M &acmillan, +,,8, p -/ 3+ Cassese, %ntonio/ International Law/ +nd ed/ :.ford: :.ford (ni"ersit' Press, +,,2, p 23/ 38 Cassese, %ntonio/ International Law/ +nd ed/ :.ford: :.ford (ni"ersit' Press, +,,2, p 4-B *arner, $r'an %/ Blacks Law Dictionary, Deluxe Seventh Edition/ 3---, p 34,+B $uo"ier, Hohn/ Bouvier Law Dictionary" )e"ised 5th ed/ 3625/ %"aila le at http:@@www/constitution/org@ ou"@ ou"iers/t.t/ &iriam ?e sterAs Dictionar' of Law, 3--5/ %"aila le at http:@@dictionar'/lpfindlaw/com@scripts@results/plK coLdictionar'/lpfindlaw/comMtopicL4,@4, 4d-f,+489d+e6ec2a 8 ccd5aff8B &ugerwa, 1kam ou/ CSu Gect of !nternational LawD in &a. Sorenson EedF Manuel of u#lic International Law/ London: &acmillan M Co Ltd, 3-56, p +28/ 34 Cassese, %ntonio/ International Law, +nd ed/ :.ford: :.ford (ni"ersit' Press, +,,2, p 23B *arner, $r'an %/ Blacks Law Dictionary, Deluxe Seventh Edition/ 3---, p 34,+/ $uo"ier, Hohn/ Bouvier Law Dictionary" )e"ised 5th ed/ 3625/ %"aila le at http:@@www/constitution/org@ ou"@ ou"iers/t.t/ &iriam ?e sterAs Dictionar' of Law, 3--5/ %"aila le at http:@@dictionar'/lpfindlaw/com@scripts@results/plK coLdictionar'/lpfindlaw/comMtopicL4,@4, 4d-f,+489d+e6ec2a 8 ccd5aff8/ 32 Da"ergne, Catherine/ CSo"ereignt', &igration and the )ule of Law in *lo al Times/D Modern Law $eview/ <ol 59, +,,4, p 5,3/ 35 Hirst, Paul and *rahame Thompson/ %lo#alisation in &uestion' International Econo(y and the ossi#ilities of %overnance/ Cam ridge: Polit' Press, +nd ed/ 3---, pp +25;+29/

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torture and the right to life/ Therefore, a State is not o liged to pro"ide them with the same protections or enefits as its citizens/ Destination States also use so"ereignt' to e.ercise control o"er immigrant groups and their identities, promoting and protecting the dominant interests ' institutionalising the new immigrants as the Cothers/D39 =inall', a State e.ercises its so"ereignt' ' choosing to adopt international human rights law treaties, which ma' ha"e implications for citizens and non;citizens/ !nternational human rights law treaties also tend to limit a StateAs so"ereignt' ' o ligating them to compl' with certain international o ligations/36 =urthermore, there is an interrelationship etween these four aspects of State so"ereignt'/ =or e.ample, it impacts people who are trafficked outside of their home State and how the' are percei"ed and responded to ' the destination State > whether the' are "iewed as a threat, or whether the State accepts a limit to its a solute so"ereignt' ' granting certain human rights to those trafficked to its territor'/ &oreo"er, conferring human rights on trafficked persons limits State so"ereignt', ' reIuiring destination States to compl' with an international set of standards/ !&/c Criminal law Criminal law defines the t'pes of actions or omissions3- which are prohi ited+, in order to pre"ent harm to indi"iduals or the pu lic,+3 and pro"ides punishment as a penalt'/++

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Preston, Pamela and &ichael P Perez/ CThe Criminalization of %liens: )egulating =oreigners/D )ritical )ri(inology/ <ol 34, +,,5, p 44/ 36 See Hudson, $ar ara/ CThe rights of strangers: Policies, theories, philosophies/D in *u(an +rafficking" &agg' Lee EedF/ De"on: ?illlan Pu lishing, +,,9, p ++3/ 3This includes e.plicitl' setting out what constitutes criminal eha"iour, therefore safeguarding conduct that is not harmful, as well as clearl' designating conduct that is considered an offence/ %merican Law !nstituteAs &odel Penal Code EProposed :riginal Draft, %rt/ ! 3/,+E!F/ Cf/ ?alker, +he ,i(s of a enal Syste("F in Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-660 p 3/ +, &urdoch, Henr'/ Murdochs Dictionary of Irish Law/ 4th ed/ Du lin: Tottell Pu lishing Ltd, +,,5, p +6,/ +3 %merican Law !nstituteAs &odel Penal Code EProposed :riginal Draft, %rt/ ! 3/,+E!F/ Cf/ ?alker, +he ,i(s of a enal Syste("F in Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-660 p 3B ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law/ Du lin: *ill M &acmillan, +,,2, p 6/ ++ &urdoch, Henr'/ Murdochs Dictionary of Irish Law/ 4th ed/ Du lin: Tottell Pu lishing Ltd, +,,5, p +6,B ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law, Du lin: *ill M &acmillan, +,,2, p 6/

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There are three potential sources of criminal law in"ol"ed in human trafficking: international, transnational and national/ International criminal law !nternational criminal law can onl' e applied to human trafficking in a specific conte.t: when it is a crime against humanit'/ !t is listed as such in the )ome Statute of the !nternational Criminal Court, when it is committed as part of a widespread or s'stematic attack directed against an' ci"ilian population, with knowledge of the attack/+8 E.cept in cases when it is considered a crime against humanit', +4 international criminal law is not rele"ant to human trafficking ecause it aims to protect the international communit' of States, rather than the protection of indi"iduals/ ?hile international criminal law ma' appl' to non;State actors, such as li eration mo"ements, it would not appl' to those in"ol"ed with organised crime, who are trafficking solel' for criminal purposes/ Human trafficking, along with other transnational crimes such as drug trafficking and arms trafficking, cannot e regulated ' international criminal law > e.cept in cases when it is considered a crime against humanit' > for two reasons/ =irst, the acts of human trafficking are committed ' pri"ate indi"iduals or criminal organisations that are not working as agents of a State, ut rather for pri"ate gain,+2 and are committed against other indi"iduals/ Secondl', crimes such as human trafficking are dealt with in international treaties or con"entions through transnational criminal law, rather than customar' law/+5

+8 +4

)ome Statute of the !nternational Criminal Court, (1 Doc %@C:1= 368@-, 3--6, %rt 9/ !n the !nternational Criminal Tri unal of the former #ugosla"ia case against -unarac, -ovac and .ukovic E+,,3F, the Court found that ensla"ement as a crime against humanit' in customar' international law consisted of the e.ercise of an' or all of the powers attaching to the right of ownership o"er a person, including human trafficking/ +2 Cassese, %ntonio/ International )ri(inal Law" :.ford: :.ford (ni"ersit' Press, +,,8, p +4/ +5 Cassese, %ntonio/ International )ri(inal Law" :.ford: :.ford (ni"ersit' Press, +,,8, p +4/

."ii

Transnational criminal law Transnational criminal law comes into e.istence when States agree to use national laws as part of a coordinated and collecti"e effort to criminalise eha"iour that causes or has the potential to cause detrimental trans; order effects, and to prosecute offenders/+9 !t is comprised predominantl' of international treaties agreed upon ' groups of States/+6 Crimes that ha"e transnational implications in"ol"e or impact on two or more States in their planning, preparation or commissionB and@or in"ol"e perpetrators and "ictims of "arious nationalitiesB and@or emplo' means that transcend national oundaries/+- The criminalised eha"iour ma' e ongoing, or simpl' seen as conduct that does not in"ol"e an inherent transnational element, ut should e outlawed for moral reasons/8, Transnational criminal law ma' e de"eloped ' States in a relati"el' short period of time in order to respond to new forms of criminalit', oftentimes linked to organised crime, including acts such as human trafficking, drugs trafficking and illegal arms trade/ )esulting from glo alisation, transnational criminal law deri"es from the modern sentiment that international cooperation is reIuired to com at certain crimes that affect States across orders/83 Transnational criminal organisations are mo ile, well;organised, internationall';adapta le and can e in"ol"ed in multiple acti"ities in se"eral countries/8+

+9

$oister, 1eil/ CTransnational Criminal LawKD Euro!ean Journal of International Law/ <ol 34, +,,8, p -58B $roomhall, $ruce/ CState %ctors in an !nternational Definition of Terrorism from a Human )ights Perspecti"e/D )ase /estern $eserve Journal of International Law" <ol 85, +,,4, p 4+2B Drum l, &ark %/ C)e"iew of Introduction to International )ri(inal Law ' & Cherif $assiouni/D +he ,(erican Journal of international Law/ <ol --, +,,2, p +69/ +6 $oister, 1eil/ CTransnational Criminal LawKD Euro!ean Journal of International Law/ <ol 34, +,,8, p -58B $roomhall, $ruce/ CState %ctors in an !nternational Definition of Terrorism from a Human )ights Perspecti"e/D )ase /estern $eserve Journal of International Law" <ol 85, +,,4, p 4+2B SornaraGah, &uthucumaraswam'/ CTransnational Crimes: The Third Lim of the Criminal Law/D Singa!ore Journal of Legal Studies" +,,4, p 8-6B Drum l, &ark %/ C)e"iew of Introduction to International )ri(inal Law ' & Cherif $assiouni/D +he ,(erican Journal of international Law/ <ol --, +,,2, p +69/ +$assiouni, & Cherif/ Introduction to International )ri(inal Law/ %rdsle', 1ew #ork: Transnational Pu lishers !nc, +,,8, p 33-/ 8, $oister, 1eil/ CTransnational Criminal LawKD Euro!ean Journal of International Law/ <ol 34, +,,8, p -59B SornaraGah, &uthucumaraswam'/ CTransnational Crimes: The Third Lim of the Criminal Law/D Singa!ore Journal of Legal Studies" +,,4, p 8-9/ 83 SornaraGah, &uthucumaraswam'/ CTransnational Crimes: The Third Lim of the Criminal Law/D Singa!ore Journal of Legal Studies" +,,4, p 8-5/ 8+ Heikkinen, Hanni and )einhard Lohrmann/ CThe !n"ol"ement of :rganized Crime in the Trafficking in &igrants/D !:& unpu lished paper, 3--6, p 8 in Salt, Hohn/ CTrafficking and Human Smuggling: % European Perspecti"e/D International Migration/ Special !ssue, +,,,, p 85/

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?hile the transnational criminal law con"entions ma' outline some criminal reIuirements for States to implement, it is freIuentl' the norms of criminal law and punishment of more influential States that determine the standard for other StatesA punishment/88 %s a result, more influential States take ad"antage of transnational criminal law as a wa' of e.tending their own criminal Gurisdiction through the prosecution of criminal acts that ha"e taken place not onl' in the State itself, ut other States as well/84 ?hen more powerful States utilise transnational criminal law, it ma' influence the criminal laws of weaker States, which ma' choose to adopt similar laws for the purpose of further cooperation/ This is not an issue of reaching State so"ereignt', ecause States would onl' ha"e the a ilit' to prosecute crimes that took place within its territor'/ )ather, when States adopt laws to keep up with those of other States, it encourages cooperation etween States and further harmonisation of human trafficking laws/ Human trafficking is transnational in oth commission and effect/82 Human trafficking in"ol"es man' le"els est dealt with ' transnational criminal law: from those who run trafficking operations with possi le links to organised crime, to those who initiall' decei"e trafficked persons con"incing them the' are assisting their legitimate migration, to those who ph'sicall' transport trafficked persons across orders, to those who u' and sell the people in the destination State/ Some of those in"ol"ed in human trafficking ma' not e mem ers of the destination StateAs societ' and as such ha"e no right to reside in the State/ The' are not considered persons who ha"e the lawful right to reside in a Gurisdiction and ma' e considered a threat to State so"ereignt', and therefore must e dealt with using transnational criminal law/

88

$oister, 1eil/ CTransnational Criminal LawKD Euro!ean Journal of International Law/ <ol 34, +,,8, p -26/ 84 $oister, 1eil/ CTransnational Criminal LawKD Euro!ean Journal of International Law/ <ol 34, +,,8, p -2-/ 82 *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6, p 884/

.i.

National criminal law 1ational criminal law defines the t'pes of actions or omissions85 which are prohi ited ' the State89 in order to pre"ent harm to indi"iduals or the pu lic,86 and pro"ides punishment as a penalt'/8The main purpose of national criminal law is to achie"e social control4, '

identif'ing43 and suppressing criminal acti"it',4+ in addition to setting out the duties which a person owes societ'/48 ?hat sets criminal law apart from other t'pes of law that seek social control is the use of criminal sanctions against the offender/44 There are four o Gecti"es of punishment:42 deterrence,45 reha ilitation,49 retri ution46 and incapacitation/485

This includes e.plicitl' setting out what constitutes criminal eha"iour, therefore safeguarding conduct that is not harmful, as well as clearl' designating conduct that is considered an offence/ %merican Law !nstituteAs &odel Penal Code EProposed :riginal Draft, %rt/ ! 3/,+E!F/ Cf/ ?alker, +he ,i(s of a enal Syste("F in Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-660 p 3/ 89 &urdoch, Henr'/ Murdochs Dictionary of Irish Law/ 4th ed/ Du lin: Tottell Pu lishing Ltd, +,,5, p +6,/ 86 %merican Law !nstituteAs &odel Penal Code EProposed :riginal Draft, %rt/ ! 3/,+E!F/ Cf/ ?alker, +he ,i(s of a enal Syste("F in Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-660 p 3B ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law/ Du lin: *ill M &acmillan, +,,2, p 6/ 8&urdoch, Henr'/ Murdochs Dictionary of Irish Law" 4th ed/ Du lin: Tottell Pu lishing Ltd, +,,5, p +6,B ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law/ Du lin: *ill M &acmillan, +,,2, p 6/ 4, Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p 3-B 1i Choileain, Cecelia/ )ri(inal Law" Du lin: Thompson )ound Hall, +,,5, p 3B ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law/ Du lin: *ill M &acmillan, +,,2, p 6/ 43 This includes identif'ing the difference etween serious and minor offences/ %merican Law !nstituteAs &odel Penal Code EProposed :riginal Draft, %rt/ ! 3/,+E!F/ Cf/ ?alker, +he ,i(s of a enal Syste("F in Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-660 p 3B ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law/ Du lin: *ill M &acmillan, +,,2, p 3,/ 4+ Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p 8/ 48 Card, )ichard/ Introduction to )ri(inal Law/ 33th ed/ London, Edin urgh: $utterworths, 3-66, p 3/ 44 Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, pp 3-;+,B 1i Choileain, Cecelia/ )ri(inal Law" Du lin: Thompson )ound Hall, +,,5, p 3B ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law/ Du lin: *ill M &acmillan, +,,2, p 6/ 42 Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-660 p 4B ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law/ Du lin: *ill M &acmillan, +,,2, p 3,/ 45 Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-660 p 4B ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law/ Du lin: *ill M &acmillan, +,,2, p 3,/ 49 Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-660 p 4/ 46 Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p 3-/ 4Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p +,/

..

$eterrence Deterrence can either e indi"idual, to pre"ent the offender from committing another crime, or general, to send a message to the rest of societ' that criminal eha"iour is unaccepta le and will e punished ' the State/2, Proportionalit' of the punishment is not necessaril' taken into consideration when attempting to deter the criminal and the pu lic from committing a certain act,23 which ma' result in criminals de"eloping new wa's of operating undetected and e"ading punishment/2+ Re,abilitation The goal of reha ilitation28 is to make the criminal a law;a iding, useful mem er of societ',24 recognising that criminals are human eings with rights, and ha"e pro lems that need to e addressed,22 while at the same time enefiting societ' in general/25 Retrib.tion )etri ution is the proportional29 punishment of a criminal ecause it is deser"ed, in addition to restoring alance to societ' after a mem er reached the social contract ' reaking the law/26 )etri ution is criticised for not taking other factors that influenced the offenderAs decision to commit the crime into account when imposing a punishment/22,

Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p ++B &e'er, Hoe/ C)eflections on Some Theories of Punishment/D Journal of )ri(inal Law, )ri(inology and olice Science/ <ol -, 3-56, pp 2-5;2-9/ 23 Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, pp ++;+8B :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 84/ 2+ Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p 82B &e'er, Hoe/ C)eflections on Some Theories of Punishment/D Journal of )ri(inal Law, )ri(inology and olice Science/ <ol -, 3-56, p 2-9/ 28 There are two difficulties with reha ilitation: 3F it reIuires significant State support and resourcesB and +F the punishment ma' not ha"e much of a connection with the crime, ut rather is what the court elie"es would most enefit the criminal/ :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 86/ 24 Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p +8B &e'er, Hoe/ C)eflections on Some Theories of Punishment/D Journal of )ri(inal Law, )ri(inology and olice Science/ <ol -, 3-56, p 2-9B :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 86/ 22 :A&alle', Thomas/ Sentencing Law and ractice" +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 86/ 25 Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p +8B :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 86/ 29 Hanl', Conor/ %n !ntroduction to !rish Criminal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p ++B :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 8+/ 26 :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 8+/ 2:A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 88/

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#nca+acitation The aim of incapacitation5, is to pre"ent the offender from causing an' additional harm53 > at least during the period of the punishment itself5+ > conseIuentl' protecting the pu lic from that person/58 !t takes the position that the onl' wa' to guarantee that an offender does not commit a crime again is to ph'sicall' remo"e the person from societ' and place him or her under the watch of the State/54 T,e relations,i+ between t,e fo.r ob1ectives of national criminal law and transnational criminal law !t is unclear whether the four o Gecti"es of national criminal law are genuinel' applica le to transnational criminal law/ There are two wa's to consider the application of the o Gecti"es of national criminal law to transnational law, which depend on the approach the State adopts/ =irst, States can adopt a State;centric approach, addressing the transnational crime onl' within the conte.t of the State itself/ &ost States ha"e adopted this approach thus far, and ecause the laws onl' concern the outcome of the crimes for the State itself, the four o Gecti"es of national criminal law are applica le/ Secondl', States can adopt a transnational cooperati"e approach, addressing the crime as a process taking place across se"eral so"ereign States/ !f such an approach is adopted, the o Gecti"es of national criminal law ha"e the potential to change/ %s the o Gecti"es of punishment are dri"en ' the interests of States, and transnational criminal law ser"es the purpose of criminalising an act that takes place across se"eral States, punishing a person within a State ma' do little to cur the transnational crime/
5,

There are two points of criticism of incapacitation: 3F that the punishment ma' e disproportional to the crime, and ma' punish a person in a wa' that outweighs the se"erit' of the crime committedB and +F that incapacitation works under the assumption that the offender will commit a crime again, and it is "er' difficult to anticipate a personAs future eha"iour/ Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p +,B :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 4+/ 53 Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p +,B :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 43/ 5+ Hanl', Conor/ ,n Introduction to Irish )ri(inal Law/ +nd ed/ Du lin: *ill M &acmillan, +,,5, p +,B :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 43/ 58 :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 43B Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-660 p 4/ 54 :A&alle', Thomas/ Sentencing Law and ractice/ +nd ed/ Du lin: Thomson )ound Hall, +,,5, p 43/

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!&/d H.man rig,ts Origins and ,istor- of ,.man rig,ts There are two theories on the origin of the concept of human rights/52 Some argue that human rights ha"e a uni"ersal histor' rooted in "arious religions and philosophies of the world/55 :thers argue that human rights originated in the ?est and were onl' recentl' uni"ersalised/59 There are some earl' e.amples of an earl' "ersion of human rights eing mentioned in laws > although not on an international le"el/ The &agna Carta of 3+32 enshrined se"eral principles which are currentl' considered to e under the um rella of human rights, including the principle of eIualit' efore the law, a right to propert' and an element of religious freedom > despite the fact that such rights onl' e.tended to no les/56 The &agnus Laga oters Landslo" issued ' Jing &agnus of 1orwa' in 3+92 promised eIualit' efore the law/5The origins of modern human rights law is a result of the %merican and =rench re"olutions of the late 36th centur', a ';product of which is the implementation of laws that ensure that a StatesA citizens are guaranteed certain indi"idual rights and li erties, protecting them from ar itrar' State interference/9, The two most influential documents from these re"olutions were the <irginia Declaration of )ights of 3995 > which was later incorporated into the (nited States Constitution in 39-3 > and the =rench Declaration of the )ights of &an and Citizen of 396-/93 The <irginia Declaration of )ights included specific li erties that were to e protected from State interference, including the freedom of the press, the freedom of religion and the right not to e depri"ed of freedom e.cept ' due process of law/9+ The =rench Declaration
52 55

=reeman, &ichael/ *u(an $ights/ Cam ridge: Polit' Press, +,,+, p 34/ =reeman, &ichael/ *u(an $ights/ Cam ridge: Polit' Press, +,,+, p 34/ See Chun, Lin/ CHuman rights and democrac': the case for decoupling/D International Journal of *u(an $ights, <ol 4, +,,3, p +3B (1ESC: EedF/ *u(an $ights' co((ents and inter!retations/ 1ew #ork: Colum ia (ni"ersit' Press@?estport, CT: *reenwood Press, 3-4-/ 59 =reeman, &ichael/ *u(an $ights/ Cam ridge: Polit' Press, +,,+, p 34/ See Donnell', Hack/ *u(an $ights in +heory and ractice" !thaca, 1#: Cornell (ni"ersit' Press, 3-6-, Part !!/ 56 Smith, )hona J&/ International *u(an $ights" 8rd ed/ :.ford: :.ford (ni"ersit' Press, +,,9, p 2/ 5Lauren, Paul *ordon/ +he Evolution of International *u(an $ights" Philadelphia: (ni"ersit' of Penns'l"ania Press, +,,8, p 38/ 9, Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p +/ 93 $aehr, Peter/ *u(an $ights' 0niversality in ractice" London: &acmillan Press Ltd, 3---, p +/ 9+ =reeman, &ichael/ *u(an $ights/ Cam ridge: Polit' Press, +,,+, p +8/

..iii

on the )ights of &an and Citizen stated that the preser"ation of the natural rights of man > li ert', propert', securit' and resistance to oppression > was the aim of e"er' political association/98 The declaration also esta lished other rights, such as eIualit' efore the law, freedom from ar itrar' arrest, the presumption of innocence, freedom of e.pression and religion, the general freedom to do an'thing that did not harm others, and the right to propert'/94 The rights asserted in oth declarations were uni"ersal in theor', ut restricted in practice to white male propert';owners/92 The 3-th centur' saw se"eral de"elopments in human rights, including the anti;sla"er' mo"ementB the campaign for social and political rights of womenB the de"elopment of the humanitarian laws of warB concern for religious and ethnic minoritiesB workersA and socialist mo"ementsB trade unions and political partiesB and protests against racial discrimination and colonialism/95 These de"elopments were important ecause of their emphasis on social and economic rights, as well as their internationalism/99 =ollowing ?orld ?ar !, the League of 1ations was esta lished, and although it was a political failure, the organisation and its Co"enant did address Iuestions of minorities, workersA rights, sla"er', the rights of women and children, and the plight of refugees/96 =urthermore, it laid the groundwork for the esta lishment of the (nited 1ations E(1F and its focus on human rights/ The role of the (1 in esta lishing international human rights law is e.plored later in this chapter/

Evol.tion of ,.man rig,ts

98 94

=reeman, &ichael/ *u(an $ights/ Cam ridge: Polit' Press, +,,+, p +4/ =reeman, &ichael/ *u(an $ights/ Cam ridge: Polit' Press, +,,+, p +4/ 92 =reeman, &ichael/ CThe historical roots of human rights efore the Second ?orld ?ar/D in +he Essentials of *u(an $ights, )hona J& Smith and Christien "an den %nker EedsF/ London: Hodder %rnold, +,,2, 328/ 95 =reeman, &ichael/ CThe historical roots of human rights efore the Second ?orld ?ar/D in +he Essentials of *u(an $ights, )hona J& Smith and Christien "an den %nker EedsF/ London: Hodder %rnold, +,,2, 328/ 99 =reeman, &ichael/ CThe historical roots of human rights efore the Second ?orld ?ar/D in +he Essentials of *u(an $ights, )hona J& Smith and Christien "an den %nker EedsF/ London: Hodder %rnold, +,,2, 328/ 96 =reeman, &ichael/ CThe historical roots of human rights efore the Second ?orld ?ar/D in +he Essentials of *u(an $ights, )hona J& Smith and Christien "an den %nker EedsF/ London: Hodder %rnold, +,,2, 328/

..i"

Human rights law has e"ol"ed from eing strictl' comprised of national laws and constitutions protecting primaril' citizens from the a use of State authorit', 9- to a more uni"ersal and international concept including not onl' ci"il and political rights, ut also economic, social, cultural and collecti"e rights/ ?hile human rights traditionall' were afforded to indi"iduals through their home StateAs domestic legal s'stem, human rights norms ha"e shifted to granting indi"iduals the protection and assistance of human rights on an international le"el/6, !nternational human rights are not merel' agreed;upon standards, ut are also significant ecause of commonalities of definitions of "arious rights/ Human rights law e"ol"ed from primaril' negati"e o ligations, which inform States what the' ma' not do, to also include positi"e o ligations, which stipulate what States must do and pro"ide for its citizens/63 The proliferation of human rights can occur "ia horizontal influence, or pressure from surrounding States with high le"els of human rights protectionsB "ia "ertical influence, or pressure from international law or organisationsB or oth simultaneousl'/ 6+ There are different sources and categories of human rights/ So.rces of ,.man rig,ts 1ational hu(an rights These principles, granting indi"iduals freedom from certain actions of the State, are now found in most modern constitutions/68 !n other words, the State undertakes to respect human rights in order to regulate its own treatment of its citizens, putting it in the position of protecting indi"iduals from itself/ Human rights law imposes oth positi"e and negati"e o ligations on the State > informing States what the' are not permitted to do Esuch as a prohi ition on torture, or den'ing freedom of e.pression or associationF, as well as what the' are reIuired to do Esuch as pro"ide eIual protection
96,

Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 3/ Hudson, $ar ara/ CThe rights of strangers: Policies, theories, philosophies/D in *u(an +rafficking, &agg' Lee EedF/ De"on: ?illlan Pu lishing, +,,9, p +32/ 63 $aehr, Peter/ *u(an $ights' 0niversality in ractice" London: &acmillan Press Ltd, 3---, p 3/ 6+ Steiner, Henr' H and Philip %lston/ International *u(an $ights in )ontext' Law, olitics, Morals/ +nd ed/ :.ford: :.ford (ni"ersit' Press, +,,,, p -66/ 68 Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 5/

.."

under the law and a minimum standard of li"ingF/64 1ational human rights, such as "oting, are generall', ut not e.clusi"el' conferred on citizens, whereas uni"ersal human rights, such as the prohi ition on torture, applies to e"er'one/62 International hu(an rights !nternational human rights law de"eloped at the end of ?orld ?ar !!/65 =ollowing the atrocities of the war, the (1 was formed to ensure that such a de"astating war, as well as the related "iolations of human rights, did not occur again/ ?hen States ecame mem ers of the (1, particularl' ratif'ing the (1 Charter, the' agreed to limit their own so"ereignt' ' agreeing to adhere to certain international human rights/69 This meant that all human eings, regardless of whether or not the' were in the territor' of their home State, are afforded certain human rights/ ?hile indi"iduals were traditionall' onl' afforded rights and protections from their home State, human rights norms shifted to "iew indi"iduals as single human eings, deser"ing of protection on an international le"el/66 !ndi"idual human rights do not end at the limits of the State > this recognition places the indi"idual as the ultimate su Gect of international law > and esta lishes the fact that the State is not superior to the indi"iduals who comprise it/6!nternational human rights law is seen as a last resort > in circumstances when a StateAs national human rights protections fail to protect an indi"idual, or in some cases where the' are none.istent/-, ConseIuentl', international human rights law instruments ha"e a dual aim: reinforcing the national protection of human rights, and pro"iding international protection when the national s'stem is inadeIuate/-3
64

$aehr, Peter/ *u(an $ights' 0niversality in ractice" London: &acmillan Press Ltd, 3---, p 3B &ahone', Hack/ +he )hallenge of *u(an $ights, :.ford: $lackwell Pu lishing, +,,9, p 94/ 62 Hudson, $ar ara/ CThe rights of strangers: Policies, theories, philosophies/D in *u(an +rafficking, &agg' Lee EedF/ De"on: ?illlan Pu lishing, +,,9, p +32/ 65 Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 9/ 69 %lthough the (nited 1ations (ni"ersal Declaration of Human )ights is commonl' accepted as customar' law, it was passed as a resolution, and therefore is not legall' inding/ $aehr, Peter/ *u(an $ights' 0niversality in ractice" London: &acmillan Press Ltd, 3---, p 4/ 66 Cassese, %ntonio/ International Law/ +nd ed/ :.ford: :.ford (ni"ersit' Press, +,,2, p 895B Hudson, $ar ara/ CThe rights of strangers: Policies, theories, philosophies/D in *u(an +rafficking, &agg' Lee EedF/ De"on: ?illlan Pu lishing, +,,9, p +32/ 6Lauterpacht, Hersch/ International Law and *u(an $ights E3-2,F in Henr' H/ Steiner and Philip %lston, International *u(an $ights in )ontext/ +nd ed/ :.ford: :.ford (ni"ersit' Press, +,,,, p 346/ -, Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 3/ -3 Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 3/

.."i

&oreo"er, international human rights law sometimes emplo's "arious monitoring mechanisms to o"ersee the implementation of the law amongst the States parties/-+ ?hile this pro"ides greater transparenc' and accounta ilit', -8 their recommendations can e difficult to enforce/ Categories of ,.man rig,ts There are three categories of human rights: ci"il and political rightsB economic, social and cultural rightsB and collecti"e rights/-4 )ivil and !olitical rights The earl', asic concept of human rights > rooted in the national protection of indi"iduals from the a usi"e authorit' of the State > was primaril' concerned with the relationship etween indi"iduals and the State/-2 These rights were primaril' Cfreedoms fromD some element of State authorit', rather than Crights toD something-5 > or, ci"il and political rights/ $ecause of the nature of ci"il and political rights > freedom from ar itrar' interference ' the State > the' are less costl' to implement and are supported ' a Gudicial s'stem, unlike economic, social and cultural rights, which reIuire States to implement such pro"isions with specific monitoring odies and structures/-9 E.amples of ci"il and political rights that pertain to criminals include the right to a fair trial and prohi itions on ar itrar' arrest, detention or e.ile/-6 Those accused of a crime are also entitled to the rights of the accused under international law/ This can include oth traffickers and trafficked persons/

Econo(ic, social and cultural rights ?hile ci"il and political rights limit the power of the State, economic and social rights reIuire inter"ention from the State to ensure that indi"iduals are afforded certain care
-+

&untar horn, <itit/ CCom ating &igrant Smuggling and Trafficking in Persons, Especiall' ?omen: The 1ormati"e =ramework )e;%ppraised/D in Migration and International Legal 1or(s" Thomas %le.ander %leinkoff and <incent Chetail EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,8, p 324/ -8 &untar horn, <itit/ CCom ating &igrant Smuggling and Trafficking in Persons, Especiall' ?omen: The 1ormati"e =ramework )e;%ppraised/D in Migration and International Legal 1or(s" Thomas %le.ander %leinkoff and <incent Chetail EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,8, p 324/ -4 $aehr, Peter/ *u(an $ights' 0niversality in ractice" London: &acmillan Press Ltd, 3---, p 5/ -2 Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 5/ -5 Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 5/ -9 Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 43/ -6 $aehr, Peter/ *u(an $ights' 0niversality in ractice" London: &acmillan Press Ltd, 3---, p 8/

.."ii

and ser"ices/-- =or e.ample, State in"ol"ement is needed to facilitate indi"idualsA right to education and medical care/ Economic and social rights pro"ide indi"iduals with their asic needs, such as the rights to work, a decent working wage, education, medical care, and food and housing/ Cultural rights are the rights to participate in cultural life and practices, as well as scientific ad"ancement and the right to protection of the moral and material interests resulting from oneAs scientific, literar' or artistic production/3,, The difficult' with economic, social and cultural rights is the lack of enforcea ilit' and accounta ilit' for States/3,3 (nlike ci"il and political rights, which e.ist from the moment of their adoption, economic, social and cultural rights reIuire the State to take positi"e action in order to pro"ide ser"ices or finances reIuired for implementation/3,+ Trafficked persons ma' e pro"ided with a range of economic and social rights, including accommodation and medical care in a destination State/

)ollective rights The most recent de"elopment in the categories of human rights is the emergence of collecti"e, or solidarit' rights/ (nlike traditional indi"idualistic rights, collecti"e rights take into account the rights of entire groups of people/3,8 %lthough collecti"e rights are applied uni"ersall', the' are most rele"ant to people in more impo"erished parts of the world, ensuring that the' are gi"en eIual access to glo al resources/3,4 E.amples of collecti"e rights include the right to peaceB the right to a health' en"ironmentB the right to humanitarian reliefB and the right to economic, political, social and cultural self;determination/3,2

!&/e Origin0 transit and destination States =or the purpose of this dissertation, States ma' e places of origin, transit or destination for trafficked persons/ :rigin States are the States of which trafficked
--

$aehr, Peter/ *u(an $ights' 0niversality in ractice" London: &acmillan Press Ltd, 3---, p 5/ $aehr, Peter/ *u(an $ights' 0niversality in ractice" London: &acmillan Press Ltd, 3---, p 8/ 3,3 Steiner, Henr' H and Philip %lston/ International *u(an $ights in )ontext' Law, olitics, Morals/ +nd ed/ :.ford: :.ford (ni"ersit' Press, +,,,, p +46/ 3,+ %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion, Portland: Hart Pu lishing, +,,9, p 34+B Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 43B Steiner, Henr' H and Philip %lston/ International *u(an $ights in )ontext' Law, olitics, Morals/ +nd ed/ :.ford: :.ford (ni"ersit' Press, +,,,, p +46/ 3,8 Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 44/ 3,4 Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, pp 48;44/ 3,2 Da"idson, Scott/ *u(an $ights/ $uckingham: :pen (ni"ersit' Press, 3--8, p 44/
3,,

.."iii

persons are nationals or citizens, are t'picall' in de"eloping regions, and ha"e a su stantial lack of social and economic opportunities, high rates of emigration, and high rates of unemplo'ment/3,5 High rates of emplo'ment and la our shortages encourage oth regular immigration and irregular immigration, such as human trafficking/ Transit States are the States through which people are trafficked en route to their destination State/ Destination States are the endpoints of the trafficking process, and the places to which people are trafficked/ States ecome destinations for trafficked persons for se"eral reasons/ States in conflict and post;conflict situations ma' also ecome destination States to secure ser"ices during and after armed conflict/ The trafficking process t'picall' takes place throughout origin, transit and destination States, in"ol"ing a chain of criminal offences in each State/3,9 !t is possi le that a State can fit into two or e"en all three categories simultaneousl'/ 3,6

CHA TER (" THEOR#ES

3,5

=riesendorf, Cornelius/ CPathologies of Securit' *o"ernance: Efforts %gainst Human Trafficking in Europe/D Security Dialogue, <ol 86,+,,9, p 863B !nglis, Shelle' Case/ CE.panding !nternational and 1ational Protections %gainst Trafficking for =orced La or (sing a Human )ights =ramework,D Buffalo *u(an $ights Law $eview, <ol 9, +,,3, p -2/ 3,9 Jonrad, Helen/ CTrafficking in Human $eings: % Comparati"e %ccount of Legal Pro"isions in $elgium, !tal', the 1etherlands, Sweden and the (nited States/D in +rafficking and /o(ens $ights, Christien L "an den %nker and Heroen Doomernik, eds/ Hampshire: Palgra"e &acmillan, +,,5, p 3+3/ 3,6 &untar horn, <itit/ CCom ating &igrant Smuggling and Trafficking in Persons, Especiall' ?omen: The 1ormati"e =ramework )e;%ppraised/D in Migration and International Legal 1or(s" Thomas %le.ander %leinkoff and <incent Chetail EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,8, p 32+/ Piotrowicz, )'szard/ CEuropean !nitiati"es in the Protection of <ictims of Trafficking who *i"e E"idence %gainst Their Traffickers/D International Journal of $efugee Law, <ol 34, +,,+, p +54/

..i.

(tilising the methodolog' descri ed in Chapter 3, Chapter + will de"elop the theories on models of human trafficking laws/ This chapter also relies upon the definitions of criminal law and human rights set out in Chapter 3/ (&! THEOR#ES ! de"eloped criminal and human rights models of human trafficking for two reasons/ =irst, the criminal and human rights approaches occur most freIuentl' in the literature/3,- Secondl', although a la our theor'33, and a migration theor'333 ha"e een put forward, these theories can e treated as su sets of the criminal and human rights models/ =or e.ample, it is a criminal matter when la our or migration law is roken/ !t is a matter of human rights when a person is denied or granted the right to work or migrate/ Human trafficking was first dealt with through criminalising offences in the human trafficking process through indirect criminal law/ That e"ol"ed into naming human
3,-

See %miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com atting the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview, <ol 3+, +,,5B %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion, Portland: Hart Pu lishing, +,,9B Demleitner, 1ora </ CThe Law at a Crossroads: The Construction of &igrant ?omen Trafficked into Prostitution,D in %lo#al *u(an S(uggling' )o(!arative ers!ectives, Da"id J'le and )e' Joslowski EedsF/ +,,3, pp +52;+55, +56;+95B =itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law, <ol +4, +,,,B *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview, <ol 36, +,,6B !nglis, Shelle' Case/ CE.panding !nternational and 1ational Protections %gainst Trafficking for =orced La our (sing a Human )ights =ramework/D Buffalo *u(an $ights Law $eview, <ol 9, +,,3B Jempadoo, Jamala/ C=rom &oral Panic to *lo al !nGustice: Changing Perspecti"es on TraffickingD in +rafficking and rostitution $econsidered' 1ew ers!ectives on Migration, Sex /ork, and *u(an $ights" Jamala Jempadoo EedF/ London: Paradigm Pu lishers, +,,2B Jonrad, Helga/ CTrafficking in Human $eings: % Comparati"e %ccount of Legal Pro"isions in $elgium, !tal', the 1etherlands, Sweden and the (nited States/D in +rafficking and /o(ens $ights, Christien L "an den %nker and Heroen Doomernik, EedsF/ Hampshire: Palgra"e &acmillan, +,,5B &attar, &ohamed #/ C!ncorporating the =i"e $asic Elements of a &odel %ntitrafficking in Persons Legislation in Domestic Laws: =rom the (nited 1ations Protocol to the European Con"ention/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5B Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges, )'schard Cholewinski et al, Ed/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9B Stumpf, Huliet and $ruce =riedman/ C%d"ancing Ci"il )ights Through !mmigration law: :ne Step =orward, Two Steps $ackKD Legislation and u#lic olicy, <ol 5, +,,+B et al/ 33, $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9B $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law, <ol 4,, +,,4B Lee, &agg'/ C!ntroduction: (nderstanding human trafficking/D in &agg' Lee EedF/ *u(an +rafficking, De"on: ?illan Pu lishing, +,,9B et al/ 333 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion, Portland: Hart Pu lishing, +,,9B Hagori/ C&igration, Trafficking, and Sites of ?ork: )ights and <ulnera ilitiesD in +rafficking and rostitution $econsidered' 1ew ers!ectives on Migration, Sex /ork, and *u(an $ights" Jamala Jempadoo EedF/ London: Paradigm Pu lishers, +,,2B et al/

...

trafficking as a crime in its own right/ !n either case, human trafficking was dealt with in a criminal conte.t, and States onl' responded to it as a crime/ :nl' recentl' was there a recognition of the human rights of trafficked persons, which represents a fundamentall' different approach > responding to human trafficking as a "iolation of human rights/ The criminal and human rights models utilised in this dissertation underpin oth of these approaches/ (&!a Criminal model The criminal model pro"ides that those who reach criminal laws are "iewed as criminals and are deser"ing of punishment/ The criminal model also incorporates the rights of an' person accused of a criminal offence/ Criminalising human trafficking and related offences such as reaches of prostitution, immigration and la our law allows States to maintain their so"ereignt', protecting their orders and those who reside within them/ 1agan and de &edeiros +,,5 argue that human trafficking, like other crimes, poses a threat not onl' to indi"iduals, ut also to pu lic order and ci"ic freedom/33+ ?hen crimes, such as human trafficking, morph from occasional, isolated, or random occurrences into a recognised institutional practice, it is necessar' to consider the threat the' pose to pu lic order and societ'/338 The rationale of the criminal model is that human trafficking and its related offences pose a threat to the securit' and societ' of a State/ Human trafficking must e criminalised in e"er' State on oth a national and transnational le"el, in order to ensure that there are no geographic regions in the world "oid of trafficking laws, which would facilitate the crime/ %miel +,,5 states that the goal of the criminal model is to encourage as man' States as possi le to criminalise human trafficking in their national laws and to prosecute perpetrators/334 $ra"o +,,9 states that the criminal

33+

1agan, ?inston P and %l"aro de &edeiros/ C:ld Poison in 1ew $ottles: Trafficking and the E.tinction of )espect/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5, p +2-/ 338 1agan, ?inston P and %l"aro de &edeiros/ C:ld Poison in 1ew $ottles: Trafficking and the E.tinction of )espect/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5, p +2-/ 334 %miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com atting the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview, <ol 3+, +,,5, p 3+/

...i

model has een adopted continuall' ' the international communit'332 ecause the acts of trafficking "iolate domestic lawB the link etween trafficking and prostitution reIuires a criminal responseB and trafficking often occurs in connection with other criminal acti"ities/335 %skola +,,9 argues that it can e "iewed as CcommonsensicalD as a result of the links etween human trafficking and illegal acti"ities such as irregular immigration and prostitution/339 $ruch +,,4 contends that an ad"antage of the criminal approach is that it offers the potential for the direct prosecution of traffickers and a tangi le wa' of enforcing international/336 The criminal model ma' e effecti"e in responding to reaches of law, ut also contains elements that ma' e pro lematic/ $ruch +,,4 states that pro lems with the criminal approach include the de ate surrounding how to respond to prostitutionB the difficult' in identif'ing trafficking "ictimsB and the fact that it does not contemplate holding the State responsi le, either nationall' or internationall'/ 33- Stumpf and =riedman +,,+ contend that dealing with trafficked persons strictl' as illegal immigrants allows those in"ol"ed in the trafficking process to use such policies to gain control o"er those the' traffic ' telling them that the' will e arrested or deported for entering or lea"ing a countr' illegall' and undocumented/3+, Demleitner +,,+ argues that adopting a strictl' criminal approach would conflate criminal law with immigration law, not onl' punishing offenders, ut also rewarding those who cooperate with criminal in"estigations ' allowing them to remain in the State, e"en temporaril'/3+3 &attar +,,5 states that a criminal model could potentiall' make the situation worse for trafficked persons, since their interests are not necessaril' ser"ed

332

$ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p ++4/ 335 $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law, <ol 4,, +,,4, p 39/ 339 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p --/ 336 $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law, <ol 4,, +,,4, p 39/ 33$ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law, <ol 4,, +,,4, pp 39;36, +3/ 3+, Stumpf, Huliet and $ruce =riedman/ C%d"ancing Ci"il )ights Through !mmigration law: :ne Step =orward, Two Steps $ackKD Legislation and u#lic olicy, <ol 5, +,,+, pp 323;32+/ 3+3 Demleitner, 1ora <" C!mmigration Threats and )ewards: Effecti"e Law Enforcement Tools in the C?arD on TerrorismKD E(ory Law Journal, <ol 23, +,,+, p 8,+9/

...ii

' an intensified law enforcement response, and in the end, ma' do little to hinder human trafficking/3++ Types of criminals The criminal model can e applied to identif' two potential t'pes of criminals: those in"ol"ed with the organisation or facilitation of the trafficking process Ethe traffickersF and the trafficked person/ States that adopt the criminal model ma' criminalise traffickers and@or trafficked persons for reaching prostitution, immigration or la our laws, which e.isted efore the adoption of laws directl' criminalising human trafficking/ Trafficked persons would alwa's ha"e een treated as criminals under such laws, which ma' e.plain wh' the' still ma' e treated as criminals e"en with the e.istence of laws criminalising the act of human trafficking/ &attar +,,5 states that trafficked persons ma' e treated as criminals and face deportation for committing the acts of illegal entr', falsification of tra"el documents, and prostitution/3+8 *allagher and Holmes +,,6 argue that the criminalisation of trafficked persons is commonplace, e"en when it seems highl' unlikel' that the person was a willing participant in the illegal act/3+4 Trafficked persons ma' e the targets of criminal law in States for se"eral reasons/ Demleitner +,,3 and =itzpatrick +,,4 argue that the natural tendenc' of migration and crime control officials is to pursue the least resistant and influential group in the trade > the trafficked persons, rather than the traffickers Ewho ma' e wealth' and dangerousF or the customers Ewho are likel' to e citizens of the wealth' and powerful destination StatesF/3+2 %skola +,,9, =itzpatrick +,,4, *allagher and Holmes +,,6, Jonrad +,,5, Piotrowicz +,,+ and Piotrowicz +,,9 state that as a result, it is not unusual for trafficked persons to e arrested, detained in immigration or criminal
3++

%skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion, Portland: Hart Pu lishing, +,,9, pp --;3,,/ 3+8 &attar, &ohamed #/ C!ncorporating the =i"e $asic Elements of a &odel %ntitrafficking in Persons Legislation in Domestic Laws: =rom the (nited 1ations Protocol to the European Con"ention/D +ulane Journal of International and )o(!arative Law, <ol 34, +,,5, p 855/ 3+4 *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview, <ol 36, +,,6, p 883/ 3+2 Demleitner, 1ora </ CThe Law at a Crossroads: The Construction of &igrant ?omen Trafficked into Prostitution,D in %lo#al *u(an S(uggling' )o(!arative ers!ectives , Da"id J'le and )e' Joslowski EedsF/ +,,3, pp +52;+55, +56;+95B =itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law, <ol +4, +,,,, p 3324/

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facilities, punished for engaging in prostitution or "iolations of immigration or la our laws, and deported without regard to the potential harm the' face from traffickers or a difficult situation in their origin State/3+5 %skola +,,9 contends that ecause trafficked persons are oftentimes engaged in some sort of illegal acti"it' > such as prostitution or entering a State illegall'> there has een a tendenc' to summaril' e.pel trafficked persons prior to them ha"ing the opportunit' to file a complaint, to assess whether it is safe to return to their origin State, or Ein some casesF to appl' for as'lum/ 3+9 &attar +,,5 argues that while man' States ha"e implemented national human trafficking legislation, there ' potentiall' shifting the criminalisation from the trafficked person to the trafficker, some States still interpret human trafficking as mainl' a crime against the State, as opposed to a threat to the securit' of a trafficked person/ 3+6 %s a result, States make the application of the principle of noncriminalisation contingent upon the trafficked personAs willingness to cooperate with law enforcement officials in in"estigating and prosecuting the trafficking offence and testif'ing against those in"ol"ed in the trafficking process/3+Human trafficking can e "iewed as a crime against a State or a crime against an indi"idual/ &attar +,,+ contends that treating human trafficking as a crime against a person, rather than a State, is the reason ehind distinguishing etween alien

3+5

%skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion, Portland: Hart Pu lishing, +,,9, p 3-B =itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law, <ol +4, +,,,, p 3324B *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 883B Jonrad, Helga/ CTrafficking in Human $eings: % Comparati"e %ccount of Legal Pro"isions in $elgium, !tal', the 1etherlands, Sweden and the (nited States/D in +rafficking and /o(ens $ights, Christien L "an den %nker and Heroen Doomernik, eds/ Hampshire: Palgra"e &acmillan, +,,5, p 3+,B Piotrowicz, )'szard/ CEuropean !nitiati"es in the Protection of <ictims of Trafficking who *i"e E"idence %gainst Their Traffickers/D International Journal of $efugee Law, <ol 34, +,,+, p +54B Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges, )'schard Cholewinski et al EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +95/ 3+9 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion, Portland: Hart Pu lishing, +,,9, p 3-/ 3+6 &attar, &ohamed #/ C!ncorporating the =i"e $asic Elements of a &odel %ntitrafficking in Persons Legislation in Domestic Laws: =rom the (nited 1ations Protocol to the European Con"ention/D +ulane Journal of International and )o(!arative Law, <ol 34, +,,5, p 86+/ 3+&attar, &ohamed #/ C!ncorporating the =i"e $asic Elements of a &odel %ntitrafficking in Persons Legislation in Domestic Laws: =rom the (nited 1ations Protocol to the European Con"ention/D +ulane Journal of International and )o(!arative Law, <ol 34, +,,5, p 86+/

...i"

smuggling and human trafficking/38, %lien smuggling is a crime against the State:383 a direct infringement of a StateAs immigration laws/ Human trafficking, on the other hand can e "iewed as a crime against a State > also reaking immigration laws > ut also as a crime against an indi"idual/38+ This concept compares a smuggled person > which, ecause of his or her illegal immigration status, is "iewed as a threat to State securit' > and a trafficked person, who is part of a criminal process/ )a' +,,5 argues that either wa', StatesA concern o"er "iolations of immigration law is an issue of securit'/388 &attar +,,+ states that whether or not a State grants trafficked persons the right to remain in the State contingent upon testif'ing against those in"ol"ed in their trafficking process is an indication of how the State classifies the crime of human trafficking/384 Direct or indirect human trafficking law % criminal model of human trafficking criminalises the acts of the human trafficking process either directl' and@or indirectl'/ Direct criminalisation occurs where the act of human trafficking is specified as a criminal offence/ Direct criminalisation onl' applies to traffickers, as trafficked persons are "iewed as the "ictim of the crime/ !ndirect criminalisation occurs when a State uses e.isting criminal laws to prosecute traffickers and@or trafficked persons for issues surrounding human trafficking, such as prostitution, immigration and la our laws/ =or e.ample, this includes trafficked persons who would ha"e illegall' crossed a order into a State, "iolating immigration lawB traffickers who ha"e transported people across orders illegall'B and oth traffickers and trafficked persons who ha"e reached prostitution or la our laws/
38,

&attar, &ohamed #/ CEsta lishing a $ill of )ights for <ictims of Trafficking in Persons: How it Can $ecome a Possi ilit'D in Sto! +rafficking in *u(an Beings2+ogether Its ossi#le' roceedings of the International )onference 345st )entury Slavery2+he *u(an $ights Di(ension to +rafficking in *u(an Beings,6 32;35 &a', +,,+, p +/ 383 &attar, &ohamed #/ CEsta lishing a $ill of )ights for <ictims of Trafficking in Persons: How it Can $ecome a Possi ilit'D in Sto! +rafficking in *u(an Beings2+ogether Its ossi#le' roceedings of the International )onference 345st )entury Slavery2+he *u(an $ights Di(ension to +rafficking in *u(an Beings,6 32;35 &a', +,,+, p +/ 38+ &attar, &ohamed #/ CEsta lishing a $ill of )ights for <ictims of Trafficking in Persons: How it Can $ecome a Possi ilit'D in Sto! +rafficking in *u(an Beings2+ogether Its ossi#le' roceedings of the International )onference 345st )entury Slavery2+he *u(an $ights Di(ension to +rafficking in *u(an Beings,6 32;35 &a', +,,+, p +" &attar argues that human trafficking should e considered a crime against a person/ 388 )a', 1ilanGana/ CLooking at Trafficking Through a 1ew Lens/D )ardo7o Journal of Law 8 %ender, <ol 3+, +,,5, p -32/ 384 &attar, &ohamed #/ CEsta lishing a $ill of )ights for <ictims of Trafficking in Persons: How it Can $ecome a Possi ilit'D in Sto! +rafficking in *u(an Beings2+ogether Its ossi#le' roceedings of the International )onference 345st )entury Slavery2+he *u(an $ights Di(ension to +rafficking in *u(an Beings,6 32;35 &a', +,,+, p 8/

..."

%ppl'ing the criminal model to human trafficking takes into account reaches of prostitution, la our and immigration legislation, in addition to criminal acts in"ol"ed with the trafficking process, such as kidnapping or selling human eings, or the criminal act of trafficking itself/ &attar +,,5 states that prior to the +,,, Palermo Protocol > the most recent uni"ersal international treat' on human trafficking > most indirect human trafficking laws e.isted as part of a StateAs Penal Code or Criminal Code, rather than as a separate comprehensi"e piece of legislation/382 =urthermore, human trafficking was addressed primaril' through indirect offences > such as the procurement of prostitution, kidnapping, a duction, illegal confinement, depri"ation of li ert', and se.ual sla"er' > rather than eing recognised as a specific crime/385 Punishment Punishment is what sets criminal law apart from other t'pes of legal regulation, imposing sanctions on offenders/ There are four commonl' accepted o Gecti"es of punishment: deterrence, reha ilitation, retri ution and incapacitation/ ?hen a person is con"icted of human trafficking, or trafficking;related acti"ities, he or she ma' recei"e a punishment meant to deter him or her from committing the crime again in the future/ =urthermore, a person in"ol"ed with the organisation or facilitation of the trafficking process ma' recei"e an e.emplar' sentence, in an attempt to con"e' the seriousness of the crime and deter other people from committing the act within that StateAs Gurisdiction/ !t is more difficult to appl' the o Gecti"es of punishment to a trafficked person con"icted of "iolating immigration law ' crossing a order illegall' and remaining in a StateAs territor', particularl' ecause the trafficker ma' ha"e forced his or her actions/ Three of the o Gecti"es remain fairl' straightforward: deterring the person from crossing and remaining within a order illegall'B pro"iding retri ution for the crime committedB and incapacitating the trafficked person so the' cannot "iolate the
382

&attar, &ohamed #/ C!ncorporating the =i"e $asic Elements of a &odel %ntitrafficking in Persons Legislation in Domestic Laws: =rom the (nited 1ations Protocol to the European Con"ention/D +ulane Journal of International and )o(!arative Law, <ol 34, +,,5, p 85+/ 385 &attar, &ohamed #/ C!ncorporating the =i"e $asic Elements of a &odel %ntitrafficking in Persons Legislation in Domestic Laws: =rom the (nited 1ations Protocol to the European Con"ention/D +ulane Journal of International and )o(!arative Law, <ol 34, +,,5, p 854/

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laws again/ %s e.plained in Chapter 3, reha ilitation in the criminal conte.t entails punishing a criminal in order to make him or her a more useful mem er of societ' ' addressing an' pro lems he or she ma' ha"e with the hope that he or she will not commit the crime again/ !n a human rights conte.t, reha ilitation entails granting the trafficked person assistance to help him or her reco"er from the effects of the crime/ There is a conflict with punishing trafficked persons: in order to prosecute those in"ol"ed with the organisation or facilitation of the trafficking process, it is necessar' to o tain testimon' from the trafficked persons/ !n other words, the State potentiall' could e punishing the people integral to the prosecution of those in"ol"ed with the organisation or facilitation of the trafficking process/ Chacon +,,5 argues that when a strictl' criminal approach is adopted, Gudges ma' refrain from issuing harsh sentences for human trafficking "iolations ecause in some States, trafficking sentences ma' e harsher than those for "iolations of la our laws/389 Similarl', con"ictions made under immigration or la our laws do not carr' with them the same stigma attached to con"ictions of human trafficking, which ma' also make Gudges reluctant to hand down such sentences/386 =inall', this theor' suggests that in cases of human trafficking that do not in"ol"e se.ual e.ploitation, a con"iction for a charge other than human trafficking ma' e issued, as se.ual e.ploitation offences are "iewed as eing worse than those of la our;related e.ploitation/38(&!b H.man rig,ts model The human rights model pro"ides that people trafficked into a StateAs orders are "iewed as "ictims of a crime34, rather than criminal defendants, and are deser"ing of assistance and protection/ The trafficked persons are granted human rights ' the State, despite the fact that the' are in and ha"e entered the State illegall'/ States must adopt measures to ensure that trafficked persons are afforded their fundamental rights/

389

Chacon, Hennifer &/ C&iser' and &'opia: (nderstanding the =ailures of (S Efforts to Stop Human Trafficking/D 9ordha( Law $eview/ <ol 94, +,,5, p 8,82/ 386 Chacon, Hennifer &/ C&iser' and &'opia: (nderstanding the =ailures of (S Efforts to Stop Human Trafficking/D 9ordha( Law $eview/ <ol 94, +,,5, p 8,82/ 38Chacon, Hennifer &/ C&iser' and &'opia: (nderstanding the =ailures of (S Efforts to Stop Human Trafficking/D 9ordha( Law $eview/ <ol 94, +,,5, p 8,82/ 34, &attar, &ohamed #/ C!ncorporating the =i"e $asic Elements of a &odel %ntitrafficking in Persons Legislation in Domestic Laws: =rom the (nited 1ations Protocol to the European Con"ention/D +ulane Journal of International and )o(!arative Law, <ol 34, +,,5, p 899/

..."ii

This com ines the protection of national and international human rights, as the trafficked person is outside his or her home State/ Smith and &attar +,,4 argue that the foundation of the human rights model shifts the notion of criminalisation from the trafficked persons to the traffickers through the decriminalisation and protection of the trafficked persons in conGunction with the criminalisation and prosecution of the traffickers/343 %skola +,,9 states that adopting a human rights model makes the trafficked person C"isi leD as a su Gect34+ and entitled to human rights in the destination State, despite the fact that the' are illegal migrants/348 Dau"ergne +,,6 contends that the human rights model also emphasises the point that people are "ictims of human trafficking, rather than focusing on laws roken that "iolate State so"ereignt', 344 such as in the criminal model, which shifts the attention from a StateAs right to control trafficked persons to their o ligation to protect them/342 Howe"er, Dau"ergne +,,6 argues that the Crights holdersD in this scenario > the trafficked persons > are "ictims of a crime and ma' e reluctant to come forward/345 $ra"o +,,9 states that the human rights model focuses on the trafficked person, reIuiring Gustice for the human rights that are legall' recognised and protected, in addition to the protection of those rights and, through them, the trafficked person as the rights holder/349

343

Smith, Linda and &ohamed &attar/ CCreating !nternational Consensus on Com ating Trafficking in Persons: (S Polic', the )ole of the (1, and *lo al )esponses and Challenges/D +he 9letcher 9oru( of /orld ,ffairs/ <ol +6, +,,4, pp 35+3;35+/ 34+ %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 388/ 348 &untar horn, <itit/ CCom ating &igrant Smuggling and Trafficking in Persons, Especiall' ?omen: The 1ormati"e =ramework )e;%ppraised/D in Migration and International Legal 1or(s" Thomas %le.ander %leinkoff and <incent Chetail EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,8, p 354B Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges, )'schard Cholewinski et al, EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +65/ 344 Dau"ergne, Catherine/ Making eo!le Illegal' /hat %lo#ali7ation Means for Migration and Law" 1ew #ork: Cam ridge Press: +,,6, p 98/ 342 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion, Portland: Hart Pu lishing, +,,9, p 388B &untar horn, <itit/ CCom ating &igrant Smuggling and Trafficking in Persons, Especiall' ?omen: The 1ormati"e =ramework )e;%ppraised/D in Migration and International Legal 1or(s" Thomas %le.ander %leinkoff and <incent Chetail EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,8, p 354/ 345 Dau"ergne, Catherine/ Making eo!le Illegal' /hat %lo#ali7ation Means for Migration and Law" 1ew #ork: Cam ridge Press: +,,6, p 98/ 349 $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p +83/

..."iii

$ruch +,,4 agues that one ad"antage of adopting a human rights model is the a ilit' to hold States accounta le for how the' treat their nationals and other indi"iduals under their control/346 This is necessar' ecause of the widespread nature of trafficking and the e"idence of go"ernment complicit'/ 34- Piotrowicz +,,9 states that it does, howe"er, lead to the Iuestion of whether those in"ol"ed in the trafficking process owe human rights o ligations towards those the' traffic, or whether onl' the State owes such o ligations/32, Piotrowicz +,,9 and %skola +,,9 contend that most acts of human trafficking, howe"er serious, are t'picall' criminal acti"ities carried out ' pri"ate indi"iduals and are not necessaril' human rights "iolations on the part of the State/323 ?hen States adopt laws and policies with a human rights dimension, it oth reflects that notion, as well as shapes it, in that it oth criminalises human trafficking and attempts to address its pre"ention, in addition to acknowledging the human rights element of the issue, therefore addressing the rights and responsi ilities of the State/32+ A unique set of rights *eneral international human rights ma' ha"e little enefit to trafficked persons ecause the' are illegall' in a foreign State328 and ha"e limited rele"ance to their situation/ Therefore a specific list of rights must e de"eloped for trafficked persons who find themsel"es in foreign States in order to pro"ide them with the appropriate protection and assistance/ Human rights pro"isions for trafficked persons also must e this specific ecause the' confer enefits upon non;national trafficked persons,

346

$ruch, Eliza eth &/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 8+/ 34$ruch, Eliza eth &/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p8+/ 32, Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in !nternational &igration Law: De"eloping Paradigms and Je' Challenges, )'schard Cholewinski et al, Ed/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +95/ 323 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 385B Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges/ )'schard Cholewinski et al EedF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +96/ 32+ %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion, Portland: Hart Pu lishing, +,,9, p 385B Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges, )'schard Cholewinski et al EedF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +96/ 328 Jing, Sarah/ CHuman Trafficking: %ddressing the !nternational Criminal !ndustr' in the $ack'ard/D 0niversity of Mia(i International 8 )o(!arative Law $eview, <ol 32, +,,6, p 896/

...i.

pro"iding the assistance and protection otherwise granted to citizens to those who are in a "ulnera le position in the State/ Trafficked persons reIuire a uniIue set of human rights for three reasons/ =irst, the human rights model "iews trafficked persons as not onl' "ictims of a crime, ut also "ictims of a crime in a foreign State, therefore e.acer ating their "ulnera ilit'/ Legal and regular migrants face numerous challenges adGusting to language and cultural differences outside of their home State/ Trafficked persons must endure all of those hardships, in addition to eing in the e.ceptionall' "ulnera le position of eing the "ictim of a crime/ &oreo"er, trafficked persons ma' not ha"e the opportunit' to come forward and seek assistance from law enforcement authorities for fear of getting caught and@or harmed ' their traffickers, as a result of the nature of the crime of human trafficking/ Secondl', the concept of eIualit' dictates that States ha"e a positi"e o ligation to pro"ide trafficked persons with a uniIue set of rights to ensure that differences impacting trafficked persons ecause the' are not citizens > such as their "ulnera le position and illegal status > are dealt with through the pro"ision of socio;economic rights/ !t also stipulates that trafficked persons reIuire a asic set of rights > that States ha"e an o ligation to pro"ide certain fundamental human rights to an'one within its territor', regardless of their migrator' status/324 The fundamental principle of eIualit' is inding upon all States, regardless of whether the' are part' to specific international instruments, and a minimum standard of rights must e guaranteed to people e"er'where in the world, whether the' reside in a State legall' or illegall'/ EIualit' is dealt with separatel' in terms of human trafficking ecause of the irregular migrator' status of trafficked personsB eIualit' must e pro"ided to e"er'one within a State/ Thirdl', human rights are ecoming increasingl' specialised for people in "arious situations, including those who are trafficked/ ?ith the ad"ent of international human rights treaties, States egan to ecome increasingl' restricti"e regarding how the' are permitted to treat the people within their orders/ %lthough human rights law egan as
324

See the !nter;%merican Court of Human )ights, %d"isor' :pinion :C;36@,8 of 39 Septem er +,,8, p 338/

.l

"er' general protections from harm and a use, the' are now reIuired to e increasingl' specific, in order to pro"ide the necessar' protections and assistance for people in "ulnera le positions/ ?hen people are trafficked into a State, their needs are different than other "ictims of crimes or regular or irregular migrants, and therefore reIuire a uniIue set of protections and assistance from the State/ Protections %t the most asic le"el, States that adopt the human rights model of human trafficking must pro"ide those trafficked into its territor' with protection from immediate harm and a use/ ?hen a person is trafficked to a destination State, the' are in a particularl' "ulnera le position as the "ictim of a crime and an irregular migrant/ %s a result, States must ensure that the' are safe, secure and protected from harm/ ?hen a State adopts the human rights model to respond to human trafficking, the State "iews the trafficked person as a "ictim of a crime/ The onl' rele"ant traditional ci"il and political right the State can grant from that position is freedom from sla"er'/ States ha"e oth a negati"e o ligation not to ensla"e people, and ma' ha"e a positi"e o ligation to ensure that pri"ate indi"iduals do not ensla"e other pri"ate indi"iduals/ Howe"er, it is unlikel' that the State is the entit' conducting the trafficking/ %n' other traditional ci"il and political rights for trafficked persons do not appl' under the human rights model > such as protections for the accused > ecause that would take on the "iew of trafficked persons as criminals rather than "ictims, and are therefore included in the criminal model/ %skola +,,9 argues that a primar' goal of the human rights model is to protect trafficked persons from re;"ictimisation, which is largel' tied in to a trafficked personAs right to remain in the destination State, either temporaril' or permanentl'/ 322 %t the same time, while granting certain trafficked persons residence permits, it takes them out of circulation, ut ma' lead to the recruitment of other people to e trafficked in their place/325
322

%skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 34,/ 325 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 354/

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Assistance ?hile e.isting uni"ersal economic and social rights do appl' to trafficked persons, the' are not specific enough to handle their special needs/ =irst of all, once a State esta lishes that a person has een trafficked, the State, if appl'ing a human rights model, will take action to meet that personAs asic needs/ !n other words, the trafficked person will e pro"ided with housing, food and medical care immediatel'/ =ollowing the most asic and essential rights, the State ma' also pro"ide another le"el of assistance, in the form of emplo'ment training, education and ps'chological care/ %long the same lines, the State would also facilitate the repatriation of the trafficked person, once that is a "ia le option/ %lthough a State ma' assist in the pro"ision of economic and social rights to a trafficked person, it is not an a solute necessit' that it "iews the person as a "ictim/ $ruch +,,4 argues that another ad"antage of adopting a human rights model is that it identifies "ictims as rights;holders and does not reIuire them to e Gudged as CinnocentD efore the international communit' ecomes in"ol"ed/329 %dopting a human rights model also emphasises the concept of uni"ersal inaliena le human rights > that a person is entitled to the protection of those rights regardless of other factors,326 such as whether he or she is in a State illegall'/ :ne weakness of the human rights approach is that it onl' offers a Csnapshot,D ignoring the actions that led to trafficking in the first place > the criminal and la our elements/32- !t also ignores other rights a uses against the "ictims prior to eing trafficked/35, &oreo"er, %skola +,,9 contends that man' trafficked persons are una le to e.ercise the rights the' ma' ha"e on paper as a result of language arriers, unfamiliarit' with legal s'stems, or out of fear of the conseIuences of their illegal status or retri ution ' their traffickers/353 (&( #NTERRELAT#ONSH# BET2EEN THE 'O$ELS
329

$ruch, Eliza eth &/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 8+/ 326 $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 8+/ 32$ruch, Eliza eth &/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 8+/ 35, $ruch, Eliza eth &/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 8+/ 353 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, pp 32,;323/

.lii

% State ma' adopt the criminal model or the human rights model, or a com ination of oth/ The criminal model can e applied to human trafficking through either direct or indirect criminal law/ !f a criminal model is adopted through the use of direct human trafficking law, then the crime of human trafficking is recognised and defined in a StateAs national criminal law/ %s a result, it "iews trafficked persons as "ictims of a crime/ !f a State adopts a human rights model to pro"ide assistance and protection for trafficked persons alongside a criminal model using direct law, it has the option of making the human rights pro"isions contingent upon the trafficked personsA participation in the criminal in"estigations/ !n fact, the adoption of the human rights model in those cases ma' e e.clusi"el' for the purpose of pro"iding a witness to aid in the prosecution of traffickers/ !f a State adopts a criminal model using indirect human trafficking law, it charges the traffickers and the trafficked persons with crimes relating to human trafficking, such as prostitution, immigration and la our offences/ %dopting that approach, a State does not recognise human trafficking as a crime in and of itself, and therefore does not identif' trafficked persons as "ictims of a crime/ )ather, trafficked persons can e "iewed as "ictims of other crimes, such as forced prostitution, and ma' e eligi le for alread';e.isting human rights pro"isions pro"ided to such "ictims/ !f a State does not recognise human trafficking as a crime through direct criminal law, then it ma' argue that it does not need to pro"ide assistance to "ictims of a crime that does not e.ist/ States ma' adopt a polic' of non;criminalisation of identified trafficked persons, as the crimes the' ma' e charged with were ones in which the' were compelled to participate/ This would allow States to pro"ide human rights pro"isions for trafficked persons without ha"ing to criminalise an' of their actions relating to the trafficking process/ %t this stage, with international human trafficking law in e.istence for nearl' a decade, States should e mo"ing from using indirect human trafficking laws towards a direct human trafficking laws/ This would include the shift from "iewing a trafficked person as a criminal to a "ictim/ The e.isting international and regional human trafficking laws reIuire that States adopt direct criminal law in order to define and treat human trafficking as a crime in and of itself/ ?hile man' States are willing to adopt direct human trafficking laws, man' are reluctant to prosecute those offences .liii

and still elect to use e.isting indirect law, which was not the intention of the international and regional human trafficking laws/ The human rights model can e adopted once the trafficked person is remo"ed from the criminal model/ %t that stage, it is up to the State to determine whether or not to pro"ide human rights pro"isions for trafficked persons/ )ranting ,.man rig,ts in e3c,ange for assistance wit, investigations !n man' cases, trafficked persons are onl' granted human rights ' the destination State when the' cooperate with law enforcement authorities and participate in the in"estigation of their traffickerEsF/ This in"ol"es granting human rights for the purpose of facilitating the criminal model/ The e.isting literature and case studies oth reflect this concept/ Human rights pro"isions ma' e granted to trafficked persons as a function of their usefulness to the State as an instrument in the prosecution of those in"ol"ed in the trafficking process/35+ !n other words, the shift from a State "iewing a trafficked person as a criminal to "iewing him or her as a "ictim ma' e dependent upon whether the trafficked person has participated in the prosecution of their traffickers/358 ?itness protection alone does not afford trafficked persons sufficient incenti"es and securit' to testif' against their traffickers/354 Trafficked persons are t'picall' onl' accommodated insofar as the' are a le to assist with the prosecution process/352 :ftentimes, the rights afforded to trafficked persons come under the um rella of a temporar' residence "isa, granted in e.change for their participation in the in"estigation of their traffickerEsF/355 This represents an e.ception to migration rules as
35+

Jonrad, Helga/ CTrafficking in Human $eings: % Comparati"e %ccount of Legal Pro"isions in $elgium, !tal', the 1etherlands, Sweden and the (nited States/D in +rafficking and /o(ens $ights, Christien L "an den %nker and Heroen Doomernik EedsF/ Hampshire: Palgra"e &acmillan, +,,5, p 3+,B Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD p +6+/ 358 Jempadoo, Jamala/ C=rom &oral Panic to *lo al !nGustice: Changing Perspecti"es on TraffickingD in +rafficking and rostitution $econsidered' 1ew ers!ectives on Migration, Sex /ork, and *u(an $ights" Jamala Jempadoo EedF/ London: Paradigm Pu lishers, +,,2, p ."/ 354 =riesendorf, Cornelius/ CPathologies of Securit' *o"ernance: Efforts %gainst Human Trafficking in Europe/D Security Dialogue, <ol 86, +,,9, p 8-+/ 352 *oode', Ho/ C&igration, crime and "ictimhood/D unish(ent Society, <ol 2, +,,8, p 4+4/ 355 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 33,/

.li"

a means to achie"e success at criminal trials/359 !t is, in fact, a collision etween the purposes of immigration polic' and the aims of law enforcement, which can undermine the residence permit scheme to keep the trafficked person Ea "ictim of a crimeF in the State for e"identiar' purposes/356 Trafficked persons who are treated humanel' and gi"en time to reco"er and get their li"es in order ma' e more willing to oth come forward with their case, and to trust and cooperate with police/35Considering the human rights model in this conte.t shows oth its scope and limitations: it ma' make sense from the point of "iew of prosecutions to grant trafficked persons human rights, ut on the other hand, ' States not doing so it ma' e trampling on the human rights of the trafficked person/39, !t also challenges the human rights model ' posing the Iuestion of whether States onl' e.ercise their right to e.pel trafficked persons as illegal migrants if the' do not pro"e to e useful in o taining criminal prosecutions/393 <iewing a trafficked person as a tool to successfull' prosecute traffickers limits the le"el and t'pe of assistance afforded to them/39+ =urthermore, trafficked persons ma' ha"e a "er' limited knowledge > if an' at all > of those in"ol"ed in their trafficking process/398 % Council of Europe report on witness protection states:
+he use of witness !rotection in cases of hu(an trafficking is seen as less effective :than in other cases;, at least fro( a !rosecutorial view!oint" +his is due to the fact that the illegal i((igrants involved usually only have infor(ation on one or two traffickers and therefore their testi(ony is not sufficient to dis(antle the cri(inal organisation"394

!t is also possi le to characterise the granting of a temporar' residence permit to a trafficked person as a ri e, which those representing the defence in the trial ma' use

359

%skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 33,/ 356 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 339/ 35%skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 332/ 39, %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 34,/ 393 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 343/ 39+ *oode', Ho/ C&igration, crime and "ictimhood/D unish(ent Society, <ol 2, +,,8, p 4+8/ 398 *oode', Ho/ C&igration, crime and "ictimhood/D unish(ent Society, <ol 2, +,,8, p 4+8/ 394 Council of Europe, $eco((endation $<=>?@ on cri(e !olicy in Euro!e in a ti(e of change" Straus ourg: Council of Europe Pu lication, 3---, p 3+/

.l"

to discredit the witness/392 &oreo"er, when trafficked persons do testif' in court, ut do little to denounce their alleged traffickerEsF, police ma' make the distinction etween those who are ha"e legitimatel' een trafficked, and those who are familiar with the process of o taining a residence permit/395 !n addition, man' trafficked persons are not willing to testif' out of fear for their own safet' and that of their families/399 &oreo"er, trafficked persons ma' refuse the assistance offered to them ecause the' fear collusion etween the State and their traffickerEsF, or that the' will e deported to their origin State/396 :ftentimes law enforcement officials cannot pro"ide trafficked persons with the le"el of protection the' elie"e the' reIuire as a result of a lack of mandate, resources, or oth/39Trafficked persons cannot e treated simpl' as organised crime informants > the' reIuire another model of criminal Gustice response that reflects their needs as "ictims of a crime primaril', and instruments to achie"e a prosecution secondaril'/36, :n one hand, a trafficked person should not e lured into cooperating with authorities with false promises of protection and assistance/363 :n the other hand, ecause of the importance of securing the prosecution of the traffickerEsF, the State should do all within its power to pro"ide protection for trafficked persons to make them amena le to testif'ing/36+ %long the same lines, States ma' also pro"ide incenti"es to trafficked persons to cooperate with the in"estigations that go e'ond the duration of the criminal proceedings, such as offering an e.tended residence permit in e.change for

392

%skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 333/ 395 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 334/ 399 %skola, Heli/ Legal $es!onses to +rafficking in /o(en for Sexual Ex!loitation in the Euro!ean 0nion" Portland: Hart Pu lishing, +,,9, p 3,-B *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 888B *oode', Ho/ C&igration, crime and "ictimhood/D unish(ent Society, <ol 2, +,,8, p 4+4/ 396 =riesendorf, Cornelius/ CPathologies of Securit' *o"ernance: Efforts %gainst Human Trafficking in Europe/D Security Dialogue, <ol 86, +,,9, p 8-8/ 39*allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 888/ 36, *oode', Ho/ C&igration, crime and "ictimhood/D unish(ent Society, <ol 2, +,,8, p 4+6/ 363 *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 888/ 36+ *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 888/

.l"i

testimon'/368 Lastl', organising protection and assistance for trafficked persons is costl' and difficult/364 E"en wealthier destination States are unlikel' to pro"ide such pro"isions for trafficked persons unless the' see a positi"e correlation etween the assistance and successful prosecutions of traffickers/362

CHA TER /" #NTERNAT#ONAL H%'AN TRAFF#C4#N) LA2 RE5 'O$ERN H%'AN R#)HTS LA20 !667s5!89: Ha"ing de"eloped two theoretical models in Chapter +, Chapter 8 considers what role, if an', these theories pla' in earl' international human trafficking law/ This chapter e.amines factors concerning the de"elopment of international human trafficking law, from the 366,s until 3-42, in order to descri e the international human trafficking law in e.istence prior to the adoption of modern human rights law, which arose after ?orld ?ar !!/ The moti"ation for the human trafficking con"entions during this period was the protection of white women and children who were trafficked for the
368

*allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 884/ 364 *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 88,/ 362 *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 88,/

.l"ii

purpose of prostitution/ These con"entions contain some degree of protection, ut do not contain modern human rights law/ H.man trafficking and c.stomar- law %lthough there is no customar' law specificall' pertaining to human trafficking, customar' law on the prohi ition of sla"er' potentiall' could e.tend to human trafficking/ The significant num er of treaties and customar' international law has made the prohi ition of sla"er' and the sla"e trade a legal o ligation erga o(nes > something of collecti"e glo al interest that is in e"er' StateAs interest to protect/365 Howe"er, while the prohi ition on traditional forms of sla"er' is uni"ersall' recognised, there has een inconsistenc' amongst States when appl'ing that customar' law to contemporar' forms of sla"er', such as human trafficking/369 %s a result, while it can e argued that human trafficking falls under the prohi ition of sla"er', there is nothing to sa' that States will adopt it as such/ /&! TRAFF#C4#N) FOR ROST#T%T#ON OF 2O'EN AN$ CH#L$REN0 !667s5!8!8 The Iuestion of white sla"er' > the precursor of human trafficking > ecame an issue in the late 3-th centur', following ad"ances in transportation and technolog', which resulted in increasing rates of migration/ Advances in trans+ortation and tec,nolog?ith industrialisation came the migration of people from rural to ur an areas, particularl' women/366 =urthermore, technological ad"ances of the 3-th centur' > such as the in"ention of the steam oat, the telegraph and the opening of the Suez and Panama Canals > helped ring a out the new and greater international mo ilit' of la our in the late 3-th and earl' +,th centuries, and made it possi le for traffickers to

365

)assam, % #asmine/ CContemporar' =orms of Sla"er' and the E"olution of the Prohi ition of Sla"er' and the Sla"e Trade (nder Customar' !nternational Law/D .irginia Journal of International Law" <ol 8-, 3---, p 8,5/ 369 )assam, % #asmine/ CContemporar' =orms of Sla"er' and the E"olution of the Prohi ition of Sla"er' and the Sla"e Trade (nder Customar' !nternational Law/D .irginia Journal of International Law" <ol 8-, 3---, p 833/ 366 de<ries, Petra/ CN?hite Sla"esA in a Colonial 1ation: The Dutch Campaign %gainst the Traffic of ?omen in the Earl' Twentieth Centur'/D Social and Legal Studies, <ol 34, +,,2, p 43/

.l"iii

react Iuickl' to the growing demand for white female prostitutes worldwide,36- using e.isting shipping routes and ports to facilitate transportation/3-, The eginning of mass migration and technological de"elopments is significant ecause despite ha"ing stronger or weaker periods of migration, it is a trend that has continued to the present/ %s the world ecomes increasingl' glo alised and more technologicall' ad"anced, people ecome increasingl' ena led and encouraged to migrate to places with etter economic and social opportunities/ This also means that as more people mo"e legall', more will also migrate > or e forced to migrate > illegall'/ %d"ances in technolog' also make it easier and more efficient for those in"ol"ed in the trafficking process to network and operate more efficientl'/ The earl' wa"e of international laws against white sla"er' occurred at a time of new transatlantic migration, including increasing num ers of women from Southern and Eastern Europe/3-3 erceived migrator- +atterns and be,avio.r The maGor migration trends in the late 3-th and earl' +,th centuries were from Europe to 1orth %merica, and to a lesser e.tent, South %merica, in addition to la our migration within Europe itself > primaril' of Southern and Eastern Europeans migrating to 1orthern and ?estern Europe/3-+ ?hile there was still some migration from Europe to colonies in %frica, this took place on a larger scale in the 39th and 36th centuries/3-8 %t this stage, migration from %frica to Europe was more significant/3-4

36-

H'am, )onald/ E(!ire and Sexuality/ pp 34+;346, Iuoted in =ischer;Tine, Harald/ CN?hite women degrading themsel"es to the lowest depthsA: European networks of prostitution and colonial an.ieties in $ritish !ndia and Ce'lon ca 366,;3-34/D +he Indian Econo(ic and Social *istory $eview, <ol 4,, +,,8, p 39+/ 3-, Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society, <ol 3-, +,,2, p 358/ 3-3 ?ong, Diane/ CThe )umour of Trafficking/D International Institute for ,sian Studies 1ewsletter , +,,5, p 33/ 3-+ Castles, Stephen and &ark H &iller/ +he ,ge of Migration' International o!ulation Move(ents in the Modern /orld" +nd ed, London: &acmillan Press Ltd, 3--6, pp 46;5+/ 3-8 Castles, Stephen and &ark H &iller/ +he ,ge of Migration' International o!ulation Move(ents in the Modern /orld" +nd ed London: &acmillan Press Ltd, 3--6, p 2+/ 3-4 Castles, Stephen and &ark H &iller/ +he ,ge of Migration' International o!ulation Move(ents in the Modern /orld" +nd ed, London: &acmillan Press Ltd, 3--6, p 26/

.li.

!t was impossi le to estimate the num er of women trafficked in the 3-th and earl' +,th centur' > as it is toda' > or know the figures for specific destination States or regions/ %lthough there was no shortage of reports of white sla"er', the actual num er of cases in the late 3-th and earl' +,th centuries was "er' small/3-2 Howe"er, despite the actual destination of the trafficked women, the elief and suspicion at the time was that women were eing trafficked from Europe to %frica, %sia and South %merica/3-5 %lthough women were in all likelihood eing trafficked from %frica, %sia and South %merica to Europe, the perception and onl' concern of the time was o"er European women eing trafficked within and outside of the continent/ ConseIuentl', the issue of non;white women eing trafficked internall' or to Europe was ne"er raised/ There were two percei"ed routes for the trafficking of European women/3-9 The ?estern route was elie"ed to go to South %merica, to cities such as )io de Haneiro and $uenos %ires, while the Eastern route was percei"ed to lead to East %frica and %sia, with the final destinations eing Shanghai, Hong Jong, Tientsin, &anila, Har in in &anchuria and 1agasaki/3-6 !t was elie"ed that most of the traffickers at the time came from )ussia, Poland, *erman', %rmenia and "arious parts of the %ustro; Hungarian Empire,3-- while the trafficked women came from these States as well as
3-2

$ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 9B Doezema, Ho/ CLoose ?omen or Lost ?omenK The )e;emergence of the &'th of ?hite Sla"er' in Contemporar' Discourses of Trafficking in ?omen/D %ender Issues, ?inter +,,,, pp +2;+5B Scull', Eileen/ CPre;Cold ?ar Traffic in Se.ual La or and !ts =oes: Some Contemporar' Lessons,D in %lo#al *u(an S(uggling , Da"id J'le M )e' Joslowski EedsF/ +,,3, p 69 in $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans;%tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p +35B Oalewski, %nna/ C&igrants for Sale: The !nternational =ailure to %ddress Contemporar' Human Trafficking/D Suffolk +ransnational Law $eview" <ol +-, +,,2, p 332/ 3-5 $ertone, %ndrea &/ CTransnational %cti"ism to Com at Trafficking in Persons/D +he Brown Journal of /orld ,ffairs, <ol 3,, +,,4, p 3,B Doezema, Ho/ CLoose ?omen or Lost ?omenK The )e; emergence of the &'th of ?hite Sla"er' in Contemporar' Discourses of Trafficking in ?omen/D %ender Issues, ?inter +,,,, pp +8;+4B Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society/ <ol 3-, +,,2, p 35,/ 3-9 =ischer;Tine, Harald/ CN?hite women degrading themsel"es to the lowest depthsA: European networks of prostitution and colonial an.ieties in $ritish !ndia and Ce'lon ca 366,;3-34/D +he Indian Econo(ic and Social *istory $eview/ <ol 4,, +,,8, p 39+/ 3-6 =ischer;Tine, Harald/ CN?hite women degrading themsel"es to the lowest depthsA: European networks of prostitution and colonial an.ieties in $ritish !ndia and Ce'lon ca 366,;3-34/D +he Indian Econo(ic and Social *istory $eview/ <ol 4,, +,,8, p 39+B Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society, <ol 3-, +,,2, p 358/ 3-=ischer;Tine, Harald/ CN?hite women degrading themsel"es to the lowest depthsA: European networks of prostitution and colonial an.ieties in $ritish !ndia and Ce'lon ca 366,;3-34/D +he Indian Econo(ic and Social *istory $eview/ <ol 4,, +,,8, p 39+/

!tal', Spain, =rance, )omania and *reece/+,, This concern o"er the trafficking of white women led to the de"elopment of the first interstate structures and treaties on the su Gect of human trafficking/ /&!a THE !879 A)REE'ENT The 3-,4 %greement is the earliest international human trafficking law, and was agreed upon ' 3+ European States+,3 to protect women and girls from Cthe criminal traffic known as the N?hite Sla"e TrafficAD for the purpose of prostitution/+,+ T,e develo+ment of t,e !879 Agreement %n unlikel' coalition of Christian purit' campaigners and earl' feminists in the 366,s rought the issue of Cwhite sla"e trafficD to the attention of the $ritish pu lic and in turn to political and administrati"e officials/+,8 The image of the mo"ement of European women in need of rescue across national orders to colonies outside of Europe carried su stantial emoti"e weight and prompted reaction from States/+,4 % Cwhite sla"e panicD erupted in Europe and the (nited States, resulting in the formation of organisations committed to its elimination, in addition to hea"'

+,,

=ischer;Tine, Harald/ CN?hite women degrading themsel"es to the lowest depthsA: European networks of prostitution and colonial an.ieties in $ritish !ndia and Ce'lon ca 366,;3-34/D +he Indian Econo(ic and Social *istory $eview/ <ol 4,, +,,8, p 39+B Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society,/<ol 3-, +,,2, p 354/ +,3 The %greement was etween: CHis &aGest' the Jing of the (nited Jingdom of *reat $ritain and !reland and of the $ritish Dominions e'ond the Seas, Emperor of !ndiaB His &aGest' the *erman Emperor, Jing of Prussia, in the name of the *erman EmpireB His &aGest' the Jing of the $elgiansB His &aGest' the Jing of DenmarkB His &aGest' the Jing of SpainB the President of the =rench )epu licB His &aGest' the Jing of !tal'B Her &aGest' the Pueen of the 1etherlandsB His &aGest' the Jing of Portugal and of the %lgar"esB His &aGest' the Emperor of all the )ussiasB His &aGest' the Jing of Sweden and 1orwa'B and the Swiss =ederal Council/D +,+ !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4/ +,8 =ischer;Tine, Harald/ CN?hite women degrading themsel"es to the lowest depthsA: European networks of prostitution and colonial an.ieties in $ritish !ndia and Ce'lon ca 366,;3-34/D +he Indian Econo(ic and Social *istory $eview/ <ol 4,, +,,8, pp 355;359/ +,4 $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal" <ol +2, +,,9, p +32B Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal, <ol 36, 3--4, p 359B Scull', Eileen/ CPre;Cold ?ar Traffic in Se.ual La or and !ts =oes: Some Contemporar' Lessons,D in *lo al Human Smuggling , Da"id J'le M )e' Joslowski EedsF/ +,,3, p 65 in $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p +35B Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society/ <ol 3-, +,,2, p 353/

li

representation of the issue of Cwhite sla"er'D in media and popular culture of the time/+,2 The term Cwhite sla"e traffic,D coined in the 368,s, was clearl' an allusion to the anti; sla"er' rhetoric of the a olition mo"ement that took place earlier in the 3-th centur'/+,5 %t the time, the inclusion of the term Csla"er'D had a "er' specific meaning and prompted an emoti"e response when coupled with the notion of 'oung, white women eing forced into prostitution outside of Europe and 1orth %merica/+,9 %lthough at the time, the term CtrafficD itself connoted onl' Cimproper dealingsD or Cprostitution,D
+,6

it carried with it the image of white women and girls eing transported against their

will from Europe to colonies/+,- The distinction was drawn etween CtraffickingD and CtraditionalD sla"er' > meaning men and women from outside of Europe and 1orth %merica eing ensla"ed in wealthier destination States in Europe and 1orth %merica > ecause specif'ing that those Censla"edD where white women had a stronger, more emotional impact upon those in Europe and the (nited States who had the resources and power to take action on the matter/+3, !ntergo"ernmental cooperation to deal with prostitution and white sla"er' in Europe occurred with a series of international conferences on white sla"er', which commenced in 3662+33 with a conference organised ' =rench authorities in Paris, and
+,2

Doezema, Ho/ CLoose ?omen or Lost ?omenK The )e;emergence of the &'th of ?hite Sla"er' in Contemporar' Discourses of Trafficking in ?omen/D %ender Issues/ <ol 36, +,,,, p +2/ +,5 =ischer;Tine, Harald/ CN?hite women degrading themsel"es to the lowest depthsA: European networks of prostitution and colonial an.ieties in $ritish !ndia and Ce'lon ca 366,;3-34/D +he Indian Econo(ic and Social *istory $eview/ <ol 4,, +,,8, p 359/ +,9 $ertone, %ndrea &/ CTransnational %cti"ism to Com at Trafficking in Persons/D +he Brown Journal of /orld ,ffairs" <ol 3,, +,,4, p 3,B Doezema, Ho/ CLoose ?omen or Lost ?omenK The )e; emergence of the &'th of ?hite Sla"er' in Contemporar' Discourses of Trafficking in ?omen/D %ender Issues/ <ol 36, +,,,, pp +8;+4, +-B Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society/ <ol 3-, +,,2, p 353/ +,6 :.ford English Dictionar', 3-88, p +,-+;+,-8, in Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society/ <ol 3-, +,,2, p 353/ +,Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society/ <ol 3-, +,,2, p 353/ +3, $ertone, %ndrea &/ CTransnational %cti"ism to Com at Trafficking in Persons/D +he Brown Journal of /orld ,ffairs" <ol 3,, +,,4, p 3,B Doezema, Ho/ CLoose ?omen or Lost ?omenK The )e; emergence of the &'th of ?hite Sla"er' in Contemporar' Discourses of Trafficking in ?omen/D %ender Issues, <ol 36, +,,,, p +9B Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society/ <ol 3-, +,,2, p 353/ +33 Pickup, =rancine/ CDeconstructing Trafficking/D Millenniu(' Journal of International Studies/ <ol +9, 3--6, p 3,,3/

lii

another in 36-2/+3+ !n 36--, delegates from 3+ States including *erman', =rance, )ussia, %ustria and the (nited States of %merica met in London as the $ureau for the Suppression of the ?hite Sla"e Traffic, and defined Cwhite sla"e trafficD as:
the !urchase and transfer fro( !lace to !lace of wo(en and girls for i((oral !ur!oses, who are in the first !lace inveigled into a vile life #y the !ro(ise of e(!loy(ent in a foreign country and, thereafter are !ractically !risoners, and who, if they really desire to esca!e fro( a life of sha(e cannot do so "+38

This led to another conference in Paris on 32 Hul' 3-,+, at which time the 3+ participants agreed on a set of guidelines for States parties, which was signed two 'ears later as the 3-,4 %greement/+34 %t a time of difficult economic conditions and increasing migration, the aim of the 3-,4 %greement was to stop the sale of white women into prostitution in Europe,+32 as well as the a duction of European women for prostitution in South %merica, %frica or %sia/+35 !n 3-,4, the president of the %ustrian League for the Suppression of ?hite Sla"er' recognised the international trafficking of women for the purpose of prostitution:
+here exists an international organisation which in (any !laces of the earth has its general ter(inalsA the ex!ort is so regulated that wo(en of !articular countries of origin are always sent to those centres where they are es!ecially a!!reciated" +39

+3+

Long, L'nell'n D/ C%nthropological Perspecti"es on the Trafficking of ?omen for Se.ual E.ploitation/D International Migration/ <ol 4+, +,,4, p +,/ +38 +he Shield/ :+he Bfficial Brgan of the British )o((ittee of the International 9ederation for the ,#olition of State $egulation of .ice; , Hul' 36--, p 4+ in =ischer;Tine, Harald/ CN?hite women degrading themsel"es to the lowest depthsA: European networks of prostitution and colonial an.ieties in $ritish !ndia and Ce'lon ca 366,;3-34/D +he Indian Econo(ic and Social *istory $eview/ <ol 4,, +,,8, p 39+/ +34 Deflem, &athieu/ C?ild $easts ?ithout 1ationalit': The (ncertain :rigins of !nterpol, 36-6; 3-3,/D *and#ook of +ransnational )ri(e and Justice/ Philip )eichel EedF/ Thousand :aks, C%: Sage Pu lications, +,,2, p +6+/ +32 Defeis, Eliza eth/ CProtocol to Pre"ent, Suppress and Punish Trafficking in Persons > % 1ew %pproach/D ILS, Journal of International 8 )o(!arative Law/ +,,8;+,,4, p 462B Dun ar, &ichelle :P/ CThe Past, Present, and =uture of !nternational Trafficking in ?omen for Prostitution/D Buffalo /o(ens Law Journal/ <ol 6, 3---, p 3,-/ +35 Doezema, Ho/ CLoose ?omen or Lost ?omenK The )e;emergence of the &'th of ?hite Sla"er' in Contemporar' Discourses of Trafficking in ?omen/D %ender Issues/ <ol 36, +,,,, pp +8;+4/ +39 Schmitz, H/ Das internationale .er#rechertu( und seine BekC(fung Q!nternational criminalit' and its controlR/ !naugural doctoral dissertation, (ni"ersit' of Cologne, 3-+9, Iuoted in Deflem, &athieu/ C?ild $easts ?ithout 1ationalit': The (ncertain :rigins of !nterpol, 36-6;3-3,/D *and#ook of +ransnational )ri(e and Justice" Philip )eichel EedF/ Thousand :aks, C%: Sage Pu lications, +,,2, p +6+/

liii

Sco+e of t,e !879 Agreement Each State part' was permitted to determine whether the agreement applied onl' within the European State itself, or also to their colonies or foreign possessions/+36 :f the 3+ States, the =rench, !talian, Dutch and )ussian go"ernments declared that the %greement would appl' to all of their colonies immediatel'/ +3- The $ritish go"ernment denounced the %greement for each of its colonies, and the *erman, Danish, Spanish and Portuguese go"ernments reser"ed the right to make an' decisions on the su Gect of their colonies/++, The =rench go"ernment was gi"en the responsi ilit' of dealing with non;signator' States that wished to accede to the agreement,++3 and housing the deposited original cop' of the agreement/+++ rovisions of t,e !879 Agreement %lthough descri ed as Ccriminal traffic,D the 3-,4 %greement did not reIuire States parties to introduce national criminal laws criminalising this eha"iour/ )ather, it was primaril' focused on pre"enting human trafficking from occurring through use of pre"ention and monitoring, and to offer some protection and assistance for trafficked persons/ This was primaril' accomplished ' setting guidelines for participating States/ =or e.ample, each State part' agreed to esta lish a go"ernmental department with responsi ilit' for trafficking of women and girls,++8 as well as monitoring trafficking acti"ities taking place at railwa' stations and ports of em arkation/++4 The States parties also agreed to seek declarations from women and girls of foreign nationalit' who are prostitutes, in order to determine their identit' and ci"il status, and whether or not the' ha"e een trafficked or forced into prostitution/++2 &oreo"er, the States parties must also e.ercise super"ision o"er agencies or offices engaged in finding emplo'ment for women or girls a road/++5

+36

!nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, ProcSs;<er al of Signature, %rt 3/ +3!nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, ProcSs;<er al of Signature, %rt 3/ ++, !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, ProcSs;<er al of Signature, %rt 3/ ++3 !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, %rt 9/ +++ !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, %rt -/ ++8 !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, %rt 3/ ++4 !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, %rt +/ ++2 !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, %rt 8/ ++5 !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, %rt 5/

li"

The 3-,4 %greement contains a limited form of protection and states that "ictims of criminal traffic should e placed in temporar' protecti"e custod', and repatriated upon their reIuest/++9 This ma' e ecause women were percei"ed as eing in need of protection for two reasons: 3F ecause the' were "ictims of a use and a crimeB and +F ecause women were generall' percei"ed as eing "ulnera le in their own right at the time/ /&!b THE !8!7 CON;ENT#ON The percei"ed continued impact of the trafficking of white women led to the adoption of a more potent structure than that offered ' the 3-,4 %greement/ The 3-3, Con"ention contained criminal law elements, unlike the 3-,4 %greement/ Similar to the 3-,4 %greement, this con"ention also onl' applies to white women and girls++6 trafficked for the purpose of prostitution/ The original signatories were %ustria; Hungar', $elgium, $razil, Denmark, =rance, *erman', *reat $ritain, !tal', the 1etherlands, Portugal, )ussia, Spain, and Sweden/++- The 3-3, Con"ention stipulated that if an' State part' wanted the con"ention to come into force in one or more of its colonies, possessions or consular Gudicial districts, it must notif' its intention to that effect ' wa' of a declaration/+8, %s was the case with the 3-,4 %greement, the go"ernment of =rance was gi"en the responsi ilit' of dealing with non;signator' States that wished to accede to the con"ention,+83 and housing the deposited original cop' of the con"ention/+8+ rovisions of t,e !8!7 Convention The 3-3, Con"ention contains the first direct criminal law pro"isions, first calling for the punishment of those who traffic women or girls into prostitution,+88 in addition to those who use fraud or other means of coercion to traffic women or girls o"er +,
++9 ++6

!nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, %rt 8/ The 3-3, Con"ention refers to women under or o"er age as women or girls under or o"er +, completed 'ears of age/ !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, =inal Protocol, $/ ++$assiouni, & Cherif/ CEnsla"ement as an !nternational Crime/D 1ew Dork 0niversity Journal of International Law and olitics" <ol +8, 3--3, p 454/ Su seIuent States parties were $ulgaria, Chile, China, Colom ia, Cu a, Czechoslo"akia, Eg'pt, Estonia, =inland, the !rish =ree State, Hapan, Lithuania, Lu.em ourg, &onaco, 1orwa', Persia, Poland, Siam, Switzerland, Turke', (rugua' and #ugosla"ia/ +8, !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, %rt 33/ +83 !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, %rt 6/ +8+ !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, %rt -/ +88 !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, %rt 3/

l"

'ears of age into prostitution/+84 Each State part' must ensure that their legislation criminalises human trafficking offences, to take the necessar' steps to implement such legislation, and to ensure that the offences are punished according to their gra"it'/ +82 %lso noteworth' is the fact that the con"ention specifies that it is irrele"ant whether the offence was committed in more than one State > earl' recognition of the transnational nature of human trafficking/+85 !n addition, the final protocol to the 3-3, Con"ention states that the pro"isions listed a o"e are to e considered a minimum, and that States parties are free to punish other analogous offences, such as procuring women e"en where neither fraud not compulsion ha"e een e.ercised/+89 Lastl', the final protocol stipulates that a case of the detention of a woman or a girl in a rothel against her will cannot e dealt with in the 3-3, Con"ention ecause it is go"erned e.clusi"el' ' national legislation/+86 /&( THE LEA)%E OF NAT#ONS AN$ TRAFF#C4#N) FOR ROST#T%T#ON OF 2O'EN AN$ CH#L$REN0 !8!85!89: =ollowing the end of ?orld ?ar ! and upon its esta lishment in 3-+,, the League of 1ations percei"ed human trafficking to e such a serious matter that it assumed responsi ilit' for the super"ision of the e.ecution of the e.isting agreements concerning human trafficking > a pro"ision that is included in the League of 1ations Co"enant/+8- The League of 1ationsA work in the areas of human trafficking and sla"er' helped to shift the focus of international law from dealing strictl' with the relationships etween so"ereign States, to the rights of indi"iduals constituting a legitimate part of international law/+4, The moti"ation for the human trafficking con"entions during this period was the protection of white women and children who were trafficked into forced prostitution, along with the fact that more States had come into e.istence in general/
+84 +82

!nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, %rt +/ !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, %rt 8/ +85 !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, %rts 3 and +/ +89 !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, =inal Protocol, %/ +86 !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, =inal Protocol, D/ +8League of 1ations, League of 1ations )ovenant, 3-+,, %rt +8, para 3EcF in $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p -/ +4, $ales, Je"in and Peter T )o ins/ CN1o :ne Shall $e Held in Sla"er' or Ser"itudeA: % Critical %nal'sis of !nternational Sla"er' %greements and Concepts of Sla"er'/D *u(an $ights $eview" Hanuar' > &arch +,,3, p 3-/

l"i

The 3-3, Con"ention was adopted ' the League of 1ations as part of their mandate in 3-+,/+43 The mandate also reIuired League of 1ations mem er States to su mit annual reports on their efforts to reduce trafficking/+4+ !n addition, the *eneral %ssem l' of the League of 1ations considered a prohi ition on trafficking of women and girls to e part of customar' international law/+48 During its relati"el' short e.istence, the League of 1ations was responsi le for three other attempts to address human trafficking: the 3-+3 Con"ention, the 3-88 Con"ention and the 3-89 Draft Con"ention/+44 /&(a THE !8(! CON;ENT#ON The 3-+3 Con"ention added to the scope of the pre;e.isting con"entions in two wa's/ =irst, it e.panded the geographical scope of the treaties/+42 This was done o"er concern that European women were eing a ducted and trafficked for prostitution in South %merica, %frica and %sia, +45 which reflected the percei"ed migrator' patterns at the time/+49 Secondl', it applied to women and children of oth se.es trafficked for the purpose of prostitution/+46 The phrase Cwhite sla"e trafficD does not appear in the 3-+3 Con"ention as an additional stipulation, suggesting that the document was the first step towards recognising the trafficking of women and children of all races/ The con"ention also stipulated that all States parties were o liged to adhere to the pro"isions listed in the 3-,4 %greement and 3-3, Con"ention, regardless of whether the' were a part' to the pre"ious two instruments/+4-

+43

Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society/ <ol 3-, +,,2, p 393/ +4+ Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society/ <ol 3-, +,,2, p 393/ +48 #oshimi, #oshiaki/ )o(fort /o(en' Sexual Slavery in the Ja!anese Military During /orld /ar II / 1ew #ork: Colum ia (ni"ersit' Press, +,,,, p 353/ +44 $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p -/ +42 The original signatories of the 3-+3 Con"ention were: %l ania, *erman', %ustria, $elgium, $razil, the $ritish Empire Ewith Canada, the Commonwealth of %ustralia, the (nion of South %frica, 1ew Oealand and !ndiaF, Chile, China, Colom ia, Costa )ica, Cu a, Estonia, *reece, Hungar', !tal', Hapan, Lat"ia, Lithuania, 1orwa', the 1etherlands, Persia, Poland Ewith DanzigF, Portugal, )omania, Siam, Sweden, Switzerland and Czechoslo"akia/ +45 Doezema, Ho/ CLoose ?omen or Lost ?omenK The )e;emergence of the &'th of ?hite Sla"er' in Contemporar' Discourses of Trafficking in ?omen/D %ender Issues/ <ol 36, +,,,, pp +8;+4/ +49 See CPercei"ed migrator' patterns and eha"iourD at p 86/ +46 !nternational Con"ention for the Suppression of the Traffic in ?omen and Children, 3-+3, %rt +/ +4!nternational Con"ention for the Suppression of the Traffic in ?omen and Children, 3-+3/

l"ii

rovisions of t,e !8(! Convention The 3-+3 Con"ention did not add to the scope of the criminal law found in the 3-3, Con"ention, ut rather reiterated the importance for States to implement necessar' criminal legislation to punish those who commit trafficking offences/+2, Similar to the pro"ision in the 3-,4 %greement, the 3-+3 Con"ention reIuired States parties to take legislati"e and administrati"e measures to super"ise the emplo'ment agencies and offices that assisted women and children seeking emplo'ment a road/+23 States parties were also reIuired to adopt legislati"e and administrati"e measures in connection with immigration and emigration to monitor for human trafficking in women and children/+2+ The reIuirement of States parties to super"ise its emplo'ment agencies and migration are e.amples of indirect human trafficking pro"isions/ !n order to ensure that the 3-+3 Con"ention was eing implemented, the League of 1ations esta lished the %d"isor' Committee on the Traffic in ?omen and Children, which reIuired States parties to su mit reports periodicall', and assumed responsi ilit' of super"ising the e.ecution of the con"ention/+28 This was the first international o"ersight od' dealing with human trafficking/ &oreo"er, in 3-+9, the Council of the League of 1ations commissioned a group of e.perts in the field of human trafficking to complete fact;finding missions in order to o tain further information on women and children eing trafficked in selected States in Europe, the &iddle East, and 1orth and South %merica/+24 %s the group of e.perts found it difficult to distinguish etween trafficked persons and those working in the domestic prostitution industr', the' concluded that the e.istence of licensed rothels was an incenti"e to traffic, oth internationall' and domesticall'/ +22 This finding was

+2,

!nternational Con"ention for the Suppression of the Traffic in ?omen and Children, 3-+3, %rts + and 8/ +23 !nternational Con"ention for the Suppression of the Traffic in ?omen and Children, 3-+3, %rt 5/ +2+ !nternational Con"ention for the Suppression of the Traffic in ?omen and Children, 3-+3, %rt 9/ +28 Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal" <ol 36, 3--4, p 39,/ +24 Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 39,B )eanda, Laura/ CProstitution as a Human )ights Puestion: Pro lems and Prospects of (nited 1ations %ction/D *u(an $ights &uarterly/ <ol 38, 3--3, p +,6/ +22 Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 39,/

l"iii

reinforced ' a stud' conducted ' a su seIuent group on conditions in %sia and the =ar East in 3-8+/+25 /&(b THE !8// CON;ENT#ON Similar to the 3-+3 Con"ention, the 3-88 Con"ention was agreed upon ' a group of States encompassing parts of Europe, 1orth %merica, South %merica and %sia/+29 !t also defines Ccountr'D in terms of the con"ention, as including the colonies, protectorates and territories of an' of the States parties/+26 Howe"er, if a State part' did not want the con"ention to appl' to its colonies, protectorates or territories, it could inform the Secretar';*eneral of the League of 1ations of the decision/+2(nlike the 3-+3 Con"ention, which applies to children of oth se.es trafficked for prostitution, the 3-88 Con"ention onl' applies to women and girls trafficked for prostitution, rather than including children of either gender/+5, rovisions of t,e !8// Convention !n addition to the criminal law pro"isions of the pre"ious instruments, the 3-88 Con"ention also reIuires States parties to punish those attempting or preparing to commit trafficking offences/+53 Similar to the 3-+3 Con"ention, the 3-88 Con"ention also reIuires States parties to update their legislation e.isting at that time to reflect the international human trafficking laws, and ensure that offences are punished in accordance with their gra"it'/+5+ &oreo"er, the States parties agreed to communicate and cooperate with each other in relation to an' persons of either se. that ha"e
+25

Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 39,B )eanda, Laura/ CProstitution as a Human )ights Puestion: Pro lems and Prospects of (nited 1ations %ction/D *u(an $ights &uarterly/ <ol 38, 3--3, p +,6/ +29 The original signatories of the 3-88 Con"ention were: His &aGest' the Jing of the %l aniansB the President of the *erman )eichB the =ederal President of the %ustrian )epu licB His &aGest' and the Jing of the $elgiansB His &aGest' the Jing of *reat $ritain, !reland and the $ritish Dominions e'ond the Seas, Emperor of !ndiaB His &aGest' the Jing of the $ulgariansB the President of the )epu lic of ChileB the President of the 1ational *o"ernment of the )epu lic of ChinaB the President of the Polish )epu lic, for the =ree Cit' of DanzigB the President of the Spanish )epu licB the President of the =rench )epu licB the President of the Hellenic )epu licB His Serene Highness the )egent of the Jingdom of Hungar'B the President of the Lat"ian )epu licB the President of the )epu lic of LithuaniaB His Serene Highness the Prince of &onacoB His &aGest' the Jing of 1orwa'B the President of the )epu lic of PanamaB Her &aGest' the Pueen of the 1etherlandsB the President of the Polish )epu licB the President of the Portuguese )epu licB His &aGest' the Jing of SwedenB the Swiss =ederal CouncilB the President of the Czechoslo"ak )epu licB His &aGest' the Jing of #ugosla"ia/ +26 !nternational Con"ention for the Suppression of the Traffic in ?omen of =ull %ge, 3-88, %rt 3/ +2!nternational Con"ention for the Suppression of the Traffic in ?omen of =ull %ge, 3-88, %rt 3,/ +5, !nternational Con"ention for the Suppression of the Traffic in ?omen of =ull %ge, 3-88/ +53 !nternational Con"ention for the Suppression of the Traffic in ?omen of =ull %ge, 3-88, %rt 3/ +5+ !nternational Con"ention for the Suppression of the Traffic in ?omen of =ull %ge, 3-88, %rt +/

li.

participated in the trafficking process, including sharing records of con"ictions, information a out the offender, and@or particulars of an' measures of refusal of admission or of e.pulsion applied to the offender/+58 THE $RAFT <CONSOL#$ATE$ CON;ENT#ON= OF !8/> =ollowing the two fact;finding missions from the group of e.perts esta lished ' the League of 1ations Council, and two con"entions on human trafficking, the League of 1ations drafted a con"ention in 3-89 designed to consolidate the pre"ious instruments and o tain international cooperation for the closure of rothels, and the prosecution and punishment of rothel owners and managers/+54 The Draft 3-89 Con"ention was to e the first international law to regulate prostitution, as prostitution had alwa's een a so"ereign issue regulated ' national laws/+52 The League of 1ations, howe"er, elie"ed that prostitution was no longer a national matter, +55 as it underlies human trafficking > a transnational crime/ The goals of the Draft 3-89 Con"ention were to: 3F a olish an' regulation of prostitutionB +F repress third parties profiting from prostitutionB and 8F reha ilitate trafficked persons/+59 The Draft 3-89 Con"ention was ne"er opened for signature as a result of the out reak of ?orld ?ar !!/+56

/&/ ANAL*S#S OF THE RE5H%'AN R#)HTS LA2 TREAT#ES A widening sco+e There was an e"olution of the scope of international human trafficking law, which occurred as the concept of human trafficking e"ol"ed/ The first two treaties, the 3-,4 %greement and the 3-3, Con"ention onl' addressed trafficking of white women and
+58

!nternational Con"ention for the Suppression of the Traffic in ?omen of =ull %ge, 3-88, %rt 8EaF and E F/ +54 Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 393/ +52 Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 393/ +55 Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 393/ +59 Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal" <ol 36, 3--4, p 393/ +56 Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 393/

l.

girls for the purpose of prostitution/+5- The pro"isions in these treaties constituted discriminator' human rights > onl' offering protection to white females > and were clearl' de"ised ' powerful primaril';white European States to protect their own citizens/ The fact that onl' the "ictimisation of white women alone was targeted ma' ha"e undermined the effecti"eness of these earl' con"entions/+9, The 3-+3 Con"ention e.panded the scope to include white and non;white women and children of either gender trafficked for the purpose of prostitution/+93 The remo"al of the term CwhiteD from the 3-+3 Con"ention is most likel' the result of the widening geographical scope of the signatories, which included se"eral States from Eastern Europe, Central and South %merica and %sia > the populations of which ma' ha"e een considered to e non;white/ %s a result, eing white was no longer a Iualification for protection under this treat'/ The 3-88 Con"ention took a more restricti"e approach ' limiting its scope to women and girls trafficked for the purpose of prostitution/+9+ The geographical scope e.panded once again under the 3-88 Con"ention, including additional States from Eastern Europe and Central %merica/ 'otivation The moti"ation for the earl' con"entions was largel' to protect white women and children from prostitution > particularl' after eing trafficked outside of Europe/ !n other words, these con"entions were meant to protect white European women who were trafficked either within Europe or to colonies of the European States, ut the protections were not reciprocal for non;white women trafficked an'where/ This also ma' e.plain the focus on pre"ention and monitoring > getting powerful European States to agree to super"ise railwa' stations and ports, in addition to emplo'ment agencies in order to pre"ent white women from eing trafficked/

+5-

!nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4B !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,/ +9, Scull', Eileen/ CPre;Cold ?ar Traffic in Se.ual La or and !ts =oes: Some Contemporar' Lessons,D in %lo#al *u(an S(uggling , Da"id J'le M )e' Joslowski EedsF/ +,,3, pp 65;69 in $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans;%tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p +35/ +93 !nternational Con"ention for the Suppression of the Traffic in ?omen and Children, 3-+3, %rt +/ +9+ !nternational Con"ention for the Suppression of the Traffic in ?omen of =ull %ge, 3-88/

l.i

The earl' con"entions were also a response to the pu lic campaigns against white sla"er', primaril' in the (nited Jingdom and the (nited States/ %t this stage, human trafficking was not "iewed as a threat to State securit' as such, ut rather an immoral act that must e stopped efore claiming more women and children as its "ictim/ Despite the fact that trafficking and ensla"ement of non;white women, men and children was likel' occurring, it was not until the focus shifted to white women and children that international action took place/ /&9 CONCL%S#ONS The primar' focus of the earl' con"entions was to criminalise and com at human trafficking, while the aim was to protect white women and children from prostitution/ %part from the 3-,4 %greement, it is clear from the anal'sis of each of these instruments, that earl' international human trafficking law pro"ided limited or no protection and assistance for trafficked persons/ The 3-,4 %greement does contain a few limited pro"isions, the aims of which were primaril' pre"ention and monitoring/ =rom the 3-3, Con"ention onwards, each instrument criminalised the act of trafficking, rather than the trafficked persons, ut pro"ided no assistance or protection to trafficked persons/ Punishments were discussed in the 3-3,, 3-+3 and 3-88 Con"entions, where it was stipulated that the t'pe of punishment gi"en to traffickers should match the gra"it' of the crime/ )egardless of their original moti"ation, the earl' con"entions set the stage for future international human trafficking laws ' recognising the transferring of a person from one place to another for the purpose of forcing them into prostitution was a crime/

CHA TER 9" #NTERNAT#ONAL H%'AN TRAFF#C4#N) LA2 #N THE 'O$ERN H%'AN R#)HTS LA2 ERA0 !89:5(77: %s e.plained in Chapter 8, the earl' international human trafficking con"entions contained solel' criminal law/ Chapter 4 works from the h'pothesis that the human

l.ii

rights model should pla' a greater role in international human trafficking law after ?orld ?ar !!/ This chapter e.amines international human trafficking law following the de"elopment of modern human rights law, from the end of ?orld ?ar !! to +,,2/ This is done in order to determine whether the introduction of human rights law has led to the adoption of a human rights model/ 9&! OST2AR CON$#T#ONS LEA$#N) TO #NTERNAT#ONAL H%'AN TRAFF#C4#N) LA20 !89:5!8:? erceived migrator- +atterns and be,avio.r There were three maGor trends in migration following ?orld ?ar !!: 3F la our migration from the peripher' of Europe+98 to ?estern EuropeB +F migration of colonial workers to the former colonial powersB and 8F permanent migration to 1orth %merica and %ustralia from Europe and later from %sia and Latin %merica/+94 Two additional trends were the mass mo"ements of European refugees at the end of ?orld ?ar !!, and the return migration of former colonists to their origin States, upon gaining their independence/+92 A new foc.s on ,.man rig,ts %fter the white sla"er' scare dissipated in the mid +,th centur', international interest in the topic of human trafficking su sided, and international attention turned to other areas of concern/+95 The end of ?orld ?ar !! sparked the eginning of the de"elopment of uni"ersal and regional human rights law/ This egan with the founding of the (nited 1ations E(1F, which has as one of its aims ending "iolations of human rights/+99 %s discussed in Chapter 3, human rights ser"e the purpose of protecting indi"iduals from ar itrar' interference from a State/ That is also applied on an international and regional le"el, ensuring that people are granted human rights
+98

Primaril' the &editerranean area, !reland and =inland/ Castles, Stephen and &ark H &iller/ +he ,ge of Migration' International o!ulation Move(ents in the Modern /orld" +nd ed/ London: &acmillan Press Ltd, 3--6, p 56/ +94 Castles, Stephen and &ark H &iller/ +he ,ge of Migration' International o!ulation Move(ents in the Modern /orld" +nd ed/ London: &acmillan Press Ltd, 3--6, pp 59;56/ +92 Castles, Stephen and &ark H &iller/ +he ,ge of Migration' International o!ulation Move(ents in the Modern /orld" +nd ed/ London: &acmillan Press Ltd, 3--6, p 56/ +95 $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 33/ +99 (nited 1ations Charter, 3-42, Pream le/

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uni"ersall', regardless of location and citizenship/ =urthermore, the issue of human trafficking and forced prostitution arose during ?orld ?ar !! when the *ermans and Hapanese forced thousands of women to work in rothels/+96 These widespread human rights a uses of ?orld ?ar !! had implications on human rights granted to trafficked persons/ 9&!a A'EN$'ENTS TO THE !879 A)REE'ENT0 !8!7 CON;ENT#ON0 !8(! CON;ENT#ON AN$ !8// CON;ENT#ON0 !89> AN$ !898 !n 3-49, a protocol was passed to amend the con"entions passed under the League of 1ations > the 3-+3 Con"ention and the 3-88 Con"ention/+9- The purpose of the protocol was to transfer the authorit' o"er the con"entions from the dissol"ed League of 1ations to the (1/+6, The rest of the protocol is procedural and does not alter the su stanti"e content of the original con"entions/ The protocol had eight signatories,+63 and 48 States parties+6+ that ratified the protocol etween 3-49 and 3--8/ These States parties represented another increase in the num er of States and their geographical scope > e"idence that there ma' ha"e een greater num ers of people eing trafficked, and@or more States in"ol"ed that were willing to adopt laws and deal with the issue/ % second protocol was passed in 3-4- to amend the 3-,4 %greement and 3-3, Con"ention/+68 Similar to the 3-49 Protocol, the rest of this protocol is procedural and transferred certain o"ersight functions from the *o"ernment of the =rench )epu lic
+96

Tiefen run, Susan ?/ CSe. Sells ut Drugs DonAt Talk: Trafficking of ?omen Se. ?orkers/D +ho(as Jefferson Law $eview/ <ol +8, +,,,;+,,3, p +38/ +9(nited 1ations Protocol to %mend the Con"ention for the Suppression of the Traffic in ?omen and Children, Concluded at *ene"a on 8, Septem er 3-+3, and the Con"ention for the Suppression of the Traffic of ?omen of =ull %ge, Concluded at *ene"a on 33 :cto er 3-88/ 3+ 1o" 3-49, 28 (1TS/ +6, (nited 1ations Protocol to %mend the Con"ention for the Suppression of the Traffic in ?omen and Children, Concluded at *ene"a on 8, Septem er 3-+3, and the Con"ention for the Suppression of the Traffic of ?omen of =ull %ge, Concluded at *ene"a on 33 :cto er 3-88/ 3+ 1o" 3-49, 28 (1TS/ +63 $razil, Denmark, *reece, !ran E!slamic )epu lic ofF, Lu.em ourg, 1etherlands, 1icaragua and 1orwa'/ +6+ %fghanistan, %l ania, %ustralia, %ustria, $elgium, $razil, Canada, China, CTte dA!"oire, Cu a, Czech )epu lic, Denmark, Eg'pt, =inland, *erman', *reece, Hungar', !ndia, !ran E!slamic )epu lic ofF, !reland, !tal', Hamaica, Le anon, Lu.em ourg, &alta, &e.ico, &'anmar, 1etherlands, 1icaragua, 1iger, 1orwa', Pakistan, Poland, )omania, )ussian =ederation, Sierra Leone, Singapore, Slo"akia, South %frica, Sweden, S'rian %ra )epu lic, Turke' and #ugosla"ia/ +68 (nited 1ations Protocol %mending the !nternational %greement for the Suppression of the ?hite Sla"e Traffic, Signed at Paris on 36 &a' 3-,4, and the !nternational Con"ention for the Suppression of the ?hite Sla"e Traffic, Signed at Paris on 4 &a' 3-3,/ 4 &a' 3-4-/

l.i"

to the (1, ut did not alter the content of the original con"entions/+64 9&!b !898 CON;ENT#ON %lthough the 3-4- Con"ention for the Suppression of the Traffic in Persons and of the E.ploitation of the Prostitution of :thers specificall' mentions trafficking in the title, the focus of the con"ention is on prostitution/ The 3-4- Con"ention does not add much to the pre"ious human trafficking con"entions/ Human trafficking is onl' criminalised in the cases of se.ual e.ploitation/ The people addressed in the con"ention are "ictims in two wa's: as prostitutes and trafficked persons/ %lthough the Pream le mentions the pre"iousl';e.isting human trafficking instruments with respect to the suppression of traffic in women and children, gender is not mentioned again in the con"ention/+62 )ather, an' reference to those trafficked is with the gender; neutral term of Cpersons/D T,e develo+ment of t,e !898 Convention !n 3-45, the (1 assumed responsi ilit' for continuing the work of the League of 1ations in the area of human trafficking through its Economic and Social Council EEC:S:CF and appro"ed recommendations to draft a new human trafficking con"ention/+65 This included creating the Commission on the Status of ?omen/+69 The Council informed the Secretar';*eneral of a new, comprehensi"e con"ention on human trafficking, which would em od' the su stance of the Draft 3-89 Con"ention that was ne"er opened to signature/+66 The 3-4- Con"ention was drafted through the work of the Council and the Commission on the Status of ?omen, including "arious initiati"es and a stud' to esta lish legislati"e practices/+6-

+64

(nited 1ations Protocol %mending the !nternational %greement for the Suppression of the ?hite Sla"e Traffic, Signed at Paris on 36 &a' 3-,4, and the !nternational Con"ention for the Suppression of the ?hite Sla"e Traffic, Signed at Paris on 4 &a' 3-3,/ 4 &a' 3-4-/ +62 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, Pream le/ +65 )eanda, Laura/ CProstitution as a Human )ights Puestion: Pro lems and Prospects of (nited 1ations %ction/D *u(an $ights &uarterly/ <ol 38, 3--3, p +,-/ +69 Pilkerton, Christopher &/ CTraffic Ham: )ecommendations for Ci"il and Criminal Penalties to Cur the )ecent Trafficking of ?omen from Post;Cold ?ar )ussia/D Michigan Journal of %ender and Law/ <ol 5, 3---;+,,,, p +8+/ +66 )eanda, Laura/ CProstitution as a Human )ights Puestion: Pro lems and Prospects of (nited 1ations%ction/D *u(an $ights &uarterly/ <ol 38, 3--3, p +,-/ +6Pilkerton, Christopher &/ CTraffic Ham: )ecommendations for Ci"il and Criminal Penalties to Cur the )ecent Trafficking of ?omen from Post;Cold ?ar )ussia/D Michigan Journal of %ender and Law/ <ol 5, 3---;+,,,, p +8+/

l."

2,ite slaver- to ,.man trafficking %lthough there were "ar'ing perceptions of what Cwhite sla"e trafficD specificall' entailed, the consensus was reached that it meant the procurement, through force, deception or drugs, of a white woman or girl, against her will, for the purpose of prostitution/+-, E"entuall', as the international law on human trafficking ecame roader in scope, first including children of oth se.es, and later people of all races and genders, the more neutral term of Chuman traffickingD was uni"ersall' adopted, with the 3-4- Con"ention eing the first international treat' to eschew the term Cwhite sla"e traffic/D+-3 This was mainl' due to the fact that the term Chuman traffickingD represented a process with se"eral elements and le"els, while Cwhite sla"er'D remained confined to a more specific concept, in"ol"ing white women and children trafficked for prostitution/ %ccording to this term, a person ma' e a sla"e, ut ma' not ha"e een trafficked/ Similarl', a person ma' ha"e een trafficked, ut did not end up ensla"ed/ ?hile sla"er' is an issue of status, human trafficking is a process or a phase of a process/ This shift from the use of Cwhite sla"e trafficD to Chuman traffickingD was not simpl' a change in term, ut a change in conte.t as well > human trafficking was recognised as something that could happen to an'one, regardless of gender, race or national origin, and was not necessaril' related to se.ual e.ploitation/

Criminal law The 3-4- Con"ention criminalises trafficking for se.ual e.ploitation and prostitution onl' > it is not a general con"ention appl'ing to all t'pes of human trafficking/+-+ Consent of either trafficked persons or prostitutes is irrele"ant/+-8 !n terms of trafficking, the con"ention reIuires the States parties to punish an'one who Cprocures,
+-,

Doezema, Ho/ CLoose ?omen or Lost ?omenK The )e;emergence of the &'th of ?hite Sla"er' in Contemporar' Discourses of Trafficking in ?omen/D %ender Issues/ <ol 36, +,,,, p +2/ +-3 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-/ +-+ (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rts 3 and +/ +-8 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rts 3E3F and E+F/

l."i

entices or leads awa'D another person for the purpose of prostitution,+-4 or e.ploits another person "ia prostitution/+-2 The con"ention also criminalises "arious elements of prostitution/+-5 Specific criminal procedural pro"isions are also included/+-9 H.man rig,ts %lthough human rights pro"isions do e.ist in the 3-4- Con"ention, the' are minimal in nature, and general in terms of the specific protections and assistance that must e granted to prostitutes and@or trafficked persons/ !n terms of human rights, the con"ention encourages States parties to pro"ide ser"ices for reha ilitation and social adGustment of the trafficked persons and prostitutes/+-6 !n addition, States parties must pro"ide temporar' care and maintenance to trafficked persons while arrangements are eing made for their repatriation/+-- The con"ention also stipulates specific pro"isions for repatriation, including when trafficked persons cannot pa' for the repatriation themsel"es/8,, %side from one reference that States parties must CencourageD measures of pre"ention of prostitution and reha ilitation and social adGustment for those in"ol"ed with prostitution,8,3 the language in the remaining human rights pro"isions is as strong as in the criminal pro"isions, specif'ing that States parties CundertakeD the "arious pro"isions/8,+ This means that for the most part, oth the criminal and human rights pro"isions were "iewed as mandator' and crucial for the con"ention, rather than making the criminal pro"isions mandator' and the human rights pro"isions optional/

+-4

(nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rt 3E3F/ +-2 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rt 3E+F/ +-5 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rts 8, 4 and 5/ +-9 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rts 9, 6, -, 3,, 33, 3+, 38, 34, and 32/ +-6 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rt 35/ +-(nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rt 3-/ 8,, (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rts 36 and 3-/ 8,3 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rt 35/ 8,+ (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rts 39 and 3-/

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revention and monitoring The 3-4- Con"ention encourages States parties to take measures to pre"ent prostitution/8,8 !n addition, States parties must take declarations from non;citizens who work as prostitutes in order to esta lish their nationalit', identit' and ci"il status, and wh' the' left their origin State/8,4 This information must then e shared with the authorities in the prostitutesA origin States/8,2 States parties must also monitor emplo'ment agencies to ensure the' are not in"ol"ed in the trafficking process or e.pose their clients > particularl' women and children > to prostitution/8,5 There is no mechanism of international o"ersight pro"ided in the con"ention/ T,e !8:8 %N Re+ort !n 3-2-, the (1 commissioned a stud'8,9 on human trafficking and prostitution to gauge the impact of the 3-4- Con"ention/8,6 The stud' re"ealed that there was actuall' a "er' low percentage of foreign prostitutes in most States, and credited three factors for this de"elopment/8,- =irst, man' States had adopted the pro"isions of the 3-4- Con"ention into their national law, which ma' ha"e thwarted some human trafficking operations/83, Second, the stud' claimed that a higher standard of li"ing and societal status for women reduced the risk of eing trafficked/833 Lastl', the report stated that following the percei"ed closure of rothels throughout the world, international human trafficking had lost one of its maGor incenti"es/83+
8,8

(nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rt 35/ 8,4 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rt 36/ 8,2 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rt 36/ 8,5 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-, %rt +,/ 8,9 (1 Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution" (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-/ 8,6 Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, pp 394;392/ 8,Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 392/ 83, (1 Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution, (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-B Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 392/ 833 (1 Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution, (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-B Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 392/ 83+ (1 Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution, (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-B Demleitner, 1ora/ C=orced

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Despite apparent success, the stud' found that human trafficking and forced prostitution still took place, and that an' efforts to com at trafficking must also include a strateg' to regulate prostitution/838 !n addition, the stud' suggested that such action should e supplemented ' other efforts to maintain pu lic order, such as the pre"ention of "enereal disease, ending forced prostitution, pre"enting prostitution in general, and reha ilitating persons engaged in prostitution/834 !n order to deter potential future offenders, the stud' suggested implementing harsher punishments for rothel owners, including high fines, repressi"e measures, confiscation of direct profits, and the closure of rothels regardless of whether it also carried out legitimate acti"ities/832 &oreo"er, prostitutes should not e imprisoned, ut reha ilitated if the' chose/835 Lastl', the stud' listed the social and economic measures reIuired to impro"e the o"erall situation of women, in order to pre"ent them from ending up in prostitution/839 9&( H%'AN TRAFF#C4#N)0 !8:>5(77: The international and regional legal response to human trafficking has greatl' e"ol"ed o"er the 2,;'ear period of 3-29 to +,,2/ ?ith changing patterns of migration, there were new human trafficking routes, and origin and destination States/ The de"elopment of uni"ersal and regional human rights law led to the adoption of new international law on human trafficking, with a greater focus on human rights than in
Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 392/ 838 (1 Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution, (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-B Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 392/ 834 (1 Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution, (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-B Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 392/ 832 (1 Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution, (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-B Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 392/ 835 (1 Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution, (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-B Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 392/ 839 (1 Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution, (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-B Demleitner, 1ora/ C=orced Prostitution: 1aming an !nternational :ffense/D 9ordha( International Law Journal/ <ol 36, 3--4, p 392/

l.i.

the past/ Transnational organised crime, which is oftentimes responsi le for human trafficking, ecame an international securit' concern of States/ :nce human trafficking returned to the international agenda, there was a greater accommodation of human rights in international human trafficking law/ 'igrator- +atterns and be,avio.r There were four general wa"es of human trafficking in the direction of the European (nion EE(F and the (nited States of %merica in the 3--,s/836 The first wa"e started in 3--+ and in"ol"ed %sian women, primaril' from the Philippines and Thailand/83- The second wa"e started in 3--8 and consisted of South %merican women, most of whom originated in the Dominican )epu lic and Colom ia/8+, %nother wa"e commenced in 3--8, with people coming primaril' from %frica, particularl' *hana and 1igeria/8+3 The fourth wa"e started in 3--4 and has continued e"er since, and consists of Eastern European nationals, from origin States such as Hungar', Poland, the Czech )epu lic, )ussia, )omania, %l ania, (kraine and Lat"ia/8++ The (1 :ffice on Drugs and Crime E(1:DCF identified three maGor trans;regional human trafficking flows etween +,,8 and +,,9: 3F from Latin %merica ESouth %merica, Central %merica and the Cari eanF mainl' to 1orth %merica, Europe and, episodicall', the &iddle EastB +F from South %sia to the &iddle East and, episodicall', to Europe and Southern %fricaB and 8F from Europe and Central %sia to ?estern and Central Europe, the &iddle East and 1orth %merica/8+8 There was also significant inter;regional trafficking within Europe, potentiall' as a result of geographical pro.imit' and language linkages/8+4

836

<an !mpe, Jristof/ CPeople for Sale: The 1eed for a &ultidisciplinar' %pproach towards Human Trafficking/D International Migration/ Special !ssue, +,,,, p 334/ 83<an !mpe, Jristof/ CPeople for Sale: The 1eed for a &ultidisciplinar' %pproach towards Human Trafficking/D International Migration/ Special !ssue, +,,,, p 334/ 8+, <an !mpe, Jristof/ CPeople for Sale: The 1eed for a &ultidisciplinar' %pproach towards Human Trafficking/D International Migration/ Special !ssue, +,,,, p 334/ 8+3 <an !mpe, Jristof/ CPeople for Sale: The 1eed for a &ultidisciplinar' %pproach towards Human Trafficking/D International Migration/ Special !ssue, +,,,, p 334/ 8++ <an !mpe, Jristof/ CPeople for Sale: The 1eed for a &ultidisciplinar' %pproach towards Human Trafficking/D International Migration/ Special !ssue, +,,,, p 334/ 8+8 (nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-, p 58/ 8+4 (nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-, p 56/

l..

?hile the percei"ed direction of the mo"ement of the trafficked persons has switched from mo"ement from 1orth %merica and Europe to South %merica, %frica and %sia to the e.act opposite, the rhetoric and discourse surrounding the issue of human trafficking is largel' the same as it was during the first anti;white sla"er' campaigns which egan in the 366,s/8+2 Similar to the ad"ances in technolog' and the increase in migration seen at the end of the 3-th and eginning of the +,th centuries, the ad"ances made nearl' 3,, 'ears later also led to a percei"ed, if not actual, increase in human trafficking/ $evelo+ment of .niversal and regional ,.man rig,ts law $etween 3-4- and +,,,, no human trafficking;specific international legal instruments were adopted/ Howe"er, eginning in 3-46, international human rights laws were adopted, starting with the (1 (ni"ersal Declaration of Human )ights in 3-46,8+5 which is non inding, and has een the su Gect of de ate regarding its status as potential customar' law/8+9 !n 3-2,, the Council of Europe adopted the European Con"ention on Human )ights EECH)F, as a regional human rights treat' to strengthen the 3-46 (1 (ni"ersal Declaration of Human )ights/8+6 The !nternational Con"ention on Ci"il and Political )ights E!CCP)F and the !nternational Con"ention on Economic, Social and Cultural )ights E!CESC)F were adopted in 3-55, ut oth are general in nature and neither specificall' mentions human trafficking/ %s trafficked people are in positions that depri"e them of man' asic human rights, se"eral of the ci"il and political, and economic, social and cultural rights mentioned in the !CCP) and !CESC) also appl' to trafficked persons/ E.amples of such rights in the earl' human rights con"entions that appl' to trafficked persons include the rights not to e held in

8+2

Doezema, Ho/ CLoose ?omen or Lost ?omenK The )e;emergence of the &'th of ?hite Sla"er' in Contemporar' Discourses of Trafficking in ?omen/D %ender Issues/ <ol 36, +,,,, p +4/ 8+5 (nited 1ations (ni"ersal Declaration of Human )ights, 3-46/ 8+9 There has not een an agreement as to whether the (ni"ersal Declaration of Human )ights is customar' law/ Those opposed to that notion argue that man' States ha"e not adhered to its principles, and neither go"ernments nor courts ha"e accepted it as ha"ing o ligator' force/ Those who "iew the (ni"ersal Declaration as customar' law cite its incorporation into man' national constitutions and laws and references in (nited 1ations resolutions/ =or more information, see Steiner, Henr' H and Philip %lston/ International *u(an $ights in )ontext/ +nd ed/ :.ford: :.ford (ni"ersit' Press, +,,,, pp ++9; +83/ 8+6 European Con"ention on Human )ights, 3-2,/

l..i

sla"er' or ser"itude,8+- freedom of mo"ement,88, fa"oura le work conditions,883 and an adeIuate standard of li"ing/88+ Howe"er, two more specific con"entions on women and children do address human trafficking/ The 3-9- Con"ention on the Elimination of %ll =orms of Discrimination against ?omen ECED%?F stipulates that States parties must take all appropriate measures, including legislation, to suppress all forms of traffic in women and e.ploitation of prostitution in women/888 The 3-6- Con"ention on the )ights of the Child EC)CF adds that States parties must take all appropriate national, ilateral and multilateral measures to pre"ent the a duction of, sale of or traffic in children for an' purpose or in an' form/884 #nfl.ence of t,e movement for women@s rig,ts =ollowing a nearl' 2,;'ear a sence from a trafficking;specific con"ention, human trafficking once again ecame an issue of concern in the 3-6,s and 3--,s/882 The issue first resurfaced in a report of the (1 ?orking *roup on Contemporar' =orms of Sla"er' in 3-96/885 !t was rought to the forefront once again as a result of the strengthening womenAs mo"ement and the spread of %!DS/889 This included concern o"er issues relating to human trafficking, such as se. tourism, and mail;order ride arrangements/886 Human trafficking appeared in the final documents from two world
8+-

(nited 1ations (ni"ersal Declaration of Human )ights, 3-46B European Con"ention on Human )ights, 3-2,, %rt 4B (nited 1ations !nternational Co"enant on Ci"il and Political )ights, 3-55, %rt 6/ 88, (nited 1ations (ni"ersal Declaration of Human )ights, 3-46, %rt 38B European Con"ention on Human )ights, 3-2,, %rt +B (nited 1ations !nternational Co"enant on Ci"il and Political )ights, 3-55, %rt 3+/ 883 (nited 1ations (ni"ersal Declaration of Human )ights, 3-46, %rt +8B (nited 1ations !nternational Co"enant on Economic, Social and Cultural )ights, 3-55, %rt 9/ 88+ (nited 1ations (ni"ersal Declaration of Human )ights, 3-46, %rt +2B (nited 1ations !nternational Co"enant on Economic, Social and Cultural )ights, 3-55, %rt 33/ 888 (nited 1ations Con"ention on the Elimination of %ll =orms of Discrimination against ?omen, 3-9-, %rt 5/ 884 (nited 1ations Con"ention on the )ights of the Child, 3--,, %rt 32/ The Con"ention on the )ights of the Child has 3-8 States parties, making it one of the most widel' accepted international human rights instruments/ 882 ?ong, Diane/ CThe )umour of Trafficking/D International Institute for ,sian Studies 1ewsletter / <ol 4+, +,,5, p 33/ 885 $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p ++8/ 889 ?iGers, & and L Lapchew/ CTrafficking in ?omen, =orced La our and Sla"er';like Practices in &arriage, Domestic La our, and Prostitution/D 9oundation ,gainst +rafficking in /o(en, %lo#al ,lliance ,gainst +raffic in /o(en , 3--- in Long, L'nell'n D/ C%nthropological Perspecti"es on the Trafficking of ?omen for Se.ual E.ploitation/D International Migration/ <ol 4+, +,,4, p +,/ 886 )a', 1ilanGana/ CLooking at Trafficking Through a 1ew Lens/D )ardo7o Journal of Law 8 %ender/ <ol 3+, +,,5, p -3+/

l..ii

conferences on women: first, e.plicitl' linked to prostitution at the 3-6, Copenhagen Conference and under the ru ric of Cwomen "ictims of trafficking and in"oluntar' prostitutionD at the 3-62 1airo i Conference/88The mo"ement against "iolence against women in the 3-6,s and 3--,s was another important step towards the re;emergence of human trafficking as an international human rights issue/84, ?hile womenAs mo"ements of the 3-6,s and 3--,s from ?estern destination States and de"eloping States differed in conte.t and issues, "iolence against women emerged as a common position around which womenAs groups from throughout the world could colla orate/843 Through the campaign on "iolence against women, human trafficking emerged as another issue that would ignite glo al colla oration amongst womenAs groups/84+ 9&(a Transnational organised crime %s the 3--,s saw further glo alisation and ad"ances in technolog', transnational organised crime flourished > significantl' ad"ancing in size, sophistication, and degree of transnational acti"it' and cooperation/848 Transnational organised criminal groups were using the same tactics and technological ad"ances as legitimate multinational corporations, and were a le to increase producti"it' and international operations/844 ?orld leaders such as $ill Clinton and $oris #eltsin recognised the threat posed to State so"ereignt' and securit' ' transnational organised criminal groups/842 Howe"er, the pro lem of transnational organised crime could not e tackled ' the traditional categorisation of law enforcement and organised crime as a strictl' domestic matter > e"en ilateral or regional legal arrangements could create
88-

$ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 3+/ 84, $ertone, %ndrea &/ CTransnational %cti"ism to Com at Trafficking in Persons/D +he Brown Journal of /orld ,ffairs" <ol 3,, +,,4/ p 3+/ 843 $ertone, %ndrea &/ CTransnational %cti"ism to Com at Trafficking in Persons/D +he Brown Journal of /orld ,ffairs" <ol 3,, +,,4/ p 3+/ 84+ $ertone, %ndrea &/ CTransnational %cti"ism to Com at Trafficking in Persons/D +he Brown Journal of /orld ,ffairs" <ol 3,, +,,4, p 3+/ 848 *u'mon, CarrieL'n Donigan/ C!nternational Legal &echanisms for Com ating Transnational :rganized Crime: The 1eed for a &ultilateral Con"ention/D Berkeley Journal of International Law" <ol 36, +,,,, p 28/ 844 *u'mon, CarrieL'n Donigan/ C!nternational Legal &echanisms for Com ating Transnational :rganized Crime: The 1eed for a &ultilateral Con"ention/D Berkeley Journal of International Law" <ol 36, +,,,, p 24/ 842 *u'mon, CarrieL'n Donigan/ C!nternational Legal &echanisms for Com ating Transnational :rganized Crime: The 1eed for a &ultilateral Con"ention/D Berkeley Journal of International Law" <ol 36, +,,,, p 24/

l..iii

geographic loopholes/845 %s a result, the (1 recognised the necessit' to tackle organised crime that had a transnational impact and drafted the Con"ention %gainst Transnational :rganised Crime in +,,,/849 9&(b H.man trafficking ret.rns to t,e international agenda %lthough each of the aforementioned trends occurred consecuti"el' o"er a short period of time, it can e argued that like the initial concern o"er human trafficking in the late 3-th centur', the issue was once again eing racialised, or Cwhitened/D846 The end of the Cold ?ar and the opening of the markets in Eastern Europe coincided with the upsurge in concern o"er human trafficking/84- ?estern European States ma' ha"e een concerned that the fall of the $erlin ?all would lead to an increase in the num er of trafficked persons from Eastern Europe/82, %s a result, human trafficking returned to prominence most likel' ecause of the emergence of white women and children as "ictims, thus triggering a similar Cmoral panicD that preceded the 3-,4

845

*u'mon, CarrieL'n Donigan/ C!nternational Legal &echanisms for Com ating Transnational :rganized Crime: The 1eed for a &ultilateral Con"ention/D Berkeley Journal of International Law" <ol 36, +,,,, pp 24;22/ 849 =or further information on the conditions leading up to the +,,, (1 Con"ention, see $uckwalter, Hane )ae EedF/ International ers!ectives on Brgani7ed )ri(e" 3--,B *u'mon, CarrieL'n Donigan/ C!nternational Legal &echanisms for Com ating Transnational :rganized Crime: The 1eed for a &ultilateral Con"ention/D Berkeley Journal of International Law" <ol 36, +,,,B Jerr', Hohn/ +he 1ew /ar' +he /e# of )ri(es that +hreatens ,(ericas Security" 1ew #ork: Simon and Schuster, 3--9B ?illiams, Phil and Ernesto ( Sa"ona EedsF/ +he 0nited 1ations and +ransnational Brgani7ed )ri(e/ London: =rank Cass M Co, 3--5/ 846 Dau"ergne, Catherine/ Making eo!le Illegal' /hat %lo#ali7ation Means for Migration and Law" 1ew #ork: Cam ridge Press: +,,6, p 94/ 84%miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com ating the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview" <ol 3+, +,,5, p 2B Dau"ergne, Catherine/ Making eo!le Illegal' /hat %lo#ali7ation Means for Migration and Law" 1ew #ork: Cam ridge Press: +,,6, p 94/ 82, %miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com ating the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview" <ol 3+, +,,5, p 2B $ertone, %ndrea &/ CTransnational %cti"ism to Com at Trafficking in Persons/D +he Brown Journal of /orld ,ffairs" <ol 3,, +,,4, p 38B $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans;%tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p ++8B Cao, Lan/ CThe Transnational and Su ;1ational in *lo al Crimes,D Berkeley Journal of International Law" <ol ++, +,,4, p 54B Dau"ergne, Catherine/ Making eo!le Illegal' /hat %lo#ali7ation Means for Migration and Law" 1ew #ork: Cam ridge Press: +,,6, p 94B =riesendorf, Cornelius/ CPathologies of Securit' *o"ernance: Efforts %gainst Human Trafficking in Europe/D Security Dialogue" <ol 86, p 86+B Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges/ )'schard Cholewinski et al EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +95B Shell', Louise/ CHuman trafficking as a form of transnational crime/D in *u(an +raffickin", &agg' Lee EedF/ De"on: ?illlan Pu lishing, +,,9, p 339B Surtees, )e ecca/ CTraffickers and Trafficking in Southern and Eastern Europe/D Euro!ean Journal of )ri(inology" <ol 2, +,,6, p 4,B ?ong, Diane/ CThe )umour of Trafficking/D International Institute for ,sian Studies 1ewsletter/ <ol 4+, +,,5, p 33/

l..i"

%greement,823 particularl' in the post;?orld ?ar !! and post;Cold ?ar era of human rights law/82+ This occurred despite the fact that a large num er of non;white women were also eing trafficked/ The 3-6,s and earl' 3--,s saw the formation of "arious working groups and proposed courses of action to handle the pro lem of human trafficking/ 828 !n 3--4 the (1 *eneral %ssem l' adopted a resolution on the Ctraffic of women and girls which condemns illicit and clandestine mo"ements of persons across national and international orders/D824 The issue of human trafficking was also on the agenda at the 3--2 =ourth ?orld Conference on ?omen in $eiGing, and the Platform of %ction added forced marriage and la our to the list of forms of trafficking and sla"er'/822 1*:s also egan to pa' attention to the issue of human trafficking/ =or e.ample, in 3--4, the 33th !nternational :rganisation for &igration E!:&F Seminar on the theme of C*lo al Human TraffickingD took place/825 !n 3--5, the (1 Special )apporteur on <iolence %gainst ?omen, )adhika Coomaraswam', commissioned a glo al research proGect on human trafficking to assess the parameters of the pro lem/829 !t was at this stage that a shift took place in the definition of human trafficking: Coomaraswam' ad"ised that the processes of recruitment and transportation e delinked from coercion in the se. trade > in other words, to consider human trafficking and prostitution separatel'/826 Se.ual

823

Dau"ergne, Catherine/ Making eo!le Illegal' /hat %lo#ali7ation Means for Migration and Law" 1ew #ork: Cam ridge Press: +,,6, p 94/ 82+ $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p ++8/ 828 (nited 1ations )esolution 4-@355 of the *eneral %ssem l', 3--4 in Long, L'nell'n D/ C%nthropological Perspecti"es on the Trafficking of ?omen for Se.ual E.ploitation/D International Migration/ <ol 4+, +,,4, p +,/ 824 (nited 1ations )esolution 4-@355 of the *eneral %ssem l', 3--4 in Long, L'nell'n D/ C%nthropological Perspecti"es on the Trafficking of ?omen for Se.ual E.ploitation/D International Migration/ <ol 4+, +,,4, p +,/ 822 Long, L'nell'n D/ C%nthropological Perspecti"es on the Trafficking of ?omen for Se.ual E.ploitation/D International Migration/ <ol 4+, +,,4, p +,/ 825 ?ong, Diane/ CThe )umour of Trafficking/D International Institute for ,sian Studies 1ewsletter / <ol 4+, +,,5, p 33/ 829 Jempadoo, Jamala/ C=rom &oral Panic to *lo al !nGustice: Changing Perspecti"es on TraffickingD in +rafficking and rostitution $econsidered' 1ew ers!ectives on Migration, Sex /ork, and *u(an $ights" Jamala Jempadoo EedF/ London: Paradigm Pu lishers, +,,2, p .ii/ 826 Jempadoo, Jamala/ C=rom &oral Panic to *lo al !nGustice: Changing Perspecti"es on TraffickingD in +rafficking and rostitution $econsidered' 1ew ers!ectives on Migration, Sex /ork, and *u(an $ights" Jamala Jempadoo EedF/ London: Paradigm Pu lishers, +,,2, p .ii/

l.."

e.ploitation was now "iewed as one, ut not the onl', t'pe of human trafficking, along with forced la our/82!n 3--6, human trafficking was mentioned in the )ome Statute of the !nternational Criminal Court E!CCF as a crime against humanit', when it is committed as part of a widespread or s'stematic attack directed against an' ci"ilian population, with knowledge of the attack/85, CEnsla"ementD was listed as a crime against humanit', later defined as Cthe e.ercise of an' or all of the powers attaching to the right of ownership o"er a person and includes the e.ercise of such power in the course of trafficking in persons, in particular women and children/D853 2,- ,.man trafficking re5emerged as an iss.e The re;emergence of human trafficking on the international agenda is most likel' a result of State so"ereignt' and securit' issues, rather than human rights concerns/85+ The StatesA focus shifted to internal or transnational threats, like organised crime, or people illegall' within its orders/ %s human trafficking is in"ol"ed with oth transnational organised crime and aspects of illegal migration, it ecame a target of international, regional and national laws/ This was the impetus ehind the creation of the +,,, (1 Con"ention, which dealt with human trafficking as a ranch of organised crime/ !n other words, human trafficking was rought onto the international agenda in the conte.t of criminal law, not human rights/ 1owada's, as an increasing num er of people are migrating, wealth' destination States are decreasing opportunities for legal immigration/858%s migration increases, so does human traffickingB therefore the destination States are concerned that human trafficking will interfere with regular migration and allow those in"ol"ed in the

82-

Jempadoo, Jamala/ C=rom &oral Panic to *lo al !nGustice: Changing Perspecti"es on TraffickingD in +rafficking and rostitution $econsidered' 1ew ers!ectives on Migration, Sex /ork, and *u(an $ights" Jamala Jempadoo EedF/ London: Paradigm Pu lishers, +,,2, p .ii/ 85, )ome Statute of the !nternational Criminal Court, (1 Doc %@C:1= 368@-, 3--6, %rt 9/ 853 )ome Statute of the !nternational Criminal Court, (1 Doc %@C:1= 368@-, 3--6, %rt 9E+FEcF/ 85+ *allagher, %nne/ CHuman )ights and the 1ew (1 Protocols on Trafficking and &igrant Smuggling: % Preliminar' %nal'sis/D *u(an $ights &uarterly/ <ol +8, +,,3, p -95B )a', 1ilanGana/ CLooking at Trafficking Through a 1ew Lens/D )ardo7o Journal of Law 8 %ender/ <ol 3+, +,,5, p -32/ 858 *allagher, %nne/ CHuman )ights and the 1ew (1 Protocols on Trafficking and &igrant Smuggling: % Preliminar' %nal'sis/D *u(an $ights &uarterly/ <ol +8, +,,3, p -95;-99/

l.."i

trafficking process to circum"ent national immigration restrictions/854!n addition, mounting e"idence linking human trafficking to organised crime generated a stronger international response to the issue/852 !n addition to the issues surrounding State securit', human rights concerns also led to the re;emergence of human trafficking as an issue/ %t the 3--4 !:& seminar, a paper entitled C&ultinational Cooperation to Com at Trafficking in &igrants and the )ole of !nternational :rganisationsD855 introduced a new model of threats to EuropeAs orders: trafficking, illegal immigration and organized crime/859 The 3--8 ?orld Conference on Human )ights also called for the elimination of human trafficking,856 while the 3--2 =ourth ?orld Conference on ?omen in $eiGing, and the Platform of %ction added forced marriage and la our to the list of forms of trafficking and sla"er'/85- !n 3--5, the (1 Commission on the Status of ?omen ECS?F rought the issue of trafficking in women to the attention of the EC:S:C, as well as drafting resolutions focusing on the human rights of women and "iolence against migrant workers/89, The 3--,s also saw the emergence of se"eral other womenAs and transnational issues on the international political agenda in addition to human trafficking, such as female genital mutilation, women and de"elopment and se. tourism/893 %rgentinaAs concern o"er trafficking of children and its dissatisfaction with the slow progress of an additional protocol to the C)C to address child prostitution and

854

*allagher, %nne/ CHuman )ights and the 1ew (1 Protocols on Trafficking and &igrant Smuggling: % Preliminar' %nal'sis/D *u(an $ights &uarterly" <ol +8, +,,3, p -95/ 852 *allagher, %nne/ CHuman )ights and the 1ew (1 Protocols on Trafficking and &igrant Smuggling: % Preliminar' %nal'sis/D *u(an $ights &uarterly/ <ol +8, +,,3, p -99/ 855 ?idgren, Honas/ C&ultinational Cooperation to Com at Trafficking in &igrants and the )ole of !nternational :rganisations/D Paper presented to 33th !:& Seminar on !nternational )esponses to Trafficking in &igrants and Safeguarding &igrant )ights/ *ene"a, +5;+6 :cto er 3--4/ 859 ?ong, Diane/ CThe )umour of Trafficking/D International Institute for ,sian Studies 1ewsletter / <ol 4+, +,,5, p 33/ 856 $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 3+/ 85Long, L'nell'n D/ C%nthropological Perspecti"es on the Trafficking of ?omen for Se.ual E.ploitation/D International Migration/ <ol 4+, +,,4, p +,/ 89, &cSherr', $ernadette and Susan Jnee one/ CTrafficking in ?omen and =orced &igration: &o"ing <ictims %cross the $order of Crime into the Domain of Human )ights/D +he International Journal of *u(an $ights/ <ol 3+, +,,6, p 9,/ 893 $ertone, %ndrea &/ CTransnational %cti"ism to Com at Trafficking in Persons/D +he Brown Journal of /orld ,ffairs" <ol 3,, +,,4, p 38/

l.."ii

pornograph' pro"ided an impetus for the +,,, Palermo Protocol/89+%rgentina proposed the adoption of a new con"ention that would deal with the issue from oth a criminal and a human rights perspecti"e, which was part of the larger issue of transnational organised crime/898 %t the same time %rgentina proposed this new con"ention at the 3--9 session of the (1 Commission on Crime Pre"ention and Criminal Hustice, other institutions in Europe had decided to address the issue of human trafficking, and (S President $ill Clinton had issued a memorandum894 on the measures to e taken ' the (S go"ernment to com at human trafficking/892 !n 3--6, the (1 *eneral %ssem l' esta lished the intergo"ernmental %d Hoc Committee on the Ela oration of a Con"ention %gainst Transnational Crime to de"elop an international strateg' to address transnational organised crime, including human trafficking, which resulted in the +,,, (1 Con"ention %gainst Transnational :rganised Crime/895 Prior to the definition in the +,,, Palermo Protocol, a definition of Ctrafficking in womenD the (1 Special )apporteur on <iolence %gainst ?omen, defined human trafficking as:
,ll acts involved in the recruit(ent andEor trans!ortation of a wo(an within and across national #orders for work or services #y (eans of violence or threat of violence, a#use of authority or do(inant !osition, de#t #ondage, dece!tion or other for(s of coercion/899

9&(c Accommodation of ,.man rig,ts in international ,.man trafficking law

89+

*allagher, %nne/ CHuman )ights and the 1ew (1 Protocols on Trafficking and &igrant Smuggling: % Preliminar' %nal'sis/D *u(an $ights &uarterly/ <ol +8, +,,3, p -6+/ 898 *allagher, %nne/ CHuman )ights and the 1ew (1 Protocols on Trafficking and &igrant Smuggling: % Preliminar' %nal'sis/D *u(an $ights &uarterly/ <ol +8, +,,3, p -6+/ See also Defeis, Eliza eth/ CProtocol to Pre"ent, Suppress and Punish Trafficking in Persons > % 1ew %pproach/D ILS, Journal of International 8 )o(!arative Law/ +,,8;+,,4, p 462B Dun ar, &ichelle :P/ CThe Past, Present, and =uture of !nternational Trafficking in ?omen for Prostitution/D Buffalo /o(ens Law Journal/ <ol 6, 3---, p 469/ 894 Clinton, ?illiam H/ C&emorandum for the Secretar' of State, the %ttorne' *eneral, the %dministrator of the agenc' for !nternational De"elopment, the Director of the (nited States !nformation %genc', &arch 33, 3--6, Su Gect: Steps to Com at <iolence %gainst ?omen and Trafficking in ?omen and *irls,D reprinted in +ransnational Brgani7ed )ri(e/ <ol 8, 3--9, p +34/ 892 *allagher, %nne/ CHuman )ights and the 1ew (1 Protocols on Trafficking and &igrant Smuggling: % Preliminar' %nal'sis/D *u(an $ights &uarterly/ <ol +8, +,,3, p -6+/ 895 *allagher, %nna &arie/ CTripl' E.ploited: =emale <ictims of Trafficking 1etworks > Strategies for Pursuing Protection and Legal Status in Countries of Destination/D %eorgetown I((igration Law Journal/ <ol 3-, +,,4, p 3,3/ 899 &cSherr', $ernadette and Susan Jnee one/ CTrafficking in ?omen and =orced &igration: &o"ing <ictims %cross the $order of Crime into the Domain of Human )ights/D +he International Journal of *u(an $ights/ <ol 3+, +,,6, p 9,/

l.."iii

=ollowing the de"elopment of international human rights law in the second half of the +,th centur', international human trafficking law once again ecame an issue dealt with in specific con"entions/ %s international human trafficking law e"ol"ed, there emerged a distinct shift from con"entions dealing solel' with the trafficking of white women for prostitution to far more encompassing international treaties that dealt with all t'pes of trafficking, including men and women/ !t was not until +,,, > nearl' a centur' after the first international agreement on human trafficking > that a treat' that regulated e"er' aspect of human trafficking was passed/ The ne.t wa"e of human trafficking con"entions marked the shift from a nearl' e.clusi"el' criminal; ased approach to a wider incorporation of human rights, alongside criminal law pro"isions/ =urthermore, the con"entions ecame more gender;neutral > although until +,,2896 there had alwa's een an emphasis on the trafficking of women and children > and the element of CwhitenessD was eliminated/89:ne e.planation86, as to wh' international law on human trafficking has esta lished human trafficking as a human rights "iolation is that human rights o ligations ma' e owed horizontall' as well as "erticall': 863 in other words, the State ma' owe responsi ilit' under human rights con"entions for acts of pri"ate indi"iduals against each other/ The E.planator' )eport of the +,,2 Council of Europe Con"ention considers horizontal application in the conte.t of the ECH) and comes to the following conclusion:
3:+;he case law of the Euro!ean )ourt of *u(an $ights contains clear indications in favour of the a!!lica#ility of the E)*$ to relations #etween !rivate individuals in the sense that the )ourt has recognised the lia#ility of contracting States for acts co((itted #y individuals or grou!s of individuals when these States failed to take a!!ro!riate (easures of !rotection"686+

896 89-

Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, Pream le/ !nternational Con"ention for the Suppression of the Traffic in ?omen and Children, 3-+3/ 86, Pro"ided in the E.planator' )eport of the +,,2 Council of Europe Con"ention, C&E+,,2F8+ %ddendum + final, 8 &a' +,,2/ 863 Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges, )'schard Cholewinski et al EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +9-/ 86+ E.planator' )eport of the +,,2 Council of Europe Con"ention, C&E+,,2F8+ %ddendum + final, 8 &a' +,,2 in Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges , )'schard Cholewinski et al EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +9-/

l..i.

The issue is the e.tent to which States ha"e taken appropriate measures of protection from human trafficking, including, for e.ample, enacting appropriate legislation/868 This still falls under the categor' of "ertical application ecause it esta lishes the lia ilit' of the State for failure to ensure protection/864% reach of human rights through a horizontal application occurs when the State fails to secure the rights or freedoms which ha"e een guaranteed/862 This means that it is the failure of the State to enact positi"e measures to ensure the protection of trafficked persons that classifies it as a human rights "iolation > not the criminal act of the trafficker/865 Transnational criminal law and ,.man rig,ts Transnational criminal laws are law enforcement instruments, as opposed to human rights instruments, and their primar' purpose is the effecti"e suppression of crime/869 States parties of these con"entions ha"e created instruments866 designed to target and eliminate a transnational crime that a num er of States ha"e deemed to e a threat to their so"ereignt' and securit'/ The inherent weakness of transnational criminal law is that its implementation tends to e State;centric/86- !n other words, transnational criminal laws > or issue; ased suppression con"entions > do not alwa's pro"ide safeguards or human rights pro"isions for the indi"iduals who are the "ictims of the crimes penalised/8-, !n terms of human rights, there are se"eral draw acks to transnational criminal law/ =irst, it is concerned with the welfare of State rather than indi"idual rights/ Secondl', if indi"iduals enefit from transnational criminal law, it is onl' incidentall' from a
868

Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges, )'schard Cholewinski et al EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +6,/ 864 Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges, )'schard Cholewinski et al EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +6,/ 862 Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges, )'schard Cholewinski et al EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +6,/ 865 Piotrowicz, )'szard/ CTrafficking of human eings and their human rights in the migration conte.tD in International Migration Law' Develo!ing aradig(s and -ey )hallenges, )'schard Cholewinski et al EedsF/ Cam ridge: Cam ridge (ni"ersit' Press, +,,9, p +63/ 869 $oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D *u(an $ights Law $eview/ <ol +, +,,+, p +35/ 866 $oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D *u(an $ights Law $eview/ <ol +, +,,+, p +39/ 86$assiouni, Cherif/ C%n %ppraisal of the *rowth and De"eloping Trends of !nternational Criminal Law/D $evue Internationale de Droit enal/ <ol 42, 3-94, p 4+9/ 8-, $assiouni, Cherif/ C%n %ppraisal of the *rowth and De"eloping Trends of !nternational Criminal Law/D $evue Internationale de Droit enal/ <ol 42, 3-94, p 4+9/

l...

StateAs use of the transnational criminal lawAs pro"isions to protect its own so"ereign interests/ Thirdl', States ha"e no standing to enforce the pro"isions of the con"entions on their own,8-3 and finall', perpetrators, and the "ictims of transnational crimes, such as trafficked persons, who ma' not e citizens of the State/ !f transnational criminal law relies upon the e.isting human rights framework in States parties to pro"ide necessar' safeguards for its citizens, it ma' pro"e to e pro lematic, as man' States ma' not ha"e sufficient national laws protecting human rights/8-+ States ma' e war' of accepting transnational criminal laws, with which their e.isting human rights o ligations or constitutional pro"isions ma' not permit them to compl'/8-8 This is not as much of a pro lem if the human rights in Iuestion are considered Fus cogens, as that will put an a solute limit on the transnational criminal law/8-4 Howe"er if the human rights in Iuestion are not considered Fus cogens, the pro"ision in the later treat' pre"ails/8-2 %s e.plained in Chapter +, trafficked persons reIuire a special set of human rights, which is also a factor, ecause oftentimes the more general human rights treaties do not contain pro"isions specific enough for their uniIue needs/ This is ecause general human rights treaties ma' ha"e little enefit to trafficked persons ecause the' are in a State illegall', and therefore ha"e little rele"ance to their situation/ %s a result, transnational criminal laws in de"elopment will most likel' add little to the scope of human rights alread' addressed internationall', regionall' and nationall'/ 8-5 9&(d THE (777 %N CON;ENT#ON %lthough not a human trafficking;specific con"ention, the +,,, (1 Con"ention is worth e.amining ecause it contains se"eral applica le pro"isions regarding transnational crime, and is the con"ention which led to the (1 Protocol to Pre"ent,
8-3

$oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D *u(an $ights Law $eview/ <ol +, +,,+, p +,8/ 8-+ $oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D *u(an $ights Law $eview/ <ol +, +,,+, p +3+/ 8-8 $oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D *u(an $ights Law $eview/ <ol +, +,,+, p +39/ 8-4 !n terms of %rticles 28 and 54 of the <ienna Con"ention on the Law of Treaties, 3-5-/ $oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D *u(an $ights Law $eview/ <ol +, +,,+, p +36/ 8-2 =ound in %rticle 8 of the <ienna Con"ention on the Law of Treaties, 3-5-/ $oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D *u(an $ights Law $eview/ <ol +, +,,+, p +3-/ 8-5 $oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D *u(an $ights Law $eview/ <ol +, +,,+, p +39/

l...i

Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children/ =ramework con"entions, such as the +,,, (1 Con"ention, are t'picall' supplemented with protocols on specific issues or topics of rele"ance, which go into greater detail a out the scope of the o ligations of the States parties of the con"ention/8-9 The +,,, (1 Con"ention stipulates that a crime is transnational in nature if it is committed in more than one State/8-6 The con"ention adopts this approach and pro"ides three situations when it takes place: 3F if it is committed in one State ut a su stantial part of its preparation, planning, direction or control takes place in another StateB8-- +F if it is committed in one State ut in"ol"es an organised criminal group that engages in criminal acti"ities in more than one StateB4,, or 8F if it is committed in one State ut has su stantial effects in another State/4,3 Howe"er, unlike national criminal law, which stipulates specific punishments for offenders, transnational criminal law instructs States parties to adopt national legislation that criminalises and as a result, punishes certain acts/ ?hen States adopt transnational legal instruments, the' are agreeing to implement national laws that meet at least a certain minimum standard, to ensure that certain acts are criminalised ' all States parties, therefore creating transnational criminal law/ The +,,, (1 Con"ention made the important de"elopment of defining se"eral terms associated with human trafficking/ =or instance, the term Corganised criminal groupD is defined as Ca structured group of three or more persons, e.isting for a period of time and acting in concert with the aim of committing one or more serious crimes or offences esta lished in accordance with this Con"ention, in order to o tain, directl' or indirectl', a financial or other material enefit/D4,+ :rganised criminal groups pertain to human trafficking ecause of the inherent link etween human trafficking and organised crime/ CSerious crimeD is defined as Cconduct constituting an offence punisha le ' a ma.imum depri"ation of li ert' of at least four 'ears or a more
8-9

=itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law/ <ol +4, p 3346/ 8-6 (nited 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt 8E+FEaF/ 8-(nited 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt 8E+FE F/ 4,, (nited 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt 8E+FEcF/ 4,3 (nited 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt 8E+FEdF/ 4,+ (ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt + EaF/

l...ii

serious penalt'/D4,8 Serious crime pertains to human trafficking, as it falls under that categor' of offences/ CStructured groupD is defined as Ca group that is not randoml' formed for the immediate commission of an offence and that does not need to ha"e formall' defined roles for its mem ers, continuit' of its mem ership or a de"eloped structure/D4,4 Structured groups pertain to human trafficking ecause the process of human trafficking ma' not take place under the categor' of organised crime, ut is unlikel' to in"ol"e a single person, and therefore ma' in"ol"e a structured group/ Criminal law The +,,, (1 Con"ention criminalises the participation in an organised criminal group/4,2 %lthough it does not specificall' mention human trafficking, the +,,, (1 Con"ention does reIuire States parties to adopt legislation that criminalises the participation in a criminal group that ma' take part in human trafficking offences/ The +,,, (1 Con"ention also reIuires States parties to pro"ide sanctions for the offences related to transnational organised crime, and to ensure that the prosecution of those offenders is done so to ma.imise the effecti"eness of law enforcement measures/4,5 The +,,, (1 Con"ention contains se"eral references to the rights of the accused, including the rights of the defence,4,9 and guaranteeing fair treatment during all the stages of e.tradition, according to the national law of the State in the territor' of which the accused is present/4,6 These are, howe"er, onl' references and rel' upon e.isting laws in place internationall' and nationall'/ (nder the +,,, (1 Con"ention, the traffickers are the ones who would enefit from the inclusion of these rights/ H.man rig,ts !n terms of human rights, the +,,, (1 Con"ention pro"ides for the protection of witnesses in criminal proceedings who gi"e testimon' concerning offences related to transnational organised crime/4,- This pertains to human trafficking ecause trafficked

4,8 4,4

(ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt + E F/ (ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt + EcF/ 4,2 (ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt 2/ 4,5 (ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt 33/ 4,9 (ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rts 33E8F and +4E+F/ 4,6 (ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt 35E38F/ 4,(ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt +4/

l...iii

persons ma' testif' against their traffickers, ut ma' e unwilling or una le to do so for fear of retri ution or retaliation from the trafficker/ =urthermore, the +,,, (1 Con"ention pro"ides assistance and protection for "ictims,43, which would appl' to trafficked persons/ This applies in particular in cases of threat of retaliation or intimidation433 > which ma' occur when dealing with trafficked persons/ States parties must also esta lish procedures to pro"ide access to compensation and restitution for "ictims of organised crimes/43+ Lastl', States parties must ena le the "iews and concerns of "ictims to e presented and considered at appropriate stages of the criminal proceedings against offenders in a manner that is not preGudicial to the rights of the defence/438 This would allow trafficked persons to seek compensation from their traffickers, as well as ha"e their "iews and concerns represented in court/ The +,,, (1 Con"ention makes progress in terms of transnational criminal laws dealing with human rights/ !t includes a num er of pro"isions on defence rights and fair treatment that demonstrate the need to address indi"idual human rights in transnational criminal law/434 Howe"er, in other cases, onl' particularl' in"asi"e pro"isions are coupled with recognition of their human rights impact, and those protections are not alwa's compulsor'/ 432 9&(e THE (777 ALER'O ROTOCOL The +,,, Palermo Protocol is one of three protocols to the +,,, (1 Con"ention created to deal with specific t'pes of organised crime/ The two remaining protocols address the smuggling of migrants, and the illicit manufacturing and trafficking of firearms/ ?hile the +,,, (1 Con"ention was a mechanism to deal with organised crime generall', each of the three protocols addresses specific concerns of States with regards to their so"ereignt', securit' and a particular organised crime/435
43, 433

(ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt +2/ (ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt +2E3F/ 43+ (ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt +2E+F/ 438 (ntied 1ations Con"ention %gainst Transnational :rganised Crime, +,,,, %rt +2E8F/ 434 $oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D *u(an $ights Law $eview/ <ol +, +,,+, p +38/ 432 $oister, 1eil/ CHuman )ights Protections in the Suppression Con"entions/D Human )ights Law )e"iew/ <ol +, +,,+, p +38/ 435 $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, pp ++4;++2/

l...i"

The inclusion of human trafficking in a protocol of the +,,, (1 Con"ention marked a shift in how the (1 dealt with trafficking/ ?hile the earl' +,th centur' approach focused on the international se. trade, ' +,,, this was no longer the case and human trafficking was placed under the heading of international criminal acti"it'/ 439 $' defining human trafficking in the +,,, (1 Con"ention and +,,, Palermo Protocol as a pro lem of transnational organised crime rather than a migration or human rights issue, it was agreed internationall' that human trafficking should e dealt with using criminal law/436 States adopted the +,,, (1 Con"ention and +,,, Palermo Protocol in a relati"el' short period of time ecause the' percei"ed the crime of human trafficking to e a threat to their so"ereignt' and securit'/ 43- Considering human trafficking under the um rella of transnational organised crime, trafficked persons were constructed as oth an agent, as well as a "ictim of a crime, with an emphasis on e.ploitation/4+, ?hile the human trafficking referred to the in +,,, Palermo Protocol is Cespeciall'D that of women and children, ' making that specification, it also encompasses trafficking in men, for whom human rights are also mandator'/ This definition of human trafficking also roadens the scope of human trafficking addressed in international law to include trafficking for purposes other than se.ual e.ploitation, such as forced la our, and for the remo"al of organs/ =urthermore, the +,,, Palermo Protocol is the first international legal instrument to pro"ide a more e.tensi"e list of human rights, notwithstanding the fact that the' are not all mandator', as is the case with the criminal law pro"isions/ T,e develo+ment of t,e (777 alermo rotocol
439

Jempadoo, Jamala/ C=rom &oral Panic to *lo al !nGustice: Changing Perspecti"es on TraffickingD in +rafficking and rostitution $econsidered' 1ew ers!ectives on Migration, Sex /ork, and *u(an $ights" Jamala Jempadoo EedF/ London: Paradigm Pu lishers, +,,2, p .iiiB Shell', Louise/ CHuman trafficking as a form of transnational crime/D in *u(an +rafficking, &agg' Lee EedF/ De"on: ?illlan Pu lishing, +,,9, p 339/ 436 Shell', Louise/ CHuman trafficking as a form of transnational crime/D in *u(an +rafficking, &agg' Lee EedF/ De"on: ?illlan Pu lishing, +,,9, p 339/ 43$ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p ++4/ 4+, &cSherr', $ernadette and Susan Jnee one/ CTrafficking in ?omen and =orced &igration: &o"ing <ictims %cross the $order of Crime into the Domain of Human )ights/D +he International Journal of *u(an $ights/ <ol 3+, +,,6, p 68/

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The process of drafting and adopting oth the +,,, (1 Con"ention and the +,,, Palermo Protocol occurred in a relati"el' short period of time/ The +,,, Palermo Protocol was drafted ' an ad hoc committee comprised of State delegates in"ol"ed in the (1 crime control programme, which is not an area in which human rights groups or migration or refugee odies ha"e t'picall' participated/4+3 Howe"er, for this particular protocol, there was su stantial in"ol"ement of human rights 1*:s and !*:s, including the (nited 1ations High Commissioner for )efugees E(1HC)F and the :ffice of the (nited 1ations High Commissioner for Human )ights E:HCH)F, which were a le to mo ilise and influence the drafting of the +,,, Palermo Protocol towards the inclusion of human rights pro"isions/4++ The 1*:s and !*:s di"ided into human rights@womenAs rights and crime control@migration control factions, though it is worth noting that the human rights and womenAs rights coalition managed to interact with and influence the crime and migration control group and participate in the drafting process/4+8 The in"ol"ement of the :HCH) and the anti;trafficking 1*:s in the drafting process of the +,,, Palermo Protocol created a new identit' for trafficked persons as "ictims of se"ere human rights a uses, rather than as criminals or illegal immigrants/4+4 This shift in identit' ma' ha"e een largel' s'm olic ecause it is up to indi"idual States to implement and enforce national laws > including oth criminal and human rights pro"isions/4+2 Despite the successes of the human rights organisations in the drafting process, the +,,, Palermo Protocol remains primaril' a treat' on criminal law and migration control, as most of the human rights pro"isions are non inding/4+5
4+3

=itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law/ <ol +4, p 332,/ 4++ =itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law/ <ol +4, p 332,/ 4+8 =itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law/ <ol +4, p 332,/ 4+4 =itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law/ <ol +4, p 3323/ 4+2 =itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law/ <ol +4, p 3323/ 4+5 $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans; %tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p ++9B =itzpatrick, Hoan/ CTrafficking as a Human )ights <iolation: The Comple. !ntersection of Legal =rameworks for Conceptualizing and Com ating Trafficking/D Michigan Journal of International Law/ <ol +4, p 3323/

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The most contro"ersial aspect of the drafting of the +,,, Palermo Protocol, howe"er, was the issue of consent, and whether non;forced adult prostitution should e included in the definition/4+9 :ne side argued that a reIuirement of coercion would legitimise prostitution, taking the "iew that an' prostitution is a human rights "iolation/4+6 The opposing side elie"ed that the inclusion of non;forced prostitution would lur the line etween human trafficking and smuggling/4+- E"entuall' a compromise was reached in the form of the final definition appearing in the +,,, Palermo Protocol/ The adoption of the +,,, (1 Con"ention and the +,,, Palermo Protocol directl' reflects the notion that glo alising conditions promote human trafficking, and that migration law e"asion represents a threat to State so"ereignt'/ 48, 1ew technolog' and glo alisation help the process of human trafficking, making it, along with smuggling, "er' coordinated and well;resourced/483 States recognised this, and were moti"ated ' the potential "iolation so"ereignt' posed ' this increasing "ehicle of illegal migration/ The moti"ation of State so"ereignt' and securit' ehind the +,,, Palermo Protocol produced two effects/ =irst, it had an impact on the wording of the protocol itself, which had stronger language in the criminal law elements than in the human rights pro"isions/ Secondl', it has affected the enforcement of the protocol, the main facult' with which to ensure that the protocolAs criminal law elements are implemented/

4+9

$ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 38B Defeis, Eliza eth/ CProtocol to Pre"ent, Suppress and Punish Trafficking in Persons > % 1ew %pproach/D ILS, Journal of International 8 )o(!arative Law/ +,,8;+,,4, p 462B Dun ar, &ichelle :P/ CThe Past, Present, and =uture of !nternational Trafficking in ?omen for Prostitution/D Buffalo /o(ens Law Journal/ <ol 6, 3---, p 466B &cSherr', $ernadette and Susan Jnee one/ CTrafficking in ?omen and =orced &igration: &o"ing <ictims %cross the $order of Crime into the Domain of Human )ights/D +he International Journal of *u(an $ights/ <ol 3+, +,,6, p 93/ 4+6 &cSherr', $ernadette and Susan Jnee one/ CTrafficking in ?omen and =orced &igration: &o"ing <ictims %cross the $order of Crime into the Domain of Human )ights/D +he International Journal of *u(an $ights/ <ol 3+, +,,6, p 93/ 4+&cSherr', $ernadette and Susan Jnee one/ CTrafficking in ?omen and =orced &igration: &o"ing <ictims %cross the $order of Crime into the Domain of Human )ights/D +he International Journal of *u(an $ights/ <ol 3+, +,,6, p 93/ 48, Dau"ergne, Catherine/ Making eo!le Illegal' /hat %lo#ali7ation Means for Migration and Law" 1ew #ork: Cam ridge Press: +,,6, p 93/ 483 Dau"ergne, Catherine/ Making eo!le Illegal' /hat %lo#ali7ation Means for Migration and Law" 1ew #ork: Cam ridge Press: +,,6, p 93/

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%s the international human trafficking treaties prior to the +,,, Palermo Protocol were primaril' focused on criminal law rather than human rights, human rights did not enter the dialogue until the' were addressed and considered in de"ising protection strategies in destination States/48+ =urthermore, during the drafting process of the +,,, Palermo Protocol, 1*:s maintained that the protocol should include the right of trafficked persons to remain in the destination State/488 This position was not supported ' go"ernments of destination States that elie"ed that this right would encourage illegal migration/484 The +,,, Palermo Protocol can e "iewed as ha"ing a stronger connection to criminal law than human rights simpl' ecause it is a protocol to a con"ention focused on crime/482 % State must ecome a part' to the con"ention itself in order to ecome a part' to the protocol, and agree to adopt all of its criminal pro"isions, pa'ing particular attention to organised crime/485 !n this con"ention and protocol, human trafficking is treated as a component of organised crime/489 To ensure that the +,,, Palermo Protocol did not interfere with StatesA internal affairs > managing the issue of internall' trafficked persons > the treat' onl' applies to transnational trafficking cases/486 Criminal law

48+

*allagher, %nna &arie/ CTripl' E.ploited: =emale <ictims of Trafficking 1etworks > Strategies for Pursuing Protection and Legal Status in Countries of Destination/D %eorgetown I((igration Law Journal/ <ol 3-, +,,4, p 3,8/ 488 *allagher, %nna &arie/ CTripl' E.ploited: =emale <ictims of Trafficking 1etworks > Strategies for Pursuing Protection and Legal Status in Countries of Destination/D %eorgetown I((igration Law Journal/ <ol 3-, +,,4, p 3,8/ 484 *allagher, %nna &arie/ CTripl' E.ploited: =emale <ictims of Trafficking 1etworks > Strategies for Pursuing Protection and Legal Status in Countries of Destination/D %eorgetown I((igration Law Journal/ <ol 3-, +,,4, p 3,8/ 482 $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 35B Srikantiah, Ha'ashri/ CPerfect <ictims and )eal Sur"i"ors: The !conic <ictim in Domestic Human Trafficking Law/D Boston 0niversity Law $eview/ <ol 96, +,,9, p 356/ 485 $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 35/ 489 $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 35/ 486 Jing, Sarah/ CHuman Trafficking: %ddressing the !nternational Criminal !ndustr' in the $ack'ard/D 0niversity of Mia(i International 8 )o(!arative Law $eview" <ol 32, +,,6, p 899/

l..."iii

The +,,, Palermo Protocol reIuires all States parties to criminalise trafficking and its related offences,48- including attempting to traffic,44, participating as an accomplice,443 and organising or directing trafficking44+ while participating in organised criminal gangs/ This indicates a shift from the pre"ious international human trafficking laws, which roadl' reIuire States parties to criminalise human trafficking, to criminalising more specific features of the trafficking process/ H.man rig,ts &ost of the ci"il and political human rights granted to trafficked persons ' the +,,, Palermo Protocol fall under the categor' of freedom of mo"ement, and are temporar'/ States parties must allow trafficked persons to remain in the State for at least 8, da's, during a Creco"er' and reflection periodD to gi"e them the opportunit' to reco"er and escape influence of traffickers, make an informed decision on cooperating with authorities, and to recei"e assistance/448 States parties must also ensure that trafficked persons ha"e access to information on rele"ant Gudicial and administrati"e proceedings in a language which the' can understandB free legal aid or assistanceB and the right to compensation from the traffickers/444 Lastl', the origin States of trafficked persons must facilitate and accept their timel' return, taking into account their rights, safet' and dignit'/442 !n addition, the Protocol protects the pri"ate li"es of the trafficked people, not allowing the State to make pu lic their identit' or personal data/445
48-

(nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 2E3F and E+F/ 44, (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 2E+FEaF/ 443 (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 2E+FE F/ 44+ (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 2E+FEcF/ 448 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 38/ !n (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 9, CStates shall considerD permitting trafficked persons to remain in its territor', either permanentl' or temporaril', in appropriate cases/ 444 (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5E+FE F and 5E5FB +,,2 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 32/ 442 (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 6B Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 35E3FB (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 6/ 445 (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5E3FB +,,2 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 33/

l...i.

The +,,, Palermo Protocol also reIuires States parties to consider adopting economic and social human rights pro"isions/ Howe"er, unlike the criminal aspect or the ci"il and political rights, the economic and social rights are onl' suggestions, not reIuirements for States parties, using the language CStates shall considerD or Cshall endea"our/D449 Specific pro"isions include pro"iding secure accommodationB446 ps'chological, medical and material assistanceB44- counselling and information, particularl' in relation to legal matters, in a language the' understandB42, legal assistanceB423 and emplo'ment, educational and training opportunities/42+ revention and monitoring The +,,, Palermo Protocol also includes pro"isions for the pre"ention of human trafficking/428 &ethods of pre"ention include policies and programmes to pre"ent and com at trafficking, ena ling migration to take place legall' whene"er possi le, and working in conGunction with 1*:s and other elements of ci"il societ' to pre"ent trafficking/424 !n addition, States parties must also adopt measures that discourage the demand for trafficked persons,422 strengthen order controls to pre"ent trafficking,425 and ensure that identit' documents are secure, controlled,429 legitimate and "alid/426
449

(nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5/ 446 (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5E8FEaF/ 44(nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5E8FEcF/ 42, (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5E8FE F/ 423 (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5E+FE F/ 42+ (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5E8FEdF/ 428 (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, Chapter !!!/ 424 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 2B (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt -/ 422 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 5B (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt -E2F/ 425 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 9B (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 33/ 429 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 6B (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 3+/ 426 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt -B (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and

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The +,,, Palermo Protocol does not contain pro"isions for an international o"ersight od' on human trafficking/ !n +,,+, the (1HC) issued Principles and *uidelines on Human )ights and Trafficking, pro"iding recommendations for adopting the +,,, Palermo Protocol, particularl' in the area of human rights/42- The document went into detail regarding how trafficked persons should e treated in destination States, as well as discussing criminal elements of human trafficking/45, A new develo+ment A %N&)#FT !n +,,9, the (1 *lo al !nitiati"e to =ight Human Trafficking E(1/*!=TF was formed with the aim of pro"iding a framework for States to cooperate to address human trafficking/453 Part of the (1:DC, (1/*!=T aims to consolidate and coordinate the glo al fight against human trafficking/45+ The mission of (1/*!=T is to increase the knowledge and awareness of human traffickingB promote effecti"e rights; ased responsesB uild capacit' of State and non;State actorsB and foster partnerships for Goint action against human trafficking/458 9&(f E%RO EAN %N#ON 'EAS%RES Each of the case studies e.amined in this dissertation > with the e.ception of 1orwa' > are mem er States of the E(/ %s a result, the national laws of the mem er States are influenced ' inding measures issued ' the E(/ The E( responds to human trafficking as oth in the conte.t of organised crime and immigration control/454 ?orking in conGunction with the (1 and Council of Europe,
Children, +,,,, %rt 38/ 42(nited 1ations High Commission for Human )ights/ CPrinciples and *uidelines on Human )ights and Trafficking/D E@+,,+@56@%dd/3, +,,+/ 45, (nited 1ations High Commission for Human )ights/ CPrinciples and *uidelines on Human )ights and Trafficking/D E@+,,+@56@%dd/3, +,,+/ 453 Jing, Sarah/ CHuman Trafficking: %ddressing the !nternational Criminal !ndustr' in the $ack'ard/D 0niversity of Mia(i International 8 )o(!arative Law $eview" <ol 32, +,,6, p 892/ 45+ (nited 1ations *lo al !nitiati"e to =ight Human Trafficking/ C% out (1/*!=T/D http:@@www/ungift/org@ungift@en@a out@inde./html/ Last accessed 38 :cto er +,,6/ 458 (nited 1ations *lo al !nitiati"e to =ight Human Trafficking/ C% out (1/*!=T/D http:@@www/ungift/org@ungift@en@a out@inde./html/ Last accessed 38 :cto er +,,6/ 454 European Parliament/ C=reedom, Securit' and Hustice: %n %genda for Europe/ Trafficking in Human $eings/D http:@@www/europarl/europa/eu@comparl@li e@elsG@zoom0in@430en/htmUtop/ Last accessed 6 Septem er +,,-/

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the E( works within the framework of oth the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention/452 !n 3--5, the European Parliament recommended initiating measures to com at human trafficking/455 !n a resolution of &a' +,,,, the European Parliament called for a clear and concise definition of human trafficking, as well as a legal framework to respond to human trafficking at the European le"el including oth criminal law and human rights elements/459 This came into fruition with the +,,+ Council =ramework Decision, 456 and later the +,,4 Council Directi"e, oth e.plained elow/45- These are the two most important E( measures on human trafficking ecause the' are inding upon the mem er States/49, !n addition, the Proposal for a Comprehensi"e Plan to Com at !llegal !mmigration and Trafficking of Human $eings in the European (nion was adopted ' the Hustice and Home %ffairs Council in +,,+, pro"iding proposals for measures to com at oth human trafficking and illegal immigration into the E(/493 (77( Co.ncil Framework $ecision The +,,+ Council =ramework Decision takes a criminal approach to com ating human trafficking and esta lishes the minimum reIuirements for States to adopt in order to achie"e the o Gecti"es on a European le"el/49+ !t reIuires mem er States to Ctake measuresD to criminalise human trafficking498 and pro"ide appropriate punishments for such offences, including a ma.imum penalt' of a prison sentence of at least eight 'ears/494 !t also includes pro"isions that reIuire States to criminalise human trafficking ' legal persons492 and esta lish Gurisdiction o"er human trafficking
452

European Parliament/ C=reedom, Securit' and Hustice: %n %genda for Europe/ Trafficking in Human $eings/D http:@@www/europarl/europa/eu@comparl@li e@elsG@zoom0in@430en/htmUtop/ Last accessed 6 Septem er +,,-/ 455 European Parliament/ C=reedom, Securit' and Hustice: %n %genda for Europe/ Trafficking in Human $eings/D http:@@www/europarl/europa/eu@comparl@li e@elsG@zoom0in@430en/htmUtop/ Last accessed 6 Septem er +,,-/ 459 European Parliament/ C=reedom, Securit' and Hustice: %n %genda for Europe/ Trafficking in Human $eings/D http:@@www/europarl/europa/eu@comparl@li e@elsG@zoom0in@430en/htmUtop/ Last accessed 6 Septem er +,,-/ 456 This Council =ramework Decision replaces the Council Hoint %ction -9@324@HH%, 3--9 which discussed com ating human trafficking and se.ual e.ploitation of children/ 45European Parliament/ C=reedom, Securit' and Hustice: %n %genda for Europe/ Trafficking in Human $eings/D http:@@www/europarl/europa/eu@comparl@li e@elsG@zoom0in@430en/htmUtop/ Last accessed 6 Septem er +,,-/ 49, This includes each of the case studies in this dissertation, with the e.ception of 1orwa'/ 493 European (nion/ CComprehensi"e Plan to Com at !llegal !mmigration and Trafficking of Human $eings in the European (nion/D E+,,+@C 34+@,+F +6 =e ruar' +,,+/ 49+ Council =ramework Decision +,,+@5+-@HH%, 3- Hul' +,,+, Pream le E9F/ 498 Council =ramework Decision +,,+@5+-@HH%, 3- Hul' +,,+, %rt 3/ 494 Council =ramework Decision +,,+@5+-@HH%, 3- Hul' +,,+, %rt 8/ 492 Council =ramework Decision +,,+@5+-@HH%, 3- Hul' +,,+, %rt 4 and 2/

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offences/495 The +,,+ Decision contains an article titled CProtection of and assistance to "ictims,D which contains e.tremel' limited human rights pro"isions/ !t states that in"estigations into or prosecutions of human trafficking offences shall not e dependent on the accusation made ' a trafficked person,499 and stipulates that trafficked children should e considered particularl' "ulnera le, and appropriate assistance should e granted to the child and his or her famil'/ 496 !n +,,-, the Council drafted a new framework decision, intended to replace the +,,+ Decision, and aiming to impro"e the e.isting human trafficking instruments/ The new framework decision will include a strengthening of the punishments for trafficking offenders, granting special treatment to trafficked persons in criminal proceedings including non;punishment of those who ear the conseIuences of criminal acti"ities, and a higher standard of protection and assistance to trafficked persons/49-

(779 Co.ncil $irective The +,,4 Council Directi"e stipulates the conditions under which trafficked persons are permitted to o tain a temporar' residence permit in e.change for their participation in criminal human trafficking proceedings/46, !t does, howe"er, state that States are permitted to adopt or maintain more fa"oura le pro"isions for trafficked persons > in other words, pro"isions that would not reIuire their participation in in"estigations/463 The Directi"e states that third;countr' nationals trafficked into the E( should e gi"en a reflection period to allow them to make an informed decision as to whether or not to cooperate with authorities, during which time the' shall recei"e assistance and protection/46+ :nce that period is o"er, if the trafficked person meets a set of criteria, including cooperation with authorities and se"ering all ties with his or her trafficker, he or she ma' e granted a temporar' residence permit and recei"e

495 499

Council =ramework Decision +,,+@5+-@HH%, 3- Hul' +,,+, %rt 5/ Council =ramework Decision +,,+@5+-@HH%, 3- Hul' +,,+, %rt 9E3F/ 496 Council =ramework Decision +,,+@5+-@HH%, 3- Hul' +,,+, %rt 9E+F and E8F/ 49European (nion Hustice and Home %ffairs Council/ C$ackground: Hustice and Home %ffairs Council/D Lu.em ourg, 5 %pril +,,-, p 8;4/ 46, Council Directi"e +,,4@63@EC, +- %pril +,,4, %rt 3/ !reland is not ound ' this Directi"e/ 463 Council Directi"e +,,4@63@EC, +- %pril +,,4, %rt 4/ 46+ Council Directi"e +,,4@63@EC, +- %pril +,,4, %rt 5/

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assistance and protection while under the residence permit/468 The residence permit ma' onl' e renewed if the trafficked person meets the aforementioned criteria,464 and ma' e withdrawn at an' stage if the criteria fail to e met/462 9&(g THE (77: CO%NC#L OF E%RO E CON;ENT#ON Each of the si. case studies e.amined in this dissertation are mem er States of the Council of Europe/ E"er' case stud' State has signed the +,,2 Council of Europe Con"ention, ut !reland and Lu.em ourg ha"e 'et to ratif'/ T,e develo+ment of t,e (77: Co.ncil of E.ro+e Convention The impetus for the +,,2 Council of Europe Con"ention egan in the 3--,s,465 ut was onl' acted upon ' a recommendation of the Committee of &inisters in +,,,, which encouraged the mem er States to focus on the pre"ention of human trafficking, the protection of trafficked persons, and the prosecution of perpetrators/469 The E.planator' )eport to the con"ention states that legislati"e acti"ities alone are not sufficient and that Cpre"ention and assistance to "ictimsD must e included/466 Criticism of the narrow scope of the +,,, Palermo Protocol was what prompted the Council of Europe to adopt a roader approach in its con"ention,46- which does not reIuire the transnational component, or an organised criminal group, and as a result, e.panded the protection afforded to trafficked persons/4-, !n oth the +,,, Palermo
468 464

Council Directi"e +,,4@63@EC, +- %pril +,,4, %rt 6/ Council Directi"e +,,4@63@EC, +- %pril +,,4, %rt 38/ 462 Council Directi"e +,,4@63@EC, +- %pril +,,4, %rt 34/ 465 !t must e noted, howe"er, that the European Con"ention on Human )ights of 3-2, was also its predecessor in terms of a regional human rights instrument/ 469 Council of Europe Committee &inisters, $eco((endation of the )o((ittee of Ministers to the Me(#er States on ,ction ,gainst +rafficking in *u(an Beings for the ur!ose of Ex!loitation, 93,th session, Document 1o )E+,,,F 33, 3- &a' +,,, in Sem acher, %nke, CThe Council of Europe Con"ention on %ction %gainst Trafficking in Human $eings/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5, p 485/ 466 Council of Europe/ Ex!lanatory $e!ort on the )ouncil of Euro!e )onvention on ,ction ,gainst +rafficking in *u(an Beings, 35 &a', +,,2, CETS, p 3-9 in Sem acher, %nke/ CThe Council of Europe Con"ention on %ction %gainst Trafficking in Human $eings/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5, p 486/ 46=eingold, Da"id %/ CHuman Trafficking/D 9oreign olicy/ <ol 32,, +,,2, p +6 in Sem acher, %nke/ CThe Council of Europe Con"ention on %ction %gainst Trafficking in Human $eings/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5, p 44,/ 4-, %miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com ating the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview" <ol 3+, +,,5, pp +6;+-B Sem acher, %nke/ CThe Council of Europe Con"ention on %ction %gainst Trafficking in Human $eings/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5, p

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Protocol and the +,,2 Council of Europe Con"ention, States ma' ha"e een concerned with organised criminal groupsA participation in human trafficking as a specific threat to State so"ereignt'/ !n addition to strengthening the human rights of pre"ious human trafficking con"entions, the +,,2 Council of Europe Con"ention also recognises the important role of ci"il societ' in com ating human trafficking,4-3 as neither State nor non;State actors can sol"e the pro lem without the cooperation of the other/4-+ Aim of t,e (77: Co.ncil of E.ro+e Convention The aim of the +,,2 Council of Europe Con"ention is to enhance the +,,, Palermo Protocol, particularl' in terms of placing the human rights pro"isions on a le"el eIual to the criminal aspect/ 4-8 %lthough the con"ention applies to all forms of human trafficking > national or transnational4-4 > for the purpose of this dissertation, it is e.amined it in a transnational conte.t/ The con"ention puts human rights first in the document, makes them mandator' rather than discretionar', and also uses the same language for oth human rights and criminal pro"isions, specif'ing that States parties CshallD adopt or take certain measures in oth circumstances/4-2 This con"ention is also "er' specific in the indi"idual pro"isions for trafficked persons than an' of the pre"ious instruments, oth in terms of criminal law and human rights/ &oreo"er, the +,,2 Council of Europe Con"ention stipulates that all the actions and initiati"es against human trafficking must e non;discriminator', and take gender eIualit' and a child;rights approach into account/4-5 The +,,2 Council of Europe Con"ention is stronger on ci"il and political, as well as economic and social rights than the +,,, Palermo Protocol/ This occurred ecause it was easier to come to consensus within Europe, and a smaller num er of States had to agree on the pro"isions than on the international +,,, Palermo Protocol/ Criminal law

44,/ 4-3 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 2/ 4-+ Sem acher, %nke/ CThe Council of Europe Con"ention on %ction %gainst Trafficking in Human $eings/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5, p 444/ 4-8 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, Pream le/ 4-4 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +/ 4-2 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2/ 4-5 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, Pream le/

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)einforcing the 3-4- Con"ention and the +,,, Palermo Protocol, the +,,2 Council of Europe Con"ention also criminalises participation in the process of human trafficking,4-9 including the acts relating to tra"el or identit' documents,4-6 as well as esta lishing corporate lia ilit'/4-- !n order to reinforce the seriousness of the crime of human trafficking, the +,,2 Council of Europe Con"ention pro"ides more specific guidelines for States parties to adopt legislation that pro"ides effecti"e, proportionate and dissuasi"e sanctions for criminal trafficking offences, as well as other more stringent action against offenders/2,, The Con"ention specifies that States parties must enact legislation that confiscates and depri"es the offenders of an' instrumentalities and proceeds of the criminal offences,2,3 and ena le the temporar' or permanent closure of an' esta lishment used to carr' out human trafficking/2,+ States parties must also ensure that the following circumstances are regarded as aggra"ating circumstances: the offence deli eratel' or ' gross negligence endangered the life of the "ictimB2,8 the offence was committed against a childB2,4 the offence was committed ' a pu lic official in the performance of his@her dutiesB2,2 or the offence was committed within the framework of a criminal organisation/2,5 States parties must take into consideration pre"ious con"ictions when determining the penalt' for traffickers/2,9 Lastl', the Con"ention stipulates that States parties must pro"ide for the opportunit' of not imposing penalties on trafficked people, once the' are identified as such, for their in"ol"ement in unlawful acti"ities to the e.tent that the' ha"e een compelled to do so/2,6 !n addition to criminalising the process of trafficking itself, the +,,2 Council of Europe Con"ention goes a step further and suggests that States parties adopt legislation and other measures to criminalise the e.ploitation of a person with the
4-9 4-6

Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 36/ Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +,/ 4-Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt ++/ 2,, Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +8E3F/ 2,3 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +8E8F/ 2,+ Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +8E4F/ 2,8 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +4EaF/ 2,4 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +4E F/ 2,2 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +4EcF/ 2,5 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +4EdF/ 2,9 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +2/ 2,6 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +5/

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knowledge that he or she has een trafficked/2,- States parties must also criminalise offences related to tra"el or identit' documents, including forging a documentB23, procuring or pro"iding a documentB233 or retaining, remo"ing, concealing, damaging or destro'ing a document of another person/23+ The Con"ention also stipulates that States parties must pro"ide for the possi ilit' of not imposing penalties on "ictims for illegal acti"ities as a result of them eing forced to do so/238 The +,,2 Council of Europe Con"ention addresses further elements relating to the in"estigations and prosecutionsB234 the protection of "ictims, witnesses and colla oratorsB232 and in terms of the in"estigations, the con"ention stipulates that States parties must ensure that in"estigations are not dependent upon a report or accusation made ' a "ictim, when the offence is committed at least in part in its territor'/235 =urthermore, a trafficked person ma' make a complaint in their origin State, the competent authorities of which must inform the authorities in the State in which the crime was committed/239 H.man rig,ts *i"en the human rights; ased approach of the +,,2 Council of Europe Con"ention descri ed in the Pream le,236 the con"ention encompasses all human rights elements in the 3-4- Con"ention and the +,,, Palermo Protocol, making them mandator', and then adding to the scope of the assistance and protection States parties are o liged to pro"ide for trafficked persons/ The +,,2 Council of Europe Con"ention is the onl' of these three con"entions to define C"ictim,D and does so as Can' natural person who is su Gect to trafficking in human eings/D23- States parties must ensure that the rele"ant
2,-

!n Council of Europe Con"ention on %ction against Trafficking in Human $eings it sa's that States Cshall considerD adopting measures criminalizing the use of trafficked persons/ Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3-/ 23, Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +,EaF/ 233 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +,E F/ 23+ Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +,EcF/ 238 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +5/ 234 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +9 232 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +6/ 235 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +9E3F/ 239 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +9E+F/ 236 The Pream le of the Council of Europe Con"ention states: CConsidering that trafficking in human eings constitutes a "iolation of human rights and an offence to the dignit' and the integrit' of the human eingB7Considering that respect for "ictimsA rights, protection of "ictims and action to com at trafficking in human eings must e the paramount o Gecti"es7D Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, Pream le/ 23Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 4EeF/

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authorities are trained in identif'ing and su seIuentl' helping trafficked persons, and that once identified, the' are treated as "ictims of a crime and pro"ided with the necessar' assistance/2+, States parties must also ensure that 1*:s or other groups aimed at tackling human trafficking or promoting human rights ma' assist and@or support trafficked persons with their criminal in"estigations, with their consent/2+3 &oreo"er, States parties should also ensure that the trafficked persons are safe and protectedB2++ that there is cooperation to pro"ide ser"ices with 1*:s and elements of ci"il societ'B2+8 and that assistance to trafficked persons is not conditional on his or her willingness to act as a witness, 2+4 and is gi"en on a consensual and informed asis/2+2 States parties are also o ligated to pro"ide protection from retaliation or intimidation during and after in"estigation and prosecution of the perpetrators for "ictimsB2+5 those who report offences or cooperate with in"estigationsB2+9 witnesses who gi"e testimon'B2+6 famil' mem ers of the aforementioned personsB2+- and mem ers of groups or 1*:s in"ol"ed with the in"estigation/28, The +,,2 Council of Europe Con"ention also contains elements pertaining to freedom of mo"ement, such as a pro"ision for a renewa le residence permit for trafficked persons, in addition to the rights and protections afforded to trafficked persons in the +,,, Palermo Protocol, including a reco"er' and reflection period, compensation and legal redress, and the repatriation of trafficked persons/283 The con"ention reIuires States parties to issue a renewa le residence permit to trafficked persons if the competent authorit' considers it necessar' for them to remain in the State in their personal situation,28+ and@or if remaining in the State is necessar' for the purpose of conducting the in"estigation or criminal proceedings/288
2+, 2+3

Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3,/ Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +9E8F/ 2++ Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+E+F/ 2+8 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+E2F/ 2+4 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+E5F/ 2+2 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+E9F/ 2+5 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +6E3FEaF/ 2+9 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +6E3FE F/ 2+6 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +6E3FEcF/ 2+Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +6E3FEdF/ 28, Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +6E4F/ 283 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 34/ 28+ Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 34EE3FEaF/ 288 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 34E3FE F/

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=urthermore, the +,,2 Council of Europe Con"ention pro"ides the same economic and social rights as those set out in the +,,, Palermo Protocol to assist trafficked persons in their ph'sical, ps'chological and social reco"er', with the addition of translation and interpretation ser"ices,284 and ensuring standards of li"ing capa le of ensuring the su sistence of trafficked persons, including material assistance/282 Howe"er, unlike in the +,,, Palermo Protocol, in which the economic and social rights assistance is suggested, States parties are o liged to pro"ide certain assistance and protection under the +,,2 Council of Europe Con"ention/285 'onitoring mec,anism The +,,2 Council of Europe Con"ention also created a od' that will monitor human trafficking from, in and to the States parties/289 This is significant as it is the first con"ention that pro"ides international o"ersight ' an international od' since the 3-+3 Con"ention under the League of 1ations/ The purpose of the *roup of E.perts on %ction %gainst Trafficking in Human $eings E*)ET%F is to monitor the implementation of the con"ention/286 *)ET% was scheduled to e in operation within one 'ear of the +,,2 Council of Europe Con"entionAs entr' into force, which was on 3 =e ruar' +,,6/28- The mem ers of *)ET% were elected in =e ruar' +,,- ' the Committee of the Parties, consisting of the representati"es on the Committee of &inisters of the Council of Europe of the mem er States parties to the Con"ention and representati"es of the Parties to the Con"ention, which are not mem ers of the Council of Europe/24, *)ET% ma' reIuire States parties to su mit a Iuestionnaire to e"aluate their implementation of the +,,2 Council of Europe Con"ention, in addition to conducting "isits to the States parties and reIuesting information from ci"il societ' groups/243
284

C?hen appropriate/D Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+E3FEcF/ 282 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+E3FEaF/ 285 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+/ 289 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 85/ 286 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 85E3F/ 28Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 85E4F/ 24, Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 89B Council of Europe %ction %gainst Trafficking in Human $eings, http:@@www/coe/int@t@dghl@monitoring@trafficking@default0en/asp/ Last accessed +4 %pril +,,-/ 243 %miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com atting the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview"

.ci.

*)ET% will present its e"aluations of States in a report, which will make suggestions to States on how to handle implementation pro lems > the final draft of which will e made a"aila le to the pu lic/24+ Howe"er, there is no reIuirement for States parties to su mit reports to *)ET%, nor is there an' pro"ision in the con"ention that indi"iduals or organisations ma' su mit complaints to *)ET% for a "iolation of the Con"ention/248 *)ET% is modelled on the powers of the European Committee for the Pre"ention of Torture and !nhuman or Degrading Treatment or Punishment ECPTF, which was esta lished under European Con"ention for the Pre"ention of Torture and !nhuman or Degrading Treatment or Punishment ETorture Con"entionF/244 The Torture Con"ention, howe"er, went into far greater detail a out the nature of the powers of the CPT than the +,,2 Council of Europe Con"ention did for *)ET%/ This ma' ha"e een ecause States parties would not ha"e agreed to a monitoring mechanism with similar powers as the CPT, which ma' ha"e impeded the adoption the +,,2 Council of Europe Con"ention/ )egardless of the reasons ehind it, the pro"isions for creating *)ET% are far less rigid, lea"ing it open to going in the same direction as the CPT, or operating as a less powerful od'/ !n a similar manner as the CPT,242 *)ET% has the potential to de"elop standards in States parties through their Iuestionnaires, reports, and in particular, their "isits to the States/ 9&/ ANAL*S#S OF 'O$ERN H%'AN R#)HTS LA2 ERA TREAT#ES A widening sco+e ?hile the 3-4- Con"ention states in the Pream le that it draws upon the pre"iousl'; e.isting laws on the suppression of traffic in women and children, when referring to those trafficked, it uses the gender neutral term Cpersons,D rather than specif'ing

<ol 3+, +,,5, p 2+/ 24+ %miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com atting the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview" <ol 3+, +,,5, pp 2+;28/ 248 %miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com atting the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview" <ol 3+, +,,5, p 28/ 244 European Con"ention for the Pre"ention of Torture and !nhuman or Degrading Treatment or Punishment, 3-69, %rt 3/ 242 European Committee for the Pre"ention of Torture and !nhuman or Degrading Treatment or Punishment/ http:@@www/cpt/coe/int@en@default/htm/ Last accessed 33 &a' +,,-/

women and@or children e.clusi"el'/245 Howe"er, the 3-4- Con"ention continues to address human trafficking for the purpose of prostitution onl'/249 The +,,, Palermo Protocol applies to adult men, women and children as well, ut specificall' mentions women and children as groups particularl' "ulnera le to trafficking/246 !t is also the first con"ention to address all forms of trafficking, including la our e.ploitation and the remo"al of organs, rather than trafficking solel' for the purpose of prostitution/ The +,,2 Council of Europe Con"ention is the first international human trafficking law that applies eIuall' to men, women and children/24- Similar to the +,,, Palermo Protocol, it applies to e"er' t'pe of human trafficking/22, !n addition to the widening in scope, the international human trafficking treaties also went into increasingl' greater detail of oth criminal and human rights pro"isions/ ?hile the earl' treaties were "ague and primaril' suggesti"e, eginning with the 3-4Con"ention, the con"entions ecame progressi"el' more detailed/ The +,,, Palermo Protocol contains the first uni"ersall' accepted definition of human trafficking, as well as detailing human rights pro"isions for the first time/ The +,,2 Council of Europe Con"ention is the most detailed ' far, in terms of oth criminal and human rights pro"isions/ Lastl', the post;human rights law international human trafficking laws indicate a shift from treaties that were primaril' regional in nature, to those that are more uni"ersal/ ?hile the earliest con"entions were adopted ' a relati"el' small group of wealth' and powerful States and e"entuall' e.panded to include the League of 1ations, eginning with the 3-4- Con"ention, the newer treaties reflect the notion that human trafficking was a glo al, rather than a regional pro lem/ 'otivation The moti"ation for each of the modern human rights law era treaties differs slightl', although the inclusion of human rights is a common tie/ The 3-4- Con"ention picked
245

(nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :ther, 3-4-/ 249 (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :ther, 3-4-/ 246 (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,/ 24Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, Pream le/ 22, Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, Pream le/

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up where the Draft 3-89 Con"ention and the League of 1ations left off and incorporated the relati"el' new concept of human rights/ The +,,, (1 Con"ention, which produced the +,,, Palermo Protocol was drafted in response to what States percei"ed to e a threat to securit' from transnational organised crime/ The Council of Europe saw the opportunit' to e.pand the human rights scope of the +,,, Palermo Protocol, and did so in +,,2 with their con"ention/ )ace ma' ha"e also indirectl' pla'ed a role in the re;emergence of human trafficking as an issue in the 3--,s, prior to the adoption of the +,,, Palermo Protocol/ %t the time, the primar' focus was on women trafficked from Eastern Europe to ?estern Europe for the purpose of se.ual e.ploitation, following the end of the Cold ?ar and the opening of orders in Europe/ The focus was 'et again on white women > this time from Eastern as opposed to ?estern Europe during, for e.ample, the Cwhite sla"e panicD of the earl' +,th centur' > and it rought the issue of human trafficking to the forefront once more, after decades of reports of trafficking of %fricans and %sians/223 This indicates that the interests of wealth' and powerful States in ?estern Europe and 1orth %merica ma' dictate the human trafficking agenda for the rest of the world, regardless of the realities of the situation/ E3+ansion of ,.man rig,ts The most nota le progression throughout the later con"entions is the e"olution from an almost e.clusi"e focus on criminal law to a greater account taken of human rights/ %lthough the 3-,4 %greement mentioned certain elements of human rights, including temporaril' entrusting trafficked persons to pu lic or pri"ate charita le organisations, it is not until the 3-4- Con"ention that human rights in an' form surface again/ The 3-4- Con"ention does contain articles on human rights, ut the main focus is still criminalising human trafficking for the purpose of se.ual e.ploitation/ The +,,, Palermo Protocol does a more thorough Go of addressing oth criminal and human rights elements, ut the articles addressing the direct criminalisation of human trafficking made it compulsor' for States parties to implement such national laws, while the economic and social human rights pro"isions were weak, and remained
223

See $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans;%tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9, p ++3 and $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 8/

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essentiall' suggestions as a result of the wording, CStates shall considerD or CStates shall endea"our/D22+ %s the +,,2 Council of Europe Con"ention aimed to enhance the +,,, Palermo Protocol, it did so ' strengthening the human rights pro"isions, making them also compulsor', and positioning them earlier in the con"ention than the criminal pro"isions/ %lso noteworth' is the fact that each of the con"entions, with the e.ceptions of the 3-+3 Con"ention and 3-88 Con"ention, descri e trafficked persons as C"ictimsD > a ke' element of the human rights model/228 !n each of the con"entions that address human rights, particularl' the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention, the guidelines for implementing national human rights laws were more detailed than those for criminal laws/ %s e.plained in the human rights model in Chapter +, a uniIue set of human rights is reIuired for trafficked persons/ %s a result, the human rights pro"isions in the con"entions reIuired more e.planation and detail than the criminal pro"isions, which essentiall' stated that States parties must adopt direct criminal human trafficking laws/ 9&9 CONCL%S#ON A++lication of t,e models %s stated in Chapter 8, the earl' international human trafficking instruments adopted the criminal model/ =ollowing the de"elopment of modern human rights law, there was a general shift from international treaties ased on criminal law, to treaties that accommodate some human rights pro"isions/ )egardless of the effecti"eness of the human rights pro"isions, or the moti"ation ehind their adoption, the treaties in the second half of the +,th centur' represented a clear transition from treating human trafficking primaril' as a criminal offence, to also considering it a "iolation of human rights/

22+

(nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5/ 228 !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4, %rt +B !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,, =inal Protocol, CB (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :ther, 3-4-, %rt 35B (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, Pream leB Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, Pream le/

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%s discussed in the pre"ious section, the scope of human rights law did e.pand considera l', particularl' in the +,,, Palermo Protocol and +,,2 Council of Europe Con"ention/ =irst, the +,,, Palermo Protocol is part of a con"ention on transnational organised crime, which clearl' has a criminal moti"ation/ The inclusion of the human rights pro"isions in the +,,, Palermo Protocol was a result of lo 'ing from 1*:s and human rights groups, and in all likelihood, ma' not ha"e een included otherwise, under a con"ention dealing with transnational organised crime/ Secondl', while the +,,, Palermo Protocol is primaril' criminal and contains limited mandator' human rights as a means to facilitate its criminal pro"isions, the +,,2 Council of Europe Con"ention adopts aspects of oth models, including oth mandator' criminal and human rights pro"isions/ There is a distinct difference etween the two most recent instruments: the +,,2 Council of Europe Con"ention is more detailed and stronger in its human rights pro"isions than the +,,, Palermo Protocol/ :ne e.planation for this is that the +,,2 Council of Europe Con"ention is regional international law, while the +,,, Palermo Protocol is uni"ersal/ Europe has a strong tradition of human rights law since the end of ?orld ?ar !!, as e"idenced ' the e.istence of the ECH), and a compulsor' court > the European Court of Human )ights/ &oreo"er, it ma' e easier to get a smaller group of States to agree to e ound ' the o ligations in a law, such as the +,,2 Council of Europe Con"ention/ %lthough oth appl'ing to Europe, the +,,4 Council Directi"e and the +,,2 Council of Europe Con"ention present two different "iews on the conditions under which trafficked persons should e granted assistance and protection/ ?hile the +,,4 Council Directi"e indicates that States ma' adopt more fa"oura le measures, its primar' o Gecti"e is ensuring that States grant human rights pro"isions to trafficked persons if and when the' cooperate with authorities/224 The +,,2 Council of Europe Con"ention stipulates that States must adopt legislati"e or other measures to ensure that assistance to trafficked persons is not made conditional on their willingness to act as a witness in criminal proceedings/222

224 222

Council Directi"e +,,4@63@EC, +- %pril +,,4/ Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+E5F/

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The most recent wa"e of international human trafficking instruments present States with competing laws/ This occurs on a uni"ersal "ersus regional le"el when considering the differences in human rights pro"isions in the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention/ =urthermore, the differences in the stipulations of human rights pro"isions in the +,,4 Council Directi"e and the +,,2 Council of Europe Con"ention is pro lematic ecause it creates different o ligations for States that are mem ers of oth organisations/ !n oth cases, the competing laws are detrimental onl' in terms of the human rights pro"isions, the adoption of which is more discretionar' than the criminal elements of the laws/ The Council of Europe has adopted the most and strongest elements of the human rights model, followed ' the E( and the (1, which onl' reIuire States to adopt conditional and limited forms of human rights pro"isions/ !t is also important to note that another potential moti"ation for the inclusion of human rights pro"isions in these recent instruments is to pro"ide that assistance and protection to trafficked persons in e.change for their cooperation in the in"estigation of their traffickerEsF/ !f that were the case, then the reason ehind adopting aspects of the human rights model would e for the purpose of assisting the criminal in"estigation/ %s a result, the most recent instruments adopt a criminal model featuring human rights primaril' as a means to facilitate criminal human trafficking in"estigations/ The +,,2 Council of Europe Con"ention remo"es that condition and therefore represents a stronger adoption of the human rights model, ut onl' on a regional le"el/

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CHA TER :" CASE ST%$#ES ?hile Chapter 8 concluded that the earl' international human trafficking laws adopted the criminal model, and Chapter 4 concluded that the human rights model was integrated following ?orld ?ar !!, Chapter 2 determines the e.tent to which States are reflecting the international position of ha"ing oth criminal and human rights elements in their human trafficking laws and policies/ This chapter e.amines si. destination StatesA human trafficking laws and policies ' appl'ing a set of indicators and anal'sing them, to determine whether the State emplo's a criminal model, a human rights model, or elements of oth models/ :&! CASE ST%$* SELECT#ON0 #N$#CATORS0 A ANAL*S#S Case st.d- selection L#CAT#ON AN$

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! chose to focus on States that are signatories to the +,,2 Council of Europe Con"ention for two reasons/ =irst, it is estimated that hundreds of thousands of people are trafficked to the continent of Europe e"er' 'ear/225 Secondl', the Council of Europe adopted the most current and comprehensi"e international human trafficking law/ ! classified each Council of Europe mem er State as an origin, transit or destination State, or a com ination of an' of the three ' using information in the +,,6 (nited States Department of State Trafficking in Persons )eport Esee Ta le 3F/229 ! chose to e.amine case studies that were solel' destination States and not also transit States in order to determine how States who are onl' on the recei"ing end of the trafficking process deal with trafficked persons in the State/ ?hile transit States are also on the recei"ing end of the trafficking process, the' also ha"e respond to people eing trafficked through > and not Gust into > the State/ Table ! OriginB$estination TransitB$estination OriginBTransitB$estination %rmenia %ustria $osnia and Herzego"ina Lat"ia $elgium $ulgaria Denmark Croatia =inland Czech )epu lic *erman' Hungar' *reece Lithuania !tal' &acedonia The 1etherlands Poland Portugal )omania Spain )ussia Sweden Ser ia Switzerland Slo"ak )epu lic $estination C'prus =rance !reland Lu.em ourg &alta 1orwa'

225

Europol, CTrafficking in Human $eings in the European (nion: % Europol Perspecti"e/D =e ruar' +,,6/ %"aila le at http:@@www/europol/europa/eu@pu lications@Serious0Crime0:"er"iews@Trafficking0in0human0 eings0 +,,6/pdf/ Last accessed 33 &a' +,,-B The !nternational :rganisation for &igration estimates that +,,,,,, people are trafficking within Europe/ !nternational :rganisation for &igration, CEastern Europe > )esearch Shows Significant =igures on Human Trafficking,D 35 =e ruar' +,,9/ %"aila le at http:@@iom/ramdisk/net@iom@artikel/phpKmenu0idL3,Martikel0idL4--Mhistor'0 ackLtrue/ Last accessed 33 &a' +,,-B (rsula Smartt estimates that 4,,,,,, people are trafficked into European (nion &em er States each 'ear/ Smartt, (rsula, CHuman Trafficking: Simpl' a European Pro lemKD Euro!ean Journal of )ri(e, )ri(inal Law and )ri(inal Justice" <ol 33, +,,8 p 352/ 229 (nited States Department of State, CTrafficking in Persons )eport +,,6/D Hune +,,6/

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Turke' (nited Jingdom

Slo"enia (kraine

:nce classified, ! decided to focus e.clusi"el' on these si. destination States for three reasons/ =irst, destination States ear the greatest legal responsi ilit' for responding to human trafficking ecause the' are the locations in which the maGorit' of profits are made and the maGorit' of e.ploitation takes place/226 %s a result, the e"idence of human trafficking and e.ploitation > critical to an' prosecution > would e primaril' a"aila le in destination States/22- Destination States are therefore reIuired to implement human rights pro"isions to respond to persons trafficked to inside their orders, in the form of identification, protection and assistance for trafficked persons/ Secondl', it is more difficult for economicall' disad"antaged origin States to do much more than in"estigate and prosecute low;le"el rokers and transporters/25, %lthough this does not limit their responsi ilit' from taking all possi le action, the urden lies more hea"il' upon destination States to de"elop effecti"e criminal Gustice responses, as it will ha"e a wider impact on glo al human trafficking/253 Thirdl', destination States are particularl' significant in the process of "ictim identification, which, ' its nature, is an e. post facto e.ercise > onl' ecoming apparent once the e.ploitation has taken place/25+ %side from classification purposes, ! did not use the (nited States Department of State Trafficking in Persons )eport for information on or ratings of the case studies/ There is potential for the reportAs rankings to e politicall' moti"atedB howe"er, onl' their classifications of States as places of origin, transit or destination for trafficked persons, as well as naming the origin States for each of the destination States discussed were utilised/ !n addition, the report is referenced on the (1HC) ?e

226

*allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8+3/ 22*allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8+3/ 25, *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8+3/ 253 *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8+3/ 25+ *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8+-/

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site,258 and the (1:DCAs report does not pro"ide information on whether a State is one of origin, transit or destination/254 #ndicators The purpose of the indicators is to ask Iuestions to ascertain information from States to indicate whether each State has adopted a criminal or human rights model/

Table (
H%'AN TRAFF#C4#N) OL#C* AN$ LE)#SLAT#ON OF $EST#NAT#ON STATES

Has the State ratified international human trafficking instrumentsK Does direct human trafficking legislation e.istK Does indirect human trafficking legislation e.istK ?hich ministr'EiesF dealEsF with human traffickingK How man' prosecutions ha"e een made under trafficking legislationK How man' con"ictions ha"e een made under trafficking legislationK ?hat is the length and nature of the sentences for those charged with trafficking offencesK ?hat assistance, if an', does the State offer to a trafficked personK !s there go"ernmental funding for assistance of trafficked personsK Does the State grant permission for the trafficked person to remain in the StateK

#es@1o > ?hichK #es@1o #es@1o > T'pesK DirectK@!ndirectK DirectK@!ndirectK

#es@1o > =rom whereK #es@1o > How longK

International human trafficking laws StatesA ratification of international human trafficking laws indicates that the' take the issue seriousl', ' agreeing to e ound ' legal o ligations and limiting their so"ereignt'/ !t is also important to consider whether States ha"e ratified the earl' human trafficking con"entions and@or the more recent instruments/ The earl'
258

=or e.ample, http:@@www/unhcr/org@refworld@countr',,,,=)%,425+d6 5+,4a4+34 c,,/html/ Last accessed +5 %ugust +,,-/ 254 See http:@@www/unodc/org@documents@human;trafficking@*lo al0)eport0on0T!P/pdf/ Last accessed +5 %ugust +,,-/

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con"entions Efrom 3-,4 to 3-4-F predate modern human rights law and reIuire States to adopt a criminal model, while the more recent con"entions E+,,,;+,,2F incorporate the human rights model at "ar'ing le"els/ %nother o Gecti"e of such instruments is to harmonise the national laws of its States parties ' reIuiring States to implement certain minimum rights of human trafficking legislation/ !t is then important to e.amine how, if at all, States ha"e put the instruments into practice/ !t has een dul' noted that !reland and Lu.em ourg ha"e not ratified each recent international human trafficking treat', which creates a discrepanc' amongst the case studies in terms of their international legal o ligations/ !f a State has not 'et ratified certain con"entions, it is possi le that the' are in a transition process in terms of their laws and policies and ma' not ratif' until their practices are in line with the international standard/ Direct human trafficking law ?hen States implement direct human trafficking laws it indicates that the' take the issue seriousl' enough to enact laws on their own accord, or following their ratification of an international law/ Direct human trafficking law is aimed at criminalising traffickers/ !t can e.ist either through the passing of a specific trafficking criminal law, or ' amending an e.isting criminal law/252 !n either case, whether the direct human trafficking law criminalises all aspects of human trafficking as the crime has een defined ' e.isting international instruments must e taken into consideration/255 Indirect human trafficking law !ndirect human trafficking law is comprised of prostitution, immigration or la our laws that ma' e "iolated during the human trafficking process, or criminal laws that deal with elements of human trafficking, such as falsification of documents or a duction/ The e.istence of indirect human trafficking laws strengthens a StateAs approach to human trafficking, ensuring that an' related crimes are criminalised/259
252

*allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8++/ 255 *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8++/ 259 *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8++/

c.

Some States ma' more readil' appl' indirect human trafficking laws, as the' are t'picall' more esta lished and familiar than relati"el' new human trafficking;specific direct laws/256 Governmental ministry !t is also eneficial to note which go"ernmental ministr' is responsi le for com ating human trafficking, in order to determine if the State "iews the issue as one of immigration, criminal Gustice or human rights/ =or e.ample, placing the ministr' of the interior in charge of anti;human trafficking efforts indicates a dominant criminal approach/25Criminal policies prosecutions! convictions and sentences E"en if laws criminalising human trafficking e.ist, in order to determine the e.tent of enforcement, it is necessar' to look at the num er of prosecutions and con"ictions of trafficking offences in the State/ The length and nature of the sentences gi"en to those guilt' of trafficking offences is also a sign of how serious a crime human trafficking is in the e'es of the State/ Sentences must e dissuasi"e and proportionate to the gra"it' of the offence/29, !t must e noted, howe"er, that States ma' e slow and@or law to prosecute all areas, not Gust human trafficking/ "uman rights policies assistance and protection for trafficked persons !n terms of human rights, it must first e noted whether or not the State pro"ides assistance and@or protection to trafficked persons, and if so, what kind/ This pro"ides a means to measure if and how a State has adopted a human rights model/ 1e.t, where the funding to assist trafficked persons comes from > either directl' from the go"ernment or indirectl' through 1*:s > must e taken into consideration/ Lastl', it is important to take into account whether or not States grant permission for the trafficked person to remain in the State/ !f permission is granted, it is necessar' to consider how long the trafficked persons are permitted to sta', as well as whether there are an' conditions that must e fulfilled in order to recei"e the permission/ This
256

*allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8++/ 25=riesendorf, Cornelius/ CPathologies of Securit' *o"ernance: Efforts %gainst Human Trafficking in Europe/D Security Dialogue" <ol 86, p 8-+/ 29, *allagher, %nne and Paul Holmes/ CDe"eloping an Effecti"e Criminal Hustice )esponse to Human Trafficking/D International )ri(inal Justice $eview" <ol 36, +,,6 p 8++/

c.i

pro"ides insight into how a State treats people trafficked into its territor', particularl' whether it allows them to e"entuall' ecome lawful mem ers of societ'/ A++lication of indicators to case st.dies To o tain the information for each case stud', ! contacted the rele"ant go"ernmental ministr' and State agencies/ To counter alance that information, ! o tained the opinions of 1*:s and referred to reports ' !*:s/ ! gathered this information o"er the past 'ear/ The agencies and organisations ! contacted in each case stud' pro"ided me with information "ar'ing in length and detail/ :ne e.ample of this is the le"el of funding each State pro"ides for com ating human trafficking: while some States did not pro"ide an' information, 1orwa' pro"ided specific figures/ ! also anal'sed each destination StateAs compliance with international legal o ligations/ =inall', ! took the information collected from appl'ing the indicators in order to determine where each destination State falls in relation to the models, and made recommendations for esta lishing and implementing trafficking laws and policies/ Anal-sis ! then anal'sed each case stud', taking into account the go"ernmentAs polic' and the "iews of the 1*:s and !*:s, in order to determine the approach to human trafficking adopted ' the State/ !t must e noted that 1*:s and !*:s ha"e specific agendas which ma' surface in their reports and polic' stances/ Howe"er, in the conte.t of this dissertation, ! am e.amining the information garnered from 1*:s in a specific State in order to attempt to o tain a more complete picture of the how human trafficking is handled in a State/ $' including the "iews of 1*:s and !*:s, ! am not merel' rel'ing upon the information pro"ided to me ' the State, which also ma' e skewed, stating that it is in full compliance with all international o ligations, for e.ample/ :&( C* R%S :&(a #NTRO$%CT#ON c.ii

C'prus, with a population of 9-+,5,,,293 is primaril' a destination State for women trafficked for the purpose of se.ual e.ploitation/29+ % large num er of the women are trafficked to C'prus from the Philippines, Russia, Moldo a, Hungar!, "kraine, #reece, $ietnam, "%&ekistan and the 'ominican Repu&lic, (ith smaller num&ers coming from Colom&ia, Romania, Belarus, Bulgaria and the "nited )ingdom*+,!n +,,4, the C'priot Police identified 55 trafficked persons in C'prus/294 There were 4+ identified trafficked persons in +,,2B 63 in +,,5B 24 in +,,9B and 2, in +,,6 up until 83 :cto er +,,6/292 % maGorit' of the women trafficked to C'prus for se.ual e.ploitation enter on a so; called CartisteD work permit, which is elie"ed to e used ' ca aret owners for the purpose of facilitating prostitution/295 The three;month CartisteD or CentertainmentD "isa allows a person to work in the ca aret industr', including ars and nightclu s, and can e renewed for a further three months, with a further permit possi le after spending three months outside of C'prus/299 The permit is t'picall' sought ' the ca aret owners for the women/296 :&(b LE)#SLAT#ON AN$ )O;ERN'ENT #nternational ,.man trafficking treaties C'prus has ratified e"er' international human trafficking treat'/ $irect ,.man trafficking legislation The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law was passed in C'prus on 38 Hul' +,,9, replacing the Law on Com ating of
293

Hul' +,,6 estimate/ Central !ntelligence %genc'/ CThe ?orld =act ook/D https:@@www/cia/go"@li rar'@pu lications@the;world;fact ook@geos@c'/html/ Last accessed 3+ &arch +,,-/ 29+ (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 3,8/ 298 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 3,8/ 294 Superman, )ita > Head :ffice of Com ating Human Trafficking/ E;mail correspondence/ 3Decem er +,,6/ 292 Superman, )ita > Head :ffice of Com ating Human Trafficking/ E;mail correspondence/ 3Decem er +,,6/ 295 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p +/ 299 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p 6/ 296 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p 6/

c.iii

Trafficking in Persons and Se.ual E.ploitation of Children, +,,,/ This law is more comprehensi"e than the +,,, law, influenced ' the +,,, Palermo Protocol and +,,2 Council of Europe Con"ention/ The law uses the definition of human trafficking from the +,,, Palermo Protocol and +,,2 Council of Europe Con"ention/ #ndirect ,.man trafficking legislation The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9 criminalises se.ual e.ploitation and forced prostitution through threats, coercion, wilful misconduct or fraud, and a use of power/29- The law also criminalises owning and maintaining a rothel26, and child pornograph'/263 The Protection of ?orkers who are Posted to Carr' out Temporar' ?ork ?ithin C'prus in %ccordance with the =ramework of the Transnational Pro"ision of Ser"ices Law, +,,+ pro"ides guidelines for treatment of posted temporar' workers/ This includes minimum working conditions and pa'/26+ 'inistrThe &inistr' of the !nterior is responsi le for anti;trafficking efforts in C'prus/ :&(c CR#'#NAL LA2 Criminal law +rovisions The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9 criminalises human trafficking of adults and children268 for the purposes of se.ual e.ploitation,264 forced la our262 and the remo"al of organs/265 The pro"isions of
29-

The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt

-/
26,

The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 34/ 263 The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 33/ 26+ Protection of ?orkers who are posted to carr' out temporar' work within the )epu lic in accordance with the framework of the Transnational Pro"ision of Ser"ices Law, +,,+/ 268 The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 5/ 264 The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt -/ 262 The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 6/ 265 The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 9/

c.i"

the law appl' in cases where the infraction occurred within C'prus, or where the acts are transnational in nature/269 The last lists endangering the life of the "ictim,266 trafficking ' pu lic officials,26- or within the framework of a criminal organisation/2-, The law stipulates that those con"icted of human trafficking offences ma' not a"ail of the following defences: not eing aware the trafficked person was a childB that the trafficked person consented to an' part of the process or pro"ided the trafficker with compensationB and that the State where the trafficking took place, in whole or in part, does not criminalise human trafficking/2-3 !t also states that trafficked persons are entitled to compensation from their traffickers/2-+ Lengt, and nat.re of sentences Those con"icted of human trafficking are lia le to up to fi"e 'earsA imprisonment or a fine of V35,5,,/,,/2-8 rosec.tions and convictions Statistics for human trafficking prosecutions and con"ictions egan in +,,4, when the :ffice of Com ating Human Trafficking was esta lished/2-4 These figures are not onl' for human trafficking, ut also for offences related to or potentiall' in"ol"ed in the human trafficking process, such as se.ual e.ploitation, procuring se.ual ser"ices, li"ing on the earnings of prostitution, and maintaining a rothel/2-2 Table /2-5 *ear N.mber of +rosec.tions N.mber of convictions
269

The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt

4/
266

The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 3+/ 26The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 32/ 2-, The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 3+EdF/ 2-3 The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 35/ 2-+ The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt ++/ 2-8 Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rts 2; +9/ 2-4 Superman, )ita > Head :ffice of Com ating Human Trafficking/ E;mail correspondence/ 3Decem er +,,6/ 2-2 Superman, )ita > Head :ffice of Com ating Human Trafficking/ E;mail correspondence/ 3Decem er +,,6/ 2-5 =rom 3 Hanuar' +,,6 to 83 :cto er +,,6/

c."

+,,4 +,,2 +,,5 +,,9 +,,6

-3 49 26 24 45

+, 35 34 9 +

:&(d H%'AN R#)HTS H.man rig,ts +rovisions The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9 contains human rights pro"isions, including ensuring the safet' and protection of the trafficked persons,2-9 the right to repatriation,2-6 and the right to compensation from the State/2-Trafficked persons are pro"ided with information in a language that is understanda le to them regarding the social welfare enefits a"aila le to them, where the' can go for assistance, the procedure of filing criminal charges against his or her trafficker, and the conditions under which the' can recei"e such assistance/5,, Trafficked persons who are issued a temporar' residence permit are entitled to legal assistanceB emergenc' medical careB care and ps'chological support if the person is pregnant, disa led and@or is the "ictim of a crimeB securit' and protection from the policeB translation and interpretation ser"icesB protection of personal dataB and access to training programmes offered ' the State or 1*:s/5,3 The ser"ices are pro"ided ' the StateAs Social ?elfare Ser"ices, ut ma' also e delegated to 1*:s in appropriate situations/5,+ !n addition, the' will e gi"en access to emplo'ment and "ocational training/5,8 !f a trafficked child is unaccompanied, he or she is placed in the care of the Social ?elfare Ser"ices/5,4 % trafficked child is entitled to education in C'prus, in addition to the enefits gi"en to adults/5,2

2-9 2-6

Com Com 2-Com 5,, Com 5,3 Com 5,+ Com 5,8 Com 5,4 Com 5,2 Com

ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 43/ ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 44/ ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt +8/ ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt +-/ ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 84/ ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 84/ ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 82/ ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 85/ ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 85/

c."i

!n addition, the law stipulates that trafficked persons cannot e tried as criminals for crimes committed during the trafficking process, such as illegal entr' or residence, or illegal emplo'ment/5,5 State assistance Si. residential facilities, 5,9 with a total of +2 eds5,6 were made a"aila le for trafficked persons in C'prus in +,,2 and +,,5/ !n +,,4, a total of 3, trafficked women were sheltered in C'prus, with 43 women sheltered in +,,2 and 62 sheltered in +,,5/5,%t least one of the go"ernment;run shelters for trafficked persons has een in operation since 1o"em er +,,9/53, %s of Hul' +,,6, the shelter had pro"ided assistance to 48 women ' offering short;term accommodation and support in finding housing and emplo'ment/533 The ser"ices of social workers are offered to the women while the' are in the shelter and afterwards/53+ State f.nding The State funds shelters for trafficked persons offering the ser"ices of social workers/538 ermission to remain in t,e State Trafficked persons are granted a reflection period of one month to allow them to escape the influence of their traffickers and decide whether the' want to cooperate with law enforcement authorities/534 During this time, the trafficked person is entitled
5,5 5,9

Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 4+/ (nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-, p +44/ 5,6 (nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-, p +44/ 5,(nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-, p +44/ 53, Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p -/ 533 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p -/ 53+ Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p 3,/ 538 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p -/ 534 Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 8,/

c."ii

to protection and assistance pro"ided ' the State/532 The reflection period ma' e re"oked if an immigration officer elie"es that the person has acti"el' and "oluntaril' re;esta lished ties with his or her traffickers/535 (pon the e.pir' of the reflection period, a trafficked person ma' appl' for a temporar' residence permit of at least si. months, pro"ided that he or she has shown a clear willingness to cooperate with law enforcement officials and has se"ered ties with his or her traffickerEsF/539 The temporar' residence permit ma' e re"oked if the trafficked person re;esta lishes ties with his or her traffickerEsFB if their cooperation in the in"estigation of their traffickerEsF is deemed fraudulentB if he or she decides to stop participatingB if the authorities decide to stop the in"estigationB or if the pu lic safet' and interest is at risk/536 (naccompanied trafficked children are granted residence permits renewa le for as long as it takes to repatriate the child to his or her origin State, pro"ided there is someone to care for him or her in residence in the State/53:&(e ;#E2S OF #)Os AN$ N)Os The Commissioner for Human )ights of the Council of Europe, Thomas Hammar erg, noted a +,,6 report that despite the national and international legal de"elopments in C'prus in terms of human trafficking, C'prus is still largel' associated with trafficking, particularl' for se.ual e.ploitation/5+, The &editerranean !nstitute of *ender Studies E&!*SF, a C'priot 1*:, "iews the +,,9 human trafficking law as CgoodD ut lacking a gender focus, addressing women as a "ulnera le group, or dealing with the demand for se.ual ser"ices/5+3 %nother C'priot 1*:, %panemi, said that there is an a solute lack of political will to target
532 535

Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 8,/ Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 8,/ 539 Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 8+/ 536 Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rt 88/ 53Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9, %rts 89 and 8-/ 5+, Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p +/ 5+3 %nti;Human Trafficking C'prus/ E;mail correspondence/ 5 =e ruar' +,,-B &editerranean !nstitute of *ender Studies/ E;mail correspondence with Christina Jaili and Hosie Christodoulou/ +, 1o"em er +,,6B Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p 3,/

c."iii

trafficking/5++ The C'priot 1*: %nti;Human Trafficking C'prus E%TCF acknowledges that legislation is in place, ut stated that it is not eing enforced properl', if at all/5+8 =or e.ample, a police hotline to report human trafficking e.ists, ut is onl' open from 6am until +pm/5+4 !n addition, %TC elie"es that trafficked persons are still treated more or less as criminals, rather than "ictims/5+2 !n terms of what still needs to e done, %TC recommends more legislation and enforcement of the lawsB impro"ement in speed and efficienc' of the Gustice s'stem in courts and sentencingB educational and awareness; raising programmesB controlling the demand for trafficked personsB shutting down esta lishments which e.ploit trafficked persons and confiscating their assetsB stricter and longer imprisonment terms for traffickers and Cemplo'ersBD greater funding of 1*:sB and impro"ed social ser"ices for help and care for trafficked persons/5+5 The Commissioner, &!*S and other C'priot 1*:s also call for the a olition of the CartisteD "isa entirel'/5+9 The Commissioner and the Committee on the Elimination of Discrimination against ?omen e.pressed concern that the CartisteD work permit is still in use, despite widespread international criticism, and difficult' for law enforcement authorities to effecti"el' com at trafficking/5+6 The Commissioner reported that a parado. e.ists, as the C'priot go"ernment has made legislati"e efforts to fight trafficking, continuing to issue the CartisteD work permits could e percei"ed as contradicting the measures taken against trafficking, or at least rendering them ineffecti"e/5+- &!*S estimates that +,,,, foreign women enter C'prus e"er' 'ear with CartisteD work permits/58, %TC pointed to an incident where the C'priot *o"ernment stated in :cto er and 1o"em er +,,6 that the CartisteD "isa was going to e a olished
5++ 5+8

%panemi/ E;mail correspondence with Hulia Jalimeri/ +8 Hanuar' +,,-/ %nti;Human Trafficking C'prus, E;mail correspondence, 5 =e ruar' +,,-/ 5+4 %nti;Human Trafficking C'prus, E;mail correspondence, 5 =e ruar' +,,-/ 5+2 %nti;Human Trafficking C'prus, E;mail correspondence, 5 =e ruar' +,,-/ 5+5 %nti;Human Trafficking C'prus, E;mail correspondence, 5 =e ruar' +,,-/ 5+9 Committee on the Elimination of Discrimination against ?omen, CConcluding comments of the Committee on the Elimination of Discrimination against ?omen/D 8, &a' +,,5, p 2B Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p 3,/ 5+6 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p +/ 5+Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6, p 33/ 58, &editerranean !nstitute of *ender Studies/ C&apping the realities of trafficking in women for the purpose of se.ual e.ploitation in C'prus/D :cto er +,,9, p 6/

c.i.

as of 3 1o"em er +,,6/583 Howe"er, the "isas continued to e issued months after that date/58+ :nce this was disco"ered, the C'priot *o"ernment set 3 =e ruar' +,,- as the date to a olish the "isa/588 %t this stage it is too earl' to tell if these "isas continue to e issued/584 :&(f ANAL*S#S C'prus is taking the issue of human trafficking seriousl' ' ratif'ing e"er' international human trafficking law/ =urthermore, C'prus enacted comprehensi"e direct human trafficking legislation in +,,9, which replaced an outdated law that did not compl' with international standards, which indicates that it is committed to upholding its international legal o ligations/ 1ot onl' does the +,,9 law criminalise human trafficking, it also contains human rights pro"isions, although the' are contingent upon the trafficked personAs cooperation with law enforcement authorities/ This is significant ecause the +,,2 Council of Europe Con"ention > which contains the strongest human rights pro"isions > reIuires that States implement laws or policies to pro"ide assistance and protection for trafficked persons/ !ncluding human rights pro"isions in legislation is noteworth' ecause unlike go"ernmental policies, which can e altered relati"el' easil', it is far more difficult to change a law once it is in place/ !n other words, policies ma' come and go in accordance with a StateAs financial situation, ut it takes more time and effort to amend e.isting legislation, which therefore make the human rights pro"isions more resilient and permanent/ Criminal The fact that the &inistr' of the !nterior is responsi le for anti;trafficking efforts in C'prus indicates that the State regards human trafficking as an issue of to e dealt with through policing, immigration and securit' measures/ The num er of prosecutions and con"ictions pro"ided ' the C'priot Police contain figures not onl' for human trafficking, ut also related offences > primaril' related to prostitution/ % law criminalising human trafficking has een in e.istence in C'prus since +,,,, and therefore it is odd that the classification of crimes did not start at that time, making it difficult to assess the e.tent of human trafficking/
583 58+

%nti;Human Trafficking C'prus, E;mail correspondence, 5 =e %nti;Human Trafficking C'prus, E;mail correspondence, 5 =e 588 %nti;Human Trafficking C'prus, E;mail correspondence, 5 =e 584 %nti;Human Trafficking C'prus, E;mail correspondence, 5 =e

ruar' +,,-/ ruar' +,,-/ ruar' +,,-/ ruar' +,,-/

c..

The State ma' e reluctant to use human trafficking laws in prosecutions, so as not to reflect poorl' upon the State, and essentiall' admit to a trafficking pro lem/ $' citing other crimes, such as procuring prostitution or operating a rothel, those responsi le for the crimes can still e tried, ut without the State admitting to human trafficking within the its orders/ This could e another reason wh' States such as C'prus amalgamate statistics for prosecutions and con"ictions made under human trafficking laws with those for related offences/ H.man rig,ts ?hile it does appear that some of the human rights pro"isions in the legislation are eing put into practice, it is pro lematic that the human rights pro"ision in C'prus are contingent upon whether trafficked persons participate in the in"estigation of their traffickerEsF/ This indicates that the human rights pro"isions are onl' included as a means to facilitate the criminal law pro"isions/ Howe"er, C'prus has at least taken a first step ' pro"iding residence facilities for trafficked persons with other social ser"ices/ !t is unclear whether the num er of trafficked persons assisted is proportional with the num er of trafficked persons in C'prus, ut the e.istence of the go"ernment;run shelters are at least one sign that the pro"isions in the legislation are eing implemented/ Concl.sion Despite C'prusA willingness to adopt international and national human trafficking law, the fact that the CartisteD "isa still e.ists demonstrates the contradiction etween their stated trafficking polic', and actual practice/ The CartisteD "isa constitutes neither direct nor indirect human trafficking law/ %s part of C'prusA immigration polic', not onl' does it not attempt to pre"ent human trafficking, ut actuall' facilitates it ' permitting ca aret owners to o tain "isas for their workers, which ma' include trafficked persons/ %s the Commissioner and 1*:s ha"e stated, this is counterproducti"e for a State that has purposefull' implemented comprehensi"e laws criminalising human trafficking on oth a national and international le"el/ The maGor issue in C'prus is whether there is a discrepanc' etween the laws in place, and whether these laws are eing put into practice, oth in terms of enforcement of c..i

the criminal law and pro"iding the human rights pro"isions/ The fact that C'prus has included human rights pro"isions in the direct human trafficking law reaffirms its commitment to pro"iding rights to trafficked persons in theor'/ !t is, howe"er, trou ling that the human rights pro"isions included in the law are conditional upon the trafficked personAs cooperation with law enforcement authorities/ This is in reach of the +,,2 Council of Europe Con"ention, which reIuires that States pro"ide legislati"e or other measures to ensure that the pro"ision of human rights to trafficked persons is not conditional upon their willingness to act as a witness/582 %lthough the legal pro"isions are in place, suggesting that C'prus has adopted the criminal model with elements of the human rights model, two pieces of e"idence must e taken into consideration/ =irst, comments from 1*:s paint a different picture of the implementation of the human trafficking laws in C'prus, suggesting that man' of the pro"isions e.ist in name onl'/ Secondl', the e.istence of the CartisteD "isa contradicts C'prusA attempt to implement oth a criminal and human rights model ' facilitating trafficking into the State/ :&/ FRANCE :&/a #NTRO$%CT#ON =rance, with a population of 54 million585 is a destination State for people trafficked for se.ual e.ploitation and forced la our/589 &ost of the women trafficked for se.ual e.ploitation come from Romania, Bulgaria, .igeria, Cameroon and other nations in Eastern Europe and /frica, (ith smaller num&ers from South /merica and /sia*0-1 Most of the men trafficked to 2rance for se3ual e3ploitation come from Bulgaria and Romania* 4n 5667, the Central Office for the Suppression of Trafficking in Human Beings 8OCRETH9 identified :,666 trafficked (omen, ,+; of (hom (ere foreign*0-< That
582 585

Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+E5F/ Hul' +,,6 estimate/ Central !ntelligence %genc'/ CThe ?orld =act ook/D https:@@www/cia/go"@li rar'@pu lications@the;world;fact ook@geos@fr/html/ Last accessed 3+ &arch +,,-/ 589 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 33-/ 586 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 33-/ 58&inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte

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percentage aries slightl! (ith ,1*1; in 566- and ,6; of 5660 of identified trafficked (omen not &eing 2rench citi%ens*076 OCRETH estimates that +6; of prostitutes in 2rance are ictims of pimping, man! of (hom are also in ol ed in human trafficking*07: :&/b LE)#SLAT#ON AN$ )O;ERN'ENT #nternational ,.man trafficking law =rance has ratified all international human trafficking law, with the e.ception of the 3-+3 Con"ention, and the 3-4- Con"ention which it signed ut did not ratif'/ $irect ,.man trafficking legislation The !nternal Securit' %ct of 36 &arch +,,8 criminalised human trafficking ' amending the =rench Penal Code/54+ The =rench Penal Code criminalises human trafficking for the purposes of se.ual e.ploitation, e.ploitation for egging, forced la our and forced criminal acti"ities/548 The definition in the Criminal Code is now consistent with the definition found in the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention/544 #ndirect ,.man trafficking legislation %dditional parts of =ranceAs Penal Code deal with crimes indirectl' related to human trafficking, including procuring prostitution and assimilated offencesB542 prostitution

contre les e.clusions/D 8 &a' +,,9/ 54, &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 543 &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 54+ Loi pour la sWcuritW intWrieure, 36 &arch +,,8/ 548 Penal Code, %rt ++2;4;3 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/ 544 Penal Code, %rt ++2;4;3 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/ 542 Penal Code, %rt ++2;2 to ++2;3,;3 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3- &arch +,,8/

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of childrenB545 e.ploitation of eggingB549 and working and li"ing conditions which infringe human dignit'/546 'inistrThe &inistr' of the !nterior is in charge of anti;trafficking efforts in =rance/ :&/c CR#'#NAL LA2 Criminal law +rovisions (nder the =rench Penal Code, committing an' human trafficking;related offences54and attempting to commit the act52, are oth criminalised/ The Penal Code also criminalises those who li"e off the earnings of a trafficked person or someone in"ol"ed in the trafficking process/523 Lengt, and nat.re of sentences Those con"icted of human trafficking in =rance are lia le to se"en 'earsA imprisonment and a fine of V32,,,,,/52+ The penalties are increased to ten 'earsA imprisonment and a fine of V3,2,,,,,, for aggra"ating factors, which include the acts of trafficking in"ol"ing: a childB a particularl' "ulnera le personB two or more peopleB a person outside =rench territor' or upon his or her arri"al in =ranceB when a telephone or the !nternet was used in the trafficking processB when the trafficked person is put at immediate risk of death or inGur'B with the use of threats, constraints, "iolence or fraudulent eha"iour against the trafficked personB a legitimate, natural, or adopti"e ascendant of the trafficked personB or ' a person whose post reIuires him or her to participate in anti;trafficking efforts or to uphold pu lic order/528 The penalties
545

Penal Code, %rt ++2;3+;3 to ++2;3+;4 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3- &arch +,,8/ 549 Penal Code, %rt ++2;+3;2 to ++2;3+;9 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3- &arch +,,8/ 546 Penal Code, %rt ++2;38 to ++2;32;3 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3- &arch +,,8/ 54Penal Code, %rt ++2;4;9 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/ 52, Human trafficking for the purposes of se.ual e.ploitation, e.ploitation for egging, forced la our, and forced criminal acti"ities/ 523 Penal Code, %rt ++2;4;6 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/ 52+ Penal Code, %rt ++2;4;3 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/ 528 Penal Code, %rt ++2;4;+ inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/

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are increased to +, 'earsA imprisonment and a fine of V8,,,,,,,, when the act of trafficking is committed ' an organised gangB524 and to life imprisonment and a fine of V4,2,,,,,, when human trafficking in"ol"es torture/522 Those who li"e off the earnings of a trafficked person or someone in"ol"ed in the trafficking process recei"e se"en 'earsA imprisonment and a fine of V92,,,,,/525 % person is e.empted from punishment if he or she attempts to commit an act of human trafficking, ut in alerting Gudicial or administrati"e authorities, has pre"ented the offence from eing carried out and@or has identified the perpetrators or accomplices/529 !f a person directl' in"ol"ed in the trafficking process ena les the offence to e stopped and@or identifies other people in"ol"ed, his or her sentence will e reduced ' half/526 rosec.tions and convictions Table 952*ear +,,5 +,,9 +,,6 N.mber of ,.man trafficking co.rt +roceedings 942 944 222

Table :55,
524

Penal Code, %rt ++2;4;8 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/ 522 Penal Code, %rt ++2;4;4 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/ 525 Penal Code, %rt ++2;4;6 inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/ 529 Penal Code, %rt ++2;4;- inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3&arch +,,8/ 526 !n the case of those who would ha"e recei"ed life imprisonment, the sentence would e reduced to +, 'earsA imprisonment/ Penal Code, %rt ++2;4;- inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3- &arch +,,8/ 52:ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/

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CON;#CT#ONS $egging 1on;e.istent or inadeIuate remuneration of "ulnera le people Su mission of "ulnera le people to working conditions and unsuita le accommodation %iding the entr'@illegal sta' of a foreigner and su Gecting him@her to conditions incompati le with human dignit' Pimping Total

(77 ( n@a n@a n@a n@a 592 ?>:

(77/ (779 (77 : 32 38 46 , 32 34 93 , 9 +6 53 3 --6 !78 :

(77 ? 2 8+ 42 35 --!78 >

(77> 39 +2 24 34 3+85 !/9?

3,68 -6, !!:8 !767

Table ?553 CON;#CT#ONS Single offence of trafficking in human eings Trafficking in human eings committed against se"eral persons Trafficking in human eings committed against a person upon arri"al in =rance Trafficking in human eings committed against a person outside of =rance Trafficking in human eings committed with threats, coercion, "iolence Total (77? (77> , 3 3 6 , 3 , ( 2 , 2 !8

=ranceAs first con"iction of human trafficking came in +,,5/55+ :f the 3- con"ictions made in +,,9, four were for offences as the principal trafficker, while oth the con"ictions in +,,5 were made against people aiding or a etting the trafficking process/558

55,

Philippe, %nna elle/ &agistrat, $ureau de la lutte contre la criminalitW organisWe, le terrorisme et le lanchiment, Direction des %ffaires Criminelles et des *rXces, &inistSre de la Hustice/ E;mail correspondence/ +, %pril +,,-/ 553 Philippe, %nna elle/ &agistrat, $ureau de la lutte contre la criminalitW organisWe, le terrorisme et le lanchiment, Direction des %ffaires Criminelles et des *rXces, &inistSre de la Hustice/ E;mail correspondence/ +, %pril +,,-/ 55+ Philippe, %nna elle/ &agistrat, $ureau de la lutte contre la criminalitW organisWe, le terrorisme et le lanchiment, Direction des %ffaires Criminelles et des *rXces, &inistSre de la Hustice/ E;mail correspondence/ +, %pril +,,-/ 558 Philippe, %nna elle/ &agistrat, $ureau de la lutte contre la criminalitW organisWe, le terrorisme et le lanchiment, Direction des %ffaires Criminelles et des *rXces, &inistSre de la Hustice/ E;mail correspondence/ +, %pril +,,-/

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The police and magistrates still do not regularl' use the offence of human trafficking, ut rather opt for the offence of pimping/554 Pimping is used ecause it has the same penalties as human trafficking under the Penal Code, and is easier to prosecute ecause it onl' reIuires pro"iding proof of the se.ual e.ploitation or prostitution/552 The &inistr' of Hustice stated that the num er of human trafficking con"ictions ma' e low ecause the offence was onl' incorporated into the Penal Code in +,,4, and man' indirect human trafficking offences e.ist, which are also used to con"ict traffickers/555 Similarl', forced la our is dealt with in =rance primaril' in terms of illegal work, without cooperation with the agencies and departments that deal with human trafficking/559 :&/d H%'AN R#)HTS H.man rig,ts +rovisions %ssistance and protection for prostitutes has een in place in =rance since 3-5,, and has een e"ol"ing steadil'/556 % 3-5, law pro"ided for ser"ices to pre"ent prostitution, to seek and pro"ide assistance for persons in danger of prostitution, and to pro"ide free medical care and other assistance for prostitutes/55- !n 3-9,, the assistance was increased to include access to shelter and social reintegration for prostitutes and people in danger of prostitution/59, The =amil' Code, +,,, stipulates that places in %ccommodation and )eintegration Centres must e allocated to

554

:ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 552 :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 555 Philippe, %nna elle/ &agistrat, $ureau de la lutte contre la criminalitW organisWe, le terrorisme et le lanchiment, Direction des %ffaires Criminelles et des *rXces, &inistSre de la Hustice/ E;mail correspondence/ +, %pril +,,-/ 667 &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 556 :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 55:rdonnance nY 5,;3+45 du +2 no"em re 3-5, et dWcret nY 5,;3+46 du +2 no"em re 3-5,B :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 59, DWcret nY 95;+25 du 32 Guin 3-95B :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/

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trafficked persons in secure conditions/593 The !nternal Securit' %ct, +,,8 stipulates that identified trafficked persons must recei"e protection and social assistance, coordinated ' the go"ernment/59+ This includes pro"iding shelter and social integration to trafficked persons in secure conditions/598 % +,,5 law pro"ides trafficked persons with a temporar' residence permit and funding of V8,5 a month for up to a 'ear/594 The most recent law, from +,,9, pro"ides trafficked persons with police protection during criminal proceedings and measures for the protection of rights, such as the right to reparation for inGur' and referral to the Committee of Compensation to Crime <ictims/592 State assistance Local initiati"es in maGor cities such as Paris, L'on, $ordeau. and 1ice ha"e een de"eloped which pro"ide emergenc' shelter for trafficked persons/595 These facilities include unmarked apartments, foster houses, shelters for women and hotel suites, as well as comprehensi"e social ser"ices/599

593 59+

Code de la famille et de lZaide sociale, +,,,, %rt 398B 369;3/ Loi pour la sWcuritW intWrieure, %rt 4+, 36 &arch +,,8/ 598 Loi pour la sWcuritW intWrieure, 36 &arch +,,8B :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 594 Loi nY +,,5;-33 du +2 Guillet +,,5 relati"e [ lAimmigration et [ lAintWgrationB :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 592 DWcret nY +,,9;382+ du 38 septem re +,,9B :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 595 &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 599 &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/

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There is also coordination of safe housing for trafficked persons on a national le"el/596 This programme consists of a network of housing and social ser"ices for trafficked persons and prostitutes/59- The housing is located in "arious parts of =rance, which allows for isolation and pri"ac'/56, %ppro.imatel' 8,, trafficked women ha"e a"ailed of the ser"ices from their implementation until +,,9/563 Trafficked persons who wish to return to their origin State, regardless of their nationalit', ma' a"ail of the return and reintegration programme implemented ' the %gence 1ationale de lA%ccueil des Etrangers et des &igrations/56+ State f.nding The &inistr' for Emplo'ment and Social Cohesion financed a national plan for the accommodation and protection of trafficked persons/568 The State funds local initiati"es pro"iding emergenc' shelter for trafficked persons, which is co;financed ' local go"ernments/564

596

&inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 59&inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 56, &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 563 &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 56+ The %gence 1ationale de lA%ccueil des Etrangers et des &igrations is the principal pu lic agenc' responsi le for recei"ing legal migrants to =rance, for administrati"e, health and welfare actions concerning changes in foreign population and for the emplo'ment of =rench citizens internationall'/ See http:@@www/am afrance;pk/org@france0pakistan@spip/phpKarticle5+4 / Last accessed 38 &a' +,,-/ &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 568 Caritas/ C1ational Law > =rance/D www/coatnet/org@en@+3+33/asp/ Last accessed 8 =e ruar' +,,-/ 564 &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/

c..i.

ermission to remain in t,e State % +,,5 law pro"ides trafficked persons with a temporar' residence permit for a minimum of si. months/562 % +,,9 law introduced a 8,;da' reflection period during which the trafficked person ma' decide whether to cooperate with Gudicial proceedings/565 !f the trafficked person decides to cooperate, the' will e issued with a temporar' residence permit for the duration of the criminal proceedings/ !n the e"ent of con"iction of the trafficker, the trafficked person ma' e granted a ten;'ear residence card/569 % total of 36, trafficked persons o tained permits under this scheme in +,,4/566 Pro"isional residence permits are not s'stematicall' renewed/56!n addition, there are ilateral agreements etween =rance and $ulgaria and )omania, to facilitate the "oluntar' repatriation of trafficked persons/5-, (nder pre"ious legislation, etween &arch +,,8 and +,,4, 82+ residence permits were issued to trafficked persons who agreed to cooperate with law enforcement officials/5-3 !n Paris in +,,2, 8,5 temporar' residence permits were issued, including 3-3 renewals of pre"iousl';issued permits/5-+

562

Loi nY +,,5;-33 du +2 Guillet +,,5 relati"e [ lAimmigration et [ lAintWgrationB :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 565 DWcret nY +,,9;382+ du 38 septem re +,,9B :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 569 DWcret nY +,,9;382+ du 38 septem re +,,9B :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/ 566 *il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5, p -8/ 56*il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5, p -8/ 5-, *il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5, %ppendi./ 5-3 &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/ 5-+ &inistSre de lAemploi, de la cohWsion sociale et du logement et &inistSre de la santW et des solidaritWs/ CDirection gWnWrale de lAaction sociale Sous;direction des politiIues dAinsertion et de lutte contre les e.clusions/D 8 &a' +,,9/

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:&/e ;#E2S OF #)Os AN$ N)Os The Commissioner for Human )ights of the Council of Europe, %l"aro *il;)o les noted in a +,,5 report that some aspects of human trafficking are not sufficientl' addressed ' =rench law, as sla"er' and ser"itude are not rendered illegal as such in =rench criminal law/5-8 !n Silidin v 9rance, 5-4 the European Court of Human )ights found that =rance was in reach of its international o ligations ' failing to prohi it sla"er' and ser"itude in =rench law/ Since then some 8, cases, also dealing with issues of sla"er' and ser"itude, are rought to the attention of 1*:s each month/5-2 The European Court of Human )ights and the Commissioner reminded =rance of its o ligation to strengthen its legislation, particularl' the !nternal Securit' %ct, which aims to criminalise sla"er' and forced la our/5-5 The :rganisation for Securit' and Cooperation in Europe E:SCEF Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings stated in its +,,6 report that =rance has a 1ational Co;ordinating &echanism for responding to human trafficking in place that addresses prosecution, pre"ention and protection/5-9 !n practice, howe"er, these policies are generall' onl' applied in the conte.t of prostitution/5-6 !n fact, =rance deals with human trafficking almost e.clusi"el' in terms of prostitution/5-- The report also noted that =rance did not ha"e a 1ational %ction Plan for com ating human trafficking/9,,

5-8

*il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5, p -8/ 5-4 European Court of Human )ights, Silidin v 9rance, %pplication 1o 98835@,3 of +5 Hul' +,,2/ 5-2 *il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5, p -8/ 5-5 *il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5, p -8/ 5-9 :rganisation for Securit' and Cooperation in Europe Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings/ CEfforts to Com at Trafficking in Human $eings in the :SCE %rea: Co;ordination and )eporting &echanisms/D 38 1o"em er +,,6, p 89/ 5-6 :rganisation for Securit' and Cooperation in Europe Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings/ CEfforts to Com at Trafficking in Human $eings in the :SCE %rea: Co;ordination and )eporting &echanisms/D 38 1o"em er +,,6, p 89/ 5-:rganisation for Securit' and Cooperation in Europe Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings/ CEfforts to Com at Trafficking in Human $eings in the :SCE %rea: Co;ordination and )eporting &echanisms/D 38 1o"em er +,,6, p 23/ 9,, :rganisation for Securit' and Cooperation in Europe Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings/ CEfforts to Com at Trafficking in Human $eings in the :SCE %rea: Co;ordination and )eporting &echanisms/D 38 1o"em er +,,6, p 42/

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The Commissioner also indicated that there is a lack of harmonisation of trafficking legislation at a European le"el, which creates difficulties for =rance with some of its order States/9,3 The Commissioner also stated that the protection pro"ided to guarantee the safet' of trafficked persons is inadeIuate in man' respects and that assistance with reintegration is poor and in some regions none.istent/9,+ $oth the 1*: Caritas and the Council of Europe Commissioner mentioned that the assistance pro"ided to trafficked persons is conditional upon whether the' cooperate with authorities ' pro"iding a testimon' against those in"ol"ed in their trafficking process/9,8 :&/f ANAL*S#S =rance has ratified all of the recent international human trafficking law, indicating that it takes the issue seriousl'/ !n addition, =rance has adopted oth criminal law on human trafficking, found in the Penal Code, and laws containing human rights pro"isions for trafficked persons/ Criminal The fact that the &inistr' of the !nterior is responsi le for anti;trafficking efforts in =rance indicates that the State regards human trafficking as an issue of to e dealt with through policing, immigration and securit' measures/ =rance pro"ides "arious punishments for different le"els of human trafficking, depending on aggra"ating factors/ !t is pro lematic, as the Council of Europe Commissioner highlighted, that =rance has not 'et criminalised sla"er' and ser"itude/ This omission in =rench law undermines all e.isting human trafficking law, as the two issues are intrinsicall' linked/ Similarl', the :SCE Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings noted that =rance deals with human trafficking almost strictl' in terms of prostitution, and that their 1ational Co;ordinating &echanism to
9,3

*il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5, p -8/ 9,+ *il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5, p -8/ 9,8 Caritas, C1ational Law > =rance/D www/coatnet/org@en@+3+33/asp/ Last accessed 8 =e ruar' +,,-B *il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5, p -8/

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deal with prosecution, pre"ention and protection is onl' applied in the conte.t of trafficking for se.ual e.ploitation/ =ranceAs human trafficking laws, like those in other States, are relati"el' new and therefore States utilise them less freIuentl' than indirect human trafficking offences/ The offence of pimping is used in man' human trafficking cases as it is much easier to pro"e/ The relati"el' low num er of human trafficking prosecutions is a direct result of the courts using primaril' indirect offences to con"ict traffickers/ Howe"er, the Gump from onl' two con"ictions in +,,5 to 3- in +,,9 con"e's increasing use of the law/ H.man rig,ts =rance has laws dating ack nearl' 2, 'ears that pro"ide assistance and protection to prostitutes or persons in danger of prostitution, regardless of whether the' ha"e een trafficked into =rance/ %lthough the trafficking;specific legislation did not e.ist until +,,,, ecause =rance tends to deal with human trafficking through the criminalisation and treatment of "arious aspects of prostitution, the pro"isions in place ha"e had the potential of assisting man' trafficked women/ =urthermore, the assistance is offered to prostitutes or persons in danger of prostitution in general > there is no stipulation that the' must cooperate with authorities to recei"e these ser"ices/ :n the other hand, these pro"isions are onl' a"aila le to those trafficked for se.ual e.ploitation, e.cluding those trafficked for forced la our/ ?hile the residence permit is tied to whether trafficked persons participate in the in"estigation of their traffickers, the assistance and pro"isions themsel"es, at least initiall', are not/ =rance also has the uniIue s'stem of awarding trafficked persons with a 3,;'ear residence permit in the e"ent that their traffickerEsF is@are con"icted following their participation in the in"estigation/ :"erall, =rance pro"ides relati"el' strong human rights pro"isions, which are included in oth laws and polic'/ ?hile it is positi"e that those in"ol"ed in or who could potentiall' ecome in"ol"ed in prostitution recei"e State assistance without the condition of testif'ing, this does e.clude those trafficked into =rance for forced la our/ c...iii

Concl.sion ?hile =rance has taken se"eral steps to criminalise human trafficking for se.ual e.ploitation and pro"ide assistance and protection to those in"ol"ed in prostitution, is it considera l' weaker in oth criminal and human rights pro"isions relating to trafficking for forced la our/ The large num er of con"ictions for pimping, as opposed to the relati"el' small num er of human trafficking con"ictions suggests that man' traffickers are con"icted of pimping as a result of the difficult' in o taining e"idence in human trafficking cases, coupled with the newness of the direct human trafficking law/ The fact that sla"er' and ser"itude is not outlawed in =rench law, coupled with fewer human rights pro"isions for those trafficked for forced la our enshrined in legislation indicates that =rance does not take the issue of forced la our as seriousl' as se.ual e.ploitation/

:&9 #RELAN$ :&9a #NTRO$%CT#ON !reland, with a population of 4/+ million9,4 is a destination State for people trafficked for se.ual e.ploitation and forced la our/9,2 ?omen ha"e een trafficked into !reland for the purpose of se.ual e.ploitation from Eastern Europe, 1igeria and other parts of %frica, with small num ers from South %merica and %sia/9,5 &en and women ha"e een trafficked into !reland for the purpose of forced la our from $angladesh, Pakistan, Eg'pt and the Philippines, with more potentiall' coming from Eastern Europe, South %merica and other parts of %sia and %frica/9,9 &ost people trafficked for forced la our are found in domestic la our, and restaurant and agricultural work/9,6

9,4

Hul' +,,6 estimate/ Central !ntelligence %genc'/ CThe ?orld =act ook/D https:@@www/cia/go"@li rar'@pu lications@the;world;fact ook@geos@ei/html/ Last accessed 3+ &arch +,,-/ 9,2 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 344/ 9,5 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 344/ 9,9 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 344/ 9,6 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 344/

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:&9b LE)#SLAT#ON AN$ )O;ERN'ENT #nternational ,.man trafficking treaties !reland has signed and ratified the 3-,4 %greement, and 3-3,, 3-+3 and 3-88 Con"entions/ !t has signed, ut not 'et ratified the 3-4- Con"ention, the +,,, (1 Con"ention, the +,,, Palermo Protocol, and the +,,2 Council of Europe Con"ention/ $irect ,.man trafficking legislation The Child Trafficking and Pornograph' %ct, 3--6 criminalises the trafficking of children, under the age of 39/9,The !llegal !mmigrants ETraffickingF %ct, +,,, criminalises human trafficking, and defines the offence as organising or knowingl' facilitating the entr' into the State of a person whom is known or can e elie"ed with reasona le cause that the' are an illegal immigrant or a person who intends to seek as'lum/ 93, The most comprehensi"e direct human trafficking law to date in !reland is the Criminal Law EHuman TraffickingF %ct, +,,6/ The definition of human trafficking is consistent with the definitions set out in the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention/ #ndirect ,.man trafficking legislation !reland also indirectl' criminalises "arious acts of or relating to human trafficking/ The !mmigration %ct, +,,4 criminalises offences related to the immigration side of human trafficking, including the presence in the State of non;nationals,933 failing to register,93+ and failing to produce documents/938 !n addition, the Emplo'ment Permits %cts, +,,8;+,,5 set out the reIuirements for non;nationals working legall' in !reland/934

9,93,

Child Trafficking and Pornograph' %ct, 3--6, S 8/ !llegal !mmigrants ETraffickingF %ct, +,,,, S +/ 933 !mmigration %ct, +,,4, S 2/ 93+ !mmigration %ct, +,,4, S -/ 938 !mmigration %ct, +,,4, S 3+/ 934 Emplo'ment Permits %cts, +,,8;+,,5/

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The 1on;=atal :ffences %gainst the Person %ct, 3--9 criminalises other acts that ma' take place during the trafficking process, such as assault,932 coercion,935 false imprisonment939 and a duction of children/936 The Criminal Law ESe.ual :ffencesF %ct, 3--8 criminalises soliciting or importuning for purposes of prostitution,93organisation of prostitution,9+, li"ing on earnings of prostitution9+3 and rothel keeping/9++ 'inistrThe Department of Hustice, EIualit' and Law )eform is responsi le for anti; trafficking efforts in !reland/ The Department esta lished the %nti;Human Trafficking (nit was esta lished in 1o"em er +,,6 to ensure that the *o"ernmentAs response to human trafficking is Ccoordinated, comprehensi"e and holistic/D9+8 :&9c CR#'#NAL LA2 Criminal law +rovisions The Child Trafficking and Pornograph' %ct, 3--6 criminalises trafficking children for the purpose of se.ual e.ploitation/9+4 The Criminal Law EHuman TraffickingF %ct, +,,6 criminalises human trafficking of children9+2 and adults,9+5 in addition to soliciting or importuning trafficked persons for the purposes of prostitution/9+9 !t also criminalises pu lishing or roadcasting an image or an' other representation or ph'sical likeness of a trafficked person, in order to protect their anon'mit'/ 9+6

932 935

1on;=atal :ffences %gainst the Person %ct, 3--9, S +/ 1on;=atal :ffences %gainst the Person %ct, 3--9, S -/ 939 1on;=atal :ffences %gainst the Person %ct, 3--9, S 32/ 936 1on;=atal :ffences %gainst the Person %ct, 3--9, S 35 and 39/ 93Criminal Law ESe.ual :ffencesF %ct, 3--8, S 9/ 9+, Criminal Law ESe.ual :ffencesF %ct, 3--8, S -/ 9+3 Criminal Law ESe.ual :ffencesF %ct, 3--8, S 3,/ 9++ Criminal Law ESe.ual :ffencesF %ct, 3--8, S 33/ 9+8 Department of Hustice, EIualit' and Law )eform, http:@@www/ lue lindfold/go"/ie@we site@ f@ fwe /nsf@page@whatis eingdone; administati"earrangements;en/ Last accessed +2 %ugust +,,-/ 9+4 Child Trafficking and Pornograph' %ct, 3--6, S 8/ 9+2 Criminal Law EHuman TraffickingF %ct, +,,6, S +/ 9+5 Criminal Law EHuman TraffickingF %ct, +,,6, S 4/ 9+9 Criminal Law EHuman TraffickingF %ct, +,,6, S 2/ 9+6 Criminal Law EHuman TraffickingF %ct, +,,6, S 33/

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Lengt, and nat.re of sentences Those in"ol"ed in the trafficking process and guilt' of con"iction on indictment of human trafficking offences in !reland are lia le to imprisonment for life or a lesser term, and a fine, at the discretion of the court/9+- The law pro"ides for the same punishment for all trafficking offences or attempts at trafficking offences related to children and those of full age/98, Those guilt' of an offence on a summar' con"iction of soliciting or importuning a trafficked person for the purposes of prostitution are lia le to a fine not e.ceeding V2,,,, or up to 3+ monthsA imprisonment/983 rosec.tions Prior to the Criminal Law EHuman TraffickingF %ct, %n *arda S\och]na utilised the !llegal !mmigrants ETraffickingF %ct, +,,, in cases of suspected human trafficking/98+ The statistics for prosecutions and con"ictions under this law include figures for oth human trafficking and smuggling, as the' are not differentiated since the law includes oth criminal acti"ities/988 Since Septem er +,,,, more than 3,, people ha"e een arrested and detained in respect of alleged reaches of the !llegal !mmigrants ETraffickingF %ct, +,,, which relates to the facilitation and organisation of the illegal entr' of persons into the State for gain/984 1o prosecutions or con"ictions ha"e arisen under the Criminal Law EHuman TraffickingF %ct982 in its first si. months in e.istence, which is not surprising considering it has een in e.istence for a short period of time/985 *arda\ are, howe"er, currentl' in"estigating se"eral cases pertaining to acti"it' that occurred prior to the passage of the Criminal Law EHuman TraffickingF %ct, +,,6 and also ma' reflect other issues and crimes esides human trafficking/989

9+98,

Criminal Law EHuman TraffickingF %ct, +,,6/ Criminal Law EHuman TraffickingF %ct +,,6, S +E2F, S 8 and S 4E9F/ 983 Criminal Law EHuman TraffickingF %ct, +,,6, S 2E8FEaF/ 98+ Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/ 988 Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/ 984 Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/ 982 Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/ 985 =rom 9 Hune +,,6 to 6 Decem er +,,6/ 989 Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/

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%s of the end of +,,6,986 one person had een charged ' the *arda 1ational !mmigration $ureau E*1!$F of four counts of attempting to incite another to commit an offence contrar' to the Child Trafficking and Pornograph' %ct, 3--6/98Convictions %s of the end of +,,6,94, there had een no con"ictions made under the Criminal Law EHuman TraffickingF %ct, +,,6/943 There ha"e een four persons con"icted in respect of ++ reaches of facilitating and organising the illegal entr' of persons into the State for gain under the !llegal !mmigrants ETraffickingF %ct, +,,, and one person was currentl' awaiting trial as of Decem er +,,6/94+ $etween the esta lishment of the *1!$ in +,,,, and 1o"em er +,,2, 62 trafficking; related in"estigations were undertaken, man' of which resulted in prosecutions/948 Howe"er, onl' a relati"el' small num er of the prosecutions ha"e led to con"ictions, which ma' e a result of the difficult' in o taining proof of trafficking, and that some of the allegations did not stand up in court/944 :&9d H%'AN R#)HTS H.man rig,ts +rovisions There are no human rights pro"isions in !rish human trafficking law/ State assistance %ccording to the Department of Hustice, EIualit' and Law )eform, arrangements are eing put in place to pro"ide the following ser"ices for trafficked persons in terms of oth their short and long;term needs: accommodation, material assistance, medical assistance, counselling, legal ad"ice, education, access to the la our market and residence rights/942

986 98-

6 Decem er +,,6/ Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/ 94, 6 Decem er +,,6/ 943 Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/ 94+ Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/ 948 E( %*!S/ C!mpro"ement of $est Practice in the Pre"ention, Detection M !n"estigation of Trafficking of Human $eings/D 39;36 1o"em er +,,2, p 6/ 944 E( %*!S/ C!mpro"ement of $est Practice in the Pre"ention, Detection M !n"estigation of Trafficking of Human $eings/D 39;36 1o"em er +,,2, p 6 942 Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/

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Currentl', the !rish go"ernment refers trafficked persons on a case; ';case asis to 1*:s which pro"ide food, shelter, health care and legal assistance/945 The go"ernment pro"ides funding to the !:& to facilitate the return and reintegration of trafficked persons/949 !n addition, the go"ernment also pro"ides funding to an !rish 1*: called )uhama that works with trafficked persons as a part of its wider mission of assisting women in"ol"ed in commercial se.ual e.ploitation/946 !n +,,6, the Department of Hustice, EIualit' and Law )eform pro"ided )uhama with funding to produce a short film to raise awareness a out trafficking for the purpose of se.ual e.ploitation/94- =urthermore, the go"ernment and semi;State sectors also pro"ide funding to the &igrant )ights Centre !reland E&)C!F to pro"ide assistance to migrant workers and those who ha"e een trafficked for la our e.ploitation/92, The funding for the &C)! is not trafficking;specific and is also used to assist non;trafficked migrant workers/923 !n addition, an' children who are found to e trafficked are placed in the care of the Health Ser"ice E.ecuti"e EHSEF/92+ The HSE is responsi le for pro"iding support to the child, as well as pro"iding for his or her immediate and ongoing needs through appropriate placement and links with health, ps'chological, social and educational ser"ices/928

945 949

Department of Hustice, EIualit' and Law )eform, 32 Decem Department of Hustice, EIualit' and Law )eform, 32 Decem 946 Department of Hustice, EIualit' and Law )eform, 32 Decem 94Department of Hustice, EIualit' and Law )eform, 32 Decem 92, Department of Hustice, EIualit' and Law )eform, 32 Decem 923 Department of Hustice, EIualit' and Law )eform, 32 Decem 92+ Department of Hustice, EIualit' and Law )eform, 32 Decem E.ecuti"e, www/hse/ie/ Last accessed 33 &a' +,,-/ 928 Department of Hustice, EIualit' and Law )eform, 32 Decem E.ecuti"e, www/hse/ie/ Last accessed 33 &a' +,,-/

er +,,6/ er +,,6/ er +,,6/ er +,,6/ er +,,6/ er +,,6/ er +,,6B See Health Ser"ice er +,,6B See Health Ser"ice

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State f.nding The aforementioned ser"ices will e pro"ided ' the State through its "arious agencies and funded ' the go"ernment/924 ermission to remain in t,e State % person who has een recognised922 as a trafficked person is lawfull' permitted to remain in !reland for a Creco"er' and reflection periodD of 5, da's925 in order to allow the person time to reco"er, to escape the influence of the alleged perpetrators of trafficking, and to make an informed decision as to whether to assist the *arda\ or other authorities in relation to the in"estigation/929 % personAs reco"er' and reflection period ma' e terminated if he or she "oluntaril' renews contact with the alleged perpetrators of traffickingB if it is in the interest of national securit' or pu lic polic' to do soB or "ictim status is eing claimed improperl'/ 926 !f a trafficked person has ceased all relations with the alleged perpetrators of trafficking and is reIuired to remain in !reland to assist with an in"estigation, the &inister will grant him or her a si.;month temporar' residence permit/92- This permit ma' e granted prior to or following the reco"er' and reflection period, and ma' e renewed if the personAs presence and assistance with the in"estigation is still reIuired, and he or she has not re;esta lished contact with the alleged perpetrators of trafficking/95, Howe"er, a personAs temporar' residence permit ma' e re"oked if he or she renews contact with the alleged perpetrators of traffickingB is no longer willing to assist with the in"estigation or prosecution of the traffickingB the allegation of trafficking is fraudulent or unfoundedB the in"estigation or prosecution has een finalised or terminated, or the &inister is satisfied that it is in the interest of national

924 922

Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/ $' a mem er of the *arda S\och]na not elow the rank of Superintendent in the *arda 1ational !mmigration $ureau/ 925 Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 2/ 38 1o"em er +,,6/ 929 Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 2/ 38 1o"em er +,,6/ 926 Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 6/ 38 1o"em er +,,6/ 92Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 33/ 38 1o"em er +,,6/ 95, Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 3+/ 38 1o"em er +,,6/

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securit' or pu lic polic' to do so/953 The granting of a temporar' residence permit does not create an' right to long;term or permanent residence in !reland/95+ !f the trafficked person had a pre;e.isting residence permit prior to o taining the temporar' residence permit, he or she ma', with the permission of the &inister for Hustice, EIualit' and Law )eform, remain in !reland until the end of his or her pre;e.isting permission/958 The &inister will make arrangements for the "oluntar' repatriation of a trafficked person at the end of, or prior to the e.pir' of his or her period of residence/954 This assistance ma' also e arranged through the !:&/952 The !mmigration, )esidence and Protection $ill, +,,6, if adopted and implemented, will grant suspected trafficked persons a 42 da' reco"er' and reflection period to escape the influence of their traffickers and make an informed decision on whether or not to cooperate with *arda\ in"estigations/955 The reco"er' and reflection period ma' e terminated if the trafficked person has re;esta lished ties with his or her trafficker, if it is a threat to pu lic securit', or if the person has falsel' claimed to ha"e een trafficked/959 The trafficked person ma' e granted a si.;month residence permit if he or she has se"ered all ties to his or her traffickerEsF, and is reIuired to remain in the State for the purpose of the in"estigation of their traffickerEsF/956 The residence permit ma' e renewed as long as the aforementioned criteria are met/95- % trafficked personAs residence permit ma' e re"oked if he or she re;esta lishes contact with his or her traffickerB no longer wishes to participate in *arda\ in"estigationsB has made a fraudulent claim of eing traffickedB the *arda\ in"estigation of his or her traffickerEsF has endedB or in the interest of pu lic securit'/ 99,
953

Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 38/ 38 1o"em er +,,6/ 95+ Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 32/ 38 1o"em er +,,6/ 958 Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 35/ 38 1o"em er +,,6/ 954 Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 39/ 38 1o"em er +,,6/ 952 Department of Hustice, EIualit' and Law )eform/ C%dministrati"e !mmigration %rrangements for the Protection of <ictims of Human Trafficking/D para 39/ 38 1o"em er +,,6/ 955 !mmigration, )esidence and Protection $ill, +,,6, S 3+4E3F, E8F/ 959 !mmigration, )esidence and Protection $ill, +,,6, S 3+4 E4FE F/ 956 !mmigration, )esidence and Protection $ill, +,,6, S 3+4 E9F/ 95!mmigration, )esidence and Protection $ill, +,,6, S 3+4 E6F/ 99, !mmigration, )esidence and Protection $ill, +,,6, S 3+4 E3,F/

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:&9e ;#E2S OF #)Os AN$ N)Os $oth !*:s and 1*:s note that a stronger focus on human rights is reIuired when responding to trafficked persons in !reland/ )uhama has Chuge concernsD a out !relandAs human trafficking laws and policies,993 and elie"es that the !rish approach, polic' and legislation as it is, is completel' focused on the criminal in"estigation, while the asic human rights of the trafficked persons are not eing respected/99+ The Commissioner for Human )ights of the Council of Europe stated in his report that while !reland has signed the +,,2 Council of Europe Con"ention, it has 'et to ratif' this "ictim;centred instrument/998 He also noted that while the Criminal Law EHuman TraffickingF %ct, +,,6 criminalised human trafficking, 1*:s and the ChildrenAs :m udsman had criticised it for lacking measures of support and assistance for trafficked persons when it was in ill form/994 %ccording to the Commissioner, children in the care of the State should e pro"ided with information adapted to their age regarding the dangers of human trafficking/992 =inall', he indicated that the role that 1*:s pla' in pro"iding support and assistance for trafficked persons should e recognised and supported ' the State/995 $etween Hanuar' +,,9 and Septem er +,,6, 3,+ women were identified ' 3, agencies as eing trafficked/999 The trafficked women were referred to organisations ' 1*:s E+6F, themsel"es E32F, a friend@solicitor@mem er of the pu lic E+,F, a go"ernmental refugee ser"ice E32F, hospitals@doctors@prisons@pro ation ser"ice E34F, and the *1!$ E2F/996 !n +,,9, )uhamaAs Trafficking (nit pro"ided ser"ices to 44 women/99- :f those, 33 were referred to the 1*: prior to +,,9, and of the 88 referrals

993 99+

)uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 998 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights on his "isit to !reland/D 8, %pril +,,6, S 28/ 994 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights on his "isit to !reland/D 8, %pril +,,6, S 28/ 992 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights on his "isit to !reland/D 8, %pril +,,6, S 24/ 995 Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights on his "isit to !reland/D 8, %pril +,,6, S 24/ 999 !mmigrant Council of !reland/ C*lo alisation, Se. Trafficking and Prostitution: The E.periences of &igrant ?omen in !reland/D %pril +,,-, p 22/ 996 !mmigrant Council of !reland/ C*lo alisation, Se. Trafficking and Prostitution: The E.periences of &igrant ?omen in !reland/D %pril +,,-, p 22/ 99)uhama/ C%nal'sis of )uhamaAs Trafficking =igures +,,9/D 8, Hune +,,6, p 3/

c.lii

from +,,9,96, onl' two were from the *arda\/963 The remaining referrals came from refugee agencies, refugee hostels, hospitals, prisons and other organisations/96+ )uhama refers more trafficked persons to the *arda\ than the *arda\ refer trafficked persons to )uhama/968 %ccording to )uhama, there are currentl' no set criteria for identif'ing trafficked persons, and as a result there is no transparenc'/ 964 =urthermore, once a decision has een made regarding the status of a possi le trafficked person, it cannot e appealed/962 The &)C! and !mmigrant Council of !reland E!C!F recommend that the identification of trafficked persons is not left solel' up to the *1!$, ut also incorporates the e.periences of those who work firsthand with trafficked persons on a regular asis/965 The &)C! recommends that !reland esta lish a 1ational )eferral &echanism to ensure that a human rights; ased approach to human trafficking is taken, and to facilitate cross;sector colla oration/969 $oth the &)C! and the !C! recommend that a 1ational )apporteurAs office should e esta lished as a formal mechanism for ensuring ongoing monitoring of the go"ernmentAs efforts to com at trafficking in human eings and include the input of 1*:s/966 The &)C! also reIuests that the !rish go"ernment colla orates with 1*:s and takes the &)C!As input into consideration as the organisations that deal with trafficked persons directl'/ 96-

96, 963

)uhama/ C%nal'sis of )uhamaAs Trafficking =igures +,,9/D 8, Hune +,,6, p 3/ )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 96+ )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 968 )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 964 )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 962 )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 965 &igrant )ights Centre !reland/ CSu mission to the Proposed 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 33B !mmigrant Council of !reland/ CSu mission to the 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 9/ 969 &igrant )ights Centre !reland/ CSu mission to the Proposed 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 5/ 966 &igrant )ights Centre !reland/ CSu mission to the Proposed 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 5B !mmigrant Council of !reland/ CSu mission to the 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 3/ 96&igrant )ights Centre !reland/ CSu mission to the Proposed 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p -/

c.liii

)uhama, the &)C! and the !C! recommend that human rights pro"isions are enshrined in legislation, rather than eing left to administrati"e policies/9-, The organisations elie"e that the following assistance should e granted to trafficked persons: an immediate reflection period in !reland, not dependent on participation in criminal proceedingsB pro"ision of a si.;month temporar' residence permitB access to interpreting ser"icesB access to appropriate and safe accommodation, financial and medical assistanceB support in accessing legal redressB and access to emplo'ment and training opportunities/9-3 =urthermore, 1*:s that pro"ide support to trafficked persons should e supported financiall'/9-+ )uhama also finds it pro lematic that the !rish go"ernmentAs current approach is to place identified trafficked persons in refugee hostels/9-8 The organisation elie"es that a refugee hostel is not a proper en"ironment for reco"er', and, in fact, ma' e used as a recruitment centre for human trafficking/9-4 )uhama contends that this also contri utes to the continual conflation of human trafficking and the as'lum process in !rish policies/9-2 )uhama said that it is "er' difficult for trafficked persons to o tain the reflection and reco"er' period, and it is left up to the *arda\ to identif' trafficked persons/9-5 %s of %pril +,,-, onl' two women ha"e een granted the reflection and reco"er' period/9-9 This is pro lematic ecause trafficked persons ma' not e comforta le with law enforcement officials and ma' not e completel' candid while pro"iding them with

9-,

)uhama/ C1ational %ction Plan to Pre"ent and Com at Human Trafficking/D 8, 1o"em er +,,9, p 3,B &igrant )ights Centre !reland/ CSu mission to the Proposed 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 38B !mmigrant Council of !reland/ CSu mission to the 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 8/ 9-3 !mmigrant Council of !reland/ C*lo alisation, Se. Trafficking and Prostitution: The E.periences of &igrant ?omen in !reland/D %pril +,,-, p 388;384B !mmigrant Council of !reland/ CSu mission to the 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 4;2B &igrant )ights Centre !reland/ CSu mission to the Proposed 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 38B )uhama/ C1ational %ction Plan to Pre"ent and Com at Human Trafficking/D 8, 1o"em er +,,9, p 2/ 9-+ &igrant )ights Centre !reland/ CSu mission to the Proposed 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 38/ 9-8 )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 9-4 )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 9-2 )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 9-5 )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 9-9 !mmigrant Council of !reland/ C*lo alisation, Se. Trafficking and Prostitution: The E.periences of &igrant ?omen in !reland/D %pril +,,-, p 384/

c.li"

information on their case/9-6 E"en when trafficked persons do cooperate with in"estigations, the' ma' ha"e to wait weeks to e granted the reflection period/9-!n terms of funding, )uhama elie"es that the same le"el of resources should e put into responding to human trafficking that is put into anti;immigration policing/6,, Similarl', the &)C! elie"es that the !rish go"ernment should focus on forced la our and the outcomes of trafficking, rather than on order controls and mechanisms ' which people are trafficked/6,3 :&9f ANAL*S#S !reland is not legall' ound ' the treatiesA pro"isions as it has not 'et ratified the +,,, Palermo Protocol or the +,,2 Council of Europe Con"ention/ Howe"er, a polic' document from the Department of Hustice, EIualit' and Law )eform indicated that the State has promised to ratif'/ 6,+ Criminal %t this stage, !reland has adopted more elements of the criminal model/ !t is clear that the primar' aim of the Criminal Law EHuman TraffickingF %ct, +,,6 is criminalising human trafficking, with no reference to human rights/ The criminal law itself does little more than criminalise the acts of trafficking and ensure that the anon'mit' of trafficked persons is protected/ !rish criminal law does not, howe"er, full' compl' with the pro"isions of the +,,2 Council of Europe Con"ention/ !t does not list endangering the life of the "ictim, human trafficking committed ' a pu lic official in the performance of his@her duties, nor human trafficking within the framework of a criminal organisation as aggra"ating circumstances in an' law/ The +,,2 Council of Europe Con"ention reIuires States to ensure that each of these offences are considered aggra"ating circumstances and are treated as such in the law/

9-6 9--

)uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 6,, )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ 6,3 &igrant )ights Centre !reland/ CSu mission to the Proposed 1ational %ction Plan to Pre"ent and Com at Human Trafficking/D Decem er +,,9, p 9/ 6,+ Department of Hustice, EIualit' and Law )eform, 32 Decem er +,,6/

c.l"

The elief of the 1*:s, particularl' )uhama, is that man' trafficked persons are treated as criminals in !reland, particularl' for reaches of immigration law/ =urthermore, the identification process is tied in with law enforcement, as it is carried out solel' ' mem ers of %n *arda S\och]na, who the trafficked persons ma' e reluctant to trust/ %n E( %*!S paper states that the *1!$ approach to human trafficking is ased on the notion that pre"ention > in other words, immigration law > is more efficient than detection/6,8 H.man rig,ts !relandAs human rights pro"isions are part of a polic' > not a law/ % section of a ill which ma' enter into law > the !mmigration, )esidence and Protection $ill, +,,6 > decreases the reco"er' and reflection period from 5, da's to 42 da's, and does not eliminate the reIuirement for trafficked persons to participate in the in"estigations of their traffickerEsF/ Therefore in this particular e.ample, the proposed law pro"ides less co"erage than the current polic'/ =urthermore, the Department of Hustice, EIualit' and Law )eform stated that the arrangements for assistance for trafficked persons are still eing put in order/ $oth the fact that the human rights pro"isions are not a part of esta lished legislation > which is far more difficult to alter or cut than stated policies > as well as the fact that the polic' has not 'et een enacted con"e' that !reland is prioritising criminal law pro"isions, which are currentl' in place/ % much stronger emphasis on human rights and more su stantial human rights pro"isions > either in the form of law or polic' > are reIuired in order to compl' with

6,8

E( %*!S/ C!mpro"ement of $est Practice in the Pre"ention, Detection M !n"estigation of Trafficking of Human $eings/D 39;36 1o"em er +,,2, p 3+/

c.l"i

the +,,2 Council of Europe Con"ention/ Currentl', there are no human rights pro"isions for trafficked persons whatsoe"er in either of the laws that deal with trafficking in !reland/ %n' of the human rights pro"isions mentioned a o"e are from a polic' document from the Department of Hustice, EIualit' and Law )eform/ This has ecome a maGor area of concern for 1*:s/ Concl.sion )egardless of whether States ha"e signed or ratified international law on human trafficking, the' can still e held to those accepted international standards for the purpose of anal'sis, e"en if the' are not legall' ound ' their pro"isions/ !n !relandAs case, this translates to the need for more permanent and accessi le human rights pro"isions/ Despite the fact that the go"ernmental polic' suggests that arrangements for human rights pro"isions are eing put in place, as it is merel' polic' rather than legislation, it is potentiall' eas' to alter or eliminate altogether/ %s a result, it is clear that at this point in time, !reland has adopted the criminal model of human trafficking laws and policies/ :&: L%CE'BO%R) :&:a #NTRO$%CT#ON Lu.em ourg, with a population of 465,,,,6,4 is primaril' a destination State for women trafficked for the purpose of se.ual e.ploitation/6,2 &ost trafficked women come from Eastern Europe, although there are increasing num ers of women working in prostitution from %frica and Latin %merica who also ma' ha"e een trafficked into Lu.em ourg/6,5 :&:b LE)#SLAT#ON AN$ )O;ERN'ENT #nternational ,.man trafficking law The +,,, (1 Con"ention is the onl' international human trafficking law that Lu.em ourg has oth signed and ratified/ !t did not sign an' of the earliest four
6,4

Hul' +,,6 estimate/ Central !ntelligence %genc'/ CThe ?orld =act ook/D https:@@www/cia/go"@li rar'@pu lications@the;world;fact ook@geos@lu/html/ Last accessed 3+ &arch +,,6/ 6,2 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 359/ 6,5 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 359/

c.l"ii

treaties, and has signed ut not ratified the 3-4- Con"ention, the +,,, Palermo Protocol, and the +,,2 Council of Europe Con"ention/ $irect ,.man trafficking legislation Human trafficking is criminalised in the Criminal Code/6,9 The definition of human trafficking is consistent with the definitions set out in the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention/6,6 #ndirect ,.man trafficking legislation Lu.em ourg also indirectl' criminalises "arious acts of or relating to human trafficking/ The Criminal Code criminalises inciting and facilitating the prostitution of a child6,- and e.ploiting a child for the purpose of prostitution or production of pornographic material/63, !t also criminalises owning or managing a rothel633 and knowingl' allowing all or part of an esta lishment to e used for prostitution/63+ Procuring prostitution is criminalised, including aiding and a etting the prostitution of othersB638 recei"ing financial compensation from another person engaging in prostitutionB634 emplo'ing, inciting or supporting another person for the purpose of prostitutionB632 acting as an intermediar' etween persons engaged in prostitution and those who e.ploit or pa' them for their ser"icesB635 and pre"enting inspection, assistance or reha ilitation work performed ' rele"ant odies on ehalf of persons engaged in prostitution/639 'inistrThe &inistr' of Hustice and the &inistr' for EIual :pportunities is in charge of anti; trafficking efforts in Lu.em ourg/ :&:c CR#'#NAL LA2
6,9 6,6

Criminal Code, 369-;+,,6, %rt 86+E3F/ Criminal Code, 369-;+,,6, %rt 86+E3F/ 6,Criminal Code, 369-;+,,6, %rt 89-E3F/ 63, Criminal Code, 369-;+,,6, %rt 89-E+F/ 633 Criminal Code, 369-;+,,6, %rt 89- isE8F/ 63+ Criminal Code, 369-;+,,6, %rt 89- isE4F/ 638 Criminal Code, 369-;+,,6, %rt 89- isE2FEaF/ 634 Criminal Code, 369-;+,,6, %rt 89- isE2FE F/ 632 Criminal Code, 369-;+,,6, %rt 89- isE2FEcF/ 635 Criminal Code, 369-;+,,6, %rt 89- isE2FEdF/ 639 Criminal Code, 369-;+,,6, %rt 89- isE2FEeF/

c.l"iii

Criminal law +rovisions The Criminal Code criminalises human trafficking for the purposes of prostitution, se.ual assault,636 ensla"ement,63- organ remo"al6+, and committing a crime or offence against the person/6+3 The Criminal Code specificall' states that the consent of a trafficked person does not e.onerate the offender or his or her accomplice from criminal responsi ilit'/ 6++ Lengt, and nat.re of sentences Those con"icted of human trafficking recei"e three to fi"e 'earsA imprisonment and a fine of V3,,,,,;2,,,,,/6+8 %ttempting to commit human trafficking is punisha le ' one to three 'earsA imprisonment and a fine of V2,,,,;3,,,,,/6+4 Punishment is also three to fi"e 'earsA imprisonment and a fine of V3,,,,,;2,,,,, with aggra"ating offences such as: placing the trafficked person in danger with a deli erate intent or gross negligenceB6+2 a using a person who is in a particularl' "ulnera le position ecause of his or her illegal immigration status, precarious social welfare status, pregnanc', illness, ph'sical or mental disa ilit'B 6+5 using threats or force or other forms of restraint, fraud or deception, or kidnappingB6+9 offering or accepting pa'ment or enefits in order to o tain the consent of a person who has authorit' o"er the trafficked personsB6+6 a legitimate, natural or adopted parent@guardian who a uses his or her authorit' o"er the trafficked personB6+- or ' an officer, pu lic functionar' or other pu lic official when e.ercising his or her functions/68, Punishment is increased to 3, to 32 'earsA imprisonment and a fine of V3,,,,,,;32,,,,, with aggra"ating

636 63-

Criminal Code, 369-;+,,6, %rt 86+E3FE3F/ Criminal Code, 369-;+,,6, %rt 86+E3FE+F/ 6+, Criminal Code, 369-;+,,6, %rt 86+E3FE8F/ 6+3 Criminal Code, 369-;+,,6, %rt 86+E3FE4F/ 6++ Criminal Code, 369-;+,,6, %rt 86+;+E8F/ 6+8 Criminal Code, 369-;+,,6, %rt/ 86+E3FE+F/ 6+4 Criminal Code, 369-;+,,6, %rt 86+E3FE8F/ 6+2 Criminal Code, 369-;+,,6, %rt 86+;+E3FE3F/ 6+5 Criminal Code, 369-;+,,6, %rt 86+;+E3FE+F/ 6+9 Criminal Code, 369-;+,,6, %rt 86+;+E3FE8F/ 6+6 Criminal Code, 369-;+,,6, %rt 86+;+E3FE4F/ 6+Criminal Code, 369-;+,,6, %rt 86+;+E3FE2F/ 68, Criminal Code, 369-;+,,6, %rt 86+;+E3FE5F/

c.li.

offences such as: using "iolence,683 a criminal gang or organisation,68+ in"ol"ing a child,688 using torture684 or unintentionall' causing the "ictimAs death/682 rosec.tions and convictions Table >685 *ear +,,3 +,,+ +,,8 +,,4 +,,2 +,,5 +,,9 +,,6 N.mber of rosec.tions N.mber of Convictions + , , , + , 3 3 3 3 4 4 4 8 5 8

!n cases where a prosecution did not result in a con"iction there was not total acIuittal: in these cases, there was a con"iction, ut on the asis of indirect law, such as for se.ual e.ploitation or pimping/689 :&:d H%'AN R#)HTS H.man rig,ts +rovisions !f a person is identified as eing trafficked, and is granted a -,;da' reflection period, he or she has access to protection and assistance from the State/686 Similarl', if a si.; month residence permit is granted to the trafficked person > dependent on cooperation with law enforcement authorities > he or she also is pro"ided with protection and assistance from the State/68- !f a trafficked person is granted a residence permit, the' ma' take up emplo'ment, if the' ha"e the professional Iualifications for the position concerned, or is in possession of a work contact with a specific emplo'er/64, Some
683 68+

Criminal Code, 369-;+,,6, %rt 86+;+E+FE3F/ Criminal Code, 369-;+,,6, %rt 86+;+E+FE+F/ 688 Criminal Code, 369-;+,,6, %rt 86+;+E+FE8F/ 684 Criminal Code, 369-;+,,6, %rt 86+;+E+FE4F/ 682 Criminal Code, 369-;+,,6, %rt 86+;+E+FE2F/ 685 CitW Gudiciare, ParIuet du Tri unal DA%rrondissement de Lu.em ourg/ CCases of trafficking for se.ual e.ploitation prosecuted and sentenced in Lu.em ourg/D 36 =e ruar' +,,-/ 689 ?agner, Serge/ Ser"ice de Police Hudiciaire, )esponsa le du DWpartement CriminalitW :rganisWe/ E; mail correspondence, 35 =e ruar' +,,-/ 686 Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -4/ 68Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -9/ 64, Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -9/

cl

residence permit holders are also eligi le for professional training courses/643 %n' recipients of the residence permit who are children64+ ha"e the right to education/648 !n addition, there is currentl' a ill644 under consideration in Lu.em ourg concerning assistance for trafficked persons/ %s of +- Hanuar' +,,- it has not een "oted on ' the Cham re des DWputWs/ The ill is comprehensi"e in terms of human rights pro"isions for trafficked persons/ ?hile the ill does not state that human rights pro"isions are conditional upon whether a trafficked person cooperates with authorities, it does indicate that the welfare enefits are su Gect to appro"al/642 !t pro"ides trafficked persons with suita le accommodation, social and socio; educational assistance, practical and financial assistance, medical assistance, ps'chological or therapeutic counsellingB645 linguistic@translation assistanceB649 and Gudicial assistance/646 =inancial assistance ma' e granted for up to 32 months, and e.tended e'ond 32 months where it has een confirmed as eing necessar' for the trafficked personAs well; eing/64- (naccompanied children are pro"ided with a guardian until the' are taken into care ' an agenc' of that childAs origin State/62, The ill also states that trafficked persons who are citizens of the E( ma' work while in Lu.em ourg,623 as well as attend training courses/62+ The police must inform the welfare agencies that a trafficked person has een identified, put the trafficked person in contact with the welfare agencies, and inform him or her of the different possi le
643 64+

Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -9/ Persons under the age of 36/ 648 Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -9/ 644 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6/ 642 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 5/ 645 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 8E3FEaF/ 649 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 8E3FE F/ 646 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 8E3FEcF/ 64ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 8E4F/ 62, ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 4/ 623 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 2E3F/ 62+ ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 2E+F/

cli

ci"il and criminal proceedings/628 The welfare agencies must also inform the trafficked person of his or her rights, the Gudicial and administrati"e procedures and the welfare enefits a"aila le at the time of his or her first contact/624 The police and welfare agencies must cooperate to ensure protection of trafficked persons and ma' e.change information to do so/622 The ill also reIuires educational programmes in schools on se. discrimination,625 as well as training for police officers and social ser"ice emplo'ees on com ating human trafficking/629 &oreo"er, the ill esta lishes a committee to monitor the attle against human trafficking, which is responsi le for implementing a monitoring s'stem, coordinating pre"entati"e actions and e"aluating human trafficking in Lu.em ourg/626 The committee ma' su mit proposals to the go"ernment/62- Lastl', the ill reIuires the compilation of statistics on human trafficking, roken down ' gender, age, origin State, and how a person was trafficked and e.ploited/65, The statistics will also include the num er of complaints, legal proceedings, con"ictions, measures to protect trafficked persons, and assistance pro"ided for trafficked persons/653 State assistance Despite contacting the rele"ant go"ernmental agencies, the' did not pro"ide an' e"idence of State assistance to trafficked persons that is not included in the draft ill/ State f.nding
628

ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 9/ 624 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 6/ 622 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt -/ 625 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 3,/ 629 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 33/ 626 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 3+/ 62ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 3+/ 65, ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 38/ 653 ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6, %rt 38/

clii

Despite contacting the rele"ant go"ernmental agencies, the' did not pro"ide an' information regarding State funding for anti;trafficking programmes/ ermission to remain in t,e State %n identified trafficked person is granted a -,;da' reflection period, in order to determine whether or not to assist in the in"estigation of his or her traffickerEsF/65+ This reflection period can e re"oked if the trafficked person is disco"ered to ha"e "oluntaril' reconnected with his or her traffickers/658 =ollowing the reflection period, if the trafficked person: 3F participated with the in"estigation of his or her traffickerEsFB +F is reIuired to e in Lu.em ourg to continue with the in"estigation or for a personal situationB 8F has roken all onds with his or her traffickerEsFB and 4F is not regarded as dangerous or a securit' threat, then the &inister ma' grant him or her a residence permit "alid for si. months/654 !t is renewa le for additional si. month periods, as long as the aforementioned conditions are met/652 The residence permit can also e re"oked if the trafficked person is found to e in reach of an' of the aforementioned conditions/655 ?hen the residence permits e.pire, the &inister ma' grant the trafficked person an authorisation to sta' in Lu.em ourg/659 :&:e ;#E2S OF #)Os AN$ N)Os !n a +,,4 report, the Council of Europe Commissioner on Human )ights noted that Lu.em ourg should re"iew its polic' of granting CartisteD "isas, similar to those a"aila le in C'prus,656 which did occur following his "isit and recommendation/65The :SCE Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings stated in its +,,6 report that Lu.em ourg incorporates human trafficking into its national action plan for eIual opportunities for men and women/69,
65+ 658

Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -8/ Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -8/ 654 Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -2/ 652 Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -2/ 655 Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -5/ 659 Li re circulation des personnes det immigration, 3, septem er +,,6, %rt -6/ 656 *il;)o les, %l"aro/ C)eport ' &r %l"aro *il;)o les on his "isit to the *rand Duch' of Lu.em ourg, +;8 =e ruar' +,,4/D 6 Hul' +,,4, S 84;86/ 65*il;)o les, %l"aro/ C=ollow (p )eport on C'prus: %ssessment on the progress made in implementing the recommendations of the Council of Europe Commissioner on Human )ights/D +&arch +,,5, S 26/ 69, :rganisation for Securit' and Cooperation in Europe Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings/ CEfforts to Com at Trafficking in Human $eings in the

cliii

!ncluded in the plan are pro"isions for a network to pro"ide ser"ices to women who are trafficked for se.ual e.ploitationB to pro"ide special training to the staff of womenAs shelters for responding to women trafficked for se.ual e.ploitationB and to raise awareness among customers of se.ual ser"ices a out human trafficking/693 The plan also notes that Lu.em ourgAs plan was de"eloped from a specific gender perspecti"e and does not attempt to com at an' forms of human trafficking aside from the se.ual e.ploitation of women/69+ Three 1*:s in Lu.em ourg > Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte > su mitted comments to the &inisters of Lu.em ourg regarding the draft ill on human trafficking/698 The 1*:s welcome the draft illAs reflection period of -, da's, noting that it goes e'ond the reIuirements of the +,,2 Council of Europe Con"ention/694 The' are also satisfied with the possi ilit', under the ill, to grant permission to trafficked persons to sta' in Lu.em ourg for Chumanitarian reasons of e.ceptional gra"it'/D692 The 1*:s did note, howe"er, that gi"en the "ulnera ilit' of trafficked persons, this permit should e granted with care and diligence, so as not to further traumatise the trafficked persons/695 The organisations do not appro"e of the stipulation that trafficked persons must cooperate with law enforcement in order to recei"e a temporar' residence permit, stating that man' trafficked persons are unwilling to participate, gi"en the potential conseIuences for themsel"es and their families/699 The' noted that trafficked persons

:SCE %rea: Co;ordination and )eporting &echanisms/D 38 1o"em er +,,6, p 42/ 693 :rganisation for Securit' and Cooperation in Europe Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings/ CEfforts to Com at Trafficking in Human $eings in the :SCE %rea: Co;ordination and )eporting &echanisms/D 38 1o"em er +,,6, p 42/ 69+ :rganisation for Securit' and Cooperation in Europe Special )epresentati"e and Co;ordinator for Com ating Trafficking in Human $eings/ CEfforts to Com at Trafficking in Human $eings in the :SCE %rea: Co;ordination and )eporting &echanisms/D 38 1o"em er +,,6, p 42/ 698 Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/ 694 Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/ 692 Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/ 695 Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/ 699 Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/

cli"

should e treated as "ictims, and repatriating them in"oluntaril' will not help, as it returns them to the start of their ordeal/696 Similarl', the 1*:s are also disappointed with the fact that the human rights pro"isions > a"aila le while a trafficked person has a residence permit > are onl' a"aila le to those who participate with in"estigations/69- The' stated that trafficked persons should recei"e assistance ecause the' are "ictims of a crime > not ecause the' assist law enforcement authorities with in"estigations/66, Lastl', the 1*:s were concerned with the well; eing of trafficked persons after the' ha"e een repatriated to their origin States/663 The' noted that a programme to a"oid re;"ictimisation should e esta lished for trafficked persons who are repatriated/66+ :&:f ANAL*S#S Lu.em ourg has ratified the +,,, (1 Con"ention, ut has onl' signed the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention/ %s the +,,, (1 Con"ention is entirel' concerned with criminal law, the fact that Lu.em ourg has 'et to ratif' the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention could indicate that it prioritised the criminal pro"isions and is working towards adopting human rights pro"isions in line with the con"entions/

Criminal Lu.em ourg has criminalised human trafficking, oth directl' and indirectl'/ The fact that the &inistr' of Hustice and the &inistr' for EIual :pportunities are the go"ernmental departments responsi le for com ating human trafficking indicates that Lu.em ourg takes a criminal law and gendered approach to human trafficking/

696

Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/ 69Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/ 66, Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/ 663 Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/ 66+ Caritas, =emmes en Detresse and la =ondation &aison de la Porte :u"erte/ Document recei"ed from &arie;Christine ?irion at Caritas/ +- %pril +,,-/

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The fact that some of the prosecutions did not result in con"ictions of human trafficking, ut of indirect offences indicates that it ma' e more difficult to pro"e a case of human trafficking/ This ma' e a result of lack of e"idence or witnesses, therefore making it easier to pro"e that se.ual e.ploitation or pimping took place/ H.man rig,ts %s the law in Lu.em ourg currentl' stands, a trafficked person must ha"e either a reflection period or temporar' residence permit > granted as a result of contemplating or participating in cooperati"e efforts with law enforcement, respecti"el' > in order to a"ail of human rights pro"isions/ This would change if the current ill under consideration was adopted/ The ill contains fairl' e.tensi"e human rights pro"isions, ranging from emergenc' assistance, such as shelter, to more long;term assistance such as financial assistance, educational assistance and linguistic@translation ser"ices/ Concl.sion %t the moment, Lu.em ourg has adopted more of a criminal model, ut has the potential of incorporating a higher le"el of human rights if the current ill is passed, and if the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention are ratified/ %s it stands, howe"er, human rights pro"isions are onl' a"aila le to trafficked persons under a reflection period or a temporar' residence permit, conditional upon cooperation with law enforcement authorities/ The current human rights ill is promising, howe"er, ecause if passed, the human rights pro"isions would e relati"el' strong, and enshrined in legislation, which is stronger than a non; legislati"e State polic'/

:&? 'ALTA :&?a #NTRO$%CT#ON

cl"i

&alta, with a population of 4,8,2,,668 is primaril' a destination State for women trafficked for the purpose of se.ual e.ploitation, mainl' originating in )ussia, (kraine, )omania and other Eastern European States/664 :&?b LE)#SLAT#ON AN$ )O;ERN'ENT #nternational ,.man trafficking treaties &alta has ratified e"er' international human trafficking treat'/ $irect ,.man trafficking legislation &alta criminalised white sla"e traffic in the ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9/662 The Criminal Code also addresses human trafficking/665 Human trafficking means Cthe recruitment, transportation or transfer of a person, or of a child, as the case ma' e, including har ouring and su seIuent reception and e.change of control o"er that person, or child, and includes an' eha"iour which facilitates the entr' into, transit through, residence in or e.it from the territor' of an' countr'D for an' of the purposes mentioned a o"e/669 !t is consistent with the definition in the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention/ #ndirect ,.man trafficking legislation The ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9 criminalises indirect human trafficking offences, such as detaining a person against his or her will in a rothel,666 li"ing on the earning of prostitution,66- keeping a rothel,6-, using a shop, etc/ for the purpose of prostitution,6-3 and using a house for the purpose of prostitution/6-+
668

Hul' +,,6 estimate/ Central !ntelligence %genc'/ CThe ?orld =act ook/D https:@@www/cia/go"@li rar'@pu lications@the;world;fact ook@geos@mt/html/ Last accessed 3+ &arch +,,-/ 664 (nited States Department of State, CTrafficking in Persons )eport +,,6,D Hune +,,6, p 399/ 662 ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9/ 665 Criminal Code, 3624;+,,6, Ch -, %rt 889%E3F/ 669 Criminal Code, 3624;+,,6, Ch -, %rt +46E/ 666 ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9, %rt 2/ 66?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9, %rt 9/ 6-, ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9, %rt 6/ 6-3 ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9, %rt -/ 6-+ ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9, %rt 3,/

cl"ii

The !mmigration %ct criminalises acts such as eing an illegal immigrant,6-8 failure to produce documents and pro"ide information,6-4 assisting a person to enter or reside in &alta illegall',6-2 pro"iding emplo'ment to a prohi ited immigrant,6-5 pro"iding false immigration information a out another person,6-9 forging immigration documents,6-6o structing or impeding the lawful e.ercise of the !mmigration %ct,6-and possessing a forged immigration document/-,, The Criminal Code criminalises "arious indirect human trafficking offences, such as a duction,-,3 forger' of documents,-,+ inducing a person under age to prostitution,-,8 instigating with "iolence a person under age to prostitution,-,4 and compelling or inducing a person of full age to prostitution/-,2 'inistrThe &inistr' for Hustice and Home %ffairs is responsi le for anti;human trafficking efforts in &alta/ :&?c CR#'#NAL LA2 Criminal law +rovisions The ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9 criminalises inducing a person-,5 to enter &alta or lea"e &alta for the purpose of prostitution/-,9 The Criminal Code criminalises the human trafficking of children-,6 and adults for the purpose of e.ploiting the person for the production of goods or ser"ices under conditions and in circumstances which infringe la our standards go"erning working conditions, salaries and health and safet'/-,- The means of the e.ploitation ma' e in
6-8 6-4

!mmigration %cts, 3-9,;+,,6, %rt 2/ !mmigration %cts, 3-9,;+,,6, %rt +6/ 6-2 !mmigration %cts, 3-9,;+,,6, %rt 8+E3FEaF/ 6-5 !mmigration %cts, 3-9,;+,,6, %rt 8+E3FE F/ 6-9 !mmigration %cts, 3-9,;+,,6, %rt 8+E3FEcF/ 6-6 !mmigration %cts, 3-9,;+,,6, %rt 8+E3FEdF/ 6-!mmigration %cts, 3-9,;+,,6, %rt 8+E3FEeF/ -,, !mmigration %cts, 3-9,;+,,6, %rt 8+E3FEfF/ -,3 Criminal Code, 3624;+,,6, Ch -, %rt 3-- and +,,/ -,+ Criminal Code, 3624;+,,6, Ch -, %rt 368, 364 and 36-/ -,8 Criminal Code, 3624;+,,6, Ch -, %rt +,4B +,4$/ -,4 Criminal Code, 3624;+,,6, Ch -, %rt +,4%/ -,2 Criminal Code, 3624;+,,6, Ch -, %rt +,2/ -,5 $oth +3 'ears of age or older, %rt +, and under +3 'ears of age, %rt 8/ -,9 ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9, %rt +, 8/ -,6 Criminal Code, 3624;+,,6, Ch -, %rt +46D/ -,Criminal Code, 3624;+,,6, Ch -, %rt +46%E3F/

cl"iii

the form of "iolence or threats, including a ductionB-3, deceit or fraudB-33 misuse of authorit', influence or pressureB-3+ or gi"ing or recei"ing pa'ments or enefits to achie"e the consent of the person ha"ing control o"er another person/-38 The law also specificall' criminalises trafficking a person for the purposes of pornograph', -34 and for the remo"al of organs/-32 The Criminal Code also criminalises aiding, assisting, counselling or procuring people for the purpose of human trafficking, and entering, lea"ing or transiting across &alta, or attempting to do so, or conspiring with another person to commit the act/-35 !t also pro"ides additional punishment for trafficking more than three people, participating in an acti"it' of a criminal organisation, or endangering the li"es of the trafficked persons/-39 Lengt, and nat.re of sentences (nder the ?hite Sla"e Traffic ESuppressionF %cts, those con"icted of inducing a person +3 'ears of age or older to enter or lea"e &alta for the purpose of prostitution recei"e two to 3, 'earsA imprisonment/-36 Those con"icted of inducing a person under +3 'ears of age or older to enter or lea"e &alta for the purpose of prostitution recei"e three to 3, 'earsA imprisonment/-3Those con"icted of se.ual e.ploitation or forced la our recei"e two to nine 'earsA imprisonment,-+, and four to 3+ 'earsA imprisonment for organ remo"al/-+3 Trafficking offences in"ol"ing grie"ous odil' harm, a profit e.ceeding V33,545/69 or with the in"ol"ement of organised crime will ha"e punishments increased ' one degree/-++ Those con"icted of facilitating trafficking into &alta recei"e si. months to fi"e 'earsA

-3, -33

Criminal Code, 3624;+,,6, Ch -, %rt +46%E+FEaF/ Criminal Code, 3624;+,,6, Ch -, %rt +46%E+FE F/ -3+ Criminal Code, 3624;+,,6, Ch -, %rt +46%E+FEcF/ -38 Criminal Code, 3624;+,,6, Ch -, %rt +46%E+FEdF/ -34 Criminal Code, 3624;+,,6, Ch -, %rt +46$/ -32 Criminal Code, 3624;+,,6, Ch -, %rt +46C/ -35 Criminal Code, 3624;+,,6, Ch -, %rt 889%E3F/ -39 Criminal Code, 3624;+,,6, Ch -, %rt 889%E3F/ -36 ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9, %rt +/ -3?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9, %rt 8/ -+, Criminal Code, 3624;+,,6, Ch -, %rt +46%E3F/ -+3 Criminal Code, 3624;+,,6, Ch -, %rt +46C/ -++ Criminal Code, 3624;+,,6, Ch -, %rt +46EE+F/

cli.

imprisonment and@or a fine of V+8,+-8/98/-+8 The same punishment is gi"en to those who are con"icted of aiding, assisting, counselling or procuring people for the purpose of human trafficking/-+4 !f a person aids, assists, counsels or procures more than three people, he or she recei"es a harsher penalt'/-+2 =urthermore, if the offence is committed as an acti"it' of a criminal organisation, or while endangering the li"es of the trafficked persons, the' recei"e a harsher punishment, e"en when the pre"ious pro"ision is not applied/-+5 !mprisonment is the most pre"alent sentence, although the sentence could e suspended for a period of time, especiall' in cases where the accused admits to the charge/-+9 rosec.tions and convictions Table 6-+6 *ear +,,8 +,,4 +,,2 +,,5 +,,9 +,,6 N.mber of rosec.tions 3 case, 8 persons + cases, 3+ persons 3 case, + persons 3 case, 2 persons + cases, 5 persons 3 case, + persons N.mber of Convictions n@a 3, persons 8 persons-+n@a n@a n@a

The remaining cases are su# Fudice/-8, :&?d H%'AN R#)HTS H.man rig,ts +rovisions Trafficked persons are offered assistance and protection during a reflection period or a residence permit, pro"ided that the' are contemplating or ha"e agreed to cooperate with authorities to in"estigate those in"ol"ed in their trafficking process Eor are contemplating cooperating with authorities, during a reflection periodF/-83 !f the person does not ha"e sufficient resources, he or she will e pro"ided with: the
-+8 -+4

Criminal Code, 3624;+,,6, Ch -, %rt 889%E3F/ Criminal Code, 3624;+,,6, Ch -, %rt 889%E3F/ -+2 Criminal Code, 3624;+,,6, Ch -, %rt 889%E3F/ -+5 Criminal Code, 3624;+,,6, Ch -, %rt 889%E3F/ -+9 Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of +- Decem er +,,6/ -+6 Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of +- Decem er +,,6/ -+Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of +- Decem er +,,6/ -8, Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of +- Decem er +,,6/ -83 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E2F/

cl.

standards of li"ing capa le of ensuring his or her su sistenceB-8+ access to emergenc' medical careB-88 and, where applica le: attention to the needs of the most "ulnera leB-84 ps'chological assistanceB-82 translation and interpreting ser"icesB-85 and free legal aid/-89 !f the trafficked person is a child, he or she will ha"e access to the education s'stem under the same conditions as &altese nationals/-86 ?hile trafficked persons are t'picall' "iewed ' &alta as "ictims, there ha"e een occasions where the alleged trafficked person decides not to cooperate with the police, despite eing offered protection and shelter/-8State assistance There is a &emorandum of (nderstanding etween the &alta Police and the &inistr' for Social Polic' for the pro"ision of social support ser"ices in cases of potential "ictims of human trafficking, with the work carried out ' %genziGa %ppogg/-4, %genziGa %ppogg, a go"ernmental agnec', pro"ides shelter, ps'chological therap', and famil' therap' to trafficked persons/-43 The &alta Police will inform the &inistr' for Social Polic' a out each trafficked person that reIuires assistance/-4+ !n those cases, the &inistr' will pro"ide social support in which social workers will inter"iew, assess, counsel and pro"ide support to the potentiall' trafficked persons/-48 During

-8+

Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E2FEiF/ -88 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E2FEiiF/ -84 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E2FEiiiF/ -82 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E2FEi"F/ -85 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E2FE"F/ -89 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E2FE"iF/ -86 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E2F/ -8Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of +- Decem er +,,6/ -4, %genziGa %ppogg/ C%dult and =amil' Ser"ices: :"er"iew/D http:@@www/appogg/go"/mt@adultandfamil'0o"er"iew/asp/ Last accessed 34 %pril +,,-/ -43 %genziGa %ppogg/ E;mail correspondence with Christine &archand %gius/ 3- =e ruar' +,,-/ -4+ %genziGa %ppogg/ C%dult and =amil' Ser"ices: :"er"iew/D http:@@www/appogg/go"/mt@adultandfamil'0o"er"iew/asp/ Last accessed 34 %pril +,,-/ -48 %genziGa %ppogg/ C%dult and =amil' Ser"ices: :"er"iew/D http:@@www/appogg/go"/mt@adultandfamil'0o"er"iew/asp/ Last accessed 34 %pril +,,-/

cl.i

human trafficking in"estigations, social workers are t'picall' reIuested to support the trafficked persons ' ensuring the' ha"e shelter/-44 State f.nding The go"ernment does not specificall' allocate funding for the assistance and protection of trafficked persons/-42 Three go"ernmental ministries > the &inistr' for Social Polic', the &inistr' for Hustice and Home %ffairs, and the &inistr' of Health > liaise amongst themsel"es and with an' 1*:s the' deem necessar' to respond to human trafficking in &alta/-45 The &altese go"ernment, through the &inistr' for Social Polic', funds the 1*: %genziGa %ppogg, which pro"ides assistance for trafficked persons/-49 %genziGa %ppogg > the duties of which include assisting, protecting and supporting "ictims of crime > descri es itself as Cthe national social welfare agenc' for children and families in need/D-46 %genziGa %ppogg operates a telephone line to report acts of human trafficking for oth &altese and non;&altese citizens/-4-

ermission to remain in t,e State % non;E( citizen-2, that has een trafficked is permitted to remain in &alta if he or she cooperates with the &altese authorities/-23 The Principal !mmigration :fficer determines whether the trafficked person is cooperating-2+ with authorities Cin the
-44 -42

Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of +- Decem er +,,6/ Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of 3+ =e ruar' +,,-/ -45 Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of 3+ =e ruar' +,,-/ -49 St Hohn, Hoseph/ The &inistr' for Hustice and Home %ffairs/ E;mail correspondence of 39 =e ruar' +,,-B Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of 3+ =e ruar' +,,-/ -46 %genziGa %ppogg/ See http:@@www/appogg/go"/mt@default/asp/ Last accessed 36 =e ruar' +,,-/ -4%genziGa %ppogg/ http:@@www/appogg/go"/mt@pdf@downloads@leaflet0human0trafficking/pdf/ Last accessed 36 =e ruar' +,,-/ -2, % Cthird countr' nationalD means an' person who is not a national of a &em er State of the European (nion/ Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co; operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S +/ -23 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8/ -2+ CNCooperateA means the gi"ing of information ' the third countr' national to the immigration authorities related, inter alia, to his arri"al in &alta as a "ictim of trafficking or related to his illegal arri"al in &alta and includes, in particular, the names of persons of traffickers and their accomplices or details related to points of departure, which information leads to, or contri utes significantl' to, the tracing or prosecution of the trafficker/D Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S +/

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fight against trafficking in human eings,D-28 and ma' in"ite an 1*: to pro"ide information on the third countr' national in"ol"ed/-24 :nce the trafficked person has een informed ' the Principal !mmigration :fficer of his or her eligi ilit' to remain, he or she has no more than two months to detach himself or herself from the traffickers in order to make an informed decision regarding cooperating/-22 The period of reflection ma' e terminated at an' time ' the Principal !mmigration :fficer for reasons related to pu lic polic' or national securit', or if the trafficked person re; esta lishes contact with his or her trafficker/-25 The trafficked person will e pro"ided with assistance if he or she does not ha"e sufficient resources/-29 %t the end of the reflection period, or prior to its conclusion, the Principal !mmigration :fficer ma' grant the trafficked person a residence permit if he or she is reIuired to remain in &alta to take part in criminal proceedings,-26 intends to cooperate with authorities,-2- and has se"ered all relations with his or her traffickers/-5, The residence permit is "alid for si. months, and is renewa le if the aforementioned conditions continue to e met/-53 The trafficked person will continue to recei"e assistance if he or she still lacks sufficient resources,-5+ and ma' e granted a work permit, or in the case of a trafficked child, access to "ocational training and education/-58 The trafficked person ma' also ha"e access to schemes pro"ided ' the

-28

Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E3F/ -24 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E+F/ -22 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E8F/ -25 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E5F/ -29 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 8E2F/ -26 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 2E3FEaF/ -2Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 2E3FE F/ -5, Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 2E3FEcF/ -53 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 2E+F/ -5+ Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 2E8F/ -58 Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 2E4F/

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go"ernment or 1*:s aimed at the reco"er' of a normal life, which ma' include assisted repatriation/-54 (nder the Criminal Code, a person will not e deported until the lapse of 8, da's from the date that the Principal !mmigration :fficer has reasona le grounds to elie"e that the person concerned has een trafficked/-52 %s of Decem er +,,6, there ha"e een no cases where the trafficked person opted to remain in &alta/-55 :&?e ;#E2S OF #)Os AN$ N)Os The Council of Europe Commissioner on Human )ights has "isited &alta, ut has ne"er dealt with the issue of human trafficking in his reports/ The People for Change =oundation EP=CF, a &altese 1*:, noted that the pro lem with &altaAs human trafficking legislation is that human rights are onl' granted to trafficked persons if the' colla orate with police/-59 %nother pro lem with the legislation is that the structures for the rights enshrined in the law granting human rights pro"isions to e rought into effect still must e clarified, ecause a case has 'et to e rought under this instrument/-56 P=C stated that in the pu lic discourse in &alta, human trafficking is often confused with Iuestions of smuggling and irregular migration/-5- This pro lem is compounded ' the fact that &altese criminal law does not make a distinction in its wording etween human trafficking and smuggling, as essentiall' the same word is used to translate oth the words CsmugglingD and Ctrafficking/D-9, P=C sees the need for clearer procedures which are agreed and detailed/ Currentl', a &emorandum of (nderstanding e.ists etween %genziGa %ppogg and the &alta

-54

Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co;operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9, S 2E2F/ -52 Criminal Code, 3624;+,,6, Ch -, %rt +46EE9F/ -55 Communit' and &edia )elations (nit, &alta Police/ E;mail correspondence of +- Decem er +,,6/ -59 The People for Change =oundation/ E;mail correspondence from Hean;Pierre *auci/ 8 %pril +,,-/ -56 The People for Change =oundation/ E;mail correspondence from Hean;Pierre *auci/ 8 %pril +,,-/ -5The People for Change =oundation/ E;mail correspondence from Hean;Pierre *auci/ 8 %pril +,,-/ -9, The People for Change =oundation/ E;mail correspondence from Hean;Pierre *auci/ 8 %pril +,,-/

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Police, ut it needs to e further de"eloped and impro"ed/-93 !n addition, 1*:s and other ser"ice pro"iders need to continue to recei"e regular and more intense training in the area of human traffickingB support pro"ided to trafficked persons needs to e impro"edB general awareness;raising amongst the general pu lic is needed/-9+ %t this stage, P=C has not 'et pro"ided direct assistance to trafficked persons and their work has remained in the area of training/-98 P=C, the !:&, %genziGa %ppogg and the &alta Police held a training seminar on human trafficking in =e ruar' +,,-/-94 %t that stage, onl' human trafficking for se.ual e.ploitation had een reported, ut none of the reported cases concerned illegal immigrants/-92 %ll of the identified trafficked persons in +,,5 and +,,9 were also trafficked for se.ual e.ploitation, originating in Eastern Europe and South East Europe/-95 :&?f ANAL*S#S &alta is taking the issue of human trafficking seriousl' ' ratif'ing e"er' international human trafficking law/ Criminal &alta has criminalised human trafficking, oth directl' and indirectl'/ The fact that the &inistr' of Hustice and Home %ffairs is the go"ernmental department responsi le for com ating human trafficking indicates that &alta does treat the issue as a criminal matter/ &altese criminal law does not, howe"er, full' compl' with the pro"isions of the +,,2 Council of Europe Con"ention/ !t does not list human trafficking committed ' a
-93 -9+

The People for Change =oundation/ E;mail correspondence from Hean;Pierre *auci/ 8 %pril +,,-/ The People for Change =oundation/ E;mail correspondence from Hean;Pierre *auci/ 8 %pril +,,-/ -98 The People for Change =oundation/ E;mail correspondence from Hean;Pierre *auci/ 8 %pril +,,-/ -94 The People for Change =oundation, the !nternational :rganisation for &igration, %genziGa %ppogg, the &alta Police/ C$est practices to pre"ent, detect and protect "ictims of trafficking in human eings/D =e ruar' +,,-/ -92 The People for Change =oundation, the !nternational :rganisation for &igration, %genziGa %ppogg, the &alta Police/ C$est practices to pre"ent, detect and protect "ictims of trafficking in human eings/D =e ruar' +,,-, p 9/ -95 (nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-, p +54/

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pu lic official in the performance of his@her duties as an aggra"ating circumstance in an' law/ The +,,2 Council of Europe Con"ention reIuires States to ensure that this offence is considered an aggra"ating circumstance and is treated as such in the law/ H.man rig,ts ?hile &altaAs human rights pro"isions are relati"el' comprehensi"e, the' are onl' granted to trafficked persons who cooperate with authorities in in"estigations and proceedings/ This represents a strict adoption of the minimum standards in the +,,4 E( Directi"e/ ?hile it is positi"e that the human rights pro"isions are included in legislation, it is pro lematic that the' are onl' pro"ided when trafficked persons decide to participate in in"estigations, as man' would feel unsafe or una le to do so/ Concl.sion Despite ha"ing relati"el' few human trafficking prosecutions and con"ictions, &alta has adopted a criminal approach to human trafficking/ ?hile there is a law that grants assistance to trafficked persons, an' assistance offered to them is conditional upon whether the' cooperate with law enforcement authorities and aid in the prosecution of those in"ol"ed in their trafficking process/ !t is clear that the main moti"ation for offering the assistance is to aid with the criminal proceedings, and not for the purpose of granting human rights to trafficked persons/ !n other words, the priorit' is that of the State, rather than the indi"idual, which indicates that the criminal model is pre"alent/ )egardless, it is difficult to determine the e.tent to which the criminal or assistance pro"isions are implemented/ !t is also pro lematic ecause although &alta complies with the +,,4 E( Directi"e, it does not compl' with the +,,2 Council of Europe Con"ention, which stipulates that States parties must ensure that assistance to trafficked persons is not made conditional on his or her willingness to act as a witness/ :&> NOR2A*

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:&>a #NTRO$%CT#ON 1orwa', with a population of 4/5 million-99 is a destination State for people trafficked from 1igeria, )ussia, %l ania, (kraine, Lat"ia, Lithuania, Estonia, $razil and East %sian countries/-96 En route, people are trafficked through transit States of Sweden, Denmark, !tal' and the $alkan States/-9- %t this stage, most identified trafficked persons in 1orwa' ha"e een trafficked for the purpose of se.ual e.ploitation in the maGor cities, with street prostitution, in addition to trafficked persons working from apartments or rothels/-6, 1orwa' has criminalised clients of prostitution since Hanuar' +,,-, which, akin to laws in Sweden, criminalise the purchasing of se.ual ser"ices, and ma' change the 1orwegian prostitution market, as well as decrease the flow of human trafficking/-63 :&>b LE)#SLAT#ON AN$ )O;ERN'ENT #nternational ,.man trafficking law 1orwa' has ratified e"er' international human trafficking law, with the e.ception of the 3-4- Con"ention, which it signed ut has not ratified/ $irect ,.man trafficking legislation The direct human trafficking legislation is found in the *eneral Ci"il Penal Code, under Chapter +3: =elonies %gainst Personal Li ert'/ -6+ The definition of human trafficking in the *eneral Ci"il Penal Code is generall' consistent with the definition set out in the +,,, Palermo Protocol and +,,2 Council of Europe Con"ention/ !t does not specif' that human trafficking could in"ol"e the recruitment, transportation, transfer, har ouring or receipt of persons/

-99

Hul' +,,6 estimate/ Central !ntelligence %genc'/ CThe ?orld =act ook/D https:@@www/cia/go"@li rar'@pu lications@the;world;fact ook@geos@no/html/ Last accessed 3+ &arch +,,-/ -96 (nited States Department of State, +rafficking in ersons $e!ort 4GG@ 2 1orway, 4 Hune +,,6/ %"aila le online at http:@@norwa'/usem ass'/go"@tip+,,6/html/ Last accessed +, 1o"em er +,,6/ -9(nited States Department of State, +rafficking in ersons $e!ort 4GG@ 2 1orway, 4 Hune +,,6/ %"aila le online at http:@@norwa'/usem ass'/go"@tip+,,6/html/ Last accessed +, 1o"em er +,,6/ -6, $runo"skis, %nette/ CSocial aspects of human trafficking/D =afo, !nstitute of %pplied !nternational Studies, Decem er +,,9, p 3/ -63 $runo"skis, %nette/ CSocial aspects of human trafficking/D =afo, !nstitute of %pplied !nternational Studies, Decem er +,,9, p 3/ -6+ The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++4/

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#ndirect ,.man trafficking legislation 1orwa' also has a range of other criminal offences that ma' e in"ol"ed in "arious stages of the trafficking process/ The *eneral Ci"il Penal Code criminalises procurement-68 > promoting and earning mone' from the prostitution of others > although in practice, it is difficult to distinguish etween human trafficking and procurement, as well as trafficked persons and those willingl' engaged in prostitution/-64 :ther indirect pro"isions include the criminalisation of coercion,-62 depri"ation of li ert',-65 sla"er',-69 threats,-66 ph'sical a use,-6- se.ual crime,--, and participation in organised criminal acti"it'/ --3 &oreo"er, the !mmigration %ct addresses situations related to the trafficking process, such as knowingl' making use of the la our of a foreign national who does not ha"e a reIuired work permit/--+ !t also criminalises procuring work or accommodation for a foreign nationalB procuring or issuing an' document or statement used for immigration purposes, which in"ol"es e.ploitation of the foreign nationalAs situationB enticing a foreign national to enter 1orwa' with a "iew to settling thereB and misuse of passports and tra"el documents/--8 Lastl', it criminalises participating in, aiding, or a etting organised criminal acti"it' with a "iew to assisting an' foreign national to enter the State illegall'/ --4
-68

The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S +,+/ -64 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p +/ -62 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S +++/ -65 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++8/ -69 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++2/ -66 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++9/ -6The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++6 et seI/ --, The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S 3-+ et seI/ --3 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S 5,/ --+ %ct Concerning the Entr' of =oreign 1ationals into the Jingdom of 1orwa' and their Presence in the )ealm E!mmigration %ctF/ +4 Hune 3-66, 1o 54, updated with amendments, most recentl' +6 Hul' +,,+, S 49/ --8 %ct Concerning the Entr' of =oreign 1ationals into the Jingdom of 1orwa' and their Presence in the )ealm E!mmigration %ctF/ +4 Hune 3-66, 1o 54, updated with amendments, most recentl' +6 Hul' +,,+, S 49/ --4 %ct Concerning the Entr' of =oreign 1ationals into the Jingdom of 1orwa' and their Presence in the )ealm E!mmigration %ctF/ +4 Hune 3-66, 1o 54, updated with amendments, most recentl' +6 Hul' +,,+, S 49/

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'inistrThe &inistr' of Hustice and Police is responsi le for anti;human trafficking efforts in 1orwa'/ :&>c CR#'#NAL LA2 Criminal law +rovisions The *eneral Ci"il Penal Code criminalises human trafficking for the purposes of se.ual e.ploitation, forced la our, war ser"ice in a foreign countr' and remo"al of organs/--2 This also includes inducing another person to allow himself or herself to e used for human trafficking purposes/--5 !t also criminalises participation in the trafficking process, including making arrangements for trafficking, aiding and a etting trafficking, and pro"iding or recei"ing compensation in order to o tain consent to trafficking from an' person who has authorit' o"er the aggrie"ed person/--9 Lengt, and nat.re of sentences Those con"icted of human trafficking, or an' of its related acti"ities, as descri ed a o"e, is lia le to up to fi"e 'earsA imprisonment/--6 %cts of gross human trafficking are determined ' considering whether the person e.posed to the act was a child,--whether gross "iolence or coercion was used, or whether the act led to considera le gain/ 3,,, The' are punisha le with up to 3, 'earsA imprisonment/3,,3 ?hen an act of trafficking is committed against a child,3,,+ in addition to the penalt' for gross human trafficking, the person con"icted is also lia le to an independent penalt' for an' use of force or threats, misuse of a personAs "ulnera ilit', or other improper conduct/3,,8

--2

The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++4/ --5 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++4/ --9 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++4/ --6 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++4/ --(nder the age of 36/ 3,,, The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++4/ 3,,3 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2, 1o 383, S ++4/ 3,,+ % person under the age of 36 3,,8 The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2 1o 383, Chapter +3, S ++4/

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rosec.tions and convictions Table 83,,4 *ear +,,2 +,,5 +,,9 rosec.tions 6 8,3,,5 n@a Convictions 9 people3,,2 con"icted etween +,,2;+,,9

:&>d H%'AN R#)HTS H.man rig,ts +rovisions There are no specific human rights pro"isions in 1orwegian legislation, as the' are implemented through go"ernmental policies/ State assistance !n +,,5, the go"ernment of 1orwa' esta lished the 1ational Coordinating (nit for %ssistance and Protection for the "ictims of human trafficking/3,,9 The primar' function of this (nit > which is administered ' the Directorate of Police > is assisting the welfare ser"ice ' pro"iding methods for planning and mo ilising assistance and protection ser"ices for trafficked persons, and indicators for identif'ing trafficked persons/3,,6 The list of indicators, made a"aila le in +,,6, help identif' trafficked persons who are working as prostitutes/3,,- !n addition, the 1ational Coordinating (nit is responsi le for: the national s'stem for reporting on and monitoring trafficked personsB the national s'stem for e.it strategies and sustaina le reha ilitation of trafficked personsB the national s'stem of "oluntar' repatriation of trafficked personsB
3,,4

%ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 33/ 3,,2 This includes three 1orwegians and four non;nationals/ 3,,5 +- cases were for se.ual e.ploitation and one was for forced la our/ 3,,9 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 2/ 3,,6 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 2/ 3,,%ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 5/

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guidelines for moti"ating trafficked persons to cooperate with the policeB guidelines for interdisciplinar' cooperationB information on the rights of trafficked personsB and local coordination units/3,3, !dentified trafficked persons are offered coordinated assistance and protection ser"ices, adapted to the specific needs of the indi"idual/3,33 This includes access to health ser"ices and social assistance as part of a coherent follow;up programme/3,3+ $etween 1o"em er +,,5 and &a' +,,6, appro.imatel' +,, trafficked persons were under the support of the 1ational Coordinating (nit, and appro.imatel' 8,_ of those cooperated with police in"estigations/3,38 % State;sponsored proGect through the 1orwegian 1*: ):S%3,34 pro"ides safe housing and follow;up information for trafficked women/3,32 The proGectAs crisis centres can offer trafficked women food, shelter, ph'sical securit', emotional support, use of an interpreter, health care, free legal aid and social ser"ices/3,35 !n addition, the Directorate of !mmigration E(D!F has esta lished special accommodation for identified trafficked persons in the as'lum s'stem/3,39 ):S% assisted more than 32, women in its first two 'ears in operation, +,,2; +,,9/3,36 There is an increasing need for accommodation for trafficked men > as of

3,3,

Ellefsen, $irgitte, ProGect &anager, 1ational Coordination (nit for <ictims of Trafficking 1ational Police Directorate in 1orwa', :rganised Crime Section/ C)esponses to Child Trafficking at Local Le"el in 1orwa'/D +,,6, p -/ 3,33 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 2/ 3,3+ %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 2/ 3,38 Ellefsen, $irgitte, ProGect &anager, 1ational Coordination (nit for <ictims of Trafficking 1ational Police Directorate in 1orwa', :rganised Crime Section/ C)esponses to Child Trafficking at Local Le"el in 1orwa'/D +,,6, p -/ 3,34 )eeta lering :ppholdssteder Sikkerhet %ssistanse in 1orwegian, or )e;esta lishment, :rganising Safe Places to Sta', Securit', %ssistance in English/ 3,32 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 9/ 3,35 Jill, (nni and To"e Smaadahi/ C*uide to %ssisting/D ):S%, %pril +,,9, p 3+;34/ 3,39 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 9/ 3,36 Jill, (nni and To"e Smaadahi/ C*uide to %ssisting/D ):S%, %pril +,,9, p 4/

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1o"em er +,,6 there was no specialised accommodation for them/3,3- There were two identified trafficked males in 1orwa' in +,,9/3,+, $oth male and female "ictims were also pro"ided with accommodation financed ' municipal authorities, and some applied for as'lum and li"e at reception centres/3,+3 There are a total of 23 shelters in 1orwa' that assist female "ictims of "iolence, +, of which pro"ide assistance for trafficked women/3,++ !n +,,6, Pro Sentret, a national resource and help centre for those in"ol"ed in prostitution in 1orwa', worked with 3,, persons who claimed to e trafficked, 33 of whom were male/3,+8 The "ast maGorit' of trafficked persons came from 1igeria, ut Pro Sentret also worked with people from )omania, $ulgaria, $razil, Thailand, %l ania, )ussia, Estonia, Somalia, *hana, Sierra Leone and Jen'a/ !n +,,6, 32 of those who identified themsel"es as eing trafficked to Pro Sentret were granted a reflection period/3,+4 The organisation said that there was an increase in applications for a reflection period when it was changed from 42 da's to si. months in duration/3,+2 Pro Sentret said that man' trafficked persons the' work with do want to report their traffickers, ut the special working group of the police does not ha"e the capacit' to process a high "olume of such reports/3,+5 Human trafficking in"estigations are difficult ecause oftentimes the traffickers reside outside of 1orwa', and the trafficked persons lack detailed information a out their traffickers/3,+9 %long the same lines, Pro Sentret said that the authorities are ha"ing difficult' con"icting traffickers under the Penal Code as a result of lack of e"idence, and in man' cases reduce the charges to pimping/3,+6

3,3-

%ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 9/ 3,+, (nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-, p +56/ 3,+3 (nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-, p +56/ 3,++ (nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-, p +56/ 3,+8 Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,+4 Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,+2 Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,+5 Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,+9 Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,+6 Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/

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Pro Sentret is partiall' funded ' the go"ernment and partiall' funded ' the municipalit' of :slo/3,+- The centre has e.pressed its desire for a more harmonised, predicta le and coordinated s'stem for pro"iding support and protection to the "ictims of trafficking/3,8, Pro Sentret did acknowledge the impro"ements made with the esta lishment of the 1ational Coordinating (nit in terms of identification of trafficked persons and clarif'ing issues and procedures/3,83 Pro Sentret also indicated that there are also challenges in finding accommodation for certain trafficked persons who do not fit under ):S%As mandate, or are not suited to reside in the shelters/3,8+ Pro Sentret e.pressed concern o"er the fact that personal and health care ser"ices pro"ided to trafficked persons is dependent on their residenc' status, rather than their status as an identified trafficked person, with the e.ception of safe accommodation and the fi"e hours of legal aid/3,88 The organisation elie"es that this polic' is Chighl' pro lematic, as it results in great disparities in the support and protection pro"ided to people who ha"e een the "ictims of the same crime/D3,84

State f.nding !n +,,9, the go"ernment pro"ided V3/26 million3,82 to anti;trafficking 1*:s, in addition to spending additional funds on other forms of assistance for trafficked persons, including housing and medical care/3,85 The &inistr' of Hustice and Police has financed the ):S% proGect operated ' the Crisis Centre Secretariat since +,,2/3,89

3,+3,8,

Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,83 Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,8+ Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,88 Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,84 Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ 3,82 `+ million/ Con"ersion done on +9 =e ruar' +,,- at www/.e/com/ 3,85 (nited States Department of State, +rafficking in ersons $e!ort 4GG@ 2 1orway, 4 Hune +,,6/ %"aila le online at http:@@norwa'/usem ass'/go"@tip+,,6/html/ Last accessed +, 1o"em er +,,6/ 3,89 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 9/

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1orwa' has allocated V3,/3 million3,86 for anti;trafficking proGects internall' and in origin and transit States etween +,,8 and +,,2 under the &inistr' of =oreign %ffairsA udget/3,8- %n additional V3,/3 million3,4,was allocated for the period of +,,5 to +,,-/3,43 The proGects are identified ' the 1orwegian foreign missions, along with national authorities and 1*:s/3,4+ %s of earl' +,,6, around V2/+9 million3,48 had een allocated to 1orwegian 1*:s, with the largest sum going to Sa"e the Children 1orwa', which recei"ed V+/,+ million/3,44 ProGect funding of appro.imatel' V++/43 million3,42 was awarded etween +,,8 and the end of +,,9, with an additional V5/98 million3,45 awarded to proGects in the same period where com ating human trafficking was merel' a su sidiar' o Gecti"e/3,49 ProGect support of V8/,+ million3,46 has een planned for the period of +,,9;+,,-/3,4%s of earl' +,,6, more than 3-8 proGects and proGect plans to com at human trafficking ha"e een appro"ed for funding "ia the &inistr' of =oreign %ffairsA udget for the period of +,,,;+,3,/3,2, % total of V+6/+8 million3,23 in assistance is pro"ided "ia the &inistr' of =oreign %ffairsA udget for the period of +,,,;+,3,/3,2+ ermission to remain in t,e State

3,86 3,8-

1:J -, million/ Con"ersion done on +9 =e ruar' +,,- at www/.e/com/ 1orwegian &inistr' of =oreign %ffairs/ C&easure of Com at Trafficking under the *o"ernmentAs Plan of %ction/D Department for (1, Peace and Humanitarian %ffairs, 2 =e ruar' +,,6, p 4/ 3,4, 1:J -, million/ Con"ersion done on +9 =e ruar' +,,- at www/.e/com/ 3,43 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 4/ 3,4+ %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 4/ 3,48 1:J 49 million/ Con"ersion done on +9 =e ruar' +,,- at www/.e/com/ 3,44 1:J 36 million, Con"ersion done on +9 =e ruar' +,,- at www/.e/com/ 1orwegian &inistr' of =oreign %ffairs/ C&easure of Com at Trafficking under the *o"ernmentAs Plan of %ction/D Department for (1, Peace and Humanitarian %ffairs, 2 =e ruar' +,,6, p 4/ 3,42 1:J +,, million/ Con"ersion done on +9 =e ruar' +,,- at www/.e/com/ 3,45 1:J 5, million/ Con"ersion done on +9 =e ruar' +,,- at www/.e/com/ 3,49 1orwegian &inistr' of =oreign %ffairs/ C&easure of Com at Trafficking under the *o"ernmentAs Plan of %ction/D Department for (1, Peace and Humanitarian %ffairs, 2 =e ruar' +,,6, p 4/ 3,46 1:J +9 million/ Con"ersion done on +9 =e ruar' +,,- at www/.e/com/ 3,41orwegian &inistr' of =oreign %ffairs/ C&easure of Com at Trafficking under the *o"ernmentAs Plan of %ction/D Department for (1, Peace and Humanitarian %ffairs, 2 =e ruar' +,,6, p 4/ 3,2, 1orwegian &inistr' of =oreign %ffairs/ C&easure of Com at Trafficking under the *o"ernmentAs Plan of %ction/D Department for (1, Peace and Humanitarian %ffairs, 2 =e ruar' +,,6, p 4/ 3,23 1:J +2+ million/ Con"ersion done on +9 =e ruar' +,,- at www/.e/com/ 3,2+ 1orwegian &inistr' of =oreign %ffairs/ C&easure of Com at Trafficking under the *o"ernmentAs Plan of %ction/D Department for (1, Peace and Humanitarian %ffairs, 2 =e ruar' +,,6, p 4/

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%ssumed trafficked persons ma' e granted a reflection period, consisting of a temporar' residence and work permit for up to si. months, as of +,,5/3,28 !n addition, a temporar' work permit for one 'ear is a"aila le if the trafficked person has roken awa' from those responsi le for the trafficking, and a police in"estigation is initiated against the perpetrators/3,24 !n +,,9, 82 foreign nationals were granted a reflection period/3,22 :&>e ANAL*S#S OF #)Os AN$ N)Os The Council of Europe Commissioner for Human rights noted in his report that 1orwa'As Plan of %ction to Com at Human Trafficking was comprehensi"e, the attempts to ensure the a"aila ilit' of ser"ices to all "ictims were welcome, and their efforts to com at trafficking on a national and international le"el were commenda le:3,25
rosecuting hu(an traffickers and taking care of the victi(s are co(!le(entary strategies in the fight against hu(an trafficking" roviding victi(s of hu(an trafficking with !rotection and assistance is not only a hu(an rights o#ligation, #ut also i(!ortant in connection with the collection of evidence against hu(an traffickers in cri(inal cases"3,29

The Commissioner suggested that further in"estigation and remedial measures are reIuired in respect of the infreIuent resort to reflection periods prior to e.pulsions/3,26 !n addition, he welcomed the fact that the go"ernment was considering the

3,28

%ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 5/ 3,24 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 5/ 3,22 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 5/ 3,25 *il;)o les, %l"aro/ C=ollow;(p )eport on 1orwa' E+,,3;+,,2F: %ssessment of the progress made in implementing the recommendations of the Council of Europe Commissioner for Human )ightsD +&arch +,,5/ 3,29 %ustad, Han, Senior %d"iser, 1ational Coordinator on Trafficking in Human $eings, &inistr' of Hustice and the Police, 1orwa'/ CTrafficking in Human $eings > 1orwegian Situation )eport/D 1o"em er +,,6, p 3,/ 3,26 *il;)o les, %l"aro/ C=ollow;(p )eport on 1orwa' E+,,3;+,,2F: %ssessment of the progress made in implementing the recommendations of the Council of Europe Commissioner for Human )ightsD +&arch +,,5/

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clarification of the conditions for o taining reflection period with a "iew of making them less rigid/3,2The )eform )esource Centre for &en, a 1orwegian 1*:, operates the ?e site www/se.handel/no, and takes a gender;eIualit' approach to human trafficking/3,5, The 1*: elie"es that 1orwa'As human trafficking laws are comprehensi"e and adeIuate, ut Iuestions whether the' ha"e een enforced > and that the same can e said for the support ser"ices offered to trafficked persons/3,53 !t also noted that there has een a strong focus in 1orwa' on human trafficking for se.ual e.ploitation, and that forced la our or other forms of e.ploitation ha"e onl' surfaced in the past 'ear/3,5+ :&>f ANAL*S#S 1orwa' is taking the issue of human trafficking seriousl' ' ratif'ing the most recent and rele"ant international human trafficking laws, and has attempted to adopt man' of the reIuirements and suggestions in the +,,, Palermo Protocol and +,,2 Council of Europe Con"ention/ The 1orwegian *o"ernmentAs Plan of %ction to Com at Human Trafficking is a "er' comprehensi"e document, co"ering all angles of human trafficking, including demand and conditions in origin States/ !t lists "arious measures that should e taken ' the State o"er a set period of time/3,58 ?hile listing each measure, the Plan e.plains the steps that need to e taken, as well as the go"ernment ministr' in charge of implementing the measure/ =urthermore, a significant amount of funding is allocated for human trafficking in 1orwa', oth nationall' and internationall'/ ?hile ha"ing a comprehensi"e action plan is important, it is also crucial that this plan is actuall' put into practice/ Criminal %lthough relati"el' few con"ictions of human trafficking offences ha"e een made, 1orwa' does ha"e the criminal law in place to prosecute those in"ol"ed in the
3,2-

*il;)o les, %l"aro/ C=ollow;(p )eport on 1orwa' E+,,3;+,,2F: %ssessment of the progress made in implementing the recommendations of the Council of Europe Commissioner for Human )ightsD +&arch +,,5/ 3,5, )eform )esource Centre for &en/ E;mail correspondence from Elise Skarsune/ 9 &a' +,,-/ 3,53 )eform )esource Centre for &en/ E;mail correspondence from Elise Skarsune/ 9 &a' +,,-/ 3,5+ )eform )esource Centre for &en/ E;mail correspondence from Elise Skarsune/ 9 &a' +,,-/ 3,58 The current Plan of %ction co"ers +,,5;+,,-/

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trafficking process/ %s Pro Sentret e.plained, the lack of con"ictions stems from a lack of e"idence in human trafficking cases, which sometimes results in reducing the charges against alleged traffickers/ The fact that the &inistr' of Hustice and Police is the go"ernmental department responsi le for com ating human trafficking indicates that 1orwa' does treat the issue as a criminal matter/ 1orwegian criminal law does not, howe"er, full' compl' with the pro"isions of the +,,2 Council of Europe Con"ention/ !t does not list human trafficking committed ' a pu lic official in the performance of his@her duties as an aggra"ating circumstance in an' law/ The +,,2 Council of Europe Con"ention reIuires States to ensure that this offence is considered an aggra"ating circumstance and is treated as such in the law/ H.man rig,ts 1orwa' pro"ides strong human rights pro"isions for trafficked persons, including accommodation, food, medical care, ps'chological support, legal aid, and a reflection period for trafficked persons/ Despite the strength and a"aila ilit' of 1orwa'As human rights pro"isions, the' e.ist in polic' form onl' and are not enshrined in legislation/ This is pro lematic ecause it is much more difficult to alter laws than policies, which ma' e cut as a result of lack of funding, particularl' in a time of economic recession/ !t is also significant that out of the +,, trafficked persons assisted ' the State etween 1o"em er +,,5 and &a' +,,6, onl' 8,_ of them cooperated with the police/ This con"e's that there are an o"erwhelmingl' larger num er of trafficked persons in need of assistance that would not otherwise recei"e it in States that reIuire cooperation with police in e.change for human rights/ Concl.sion Despite ha"ing relati"el' few human trafficking con"ictions, 1orwa' has adopted man' elements of the criminal model, through the criminalisation of human trafficking, and placing the &inistr' of Hustice and Police in charge of anti;trafficking efforts/ %t the same time, 1orwa' has strong human rights pro"isions, a"aila le without a reIuirement of cooperation with authorities in e.change for assistance and protection/ Howe"er, these pro"isions e.ist as State polic', rather than legislation, which is pro lematic ecause of their lack of permanence/ Human rights must e cl.."ii

enshrined in legislation and e enforcea le in order to e a le to operate to their fullest e.tent and e relied upon/ ?hile the lack of reIuirement for trafficked persons to act as witnesses in order to recei"e human rights pro"isions is a step in the direction of human rights, without inclusion in legislation, the human rights pro"isions are not as strong as the criminal laws/ This indicates that 1orwa' has adopted man' elements of the human rights model to work in conGunction with their stronger adoption of the criminal model/ %s a result, the human trafficking laws and policies of 1orwa' demonstrate a direct criminal model with aspects of the human rights model/ :&6 CONCL%S#ONS Three main findings emerged from the case studies/ =irst, with the e.ception of 1orwa', each case stud' adopted the approach of the +,,, Palermo Protocol, rather than the +,,2 Council of Europe Con"ention/ This is primaril' a result of the fact that their human rights pro"isions for trafficked persons > following an initial reflection period > are tied to a residence permit, onl' a"aila le upon cooperation with law enforcement authorities/ Secondl', the notion of human trafficking in the case studies is hea"il' tied to the se.ual e.ploitation of women/ ?hile some of the case studies address forced la our in their laws, most prosecutions and con"ictions are made for se.ual offences/ Lastl', despite the e.istence of direct human trafficking law in each case stud', the States choose to continue to use indirect human trafficking laws to prosecute and con"ict traffickers/

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CHA TER ?" CONCL%S#ONS Se"eral conclusions arise from the anal'sis of the models, literature and case studies presented/ ?&! THE TRANSNAT#ONAL ARA$OC Human trafficking is a transnational crime affecting a num er of States/ !n order to respond to human trafficking, a transnational approach must e taken to facilitate the cooperation of law enforcement etween States in terms of the chain of e"idence and the in"estigation/ Thus far, it is e"ident from the human trafficking con"entions that States ha"e largel' dealt with human trafficking through a State;centric approach/ The transnational parado. is the use of human trafficking con"entions to deal with a cl..i.

transnational pro lem utilising a State;centric approach/ This approach, also set out in the +,,, Palermo Protocol, is reflected in three wa's: the criminal law, human rights and the monitoring mechanism/ )ather than adopting a State;centric approach, States can adopt a transnational approach/ Despite the fact that States ha"e signed up to transnational criminal laws on human trafficking, States tend to primaril' implement these laws with a "iew to dealing with to human trafficking internall'/ The aim of transnational criminal law is to respond to a crime that affects and takes place in multiple States/ This should e accomplished not onl' through State;implemented internal measures, ut also transnational cooperation/ Addressing t,e transnational crime of ,.man trafficking Despite the fact that human trafficking is a transnational organised crime, neither the international law nor States treats it as such/3,54 There are three pieces of e"idence to suggest that States respond to human trafficking with a State;centric approach: 3F reIuirements of the +,,, Palermo ProtocolB +F State so"ereignt'B and 8F a lack of transnational criminal in"estigations of human trafficking/

=irst, the +,,, Palermo Protocol stipulates that States must adopt national laws to criminalise human trafficking > and State ha"e complied/ Howe"er, prosecuting authorities in States ha"e een reluctant to use direct human trafficking laws, and instead continue to rel' upon indirect human trafficking laws/ States parties of the +,,2 Council of Europe Con"ention, howe"er, are held accounta le ' *)ET%, which has the a ilit' to re"iew their adoption and implementation of the laws and policies in the con"ention/ Secondl', criminal law pro"isions on human trafficking assert State so"ereignt' ' allowing States to take action against possi le threats, when crimes, such as human trafficking, progress from isolated incidents in"ol"ed in the human trafficking

3,54

Jonrad, Helen/ CTrafficking in Human $eings: % Comparati"e %ccount of Legal Pro"isions in $elgium, !tal', the 1etherlands, Sweden and the (nited States/D in +rafficking and /o(ens $ights" Christien L "an den %nker and Heroen Doomernik EedsF/ Hampshire: Palgra"e &acmillan, +,,5, p 3+3/

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process, to a recognised crime in itself/3,52 The process of human trafficking takes place across se"eral States and should e prosecuted as a whole, rather than as indi"idual acts which ha"e taken place in each State/ ?hile an' prosecution is a positi"e step, each prosecution t'picall' represents onl' one act or crime in a multi; step and multi;State crime, and it onl' hinders one aspect of the process > rather than aiming to stop the process as a whole/ Prosecuting human trafficking as a whole could also potentiall' tackle the organised crime structure in its entiret' in different States, as organised crime is almost e.clusi"el' transnational in nature/ %dditional literature3,55 supports the adoption of the +,,, Palermo Protocol: to encourage as man' States as possi le to criminalise human trafficking and prosecute perpetrators > further application of StatesA so"ereignt'/ Thirdl', there is a lack of transnational in"estigations that link the criminal acti"ities in"ol"ed in human trafficking in the origin and transit States with the criminals in the destination States/3,59 The process of human trafficking t'picall' in"ol"es acti"ities in se"eral States, some or all of which ma' ha"e different laws regarding human trafficking/ %lthough it is the responsi ilit' of the destination State to pro"ide pro"isions for the trafficked persons, the criminal acts of human trafficking can e in"estigated and prosecuted in multiple States, as criminal laws in each State in"ol"ed were likel' to ha"e een roken/ Despite some cooperation etween police forces in "arious States, particularl' in Europe, there appears to e a general lack of cooperation in terms of in"estigating and prosecuting traffickers on a transnational le"el, despite the nature of the crime/ The literature re"iew in Chapter + suggests that when States adopt national human trafficking criminal law, it allows for the prosecution of traffickers and a wa' of enforcing international > or in this case transnational > human trafficking law/3,56

3,52

See p +, and 1agan, ?inston P and %l"aro de &edeiros/ C:ld Poison in 1ew $ottles: Trafficking and the E.tinction of )espect/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5, p +2-/ 3,55 See p +,;+3 and %miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com atting the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview" <ol 3+, +,,5, p 3+/ 3,59 Jonrad, Helen/ CTrafficking in Human $eings: % Comparati"e %ccount of Legal Pro"isions in $elgium, !tal', the 1etherlands, Sweden and the (nited States/D in +rafficking and /o(ens $ights" Christien L "an den %nker and Heroen Doomernik EedsF/ Hampshire: Palgra"e &acmillan, +,,5, p 3+3/ 3,56 See p +3 and $ruch, Eliza eth/ C&odels ?anted: The Search for an Effecti"e )esponse to Human Trafficking/D Stanford Journal of International Law/ <ol 4,, +,,4, p 39/

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!t is important to note that oth the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention contain pro"isions encouraging the cooperation of law enforcement, immigration authorities and other rele"ant agencies amongst States parties, when appropriate/3,5- The +,,, Palermo Protocol stipulates that the cooperation must take place in accordance with a StateAs national legislation,3,9, while the +,,2 Council of Europe Con"ention states that the cooperation should take place through the application of rele"ant applica le international and regional instruments, and arrangements agreed to on the asis of uniform or reciprocal legislation and internal laws/3,93 !t should also e noted that ! cannot draw conclusions on the lack of transnational in"estigations from m' case studies/ ! did not ask the rele"ant ministries and go"ernmental departments in the States a out the e.tent of their transnational cooperation with other States on human trafficking in"estigations, and therefore ha"e no e"idence from the case studies/

Rig,ts of trafficked +ersons re+atriated to t,eir origin States The rights of trafficked persons repatriated to their origin States must also e considered/ State so"ereignt' precludes destination States from holding origin States responsi le for pro"iding human rights pro"isions for trafficked persons repatriated to their origin States/ $oth the +,,, Palermo Protocol3,9+ and the +,,2 Council of Europe Con"ention3,98 state that States parties of which a trafficked person is a national or permanent resident must take into account the personAs rights, safet' and dignit' upon their

3,5-

(nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 3, and Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 8+/ 3,9, (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 3,E3F/ 3,93 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 8+/ 3,9+ (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 6/ 3,98 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 35/

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repatriation/ ?hile it is important that these rights e.ist, the' are "ague and ma' e difficult to enforce/ % specific set of transnational human rights for trafficked persons must e esta lished in order to ensure that a trafficked person recei"es a certain le"el of ser"ices and care in origin States/ States would sign up to e ound ' this set of transnational human rights for trafficked persons, therefore agreeing to checks from other States parties to ensure that the rights of trafficked persons are eing met/ =irst, a set of rights of trafficked persons repatriated to their origin States must e esta lished/ Secondl', the destination States must assume responsi ilit', through the mechanism, to ensure that trafficked persons the' ha"e repatriated recei"e their sets of rights/ The primar' concern in this case is that when destination States repatriate trafficked persons to the origin States, the' recei"e a certain le"el of protection and assistance/ The concern in origin States is not o"er State eha"iour, ut rather protecting trafficked persons from non;State actors, such as traffickers, who ma' re;"ictimise the trafficked persons upon their return/ 'onitoring mec,anism % monitoring mechanism is a "er' important and necessar' step to hold States accounta le who agree to e ound to the pro"isions of an international law/ &onitoring mechanisms are traditionall' State;centric in nature/ The +,,2 Council of Europe Con"ention has also taken that approach and therefore has esta lished *)ET% as a State;centric monitoring mechanism, along the same lines as those alread' in e.istence/ Howe"er, unlike monitoring mechanisms esta lished under other international laws, *)ET% deals with an e.clusi"el' transnational organised crime, which is not est dealt with through a State;centric approach, since human trafficking, ' its nature, t'picall' in"ol"es more than one State/ *)ET% re"iews each State indi"iduall'/ 3,94 ?hen *)ET% re"iews one State, it ma' o tain information a out another Council of Europe mem er State/ !t is unclear whether *)ET% can use that information when the other StateAs conduct/ *)ET% has 'et to undertake its monitoring and reporting functions, therefore it is too earl' to
3,94

=or *)ET%As workflow chart, see http:@@www/coe/int@t@dghl@monitoring@trafficking@Source@?orkflow0en/pdf/ Last accessed +- %pril +,,-/

cl...iii

determine whether or not the' will legitimatel' e.pand their role to include a transnational element/ This raises the Iuestion of whether State so"ereignt' is an o stacle to transnational organised criminal law/ !f States are technicall' onl' utilising indirect criminal law, it ma' e difficult for *)ET% to ha"e an' impact on their implementation of the pro"isions of the +,,2 Council of Europe Con"ention/ !t will e up to *)ET% to make States Gustif' their non;use of direct human trafficking laws/ A transnational criminal co.rtD %nother effect of glo alisation is that the potential use of transnational criminal law will continue to increase/ % re"iew of transnational criminal offences and laws should take place in order to determine whether or not the' are adeIuatel' eing dealt with under uni"ersal international law, regional international law and national laws/ !t ma' e necessar' to create a transnational criminal court if the re"iew produces e"idence suggesting that States are unwilling or una le to prosecute human trafficking, and that transnational crimes are not eing dealt with sufficientl' under e.isting legal s'stems and monitoring mechanisms/ States would ha"e to agree on the esta lishment of a transnational criminal court, as well as to e held to the findings of the court, and to cooperate with the courtAs regulations and procedures/ &oreo"er, States ma' e reluctant to agree to a transnational criminal court as it presents 'et another potential limitation of their so"ereignt'/ ?&( CR#'#NAL LA2 !n general, the introduction of human rights law after ?orld ?ar !! has done little to change the o"erall nature of the international human trafficking law, with the e.ception of the +,,2 Council of Europe Con"ention/ The earl' international human trafficking law adopted prior to the de"elopment of human rights law, and the 3-4Con"ention, the +,,, (1 Con"ention, the +,,, Palermo Protocol and the E( measures all adopt the criminal model/ The primar' focus of each treat' since 3-3, has een to reIuire States to criminalise human trafficking in its national law/ %n' assistance or protection afforded to trafficked persons was granted primaril' as a means to facilitate the criminal in"estigations ' encouraging trafficked persons to testif' as witnesses against their traffickers/ cl...i"

Each post;?orld ?ar !! international human trafficking law adopts the criminal model/ The +,,, Palermo Protocol adopts some elements of the human rights model, ut primaril' as a means to facilitate criminal prosecutions/ !t does not reIuire States to pro"ide economic and social rights for trafficked persons/ The +,,2 Council of Europe Con"ention adopts a relati"el' strong human rights model/ !t makes it mandator' for States to pro"ide the uniIue human rights reIuired ' trafficked persons, in addition to reIuesting that States make it a possi ilit' of not criminalising trafficked persons for illegal acts the' ma' ha"e participated in during the trafficking process without their consent/ &ost importantl', it stipulates that States should not make assistance and protection to trafficked persons contingent upon their cooperation with law enforcement/ Literature discussed in Chapter + would support the non;punishment pro"ision in the +,,2 Council of Europe Con"ention, which states that States must pro"ide for the possi ilit' of not imposing penalties on trafficked persons for their in"ol"ement in illegal acti"ities to the e.tent that the' ha"e een compelled to do so/3,92 Each of these factors indicates that the +,,2 Council of Europe Con"ention adopts a strong human rights model/ $irect vers.s indirect criminal laws States that adopt a criminal model can implement the model through either direct or indirect human trafficking laws/ !f a State directl' criminalises human trafficking, trafficked persons cannot e "iewed as criminals, and are dealt with automaticall' as "ictims under the human rights model/ !f a State uses indirect laws, such as prostitution, immigration or la our laws to deal with human trafficking, the State has the discretion to determine how to treat a trafficked person: as a criminal or as a "ictim/ !f a State does not recognise human trafficking as a crime, then trafficked persons would not e seen as "ictims, ut rather as criminals who ha"e reached immigration laws, at the "er' least/ &uch of the literature re"iewed in Chapter + is preoccupied with the potential criminalisation of trafficked persons if a criminal model is adopted/3,95 ?hile that is a reasona le and logical concern, it is one that is "er' difficult to esta lish ecause of
3,92

See p +8;+4 and Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +5/ 3,95 See pp +4;+2/

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the fact that people are deported without eing identified as trafficked persons/ !f States deport a person, it is highl' unlikel' that the' ha"e kept an' record of whether or not the person ma' ha"e een trafficked/ %s a result, aside from anecdotal e"idence from 1*:s in the case studies, there is reall' no wa' of determining if a State does, in fact, treat trafficked persons as criminals ecause of their reaches of immigration law/ %s discussed in Chapter +, when States utilise indirect law to criminalise human trafficking, the' are not identif'ing the crimes that took place as human trafficking, and as a result, the trafficked persons are not "iewed as "ictims of the crime and are not entitled to enefits of the human rights model/ The =rench case stud', for e.ample, indicates that the State has relati"el' su stantial assistance and protection a"aila le to those in"ol"ed with prostitution/ Pimping is commonl' used as a con"iction in =rance to prosecute those in"ol"ed in human trafficking, so the trafficked persons ma' a"ail of those pro"isions/ !f States ha"e esta lished human rights pro"isions for trafficked persons and consistentl' use indirect law to prosecute traffickers, States still do not need to pro"ide the trafficked persons with the pro"isions, as the act of human trafficking was not pro"en to ha"e occurred/ %t this stage, each of the case studies has implemented direct human trafficking laws, ut primaril' utilise indirect human trafficking laws/ This means that human trafficking is recognised as a crime, and therefore trafficked persons can e "iewed as "ictims, ut ecause the direct laws go largel' unused, it is up to the State to determine how to treat a trafficked person/ $eart, of direct ,.man trafficking +rosec.tionsBconvictions in t,e case st.dies There are fi"e reasons wh' the case studies ha"e a dearth of direct human trafficking prosecutions and con"ictions/ =irst, human trafficking laws are relati"el' new in most States/ !t ma' take time for prosecutions under these human trafficking laws to e processed in their respecti"e criminal legal s'stems/ Secondl', those responsi le for prosecuting crimes of human trafficking ma' e reluctant to charge traffickers with the offence ecause the' ma' not e confident in"oking direct criminal laws to prosecute human trafficking/ )ather, traffickers are cl..."i

charged using the StateAs indirect trafficking law for specific crimes that are part of the human trafficking process/ Thirdl', States agreed to the definition of human trafficking in the +,,, Palermo Protocol, and then included that same definition in their national laws/ The defined offence of human trafficking is inherentl' transnationalB therefore, States find it difficult to prosecute a transnational offence within their national Gurisdiction ecause of the difficulties associated with the chain of e"idence and in"estigations across se"eral States/ =ourthl', it ma' e more difficult for courts to con"ict people of human trafficking as it is difficult to o tain testimon' from witnesses in"ol"ed in or who are "ictims of the process/ !t is easier, as States like =rance ha"e demonstrated, to gather e"idence and pro"e prostitution or se.ual e.ploitation rather than human trafficking/ %s a result, States are more likel' to prosecute traffickers under indirect offences/ &oreo"er, the indirect human trafficking laws ha"e een in e.istence longer than the direct human trafficking laws, and therefore ha"e a stronger precedent in StatesA legal s'stems/ Lastl', States might not want to admit to ha"ing a trafficking pro lem, so the' amalgamate the statistics of prosecutions and con"ictions for trafficking and related offences/ Con"icting people of human trafficking indicates that States were not a le to control human trafficking within their orders > something the' ma' e unwilling to pu licise/ Literature re"iewed in Chapter + suggests that prosecutors ma' not e willing to prosecute people under the crime of human trafficking ecause of the stigma attached to the crime/3,99 The author also suggests that traffickers ma' e con"icted under indirect laws in cases of forced la our, ecause it is not seen as eing as se"ere as trafficking for se.ual e.ploitation, and therefore deser"ing of a lesser sentence/3,96 ?&/ H%'AN R#)HTS

3,99

See p +5 and Chacon, Hennifer &/ C&iser' and &'opia: (nderstanding the =ailures of (S Efforts to Stop Human Trafficking/D 9ordha( Law $eview/ <ol 94, +,,5, p 8,82/ 3,96 See p +5 and Chacon, Hennifer &/ C&iser' and &'opia: (nderstanding the =ailures of (S Efforts to Stop Human Trafficking/D 9ordha( Law $eview/ <ol 94, +,,5, p 8,82/

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The limited human rights pro"isions included in the +,,, Palermo Protocol are a direct result of the lo 'ing of 1*:s, rather than a strong political will amongst States parties to incorporate such pro"isions/ This represents a shift from all pre"iousl';e.isting international human trafficking law, as it adopted oth the criminal model alongside the human rights model/ %niE.e set of ,.man rig,ts for assistance and +rotection of trafficked +ersons The uniIue set of human rights reIuired for trafficked persons set out in the human rights model is reflected in the +,,2 Council of Europe Con"ention, and to a far lesser e.tent, the +,,, Palermo Protocol/ The +,,2 Council of Europe Con"ention contains a list of mandator' specific economic and social rights which States must afford to trafficked persons, while the economic and social rights in the +,,, Palermo Protocol are discretionar'/ The case studies, for the most part, adopted an approach similar to the +,,, Palermo Protocol: a primaril' criminal approach with a few discretionar' human rights/ The onl' e.ception to this is 1orwa', which contains policies pro"iding trafficked persons with rights regardless of whether or not the' participate in criminal in"estigations/

)ranting ,.man rig,ts in e3c,ange for assistance wit, investigations ?hen States make human rights for trafficked persons contingent upon their participation in the in"estigation and prosecution of their traffickerEsF, it turns the human rights model into a means to facilitate the criminal model/ %lthough States ma' pro"ide a certain le"el of assistance and protection for trafficked persons following their identification, after an initial reflection period, some States do not continue to pro"ide trafficked persons with human rights unless the' participate in the in"estigation of their traffickerEsF/ ?hile the +,,, Palermo Protocol does not stipulate whether or not trafficked persons must cooperate with law enforcement in order to recei"e assistance and protection, the human rights pro"isions included in the +,,2 Council of Europe Con"ention are mandator' and do not reIuire cooperation/ %s discussed in the literature re"iew in Chapter +,3,9- using assistance and protection along with residence permits as incenti"es to cooperate with law enforcement

3,9-

See pp 88;85/

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authorities undermines the purpose of the human rights model > to pro"ide care and ser"ices to the "ictims of a crime/ =urthermore, the literature re"iewed in Chapter +, which suggests that when States adopt a human rights model the' "iew trafficked persons as "ictims rather than criminals, reall' onl' applies in cases when the assistance and protection is not contingent upon the trafficked personAs cooperation with law enforcement/3,6, !f a State adopted the human rights model to the fullest e.tent, its primar' concern would e ensuring that trafficked persons recei"e the care and ser"ices the' reIuire > rather than the prosecution of the traffickers/ The literature re"iewed in Chapter + also suggests that whether or not a State makes a residence permit contingent upon a trafficked personAs participation in in"estigations is indicati"e of which model the State fa"ours/3,63 The +,,2 Council of Europe Con"ention stipulates that States must grant trafficked persons a renewa le residence permit, and ma' do so in one or other of the two following situations or oth: aF the competent authorit' considers that it is necessar' for the trafficked person to remain in the State owing to their personal situation, and@or F if the trafficked person is necessar' for the purposes of cooperation with the criminal in"estigation of his or her traffickerEsF/3,6+ The E.planator' )eport to the +,,2 Council of Europe Con"ention states that although the con"ention does allow States to make residence permits onl' a"aila le to those who cooperate with in"estigations, it also reIuires States to adopt legislation or other measures to ensure that assistance to trafficked persons is not contingent upon their willingness to act as a witness/3,68 The +,,, Palermo Protocol does not make a residence permit mandator', ut does state that when considering pro"iding a residence permit, States must take into account humanitarian and compassionate factors/3,64

3,6, 3,63

See pp +9;+6/ See p +4 and &attar, &ohamed #/ CEsta lishing a $ill of )ights for <ictims of Trafficking in Persons: How it Can $ecome a Possi ilit'D in Sto! +rafficking in *u(an Beings2+ogether Its ossi#le' roceedings of the International )onference 345st )entury Slavery2+he *u(an $ights Di(ension to +rafficking in *u(an Beings"6 32;35 &a', +,,+, p 8/ 3,6+ Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 34E3F/ 3,68 E.planator' )eport to the Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, para 35-/ 3,64 (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 9/

cl...i.

The literature re"iewed in Chapter + is reflected in fi"e of the si. case studies > C'prus, =rance, !reland, Lu.em ourg and &alta > all of which reIuire trafficked persons to cooperate with law enforcement in order to recei"e human rights pro"isions e'ond the initial reflection period/ This indicates that each of those fi"e case studies adopted the approach of the +,,, Palermo Protocol, rather than the more recent +,,2 Council of Europe Con"ention/ !n each of these cases, the assistance and protection offered to trafficked persons is tied into a temporar' residence permit, which is onl' granted following the reflection period if the trafficked person has agreed to cooperate with the in"estigation of his or her traffickerEsF/ !n =rance, the trafficked person is awarded with a 3,;'ear residence permit if his or her traffickerEsF is@are con"icted/3,62 The onl' e.ception to this is 1orwa', which does not make its assistance and protection, or its residence permits for trafficked persons contingent upon their participation in criminal in"estigations/ %ppl'ing the theor' presented in the literature, each of those fi"e States would fa"our the criminal model/ Those States would not e compliant with the reIuirements set out in the +,,2 Council of Europe Con"ention ecause the' tie human rights for trafficked persons to the residence permits and do not adopt measures ensuring that trafficked persons recei"e human rights without acting as a witness in the in"estigation of their traffickerEsF/ )ender !t is clear from the focus of the +,,, Palermo Protocol and the human trafficking laws and policies of the case studies, that human trafficking is dealt with primaril' in terms of women and children/ ?hile the +,,2 Council of Europe Con"ention states in its Pream le and Chapter 8 that it takes gender eIualit' into account, the +,,, Palermo Protocol takes a more gendered approach throughout its contents, eginning with the title: CProtocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children/D !t is the general perception amongst States that a "ast maGorit' of trafficked persons are women trafficked for the purposes of se.ual e.ploitation/ %s e"idenced in the case studies, when States are asked to pro"ide the num er of human trafficking prosecutions and con"ictions, the' automaticall' pro"ided figures for those in"ol"ing se.ual e.ploitation/ !n man' cases, the human rights pro"isions =rance pro"ides to trafficked persons are s'non'mous with the assistance gi"en to prostitutes/
3,62

DWcret nY +,,9;382+ du 38 septem re +,,9/ :ffice Central pour la )Wpression de la Traite des Etres Humains, &inistSre de lA!ntWrieur, letter dated 8 %pril +,,-/

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%s discussed in pre"ious chapters, trafficked persons reIuire a uniIue set of human rights ecause of their situation of eing "ictims of a crime while illegall' remaining in a State/ *i"en the propensit' of States to deal with human trafficking as an issue of gender, this raises the Iuestion as to whether this uniIue set of human rights should e specificall' tailored to needs of women trafficked for se.ual e.ploitation/ Assistance and +rotection for trafficked +ersons ens,rined in destination States@ laws are stronger t,an +olicies The +,,, Palermo Protocol stipulates that States Cshall considerD implementing measures to pro"ide assistance for trafficked persons/3,65 The +,,2 Council of Europe Con"ention does reIuire States to adopt laws or measures in order to pro"ide protection and assistance to trafficked persons/3,69 ?hile measures or policies ma', in the end, e Gust as effecti"e as pro"isions included in laws, there is a difference in permanenc'/ ?hile it is more difficult and time consuming to enact a law, it is also more difficult to change a law/ !n other words, once a law is adopted reIuiring the State to pro"ide assistance to trafficked persons, it is more difficult to change than a non; inding polic'/ C'prus, =rance, Lu.em ourg and &alta ha"e all included some human rights pro"isions in their human trafficking laws/ The human rights pro"isions in !reland and 1orwa' are policies and not included in legislation, which makes them less permanent/ %long the same lines, although each State has adopted some aspect of the human rights model, the le"els of assistance and protection granted "aries greatl' etween the States/ !n each case stud' with the e.ception of 1orwa', whether a trafficked person is permitted to remain in the destination State and recei"e assistance and protection e'ond the initial reflection period is contingent upon their cooperation with law enforcement/ This demonstrates a clear fa"ouring of the criminal model, as human rights after an initial period are granted solel' in order to facilitate criminal in"estigations/
3,65

(nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5E8F/ 3,69 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+/

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Coo+eration between destination State agencies and N)Os Two issues arise in relation to the cooperation etween destination State agencies and 1*:s: who should e in charge of the identification of trafficking persons, and pro"ision of ser"ices to trafficked persons/ Identification The +,,, Palermo Protocol reIuires law enforcement, immigration or other authorities of States parties to cooperate with one another and e.changing information to ena le them to determine whether indi"iduals crossing or attempting to cross an international order with tra"el documents for other persons or without tra"el documents, are traffickers or trafficked persons/3,66 The +,,2 Council of Europe Con"ention reIuires States to adopt legislati"e or other measures to identif' trafficked persons in colla oration with other States and rele"ant support organisations/3,6- !t also reIuires States to pro"ide their competent authorities with training in identif'ing trafficked persons and to ensure colla oration with other States and rele"ant support organisations, taking into account the special needs of trafficked persons/3,-, States possess the sole authorit' in the identification of trafficked persons, usuall' through their police or immigration officers/ There are arguments, howe"er, that 1*:s should also pla' a role in the identification of trafficked persons/ The differences in the identification process of trafficked persons represent a clear distinction etween the criminal and human rights approaches to human trafficking: the police forces are more likel' to "iew trafficked persons as criminals who ha"e "iolated immigration laws, while 1*:s are likel' to "iew trafficked persons as "ictims of a crime/ :ther issues arise such as training and Iualifications for dealing with trafficked persons/ 1*:s ma' e more accustomed to dealing with trafficked persons and ma' e etter suited at identif'ing trafficked persons/ :n the other hand, most States ha"e special di"isions of the police force trained at identif'ing trafficked persons, particularl' for the purpose of distinguishing them from other irregular or illegal immigrants/
3,66

(nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 3,E3FEaF/ 3,6Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3,E+F/ 3,-, Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3,E3F/

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Ha"ing the police or immigration officials in charge of the identification of trafficked persons ma' e pro lematic as trafficked persons ma' not trust police and e reluctant to talk to them and pro"ide them with accurate information, gi"en their illegal status in the State/ This ma' result in inaccurate designations of trafficked persons as other t'pes of irregular migrants, which could lead to them not eing pro"ided with the necessar' legal and human rights pro"isions/ Trafficked persons ma' e more likel' to talk to 1*:s and pro"ide them with more accurate information, as the' ma' e less afraid of re"ealing their own illegal position/ rovision of services to trafficked !ersons The +,,, Palermo Protocol stipulates that a StateAs law enforcement, immigration, or other rele"ant officials should recei"e training in the pre"ention of human trafficking and the human rights of trafficked persons with encouraged cooperation from 1*:s, other organisations, and other elements of ci"il societ'/ 3,-3 !n addition, the +,,, Palermo Protocol and the +,,2 Council of Europe Con"ention encourage cooperation with 1*:s, other rele"ant organisations and other elements of ci"il societ' in the implementation of economic and social rights for trafficked persons, pro"iding for their ph'sical, ps'chological and social reco"er'/3,-+ =urthermore, the +,,2 Council of Europe Con"ention pro"ides for the a ilit' of 1*:s to assist trafficked persons during the criminal proceedings of his or her trafficker, with his or her consent/3,-8 The +,,2 Council of Europe Con"ention also states that trafficked persons, upon eing repatriated to their origin States, should e pro"ided with a list of contacts, including law enforcement and 1*:s to assist them upon their return/3,-4 State agencies dealing with issues of social welfare, or 1*:s are est suited for pro"iding ser"ices for trafficked persons/ 1*:s ma' e more specialised in the area of human trafficking and more accustomed to dealing with their uniIue set of needs/ Howe"er, se"eral Iuestions arise in this area/ Should States e a le to delegate human
3,-3

(nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 3,E+F/ 3,-+ (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,, %rt 5E8F and Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 3+E2F/ 3,-8 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt +9E8F/ 3,-4 Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2, %rt 35E5F/

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rights to non;State odies, e"en if there are good reasons to do so and the' ma' e more Iualified to deal with trafficked personsK !s that approach legal, as States are ultimatel' the odies that assume responsi ilit' for persons trafficked into their territor'K !f that approach is legal, how would cooperation etween States and 1*:s e achie"edK ?&9 #' LE'ENTAT#ON OF LA2S AN$ OL#C#ES #N THE CASE ST%$#ES !t is difficult to ascertain whether the laws and policies of the si. case studies > or an' other States for that matter > ha"e genuinel' assisted in cur ing human trafficking in the State, or assisting persons trafficked into the State/ The fact that human trafficking law > on an international, regional and national le"el > is relati"el' new, coupled with the lack of accurate human trafficking statistics makes it difficult to assess the impact of these laws/ Lastl', it is also difficult to determine the e.tent to which each State has implemented its laws and policies > whether the' e.ist onl' on paper, or also in practice/ !n some of the case studies, 1*:s claim that although the laws and policies are in place, the' are meaningless unless the' are put into practice/ !ssues surrounding oth StatesA adoption and implementation of human trafficking laws and policies are an additional reflection of the contradiction of addressing a transnational crime through a State;centric approach/

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Bibliogra+,%genziGa %ppogg/ C%dult and =amil' Ser"ices: :"er"iew/D http:@@www/appogg/go"/mt@adultandfamil'0o"er"iew/asp/ Last accessed 34 %pril +,,-/ %genziGa %ppogg/ E;mail correspondence with Christine &archand %gius/ 3=e ruar' +,,-/ %genziGa %ppogg/ See http:@@www/appogg/go"/mt@default/asp/ Last accessed 36 =e ruar' +,,-/ %genziGa %ppogg/ http:@@www/appogg/go"/mt@pdf@downloads@leaflet0human0trafficking/pdf/ Last accessed 36 =e ruar' +,,-/ %leinkoff, Thomas %le.ander and <incent Chetail EedsF/ Migration and International Legal 1or(s" Cam ridge: Cam ridge (ni"ersit' Press, +,,8/ %miel, %le.andra/ C!ntegrating a Human )ights Perspecti"e into the European %pproach to Com atting the Trafficking of ?omen for Se.ual E.ploitation/D Buffalo *u(an $ights Law $eview" <ol/ 3+, +,,5/ %nti;Human Trafficking C'prus/ E;mail correspondence/ 5 =e ruar' +,,-/ %panemi/ E;mail correspondence from Hulia Jalimeri/ +8 Hanuar' +,,-/

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Pro Sentret/ E;mail correspondence from $erit $ulien Hohansen/ 2 &arch +,,-/ )assam, % #asmine/ CContemporar' =orms of Sla"er' and the E"olution of the Prohi ition of Sla"er' and the Sla"e Trade (nder Customar' !nternational Law/D .irginia Journal of International Law" <ol 8-, 3---/ )a', 1ilanGana/ CLooking at Trafficking Through a 1ew Lens/D )ardo7o Journal of Law 8 %ender/ <ol 3+, +,,5/ )eanda, Laura/ CProstitution as a Human )ights Puestion: Pro lems and Prospects of (nited 1ations %ction/D *u(an $ights &uarterly/ <ol 38, 3--3/ )eform )esource Centre for &en/ E;mail correspondence from Elise Skarsune/ 9 &a' +,,-/ )uhama/ C1ational %ction Plan to Pre"ent and Com at Human Trafficking/D 8, 1o"em er +,,9/ )uhama/ C%nal'sis of )uhamaAs Trafficking =igures +,,9/D 8, Hune +,,6/ )uhama/ Telephone inter"iew with *erardine )owle'/ 3- &arch +,,-/ Salt, Hohn/ CTrafficking and Human Smuggling: % European Perspecti"e/D International Migration/ Special !ssue, +,,,/ Schmitz, H/ Das internationale .er#rechertu( und seine BekC(fung Q!nternational criminalit' and its controlR/ !naugural doctoral dissertation, (ni"ersit' of Cologne, 3-+9, Iuoted in Deflem, &athieu/ C?ild $easts ?ithout 1ationalit': The (ncertain :rigins of !nterpol, 36-6;3-3,/D *and#ook of +ransnational )ri(e and Justice/ Philip )eichel EedF/ Thousand :aks, C%: Sage Pu lications, +,,2/ Scull', Eileen/ CPre;Cold ?ar Traffic in Se.ual La or and !ts =oes: Some Contemporar' Lessons,D in %lo#al *u(an S(uggling/ Da"id J'le M )e' Joslowski EedsF/ +,,3, p 69 in $ra"o, Jaren E/ CE.ploring the %nalog' etween &odern Trafficking in Humans and the Trans;%tlantic Sla"e Trade/D Boston 0niversity International Law Journal/ <ol +2, +,,9/ Sem acher, %nke/ CThe Council of Europe Con"ention on %ction %gainst Trafficking in Human $eings/D +ulane Journal of International and )o(!arative Law/ <ol 34, +,,5/ Shell', Louise/ CHuman trafficking as a form of transnational crime/D in *u(an +rafficking" &agg' Lee EedF/ De"on: ?illlan Pu lishing, +,,9/ Smartt, (rsula/ CHuman Trafficking: Simpl' a European Pro lemKD Euro!ean Journal of )ri(e, )ri(inal Law and )ri(inal Justice" <ol 33, +,,8/

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Smith, Hohn C'ril and $rian Hogan/ )ri(inal Law/ 5th ed/ London, Edin urgh: $utterworths, 3-66/ Smith, Linda and &ohamed &attar/ CCreating !nternational Consensus on Com ating Trafficking in Persons: (S Polic', the )ole of the (1, and *lo al )esponses and Challenges/D +he 9letcher 9oru( of /orld ,ffairs/ <ol/ +6, ?inter +,,4/ Smith, )hona J&/ International *u(an $ights" 8rd ed/ :.ford: :.ford (ni"ersit' Press, +,,9/ SornaraGah, &uthucumaraswam'/ CTransnational Crimes: The Third Lim of the Criminal Law/D Singa!ore Journal of Legal Studies, +,,4/ Srikantiah, Ha'ashri/ CPerfect <ictims and )eal Sur"i"ors: The !conic <ictim in Domestic Human Trafficking Law/D Boston 0niversity Law $eview/ <ol 96, +,,9/ St Hohn, Hoseph/ The &inistr' for Hustice and Home %ffairs/ E;mail correspondence/ 39 =e ruar' +,,-/ Steiner, Henr' H and Philip %lston/ International *u(an $ights in )ontext' Law, olitics, Morals/ +nd Edition/ :.ford: :.ford (ni"ersit' Press, +,,,/ Stumpf, Huliet and $ruce =riedman/ C%d"ancing Ci"il )ights Through !mmigration law: :ne Step =orward, Two Steps $ackKD Legislation and u#lic olicy/ <ol 5, +,,+/ Superman, )ita > Head :ffice of Com ating Human Trafficking/ E;mail correspondence/ 3- Decem er +,,6/ Surtees, )e ecca/ CTraffickers and Trafficking in Southern and Eastern Europe/D Euro!ean Journal of )ri(inology" <ol 2, +,,6/ Tam e, %swini/ CThe Elusi"e !ngenue: % Transnational =eminist %nal'sis of European Prostitution in Colonia $om a'/D %ender and Society/ <ol 3-, %pril +,,2/ Tiefen run, Susan ?/ CSe. Sells ut Drugs DonAt Talk: Trafficking of ?omen Se. ?orkers/D +ho(as Jefferson Law $eview/ <ol +8, +,,,;+,,3/ (nited States Department of State/ CTrafficking in Persons )eport +,,6/D Hune +,,6/ <an !mpe, Jristof/ CPeople for Sale: The 1eed for a &ultidisciplinar' %pproach towards Human Trafficking/D International Migration/ Special !ssue, +,,,/ ?agner, Serge/ Ser"ice de Police Hudiciaire, )esponsa le du DWpartement CriminalitW :rganisWe/ E;mail correspondence/ 35 =e ruar' +,,-/ ?alsh, Jathleen &oore and Conor Hanl'/ Irish )ri(inal Law/ Du lin: *ill M &acmillan, +,,2/

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?idgren, Honas/ C&ultinational Cooperation to Com at Trafficking in &igrants and the )ole of !nternational :rganisations/D Paper presented to 33th !:& Seminar on !nternational )esponses to Trafficking in &igrants and Safeguarding &igrant )ights/ *ene"a, +5;+6 :cto er 3--4/ ?iGers, & and L Lapchew/ CTrafficking in ?omen, =orced La our and Sla"er';like Practices in &arriage, Domestic La our, and Prostitution,D 9oundation ,gainst +rafficking in /o(en, %lo#al ,lliance ,gainst +raffic in /o(en, 3--- in Long, L'nell'n D/ C%nthropological Perspecti"es on the Trafficking of ?omen for Se.ual E.ploitation/D International Migration/ <ol 4+, +,,4/ ?illiams, Phil and Ernesto ( Sa"ona EedsF/ +he 0nited 1ations and +ransnational Brgani7ed )ri(e/ London: =rank Cass M Co, 3--5/ ?ong, Diane/ CThe )umour of Trafficking/D International Institute for ,sian Studies 1ewsletter/ <ol 4+, +,,5/ #oshimi, #oshiaki/ )o(fort /o(en' Sexual Slavery in the Ja!anese Military During /orld /ar II/ 1ew #ork: Colum ia (ni"ersit' Press, +,,,/ Oalewski, %nna/ C&igrants for Sale: The !nternational =ailure to %ddress Contemporar' Human Trafficking/D Suffolk +ransnational Law $eview" <ol +-, +,,2/

National laws C-+r.s Protection of ?orkers who are posted to carr' out temporar' work within the )epu lic in accordance with the framework of the Transnational Pro"ision of Ser"ices Law, +,,+/ The Com ating of Trafficking and E.ploitation of Persons and Protection of <ictims Law, +,,9/ France :rdonnance nY 5,;3+45 du +2 no"em re 3-5, et dWcret nY 5,;3+46 du +2 no"em re 3-5,/ DWcret nY 95;+25 du 32 Guin 3-95/ Code de la famille et de lZaide sociale, +,,,/ Loi pour la sWcuritW intWrieure, 36 &arch +,,8/ Penal Code inserted ' %ct +,,8;+8- of 36 &arch +,,8, %rt +8, :fficial Hournal of 3- &arch +,,8/

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Loi nY +,,5;-33 relati"e [ lAimmigration et [ lAintWgration du +2 Guillet +,,5/ DWcret nY +,,9;382+ du 38 septem re +,,9/ #reland Criminal Law ESe.ual :ffencesF %ct, 3--8/ 1on;=atal :ffences %gainst the Person %ct, 3--9/ Child Trafficking and Pornograph' %ct, 3--6/ !llegal !mmigrants ETraffickingF %ct, +,,,/ Emplo'ment Permits %cts, +,,8;+,,5/ !mmigration %ct, +,,4/ Criminal Law EHuman TraffickingF %ct, +,,6/ L.3embo.rg Criminal Code, 369-;+,,6/ ProGect de loi lAassistance et la protection des "ictims de la traite des ^tres humains, 36 &arch +,,6/ Li re circulation des personnes det immigration, 3, septem er +,,6/ 'alta Criminal Code, 3624;+,,6/ ?hite Sla"e Traffic ESuppressionF :rdinances, 3-8,;+,,9/ !mmigration %cts, 3-9,;+,,6/ Permission to )eside for <ictims of Trafficking or !llegal !mmigrations who Co; operate with the &altese %uthorities )egulations, Su sidiar' Legislation +39/,9, 5 Hul' +,,9/ Norwa%ct Concerning the Entr' of =oreign 1ationals into the Jingdom of 1orwa' and their Presence in the )ealm E!mmigration %ctF/ +4 Hune 3-66, 1o 54, updated with amendments, most recentl' +6 Hul' +,,+/ The *eneral Ci"il Penal Code of 1orwa'/ %ct of ++ &a' 3-,+ 1o 3, with su seIuent amendments, the latest made ' %ct of +3 Decem er +,,2/

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Relevant co.rt cases and o+inions The !nter;%merican Court of Human )ights/ %d"isor' :pinion :C;36@,8 of 39 Septem er +,,8/ European Court of Human )ights/ Silidin v 9rance, %pplication 1o 98835@,3 of +5 Hul' +,,2/

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Relevant intergovernmental re+orts and doc.ments The Shield/ QThe :fficial :rgan of the $ritish Committee of the !nternational =ederation for the % olition of State )egulation of <iceR/ Hul' 36--/ (1ESC: EedF/ *u(an $ights' co((ents and inter!retations/ 1ew #ork: Colum ia (ni"ersit' Press@?estport, CT: *reenwood Press, 3-4-/ (nited 1ations Department of !nternational Economic and Social %ffairs/ Study on the +raffic in ersons and rostitution" (1 Doc ST@S:%@SD@6, (1 Sales 1o 2-/!</2, 3-2-/ European Con"ention for the Pre"ention of Torture and !nhuman or Degrading Treatment or Punishment, 3-69/ (nited 1ations )esolution 4-@355 of the *eneral %ssem l', 3--4/ $eiGing Declaration and Platform for %ction, 3--2/ Council of Europe/ $eco((endation $<=>?@ on cri(e !olicy in Euro!e in a ti(e of change" Straus ourg: Council of Europe Pu lication, 3---/

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Council of Europe Committee &inisters/ $eco((endation of the )o((ittee of Ministers to the Me(#er States on ,ction ,gainst +rafficking in *u(an Beings for the ur!ose of Ex!loitation" 93,th session, Document 1o )E+,,,F 33, 3- &a' +,,,/ (nited 1ations High Commissioner =or Human )ights Principles and *uidelines on Human )ights and Trafficking, +,,+/ :ffice of (nited 1ations High Commissioner for )efugees/ *uidelines on !nternational Protection: *ender;)elated Persecution within the Conte.t of %rt 3aE+F of the 3-23 Con"ention and !ts 3-59 Protocol )elating to the Status of )efugees E36F, +,,+/ (nited 1ations High Commission for Human )ights/ CPrinciples and *uidelines on Human )ights and Trafficking/D E@+,,+@56@%dd/3, +,,+/ European (nion/ CComprehensi"e Plan to Com at !llegal !mmigration and Trafficking of Human $eings in the European (nion/D E+,,+@C 34+@,+F +6 =e ruar' +,,+/ *il;)o les, %l"aro/ C)eport ' &r %l"aro *il;)o les on his "isit to the *rand Duch' of Lu.em ourg, +;8 =e ruar' +,,4/D 6 Hul' +,,4/ E.planator' )eport of the +,,2 Council of Europe Con"ention, C&E+,,2F8+, 8 &a' +,,2/ E( %*!S/ C!mpro"ement of $est Practice in the Pre"ention, Detection M !n"estigation of Trafficking of Human $eings/D 39;36 1o"em er +,,2/ European Parliament/ C=reedom, Securit' and Hustice: %n %genda for Europe/ Trafficking in Human $eings/D http:@@www/europarl/europa/eu@comparl@li e@elsG@zoom0in@430en/htmUtop/ Last accessed 6 Septem er +,,-/ *il;)o les, %l"aro/ C)eport ' the Commissioner for Human )ights on the Effecti"e )espect for Human )ights in =rance following his "isit from 2 to +3 Septem er +,,2/D 32 =e ruar' +,,5/ *il;)o les, %l"aro/ C=ollow;(p )eport on 1orwa' E+,,3;+,,2F: %ssessment of the progress made in implementing the recommendations of the Council of Europe Commissioner for Human )ights/D +- &arch +,,5/ (nited 1ations High Commissioner for )efugees/ C*uidelines on !nternational Protection: The application of %rticle 3%E+F of the 3-23 Con"ention and@or 3-59 Protocol relating to the Status of )efugees to "ictims of trafficking and persons at risk of eing trafficked/D HC)@*!P@,5@,9, 9 %pril +,,5/ Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights on his "isit to !reland/D 8, %pril +,,6/

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(nited 1ations *lo al !nitiati"e to =ight Human Trafficking/ C% out (1/*!=T/D http:@@www/ungift/org@ungift@en@a out@inde./html/ Last accessed 38 :cto er +,,6/ :rganisation for Securit' and Cooperation in Europe Special )epresentati"e and Coordinator for Com ating Trafficking in Human $eings/ CEfforts to Com at Trafficking in Human $eings in the :SCE %rea: Co;ordination and )eporting &echanisms/D 38 1o"em er +,,6/ Hammar erg, Thomas/ C)eport ' the Commissioner for Human )ights of the Council of Europe, =ollowing his <isit to the )epu lic of C'prus on 9;3, Hul' +,,6/D 3+ Decem er +,,6/ (nited 1ations :ffice on Drugs and Crime/ C*lo al )eport on Trafficking in Persons/D =e ruar' +,,-/ European (nion Hustice and Home %ffairs Council/ C$ackground: Hustice and Home %ffairs Council/D Lu.em ourg, 5 %pril +,,-/ Council of Europe %ction %gainst Trafficking in Human $eings, http:@@www/coe/int@t@dghl@monitoring@trafficking@default0en/asp/ Last accessed +4 %pril +,,-/ European Committee for the Pre"ention of Torture and !nhuman or Degrading Treatment or Punishment/ http:@@www/cpt/coe/int@en@default/htm/ Last accessed 33 &a' +,,-/ Europol/ CTrafficking in Human $eings in the European (nion: % Europol Perspecti"e/D =e ruar' +,,6/ %"aila le at http:@@www/europol/europa/eu@pu lications@Serious0Crime0:"er"iews@Trafficking0in 0human0 eings0+,,6/pdf/ Last accessed 33 &a' +,,-/

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Relevant international instr.ments The !nternational %greement for the Suppression of the C?hite Sla"e Traffic,D 3-,4/ The !nternational Con"ention for the Suppression of the C?hite Sla"e Traffic,D 3-3,/ League of 1ations Co"enant, 3-+,/ The !nternational Con"ention for the Suppression of the Traffic in ?omen and Children, 3-+3/ The !nternational Con"ention for the Suppression of the Traffic of ?omen of =ull %ge, 3-88/ &onte"ideo Con"ention on the )ights and Duties of States, 3-88/ (nited 1ations Charter, 3-42/ (nited 1ations Protocol to %mend the Con"ention for the Suppression of the Traffic in ?omen and Children, Concluded at *ene"a on 8, Septem er 3-+3, and the Con"ention for the Suppression of the Traffic of ?omen of =ull %ge, Concluded at *ene"a on 33 :cto er 3-88/ 3+ 1o" 3-49/

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(nited 1ations (ni"ersal Declaration of Human )ights, 3-46/ (nited 1ations Con"ention for the Suppression of Traffic in Persons and of the E.ploitation of the Prostitution of :thers, 3-4-/ (nited 1ations Protocol %mending the !nternational %greement for the Suppression of the ?hite Sla"e Traffic, Signed at Paris on 36 &a' 3-,4, and the !nternational Con"ention for the Suppression of the ?hite Sla"e Traffic, Signed at Paris on 4 &a' 3-3,/ 4 &a' 3-4-/ European Con"ention on Human )ights, 3-2,/ Declaration of the )ights of the Child, 3-2-/ (nited 1ations Declaration on the Elimination of <iolence against ?omen, 3--8/ (nited 1ations !nternational Co"enant on Economic, Social and Cultural )ights, 3-55/ (nited 1ations !nternational Co"enant on Ci"il and Political )ights, 3-55/ <ienna Con"ention on the Law of Treaties, 3-5-/ (nited 1ations Con"ention on the Elimination of %ll =orms of Discrimination against ?omen, 3-9-/ (nited 1ations Con"ention on the )ights of the Child, 3-6-/ European (nion Council Hoint %ction -9@324@HH%, 3--9/ )ome Statute of the !nternational Criminal Court, 3--6/ The (nited 1ations Con"ention %gainst Transnational :rganised Crime, +,,,/ The (nited 1ations Protocol to Pre"ent, Suppress and Punish Trafficking in Persons, Especiall' ?omen and Children, +,,,/ :ptional Protocol to the Con"ention on the )ights of the Child on the sale of children, child prostitution and child pornograph', +,,+/ European (nion Council =ramework Decision +,,+@5+-@HH%, 3- Hul' +,,+/ European (nion Council Directi"e +,,4@63@EC, +- %pril +,,4/ The Council of Europe Con"ention on %ction against Trafficking in Human $eings, +,,2/

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