Trafficking in Human Beings: International Conventions, Protocols and Charters

Susan Kreston Fulbright Professor of Law & Research Fellow University of the Free State krestons.rd@ufs.ac.za

INTRODUCTION

What is Trafficking In Human Beings? MODERN DAY SLAVERY

Scope
12.3 million people trafficked worldwide

annually

Broadest definition 1.2 million are children Approximately half are children and 80% female

800,000 trafficked internationally

3,160 + convictions for trafficking

worldwide in 2006

3,800 in 2005 Most for commercial sexual exploitation

Most

researched and responded to

Other types of trafficking

Labour (forced)

Male adults vs. female adults Domestic work and/or CSE with kids
Cross-over

between labour & CSE

Country to country variation important

Ex:

In SA, more boys than girls exploited for labour

Very atypical

Labour may also include conscription

Child

soldiers girl children are 40% May, again, also be exploited sexually

Sexual Trafficking of Children

Primary destination

countries:

Secondary destination countries:

Thailand Philippines Sri Lanka Taiwan

Brazil Cambodia Columbia Costa Rica India Indonesia Italy Nepal South Africa Vietnam

Trafficking of Children for Commercial Sexual Exploitation in Africa

International Trafficking Routes Regional Trafficking FlowsCircular patterns

Other types of trafficking

Marriage (forced, illegal or age

inappropriate)

Why would a 14 year old girl want a 64 year old man?

Organs (body parts) Adoption (illegal)

Abduction Sale

IOM Southern African study 2003

Women and children, for sexual exploitation Domestic & international trafficking Sold by parents

Reality of friends, family and peers West African/Nigerian networks, Chinese Triad, Russian & Bulgarian mafia Recruited primarily by lies
Employment Marriage Education

Organized Crime

Trafficking in Human Beings, Especially Women and Children, in Africa UNICEF (2003)
Trafficking (for any purpose) is a recognized

problem in half of Africa

But only one third of southern & east Africa

Vs.

70% in west & central Africa

Children trafficked at twice the rate as women @ 60% of trafficking victims in Africa are children

INTERNATIONAL INSTRUMENTS

Broad vs. Specific

CONVENTIONS &

CHARTERS Global

PROTOCOLS New/emerging issues

CEDAW CRC ILO Charter on Human and Peoples Rights Charter on the Rights & Welfare of the Child

not focused on or adequately addressed in previous instrument

Regional - African

Trafficking (Palermo) Children in Armed Conflict Rights of Women in Africa

International Conventions, International Protocols, Regional Charters Regional Protocols Constitutions

#1 The Palermo Protocol

Protocol to Prevent, Suppress and

Punish Trafficking in Persons, especially Women and Children (2003)

Underlying Convention
UN

Convention Against Transnational Organized Crime 3rd highest grossing crime, after trafficking in guns and drugs
$10

billion annually

Protocols Definition
Trafficking in persons: Recruitment, transportation, transfer, harboring or receipt of persons (what) By means of threat or use of fraud, coercion, force (abduction), and abuse of power (how) For the purpose of exploitation (why) Versus smuggling persons Pay before vs. after Free upon delivery vs. exploited after arrival Crime against a person vs. a state Must be transnational vs. can be international or domestic

Article 2 Statement of Purpose

1. Prevent trafficking in persons,

especially women and children; 2. Protect and assist victims of trafficking; 3. Promote cooperation to combat trafficking more effectively.

Article 5 - Criminalization
Laws prohibiting trafficking + Attempt + Accomplice + Organizing or directing others to traffick

Trafficking Crimes
Forgery of documents Labour exploitation Unlawful confinement Kidnapping Murder Bodily injury Sexual assault Rape Corruption Slavery Involuntary servitude Debt bondage Forced marrige Forced abortion Forced pregnancy Torture Cruel, inhuman or degrading treatment

Article 6 Assistance & Protection to Victims

1. Ensure the privacy of the victims 2. Inform V of relevant court & admin

proceedings 3. Physical, psychological & social recovery

1.

Housing, counselling, medical & education/employment/training assistance

4. Special needs of kids 1. Appropriate housing, education, care 5. Witness Protection 6. Enable victims to seek

compensation for damages,

Article 7 Status of Victims

1. Legislative or other

appropriate measures to allow victim to stay in the country, temporarily or permanently, in appropriate cases

Article 8 Repatriation
1. Return of victim to country of

nationality or permanent residency, without delay 2. Must assess safety of victim if returned 3. Issue needed ID/travel documents

Article 9 Prevention
1. Prevent & combat trafficking 2. Protect V from revictimization 3. Include NGOs, civil society,

media, academics in prevention policies & programmes 4. Discourage demand 5. Alleviate vulnerability factors
1. 2.

Inequality Poverty

Public Awareness and Education

Prevention campaigns, to

focus on: 1. Information about potential victims; 2. The penalties for trafficking as well as the risks -- to life and health -faced by the victims; 3. The causes and consequences of

CAUSES of TRAFFICKING: The Seven Deadly Sins

Violence against women and children Concealment of incest and rape Discrimination and devaluation of women

and children Ignorance (hope for a better life) Greed Poverty

May explain why children traffic themselves, but not an excuse for adults trafficking kids

CAUSES of TRAFFICKING
LACK OF ADULT PROTECTION

Political instability Armed conflict Orphans/child-headed households HIV/AIDS Natural disasters

Tsunami/Katrina

Article 10 - Information Exchange & Training

1. Whether individuals crossing

international borders with false papers or no documents are traffickers or victims; 2. Methodology of Victimization
1.

Methods used by criminals to transport trafficking victims under false identities;

3. Other trafficking techniques 1. recruitment practices 2. trafficking routes 3. links between/among individuals and trafficking groups

Article 10 - Information Exchange & Training

1. Training of all MDT members 2. Prevention 3. Prosecution 4. Protection

Overview of Other International/Regional Instruments

INTERNATIONAL CONVENTIONS

International Convention #1
UN Convention on the Elimination of all forms

of Discrimination Against Women (CEDAW 1981)

Sexism paralleled to racism

Both

must go as they commit the same harm Neither the shape not the shade of the skin

Political, economic, social, cultural, civil Abolish/modify all laws, regulations, customs and practices that discriminate

CEDAW - Article 6
States parties shall take all

appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation or prostitution of women

International Convention #2
Convention on the Rights of the Child (1989) Most rapidly and widely ratified international

human rights instrument in the world Recognizes child as holder of rights and freedoms, as well as recognizing States obligation to protect the child

Article 3
Best interests of the child

are paramount

Article 4
State must implement all rights

recognized in this instrument

Article 11
States must take measures to prohibit

the illegal transfer and non-return of the child abroad

Article 19
State must take all appropriate steps

to protect children from mental or physical violence, injury or abuse, neglect, maltreatment or exploitation, including sexual abuse, while in the care of their parents

Article 32
State must protect children from economic

exploitation, performing work that is hazardous or that interferes with their education, or that is harmful to health, or physical, mental, spiritual, moral or social development Min age for work, max hours Conditions Provide penalties for violation

Article 34
State must protect children from

sexual exploitation and sexual abuse: Unlawful sexual activity Prostitution Pornographic performance or materials

Article 35
State must protect children from

abduction, sale or traffic in any form, for any purpose, by any person

International Convention #3
ILO Convention 182 -

Elimination of the Worst Forms of Child Labour

Regulation vs. prohibition Its not labour, its torture w/ sexual abuse & exploitation

ILO 182
Article 1

Each Member which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. For the purposes of this Convention, the term "child" shall apply to all persons under the age of 18.

Article 2

ILO 182
Article 3 For the purposes of this Convention,

the term "the worst forms of child labour" comprises: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;

ILO 182
(b) the use, procuring or offering of a

child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

Protocols

International Protocols 2
Optional Protocol on the Sale of

Children, Child Prostitution and Child Pornography (2000)

Underlying Convention - CRC

Sale of Children, Child Prostitution and Child Pornography

Art 3 Must make certain activities a

crime (these are only minimums may criminalize others too)

Sexual exploitation Transfer of child organs Engagement in the forced labour of a child

Sale of Children, Child Prostitution and Child Pornography

Articles 4-7 International LEA

co-

operation through

Jurisdiction Extradition Mutual assistance Seizure/confiscation of assets

Art 8 Protect rights of child victims

International Protocol #3
Optional Protocol on the Rights

of the Child in Armed Conflict

Underlying Convention Convention on the Rights of the Child

Articles 1 & 2
1- Members of armed forces under 18

should not take direct part in armed conflict

2 No compulsory recruitment of

under 18s

Article 6
State shall implement and enforce the

protocol Make these principles known (education and awareness raising) States must take all feasible measures to demobilize/release child soldiers

State must assist in physical and psychological recovery and reintegration of the victim

Article 7
States must implement this protocol

and include prevention and reintegration of the victim in cooperation with other signatories

REGIONAL CHARTER #1

African Charter on the Rights and Welfare of the Child (2000)

African Charter on the Rights and Welfare of the Child (2000)

Article 4 Best interests of the child are paramount Article 15 Child Labour economic exploitation or work that is hazardous or that interferes with the childs physical, mental spiritual, moral or social development
Min

wage/max hours Conditions of work Penalties/sanction Promote dissemination of this information

African Charter on the Rights and Welfare of the Child (2000)

Article 16 Child Abuse & Torture

Prohibits

torture, inhuman or degrading treatment, especially physical or mental injury or abuse, neglect or maltreatment, including sexual abuse

African Charter on the Rights and Welfare of the Child (2000)

Article 27 Sexual Exploitation

Protect

from and prevent: Inducement, encouragement or coercion to engage in sexual activity Prostitution or other sexual services Pornographic activities, materials and performances

African Charter on the Rights and Welfare of the Child (2000)

Article 29 Trafficking and Abduction Abduction, sale, or traffic of children, for any purpose, in any form, by any person, including parents or legal guardians Also prohibits begging

REGIONAL CHARTER #2

African Charter on Human and Peoples Rights (1986)

African Charter on Human and Peoples Rights Protects economic, social & cultural rights (in addition to civil & political rights) New & expanded scope

Article 2 Non-discrimination
On grounds of: Sex Race Ethnic group Colour Religion, etc

Article 18
Eliminate every discrimination against

women Ensure protection of rights of women and children as stipulated in international declarations and conventions International customary law

REGIONAL PROTOCOL

Protocol on the Rights of Women in Africa (2005)

Protocol on the Rights of Women in Africa - 2005

Underlying document - African Charter on

Human and Peoples Rights Behaviors, attitudes or practices that negatively affect life, health, dignity, education & physical integrity Public & private sphere Violence against women covers physical, sexual, psychological, & economic harm

Article 2
Elimination of all forms of

discrimination against women

Enshrine in constitutions, legislation,

regulatory measures, policy and development plans

Modify social/cultural patterns to

eliminate stereotype and female inferiority

Article 3 Right to Dignity

Protection of Human and Legal rights Prohibit degradation or exploitation States shall ensure protection of

women from all forms of violence, particularly sexual and verbal

Article 4-Right to Life, Security and Integrity of the Person

States shall enact & enforce laws to

prohibit all forms of violence against women, including unwanted or forced sex, whether it takes place in public or in private

Article 4-Right to Life, Security and Integrity of the Person

Identify the causes and

consequences of VAW, and take appropriate measures to prevent, punish & eradicate VAW Punish the perpetrators and help rehabilitate the victims

Regional Charter-Trafficking
Article 4 (2)(g)

Prevent & condemn trafficking Prosecute the perpetrators Protect the victims

Victims Rights
UN Convention on Justice & Support

for Victims of Crime and Abuse of Power

UN Declaration of Basic Principles of

Justice for Victims of Crime & Abuse of Power

Prof Susan Kreston Fulbright Professor of Law & Research Fellow - UFS krestons.rd@ufs.ac.za susankreston@hotmail.com 076.543.7211 (cell)