Definition of human trafficking

Transcription

1 Department of Information Society and Action against Crime Directorate of Cooperation Directorate General of Human Rights and Legal Affairs Project on Combating and Preventing Trafficking in Human Beings in Azerbaijan Definition of human trafficking Presented by: Karolina Rusiłowicz, Lawyer, Helsinki Foundation for Human Rights, Poland February 2011 The views expressed herein can in no way be taken to reflect the official opinion of the Council of Europe

2 To be able to effectively combat trafficking and help its victims, it is of fundamental importance to use a definition of trafficking in human beings on which there is international consensus. Such definition was formulated in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime. The definition of trafficking in human beings in the Council of Europe Convention on Action against Trafficking in Human Beings is identical to the one of the so called Palermo Protocol. To be able to better understand the definition it is being broken into three basic elements: first, the action; second, the means; and third, the purpose. the action of: recruitment, transportation, transfer, harbouring or receipt of persons ; by means of: the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person ; for the purpose of exploitation, which includes at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. United Nations Office on Drugs and Crime explains that the crime of trafficking is defined through a combination of the three constituent elements and not the individual components, though in some cases these individual elements will constitute criminal offenses independently. Trafficking of the child is recruitment, transportation, transfer, harbouring or receipt for the purpose of exploitation, no matter by what means. In the Convention child means every person under 18 years old. First component (action) covers every possible action from recruitment to receipt of persons. Recruitment involves recruitment via Internet. With regard to transportation it is important to point out, that transport need not be across a border for the trafficking in human beings to take place. There are cases of internal trafficking when victim does not cross the border. Means covers not only forms of direct use of force or other forms of coercion, but also abuse of position of vulnerability, which can be less visible. Abuse of a position of vulnerability occurs when a person has no real or perceived acceptable alternative but to submit to the abuse involved. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. Fraud and deception are frequently used by traffickers, as when victims are led to believe that an attractive job awaits them rather than the intended exploitation. The Convention sets the minimum forms of exploitation. That means that the particular state can cover more forms. Sexual exploitation, forced labor, slavery-like practice, are not further defined in the Palermo Protocol (or in the CoE Convention), and signatory states are obligated to further define these terms under their domestic legislation (e.g. prostitution) or use the definitions from other international instruments. At national level one of the challenges Member States encounter is clarifying some elements of the trafficking definition, such as the notion of forced labour. In this regard there are international law standards and court interpretations of these concepts to rely on, and they provide guidance for criminal law and sanctions. ILO Conventions No 29 and 105 regarding Forced Labour and the Abolition of Forced Labour provide an international legal definition of forced labour as all work and services exacted under 2

3 menace of penalty for which a person has not offered himself/herself voluntarily'. According to the ILO, menace of penalty does not always mean that some form of penal sanction is applied; subtle forms of menace exist, sometimes of a psychological nature. The Palermo Protocol represents a broad international consensus on the definition of human trafficking; however there is still controversy surrounding some of its elements. The definition is aimed at covering a wide range of actions, means and exploitation forms and therefore is broad and unclear. The International Labour Organization (ILO) notes that for example, there has been a debate as to whether trafficking must involve some movement of the trafficked victims either within or across national borders together with the process of recruitment, or whether we should focus only on the exploitation that occurs at the end. An important aspect is the question of consent. The consent of the trafficked persons becomes irrelevant where any of the means (i.e. force or coercion) described in the Palermo Protocol definition are present. The Trafficking in Persons Report (TIP Report) 2009 published by the United States Department of State illustrates misconceptions held by some authorities regarding the consent of the victims and strongly expresses that even though a person may willingly agree to migrate legally or illegally or willingly take a job, once a person s work is recruited or compelled by the use of threat or physical violence or the abuse or threatened abuse of the legal process, the person s previous consent or effort to obtain employment with the trafficker becomes irrelevant. As the experience shows, the question of victim's consent is indeed problematic in practice. While visiting the detention centre in Bialystok, Poland, in 2009, I met a young woman from Belarus, who worked as a prostitute. She was aware that she was going to be involved in prostitution when she came to Poland. After a couple of months she wanted to quit, but was not able to she ran away and hided for months. After some time, I asked some authorities, how her case developed I received an answer, that it was not a case of trafficking because the she agreed to be engaged in prostitution so there was no exploitation. However, as it derives from the Explanatory Report to the CoE Convention, the question of consent is not simple and it is not easy to determine where free will ends and constraint begins. In trafficking, some people do not know what is in store for them while others are perfectly aware that, for example, they will be engaging in prostitution. However, while someone may wish employment, and possibly be willing to engage in prostitution, that does not mean that they give their consent to be subjected to abuse of all kinds. The ILO notes that where an employment relationship was originally the result of a freely concluded agreement, the worker s right to free choice of employment remains inalienable, that is, a restriction on leaving a job, even when the worker freely agreed to enter into it, can be considered forced labour. The European Court of Human Rights also addressed the issue of consent in the context of forced labour services in the case Van der Müssele v. Belgium. Traffickers use a variety of methods to create a vulnerable condition for the victims so that the victims do not have any other choice but to submit to the traffickers. One of the common methods used by traffickers is debt-bondage in which the traffickers tell their victims that they owe money relating to their travel and living expenses and that they will not be released until the debt has been paid back. Traffickers also use other methods including starvation, imprisonment, physical and verbal abuse, removal of victims' identification documents (e.g. passport), threats of violence to the victims and the victims families, and forced drug use. Also, what we should keep in mind is a cultural context. Lately I dealt with a case of a woman from 3

4 Cameroon that was trafficked in Moscow. The reason why she did not escape from traffickers and agreed for exploitation was that she believed that the they (also nationals of Cameroon) put a spell on her. That is also an example why we should treat the consent of a victim as irrelevant. In case of cross-border trafficking, victims often do not speak the local language or do not have any social network to assist them. Furthermore, victims illegal status makes it difficult for them to seek help from law enforcement, the healthcare system and/or other public services. Also because of the consequences that might be in store for them. Some time ago in my work I handled a case of a young India citizen, who entered Poland legally, had a job permit and visa with the right to work as a cook. Once he arrived to Poland and met his employer, it turned out, that there is no work for him in the restaurant, he stayed for a couple of day, kept at the employer's house, forced to work as a house keeper for free. He ran away, got to the nearest border guard quarter and was detained, because the boy did not fulfil the conditions defined in the job permit he was not performing work as it was stated in the permit. This allowed to revoke his visa and issue him a deportation order. While there is a common understanding on what trafficking in persons is, there are still sharp divisions over the understanding of who the victims of trafficking are. The CoE Convention provides for a definition of a victim of trafficking, but there are difficulties to identify them in practice. Some of the reasons why it is so difficult to identify trafficked persons are related to the following aspects: -social stigma the victims' experience may prevent them from coming forward and admitting to authorities, NGOs or family that they were trafficked. As IOM points out, victims are treated as suspect not only by society, but also by the authorities and under the law. They are often illegal migrants, they are prostitutes or they work close to criminal environment, on the margins of society. -disproportionate focus on immigration status of the victim rather than on exploitive situation. In practice immigration law tend to prevail over criminal and labour laws. This often results in detention and deportation of the victim before the actual proceedings starts (as in the case of Indian citizen). -confusion between trafficking in human beings and smuggling of migrants. This is one of the most recognized area of confusion. While there are two different UN Protocols, that include detailed definitions, there are still problems in distinguishing between these two. In case of cross-border trafficking, both smuggled migrants and victims of trafficking may enter the country, infringing the admission rules. They both may have given their consent for this. Irregular migrant may also suffer at the hands of smugglers or have their fundamental rights violated by the destination countries, but still there is a crucial difference the purpose of exploitation. Also, it is important to stress, that trafficking is a crime against the human being, while migrant smuggling is a crime against the state. It is very important to act against trafficking, minding that this is a gross violation of human rights, that might occur within a migration context but it is not just another migration issue. In 2010 the ECHR emphasized in its judgment in the Rantsev case that 'THB threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. This clearly emphasizes that trafficking in human beings is a serious violation of human rights. Too often victim identification is based on simplistic impressions, while it should be indeed an in-depth analysis if the person s experience meets the Protocol definition. 4

5 To sum up: The first internationally agreed legal definition of trafficking is provided by the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. This trafficking definition has also been endorsed in the Council of Europe Convention on Action against Trafficking in Human Beings. At EU level the Council Framework Decision of 19 July 2002 on combating trafficking in human beings was the first important step towards approximating the criminal laws of the Member States. The 2010 Commission proposal for a new Directive on THB. The importance of the proposal lies inter alia in the extension of the definition of trafficking, which will include exploitation for the purposes of begging and criminal activities among the non-exhaustive list of forms of exploitation for which people are trafficked. THB is a changing phenomenon. That is why we have to remember that the definition should be flexible to be able to follow and adjust to the reality, which will always be one step ahead. Let me present you some data from Trafficking in Persons report of the US Department of State, June 2010 Major forms of trafficking in human beings (power point presentation): Forced Labour - recent studies show the majority of human trafficking in the world takes the form of forced labor.the ILO estimates that for every trafficking victim subjected to forced prostitution, nine people are forced to work. Sex trafficking Debt-bonded Labour (especially migrant workers) Involuntary domestic servitude Forced Child Labour Human trafficking by the numbers (power point presentation): Adults and children in forced labour, bonded labour and forced prostitution around the world: 12,3 million Successful trafficking prosecutions in 2009: 4,166 Successful trafficking prosecutions related to forced labour: 335 Victims identified: 49,105 5