Human Trafficking Violation Against Humanity
Human Trafficking has been considered to be a violation against humanity around 200 years ago and today, it is seen as an instance of modern-day slavery. This slavery, called human trafficking, is a hidden evil that affects everyone, but especially women and children. Each year, millions of men, women and children are victimized and exploited for labour and sexual purposes. Often, while hoping for a better future for themselves and their families they are lured by false promises into a life of slavery and deprivation. Trafficking in person is viewed by some authors as a criminal activity by transnational organized groups (Bruckert and Colette, 2002). Others consider it as a public health concern or a human rights issue within the framework of modern day slavery or forced labour (Ruggiero, 1997, ILO, 2005, Bales, 2005,). Although being an international matter, ‘Trafficking in Persons' is first and foremost, a human rights issue that breaches the fundamental rights of the individual (New York Times, 2000). Therefore, it has emerged in the national and international discourse, both as a human rights violation and as a serious threat to security and accordingly, it is imperative that law enforcement bodies and justice seekers be constantly assessed so as to deploy effective measures and actions to combat and re-abolish slavery which today appears in the form of human trafficking across the globe.
According to Tom Obokata, “it has increasingly been recognized that trafficking can rank among the 'most serious crimes of concern to the international community as a whole' or ‘delicta juris gentium'.” The international community has recognised trafficking as a crime against humanity amid the various categories of crimes (Obokata, 2005). Re Prosecutor v. Kunarac , it was held by the International Criminal Tribunal for the Former Yugoslavia (ICTY) that enslavement as a crime against humanity included trafficking of human beings. This is a flourishing international trade whereby scrupulous criminals generate billions of dollars to the detriment of millions of innocent victims who are robbed of their rights, self-respect, freedom and so much more.
It can be said that a large majority of countries in the world are affected by this scourge. These countries may participate in the human trafficking in such a way that they give origin, or assist in the transit or are even the final destination of the trafficking (Polaris Project, 2009). Annually around 600,000 to 800,000 people are traded across transnational borders while millions are enslaved in their own countries. The annual total revenue estimated to be derived from trafficking in persons is between $5 billion and $9 billion (UNECE, 2004). Over the past decade, human trafficking with a global annual market of about $ 42.5 billion has reached the epidemic point (Council of Europe, [COE] 2009).
It is estimated that around 12.3 million adults and children are held in forced and bonded labour, as well as ‘commercial sexual servitude' at any given time (United States Department of States, [US] 2009, pg 8). Out of this figure, around 1.39 million are ‘commercial sexual servitude' victims, both within countries and internationally (US, 2009, p. 8). Traffickers often target the most vulnerable groups of people for their inhumane trade and the figures speak for themselves; out of the number of victims of forced labour, 56 % involve girl children and women (US, 2009, p. 8). Initial estimates of global trends range between 700,000 and two millions (O'Neill Richard, 1999). Even though there are no disaggregated statistics on earnings derived from the sex industry, country reports disclose significant signs. For instance, an analysis of the economy of Thailand reveals that the value of trafficking in women from Thailand to Japan, Germany and Taiwan could reach up to US$ 3 billion. In 1994 alone, Thai women involved in the sex trade in Japan could yield around US$ 4.7 billion. O'Neill Richard (1999), on the basis of evidence extracted from arrested traffickers, suggested that in the United States, traffickers could earn between 1.5 million to 110.000 US$ yearly through their networks. They utilise shrewd and astute means comprising of fake promises of employment, education or marriage in order to trap individuals into this vicious circle. Subsequently, some people become victims of trafficking in their home countries while others leave their countries with the hopes of improving their lives by accepting jobs requiring low qualifications and skills.
Chapter One basically makes an exposé of the history behind human trafficking as well as it provides for definition. It also analyses the different forms and main causes of this scourge.
Chapter Two will examine the difference between Human Trafficking and Migrant Smuggling, study the causes of human trafficking as well as the other offences related to it.
Chapter Three accounts for the fraction where the legal provision put in place to tackle the problem of Human Trafficking will thoroughly be analysed in relation to international convention and legislations in America.
Chapter Four will eventually try to analyse some common forms of exploitation present in Mauritius to investigate if these really amount to the phenomenon of human trafficking.
Finally, there will be a section dedicated for a number of recommendations along with the concluding remarks.
Historical Background Of Human Trafficking
History has witnessed the incessant moments in time when women, men and children have been put for sale against their consent and pushed into forced labour and prostitution. Warnath (1998), cited by Alexis A. Aronowitz (2000, p.1) stated that “Trafficking of women and children is not a new problem, it has occurred throughout history. What is new is the growing involvement of organised crime and increasing sophistication of its methods.” The most dreadful and deplorable part of all is that such practices of trading in human lives still persist and have developed into a global phenomenon from which no country, whether developed or developing, is immune. The term ‘trafficking' in itself is not new since it was first utilised during the 16th Century as a synonym for buying and selling and ‘going back and forth' (International Labour Organisation, [ILO], 2005, p. 7). By the 19th century trafficking incorporated the trade in persons and was later referred to as ‘white slave trade'. However, the earliest understanding of ‘trafficking' came from the United Nations instruments (Elaine Pearson, 2000, p. 20).
The “International Agreement for the Suppression of the White Slave Traffic” which aimed to defend women and girls from slave trade was signed in 1904. At that time, the word ‘traffic' was referred to “movement of women for a morally wrong purpose; that is, prostitution. As such, trafficking was linked with prostitution and sexual exploitation. At an international convention organised by the League of Nation, the representatives of 34 countries asked that the white slave traffic be substituted by traffic in women and children. As a result, the “International Convention for the Suppression of the Traffic in Women” was ratified which eventually extended the scope of trafficking to include persons other than white women as well as children of both sexes. Thus, people belonging to the male gender could also be victims of trafficking. Additionally, it highlighted the need to protect women and children through the dissemination of adequate and relevant information.
The first ‘legally binding' instrument was the “United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others”. It came into force in 1951 and as of today, only 66 countries have signed it (Kangaspunta, 2009). Several other actions were passed to tackle specific issues on trafficking in person namely the “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography”, signed by Mauritius in 2001, which primarily dealt with trafficking in children. The ILO also came with conventions on forced labour relating to children, namely the “Worst Forms of Child Labour Convention 1999” as sanctioned by Mauritius in 2000.
The subsequent international legal document, “UN Protocol against Trafficking in Persons”, which focused wholly on trafficking, came into existence 51 years later (Kangaspunta, 2009). It is the only international legal manuscript which tackles human trafficking as a crime encompassing all forms of exploitation and which for the first time, provides a definition. It also balances enforcement of law and defends the victims and their rights. Furthermore, at international platforms, the main topic of discussion is forced labour and the link among migration and trafficking.
Human Trafficking has evolved from the most primitive to most modern forms of slavery and will continue to transform with the issue of globalisation and rapid advances in technology. The international community has and is still striving to combat trafficking in person in the traditional as well as modern forms of slavery. The UN has denounced different types of slavery along with practices on various platforms in the legislations as well as through policy instruments. In spite of the tremendous efforts to limit the trafficking in person, it still remains a widespread and an alarming predicament around the world.
After a synopsis of the historical evolution, this section will primarily provide for a definition to the term human trafficking. Formulating the appropriate terminology to describe Human Trafficking remains a persisting challenge. The majority of these formulations used to depict trafficking either lay emphasis on the buying and selling of people or they relate closely to smuggling. As such these words, and the term ‘trafficking', may not sufficiently incorporate the practical aspect, that is, exploitation.
Therefore, the most widely accepted definition of ‘trafficking in persons' which entails the aspect of exploitation is furnished by the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplemented the United Nations Convention Against Transnational Organized Crime (2000)”. Thus, human trafficking implies, “…the recruitment, transportation, transfer, harbouring or receipt of persons, by means of a 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. Exploitation shall include, 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.” According to the U.S. Department of State (TIP Report 2005, p. 12), many countries misunderstand this definition by overlapping in their own legislations internal trafficking and thus, fail to differentiate trafficking from smuggling of migrants.
This definition essentially addresses that this activity can be broken into three distinctive parts, namely; criminal acts, means and purposes for commission of the acts. (United Nations Office on Drugs and Crime [UNODC] p. 2) As such, Human Trafficking is a process constituting of three elements namely an action by the trafficker, the means and the purpose of exploitation. An action refers to what is done, for example, recruiting, transporting, transferring, harbouring or receipt of persons. The means refers to how is human trafficking carried out and includes abuse of power or vulnerability, usage of fraud, force, threat or kidnapping, or benefits or payments to the person controlling the victim. Finally, as far as the purpose is concerned; that is why it is done, includes acts such as forced labour, exploiting the prostitution of person, sexual exploitation, slavery or other similar practices and the organs removal or other types of exploitation. It is to be noted that at least one constituent of each of these groups as described above, is required before the definition provided by the protocol applies. In case of trafficking involving children below 18, only the action and the purpose of exploitation will be required. Another important aspect is that there is no need for a person to be physically transported from one place to another, for the crime to be covered by the definition.
The provisions on consent neither restrict the right of the accused to have full defence and ‘presumption of innocence' nor are the ‘burden of proof' shifted on the victim. This obligation remains on the State or public prosecutor as in any criminal case. There is no transformation of the relationship between the alleged offender and the trial rather only addition of a new criminal offence.
Forms Of Human Trafficking
After a wide-ranging definition, this section will analyse the major forms of human trafficking present worldwide as a scourge. Thus, it is essential to discuss the forms of trafficking since it is not only restricted to prostitution but also encompasses many forms of slavery.
The Constitution of Mauritius under Section 6(1) prohibits forced labour but no definition is provided for, apart from some circumstances which are excluded. For instance, any labour required in relation to a sentence of the court, employment in naval, military or air force and for public emergency. Around 12.3 million victims of forced labour are estimated worldwide (ILO, 2005, p. 10). According to the Article 2(1) Forced Labour Convention, Forced Labour is defined as: “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.
Consequently, three main elements are provided namely work or service, performance under menace and involuntariness. It is important to highlight that although the person may have initially consented, but once the work becomes involuntary and the employer utilizes force, fraud, or coercion to keep the person under employment, the latter becomes a victim of human trafficking.
Re Prosecutor v. Krnojelac , the court recognised that involuntariness represents the definitional aspect of forced labour and that only relevant circumstances of each case will be decisive. The most important factor is that the person did not have the choice whether or not to work. Employers cannot utilise force labour to achieve economic development, for political education, discriminate, enforce discipline or for sanctions for participation in strike (“Abolition of Forced Labour Convention”, (1957, (Article 1)). The law provides for some elements that amount to a state of vulnerability or dependence, namely gender, youth, physical and mental incapability and migrant status while the rest is left to the discretion of courts. Re Procureur de la République v. Monsieur B, the risk of unemployment was identified as generating a situation of workers' economic dependence in relation to their employers.
Another aspect of the definition is the penalty which can be of financial nature and accommodates economic penalties as well as loss of rights and privileges. As far as the menace of a penalty is concerned, it can be of different forms ranging from the least, that is, of psychological nature to the most extreme, for instance, threats of death.
Although a person holds a previous work history, he may still be considered as a victim of trafficking, if the latter was forced or pressurized to do the work. Courts in the United States have pointed out that although the person is remunerated for the work, the latter may still be a victim of trafficking or forced labour if the trafficker has forced him by threat of financial harm.
Re Siliadin v. France , the court applied the three elements and highlighted that even though the victim was not menaced by penalty, the circumstances in which the person was working showed that the employers fostered a climate of fear for her to continue toiling for them without any compensation. Furthermore, concerning the element of voluntary acceptance of the work, it was determined that the fact that her passport was held and she was not remunerated for her service showed that she had no alternative.
Bonded labour also referred to as ‘debt bondage' designates the situations whereby labour or service is pledged as repayment of or as security to a debt. As per Section 6(2) of the Mauritian Constitution, the citizens are protected against slavery or servitude. The debt bondage is defined by the Article (1)(a) of ‘UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery' as: “the status or condition arising from a pledge by a debtor of his personal services or those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined.”
This form of forced labour existed in many ancient civilizations and is still widespread in countries like India, Nepal and Pakistan, especially in rural regions despite the laws that condemn such practice. It is not in all situations that bonded labour will be characterized as being imposed, although there is the bonded element. Re Peoples Union for Democratic Rights & Others, the court decided that any factor which denies a person of his choice and restraints the latter to accept a particular course of action will be regarded as force. Therefore, if the worker is compelled to provide his labour or service through the force, it amounts to a case of forced labour.
Often this debt is passed to an adult or children in the family who are forced to work to repay the loan through their salary. The children involved in bonded labour work in hazardous conditions for long hours to free themselves.
Involuntary Domestic Servitude
Currently there is no international definition of servitude; however it was defined in the early drafts of the Palermo Convention as “the status or condition of dependency of a person who is unlawfully compelled or coerced by another to render any service to the same person or to others and who has no reasonable alternative but to perform the service; it includes domestic service and debt bondage”, (UN) which leads to the same elements required for human trafficking as seen in the previous section. As such, it is the distinctive form of forced labor whereby the worker stays at his workplace in an environment which is considered as exploitative. Often this practice remains undiscovered as authorities cannot easily inspect private property compared to formal workplaces. Re Siliadin v. France, the court concluded that the conditions of work of the person did not amount to slavery since the accused employers had no legal right of ownership over the servant.
The European Commission referred to servitude as the obligation to provide certain services as well as that to live on the property and the impossibility of changing his current status. As such the court held that servitude is the obligation to provide services imposed by force or coercion and the worker was indeed a victim of servitude by pointing out the following circumstances; the latter worked fifteen hours per day, seven days per week, had literally no other alternative as a climate of fear was created against the possibility of being caught by the police, had neither freedom of movement nor free leisure time, being a minor had no other means of subsistence, her papers were seized and was promised that her immigration status will be legalized and that she will have the opportunity to continue her schooling but all these assurances ended up as being fake.
Foreign migrants, mostly women, are hired from developing countries like Asia, Africa, and Latin America to work as domestic servants and caretakers in developed locations like Singapore, Europe, and the United States. It is deplorable that most of these countries do not provide these workers with the same legal protection as for foreign workers in other industries. Thus, they are compelled into working as domestic servants through the use of threats or through force exerted by the employers. Often, the employers impound the papers of these workers and take advantage of their apprehension of being caught by the police and being deported to their countries.
According to IOM, in 2005, Child trafficking is “demand-driven where there is a huge market for cheap labour and sex and insufficient legal frameworks or trained authorities to prevent it.” Children Trafficking, being another form of human trafficking, is defined as “the act of recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation……….within or outside a country.” by Article 3 (c) of Palermo Protocol. In Mauritius, it is a crime punishable as a criminal offence as provided by Section 15 and 18 of the “Child Protection Act” as well as Section 262 of “Criminal Code Act”. Child Labour is another form of trafficking referring to a situation where a child undertakes a job even if the latter has not yet reached the minimum legal age for work. The consent of the children is irrelevant if force or coercion has been used against the child for the rendering of labour or service. This mode of exploitation is a very relevant case today since 2 million children worldwide are forced to work in perilous conditions in mines.
Trafficked children are left at the mercy of the traffickers who control their lives and inflict upon them sexual assault and beating amongst other forms of violence. According to “Worst Forms of Child Labour Convention, 1999”, ‘worst forms' of child labour embrace all types of slavery or similar practices, trafficking through disguised adoption, recruitment in armed conflicts, prostitution, pornography, drug trafficking and any work harmful for the children.
This form of trafficking involves a person who is brought into prostitution through force, coercion or fraud which may also occur in concurrence with debt bondage. Most of the time women and girls are intimidated, sold and coerced to step into prostitution through illegal debt which they must pay off for their freedom, for instance, Re United States v. Castaneda , three women were ensnared and forced to indulge in sexual services against their consent in a night club. Another instance is of the case in Belgrade where girls and women are exposed like objects and are traded at bids to the highest bidder.
Human Trafficking for exploitation of organs, especially kidneys is a fast growing criminal industry. Neither the human body nor its parts can be subject to transactions as well as compensation or reward since deal in organs is prohibited except in situations whereby payment of reasonable expenses is incurred, for example, in preserving, supplying or donating the organs for transplantation. (World Health Organisation, [WHO], 1990). Harrison found that in the United States alone, the demand for organs has raised by 45 % over a four-year period (Harrison, 1999, p. 25). The victims are often deceived on the medical implications of organ removal and operations are commonly carried out clandestinely in unhygienic conditions without further treatment. Even doctors as well as other medical assistants are often found to be involved in this crime.
Differences Between Human Trafficking &
After having probed into the various forms of human trafficking, in this section a clear distinction will be made between human trafficking and migrant smuggling. As such Migrant Smuggling is provided for in the Migration Protocol while trafficking in human beings as seen earlier is provided for in the Palermo Protocol. The Article 3(a) of the Migration Protocol identifies smuggling of migrant as “ …the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.” There are some main elements that constitute migrant smuggling namely acquiring entry through illegal means of another person, into another State and for the intention of a financial or material gain and eventually the need of the criminalization of this offence.
Several agencies have drawn a line of demarcation between trafficking and smuggling. According to the Europol Convention of 1995, illicit migrant smuggling encompasses activities with the intention to facilitate, obtain a monetary gain, enter into a country seeking residence or employment but in a manner that is against the relevant rules and laws of the country whilst trafficking means subjugation of the victim by the trafficker through the use of force or coercion, abuse of authority, or fraud with a view to exploit that person in various forms. (International Organisation for Migration, [IOM] p. 21)
Accordingly, Smuggling is distinct from trafficking in person as in the case of the former, the migrants being smuggled have given their consent while in that of the latter, the victims have either not given their consent or their preliminary consents have been obtained through fraud, force or coercion. In addition, human trafficking does not require physical movement of the victim but rather it implies the occurrence of exploitation of the person for labour, commercial sex or other forms of abuse. Even if there is a movement across borders, this fact is irrelevant. On the other hand, smuggling imperatively involves crossing borders and as a result, it is always transnational.
Furthermore, the smuggler and the smuggled migrant share a commercial transition relationship which normally ends after having crossed the border while trafficking involves the continuous exploitation of the victims in such a way as to provide illegal profits for the traffickers. However, there can be some instances whereby smuggling may evolve to trafficking. For instance, when the smuggler uses force, coercion, or fraud on the migrant to work off transportation expenses under abusive conditions. Conclusively, smugglers obtain income from fees to move the people while traffickers generate illegal profit from continuous exploitation of the victims. (IOM, p. 21)
Factors Causing Human Trafficking
Shelley in 2003 said that “the human trafficking crisis has been exacerbated by factors including a global economy, increased travel, high demand for low cost labor, inadequacy of law enforcement and legislation, and the potential criminalization of trafficking victims, particularly for immigration related offenses”. It is clear that the root causes of trafficking are diverse, complex and often interrelated. Most of the time, they are different for each country and this section shall deal with the major root causes of trafficking in persons.
Demand & Supply Forces
Demand is a crucial cause of human trafficking because people get involved in this trade to fulfill the avid demand for women and girls by the employers of illegal labour and the buyers of sexual services extorted from victims. (Bertone, 2000, P. 8) The traffickers take advantage of demand for cheap and vulnerable workers as well as the sex tourism promotion in countries who perceive migrants as highly profitable and low risk commodities. In the absence of effective and competent legislations and the abundant supply of migrant workers, unfree labour is exploited scrupulously. In this way, in their search for a better life, they are enslaved and exploited.
Globalisation & Poverty
Over the last decades, there has been a notable increase in the number of trafficked victims along with globalization. Usually globalization is considered as being a major driving force that has enabled criminals while impoverished agencies set up for fighting them (Naïm, 2006). The gap between the rich and the poor has been extremely widened with globalization. (Pope Jean Paul, 2004) The world's 225 richest people together possess wealth of more than $1 trillion which equates to the annual income of 47 % of the world poorest population, which amounts to around 2.5 billion people. This vulnerable group of people are deceived and sold for sexual slavery or involuntary servitude which is the result of increased international mobility and globalization. The demand for trafficked labour has also increased with globalization since employers require cheap and low skilled workers who are attracted to developed countries because of high unemployment in their counties. Most of the time, women and girls suffer the most from such inequalities and thus prefer to go in an unknown country in search of work so as to provide subsistence means for their family. Unfortunately, they are trapped and end up as victims in the hands of the traffickers.
Lack Of Legal Migration Opportunities
Most of the people who are exploited become victims of trafficking owing to their aspiration to migrate abroad but cannot do so legally due to the existence of strict rules. Therefore, they look for other alternatives for which they have to seek help from traffickers and smugglers who in turn then seize the papers of these people and exploit them in various ways. The victims cannot even report such crimes because of their fear of being arrested by the police or immigration officers. As a consequence, they are bound to keep silent and suffer the misery inflicted on them.
Other Offences Related To Human Trafficking
Human Trafficking refers to an entire process rather than simply encompassing just one offence. This process starts with either the recruitment or abduction of a person and prolongs with the transport and entry of the latter to another location. Later, in the exploitation process, the victim is exploited in various ways. During the entire process, traffickers normally commit different forms of offences. Trafficking activities and other criminal offences are interrelated, for instance smuggling of drugs or weapons. There are other offences that are committed in prolongation or protection of the trafficking operation, for example, money-laundering and tax evasion. To exemplify, Re U.S. v. Kil Soo Lee , whereby the offender was sentenced to 40 years of imprisonment for violation of human rights, money laundering and extortion. To understand the process of trafficking, UNDOC has provided for a simple table as illustrated in the Appendix.
Trafficking in person is often only one of the offences perpetuated against trafficked persons, since other crimes may be committed to control victims, protect trafficking operations and raise profits. (UNDOC, 107) The victims are often threatened, physically and sexually ill-treated and their passports and other documents are confiscated. They may be forced to toil without salary, frequently in dangerous and illegal activities, like prostitution, pornography and trafficking of drugs. Apart from the direct victims, ex-victims helping the authorities may also become preys of threats and retaliatory violence while public officials may be corrupted, threatened or both.
These acts total to criminal offences in most countries and could be cited to tackle certain elements of the different crimes involved in trafficking in persons. This could be useful in nations where a specific criminal offence of trafficking is not yet present, or where penalties for trafficking are not sufficient to criminalise this crime. For example, Angola may put on trial traffickers through provisions of its Constitution and statutory laws criminalising forced and bonded labour while Uruguay rely upon commercial laws relating to fraud, sexual exploitation, or slavery for adult trafficking in persons (United States Department of State Trafficking in Persons, [USDSTP] 2007).
There can also be instances whereby evidences may be adequate for prosecution of related offences but inadequate in prosecuting trafficking in person. For instance, in Bokhobokho and Jonathan v. The Republic , six women were killed and their private parts, breasts, intestines and eyes were trafficked. However, the court turned on murder charges rather than trafficking in organs. Prosecuting the accused for supplementary or overlapping crimes may also be valuable in indicating the gravity of a specific trafficking manoeuvre. For example, in some situations, evidence concerning some aspects of the trafficking activity might only be totally exposed by imposing extra charges.
Combating Of Trafficking In Persons Act: An Overview
Inadequate legislation is often a major obstacle in fighting against human trafficking. An appropriate legal framework, which is consistent with international conventions and standards, has a vital role in preventing trafficking and other related exploitations (UN, 2002). The Palermo Protocol also emphasizes that the countries must criminalise human trafficking by establishing specific provisions for it rather than offences that underlies it. Providentially, Mauritius has recently promulgated the “Combating of Trafficking in Persons Act” with the assistance of the United Nations Office for Drugs and Crime (UNODC). Thus, this section will mainly provide a synopsis of its salient provisions.
The legislation incorporates a definition of Trafficking similar to that of the Palermo Protocol as well as some forms of this crime namely slavery, forced labour, sex and organ trafficking. This enactment, being a supplement to the provisions of the Child Protection Act, offers temporary accommodation, counselling and rehabilitation as well as education and training for the reintegration of the victims through drop-in centres. (News On Sunday, 2009)
A victim of trafficking although being a non-citizen of Mauritius may stay for a nonrenewable period of not more than 42 days. A temporary visitor's permit may be issued to the victim if the latter is present in Mauritius and has agreed to cooperate with the authorities with regards to a trafficking case. There may be extension of the permit on humanitarian grounds.
In case of risk of being killed or trafficked again, a non-citizen will not be repatriated to his country of origin or where he has been trafficked from, except if his safety has been provided for. Repatriation arrangements will be made of a victim who is citizen or permanent resident of Mauritius. The minor victims will be accompanied back to the country by an adult at the disbursement of the Mauritian government. On his arrival in Mauritius, the child will be entrusted to the ‘Child Development Unit' while the adult to the ‘Centre for Victims of Trafficking'.
If it has been proved that the accused has indulged in trafficking of persons or allows a person to be trafficked shall be deemed to have committed an offence whether or not the victim has given consent earlier. Even a person who deliberately, either, rents a room or building or allows its usage for harbouring a victim of trafficking or makes or causes advertisement, publication broadcast or distribution of information to lure to trafficking by any means, even through the Internet. The ‘Internet Service Provider', who does not report immediately to the Police about any side of his server which holds information that fronts to trafficking, will be committing an offence. The same case applies for a person who intentionally benefits from the services of the victim or uses or enables another person to make such use. All the above offences, which fall under Section 11 of the Act, will be liable to punishment by imprisonment for a term not more than 15 years. On the other hand, Section 12 advocates that where a person possesses, destroys, seizes, hides or alters the papers and identification documents of a victim of trafficking, he shall be liable to 5 years penal servitude and a fine not exceeding Rs 100,000.
In certain circumstances, Courts have ‘extra territorial jurisdiction' to hear a matter of trafficking, whereby the offender is a citizen or resident of Mauritius or has been arrested in its territory or territorial waters, although the offence has taken place outside the territories of Mauritius and regardless of whether the crime constitutes an offence in the state where it has been committed. The court may make an order for the payment of appropriate compensation, not exceeding Rs 500,000 by the offender to the victim and the State in compensation for expenses incurred in relation to the repatriation, transportation, accommodation and care of the victim.
A Critical Analysis
Following an account of the legislation, the present chapter will deal with a critical analysis of its provisions with respect to international conventions and the legislation in force in America for combating human trafficking.
Analysis In Relation To Palermo Protocol
The first criticism that can be raised is that an inadequate definition is provided since it focuses only on forced labour, slavery, sexual and organ trafficking and overlaps other forms of exploitation like serfdom, bonded labour, involuntary servitude. The Palermo Protocol requires that the definition, while being forceful and flexible, encompasses a wide range of exploitative purposes.
Furthermore, there must be a clear distinction between victims and criminals while the traffickers must be punished, the trafficked victim must be protected (Ghosh, 1999). Regrettably, the present legislation does not make any provision for such a distinction, which is important to prevent victims as offenders since they have been trafficked although they have acted against the law to a certain degree.
As compared to the “Trafficking Victim Protection Act of 2000” of America which provides for trafficking with respect to ‘forced labour', ‘involuntary servitude', ‘slavery', ‘peonage' or as well as ‘child sex trafficking'. It also distinguishes sex trafficking from other forms of trafficking. As such sex trafficking is a criminal offence, only if force, fraud or coercion is used or the victim is a child. If ever sex trafficking involves debt bondage, forced labour, involuntary servitude or slavery, it can also be prosecuted.
The protocol also requires that other legislations on immigration, health, labour and child protection should be amended in order to offer a comprehensive framework which will embrace all the aspects of trafficking. Although it is a fact that the Child Protection Act has been updated to incorporate trafficking, it is deplorable that the other related enactment for instance, the Immigration Act has been left with no further assessment or re-consideration.
The protocol makes it mandatory for state parties to criminalise not only the full commission but also the attempt as well as participation of an accomplice. Unfortunately, the present legislation provides for penalties only if the person has actually committed the crime of human trafficking but not an attempt by the latter to do so. On average, in some countries an attempt is liable to be punished but less severely while in others it is prone to the same penalty that is inflicted.
As far as the complicity of State officials is concerned, the UN protocol also necessitates for explicit provisions to tackle this sort of an involvement whose root cause is corruption due to which these government servants often turn out to be accomplices in this crime. As such, there is a need to address such contemptible participation so as to deter them from indulging in such illegal activities. For instance, in United States v. Carreto , where young women and minors were forced into prostitution, the main offender was sentenced to 50 years of imprisonment while the co-offenders who benefited financially from the trafficking plot were sentenced to 27 months of imprisonment.
The Section 6 (1) permits a non-citizen to stay during a ‘non-renewable period' of not more than 42 days. However, if ever investigations on an actual case of trafficking have not been completed, this will create problem since the victim will need to be deported. Furthermore, the victims are more likely to cooperate if a ‘recovery and reflection period' is provided to them. Therefore, the time frame as set by the act should be reviewed to incorporate possible renewal and prevent cases of incomplete investigations.
As far as the compensation of Rs 500,000 for the victims as provided by Section 16 (2) is concerned, this amount is not adequate for a victim of the indisputable offence of human trafficking. This is because it is the life of a human being which has been at stake and it is undoubtedly a ‘crime against humanity' as regarded by International Court of Justice. This international tribunal through Article 77 of its statute provides for penalties up to 30 years imprisonment which may be increased to life imprisonment in case of ‘extreme gravity'. Hence, considering the basic penalties of 15 years for the trafficker while 5 years and a fine not exceeding 100,000 for ‘male fide' possession and concealment documents, the set penalties cannot be deemed ample.
Thus, the present penalties should be rendered more severe and stern by incorporating such clause as ‘aggravating circumstances' as requested by the UN. In the same way as the provisions of the “Sexual Offences Bill” postulates that offenders can be sentenced up to 45 to 60 years. Section 9 of this bill allows for a penal servitude not exceeding 45 years if the person causes a child to engage in ‘sexual activity'. Another commendable effort is that of the Canadian legislation, namely ‘Immigration and Refugee Protection Act' which provides for a maximum sentence of life imprisonment, a fine of $ 1,000,000, or both. Normally, countries that impose light penalties may become ‘safe heavens' for them (Budapest Group, 1996). Therefore, the penalty provision highlighted inter alia must be consolidated so as to make room for strict penalties to serve as deterrent for future and persistent traffickers.
The traffickers have different ‘modus operandi' to perpetuate their illegal business. Often they operate through or under the cover of companies or sham as charitable organizations which conceal the real activity, owner and client. Since the legislation does not make any provision for this fact, they will easily escape from the grips of the law. Therefore, it is high time that relevant actions be taken for the prosecution of the liability of legal person as required by the Article 10 of the Organized Crime Convention.
Analysis In Relation To Trafficking Victim Protection Act
A comparative analysis of the legislation present in Mauritius, namely “Combating of Trafficking in Person Act 2009” and that of America shall be of immense help to further analyse the present Act. The CTPA only enacts means to prosecute offenders and to provide ‘ ex post' assistance through the “Centres for Victims of Trafficking”, while America emphasises on three important facets namely, Prevention, Prosecution and Protection. The “Trafficking Victims Protection Act 2000” has not only created but has also strengthened existing criminal statutes. The TVPA incorporates mechanisms for making research, sensitization of the public, especially potential victims and report on matters relating to Human Trafficking. The Attorney General has the duty to submit report on any training programs that have been initiated, the number of persons that have benefited from the various programs intended to provide assistance to victims, on cases of granting visa or immigration status as well as on the number of offenders convicted.
As compared to Mauritius, USA under Section 1581 to 1591 of the United States Code addresses a wide range of the types of human trafficking, for example, ‘child soldiers, involuntary servitude', ‘peonage', ‘forced labour', slavery, sex trafficking as well as illegal conduct in relation to documents in pursuing trafficking. Furthermore, an attempt to commit any of the above mentioned acts is criminalised by the same penalty as for someone who has actually committed the crime while the legislation of Mauritius does not address this point at all. Human trafficking has been made a federal crime which carries harsh penalties. Section 111 provides, in relation to significant traffickers, that the court may inflict a civil penalty of $250,000 or an amount twice the sum of the trafficking activity relevant to the case. TVPA makes it possible to impose on offenders, a penal servitude up to 20 years per victim and up to life imprisonment in case of ‘aggravated circumstances'. Under Section 1590 of USC, a trafficker can be imprisoned for a maximum of 20 years. An offender of sex trafficking, as laid down by Section 1591, may be liable to fine and/or penal servitude not exceeding 20 years in the case of sex trafficking of a child aged between 14 and 18 years. For a minor below 14 years, in cases of the use of coercion, scam, or force, the penal servitude can be for any term or life imprisonment and/or fines. In addition, the TVPA, which amends the United States Code, also specifies that in a case of human trafficking, if there is the occurrence of death, abduction, ‘aggravated sexual abuse' or any attempt to do so, a fine or any term of penal servitude or both may be inflicted on the trafficker. In this way, the TVPA allows for a larger discretion to the court to decide on an appropriate penalty including life imprisonment while CTPA does not provide the authority for such a power to its judicature. The TVPA as well as the CTPA provides that a person shall be liable to a fine and a penal servitude not exceeding 5 years in case he has committed the offence of seizing, destroying, illegally possessing the document of a victim of trafficking. However, the courts in USA have the judgment to ponder on the amount of the fine whereas the CTPA is indifferent to this point. In addition to other penalties, the TVPA establishes that courts shall order restitution to be paid to victims for losses as well as forfeiture of any of the trafficker's property that was used to commit or generate revenue from such activity. Conversely, the Mauritian courts have only power to order the seizure of the property of the trafficker to cover the payment of compensation to the victims. In America, victims of trafficking are eligible for the ‘Federal witness Protection' while again the CTPA completely omits this part since it only advocates the non disclosure of identity of denunciator in a case of human trafficking.
Under Section 1595 of USC, a victim of trafficking may initiate a civil action within a specified term of 10 years in the relevant district court and may recuperate damages and sustain reasonable fees of lawyers. The same action applies for a situation where a person intentionally derived financial or other forms of benefits through participation in a course of trafficking in person. Nevertheless, the civil action cannot be exercised until the court has not adjudicated on a criminal action for the same offence.
Section 1583 of USC relating to slavery postulates that if a person obstructs the implementation of this section or attempts to do so; the latter shall be accountable to a fine or penal servitude of not more than 20 years or both. The same penalty applies in a case of conspiracy and derivation of financial benefit as for the underlying offence of trafficking. Although, CTPA contemplates the benefits derived intentionally by a person from a trafficking activity and provides for the same penalty as for the underlying offence, it still does not consider the obstruction to enactment of sections of the act and conspiracy.
The United States Sentencing Commission has the authority to review and if the need arises to amend the guideline for sentencing and policy statements which applies to people who are convicted of foreigner harbouring, for the furtherance of prostitution or are themselves in charge of such illegal activity. Regrettably, the CTPA does not establish any commission with such powers.
Courts of Mauritius and America both have the possibility to adjudicate on offences committed outside the territory of the country. Conversely, put side by side to CTPA, which does not account for prosecution of government employees, TVPA enhances the ability of courts in America not only if the offender is a person employed or accompanying the federal government outside America but also in case where the latter is of American nationality or is present in the country regardless of his nationality or identity of a foreigner who is legitimately allowed permanent residence. In addition, Section 1596 of USC also provides for extra territorial jurisdiction in conditions where the alleged offender or victim is of U.S. nationality or is a lawful permanent resident or offender, without respect of his nationality and is present in the country. However, if there has been a trial or the prosecution is still ongoing in another country, the court may not exercise its powers except if the Attorney General lends his approval.
The CTPA as well as the TVPA allow for the victim to temporary stay in the county, however, TVPA goes a step further by extending the immigration status to his family, granting work authorization and permanent resident status. TVPA establishes a non-renewable non-immigrant category called the T status, whereby they may stay for four years and later apply for ‘lawful permanent residence status', after being continually present in the United States for three years. To be entitled to the T status, the person must be a victim of ‘severe form' of trafficking, physically present, having cooperated in investigation and prosecution or is under 18 and may suffer from ‘unusual severe harm' if deported. Furthermore, to secure a T status, the person also has to be admissible to America or acquire the ‘waiver of inadmissibility'. The spouse, children or parents of the non-citizen aged below 21 may receive derivative T status for their security. Individuals who are eligible for T status may be granted work authorization.
It is overtly known by now that TVPA provides for a more comprehensive framework to combat human trafficking since it has continuously been amending all its relevant existing statutes. Efforts have also been made on the same wavelength in Mauritius, since the Child Protection Act has been amended in relation to human trafficking. Nonetheless, other related acts have remained unchanged.
Ngos In Mauritius
National Human Rights Commission
After the analysis in the previous sections, this section will deal with the investigations undertaken with the NGO like Amnesty International Mauritius and other international organisations present in Mauritius to observe whether the CTPA is employed by them.
Non Governmental Organisations
Amnesty international is an international movement campaigning for the respect and protection of human rights for every individual. This organisation makes impartial investigation on cases of human rights abuses and mobilise public to pressurise and compel the government and other groups to stop such abuses. It also urges the government to observe rules of law and ratify the relevant standards for human rights as well as perform educational activities on human rights. The organisation has offices in more than 80 countries worldwide and performs campaigns for human rights among many other activities. Amnesty International Mauritius Section concentrates on activities and slogans like “stop violence against human”, “anti-communalise”, “exigeons la dignité” (Rama Pricila, 2009). Thus, this clearly shows that it has no mandate or project on human trafficking in Mauritius and as such does not really utilise the CTPA.
The International Organization for Migration, an inter-governmental organization which works closely with governmental and non-governmental organizations, promotes humane and orderly migration, advices bodies of government and provides assistance to migrants in need. Since 1994, this organization has been engaged in countering trafficking in persons and has executed around 500 projects in 85 countries, and has supported around 15,000 victims of trafficking. The primary aims of IOM include prevention of human trafficking, protection, reintegration and repatriation of victims into their countries.
IOM Mauritius does not have any program on human trafficking for Mauritius. This is simply because according to them this crime is not a plague for the country. It rather concentrates on the current situation of human trafficking and migrant smuggling in South African countries like South Africa, Zimbabwe and Mozambique. (......, Personal Communication, 2009)
Therefore, the research initiated to investigate whether NGOs and other international organisation operate according to the CTPA, clearly depicts that neither Amnesty International nor IOM employs such measures.
National Human Rights Commission
The National Human Rights Commission as established by the Protection of Human Rights Act, has as mandate to investigate on written complaints from persons who feel that their rights as postulated in Chapter II of the Constitution has been or is likely to be violated by an employee of government or member of the police force. The NHRC also organises educational and sensitisation campaigns as well as reviews the factors, obstacles on the exercise of rights, enumerated by other relevant laws for the protection and promotion of human rights. The NHRI does not look at economic, social and cultural rights since they are presented by other legislations.
However, after an overview of the responsibilities entrusted to the NHRC, it is clear that this commission does not really make use of the CTPA since it only investigates in case of abuse by police or other governmental officers. A critique that can be forwarded is that such a commission should rather be responsible for the protection of human rights under all circumstances and not just in limited situations. There is clearly no subsistence independent organisation where victims of human trafficking or of violation of fundamental human rights by other civilian offenders may seek redress.
The Apex Court in its order dated 11-11-1997 in PUCL case has directed that the National Human Rights Commission (NHRC) should be involved in dealing with the issue of bonded labour. In pursuance to the above order, a Central Action Group has been constituted in the NHRC. This Group is holding regular meetings and the matter is being pursued with the State Governments.
Overview Of Situation In Mauritius
The Constitution of Mauritius provides for the protection of fundamental rights while as per Section 17 a citizen, who asserts that any of his constitutional rights has been, is being or is likely to be contravened, may apply for redress to the Supreme Court. In Re Bishop of Roman Catholic Diocese of Port Louis and Ors v. S.Tengur, it was held that: “A declaration of fundamental rights is meaningless unless there are effective judicial remedies for their enforcement. The right to move the Supreme Court for redress where a fundamental right has been infringed is itself a fundamental right…Section 17 is the soul and heart of the Constitution…”
Prostitution exists in all parts of the country but is rampant in the capital, that is, Port Louis. The Panafrican News Agency Daily Newswire in 2000, reported that as compared to other regions, prostitution in Mauritius is more prevalent in tourist resorts and the majority of clients are foreigners. According to reports, Taxi drivers have been identified as acting as transport providers and as an interface between the girls and prospective clients. There are also drug-addicted women, who are forced into prostitution by their boyfriends who normally act as pimps. There are also supposedly “Salon de beaute” which provide sexual services under cover of therapeutic massages (Defi Plus, 2009).
According to the US State Report 2009, Mauritius came up as a potential source of children trafficking within the country for the purpose of commercial sexual exploitation. These children are often secondary school-aged girls and of even lesser age from all areas of the country, including Rodrigues. They are coerced into prostitution, most of the time by their family members, peers, or persons offering other forms of employment. The rate of child prostitution in Mauritius is rising, with children from all regions of the country and belonging to all ethnic origins. It is estimateed that demand for prost7ituted children originates from local clientele (End Child Prostitution, Pornography, and Trafficking, [ECPAT] 2004).
Mauritius engaged itself to combat Human Trafficking through the entry into force of the “Combating of Trafficking In Persons Bill”. In line with the Palermo Protocol, the Prime Minister sustained that the country wants to give a good signal (Defi Plus, 2009).
In this way, the Mauritian government has demonstrated efforts in investigating human trafficking cases. In 2008, there were 8 child sex trafficking convictions reported among which five were prosecuted under ‘debauching youth statute' and the three others under “brothel-keeping statute”. The offenders were convicted to sentences ranging from 3 months to three years imprisonment along to fines representing $ 1,764.
The Child Protection Act of 2005 forbids any form of child trafficking and offenders may be convicted with up to 15 years of imprisonment. Nevertheless in November 2008, the Judicial Provisions Act was enacted by providing for increased penalties for a range of offences, for instance, punishment for child trafficking has been raised up to 30 years of imprisonment.
The common form of human trafficking present in Mauritius concerns prostitution of minors and young girls. A massage parlor owner was arrested in January 2009 for indulging within the spa three girls in prostitution. The arrest of a man and woman in January 2008 lead to investigation which caused the two former to be charged with the offence of exploiting a 12 year old girl, who is none other than their niece into prostitution. This case was referred to the Director of Public Prosecution. As per the US Report on Human Trafficking in Mauritius, around ten cases were still under investigation, which included two for keeping brothel while three for engaging child into prostitution. The Mauritius Police Force utilized a database for tracking trafficking-related cases.
The government continued its protection of child trafficking victims during the reporting period, paying NGO shelters $6 per day for the protection of each child, including victims of trafficking. Government officials regularly referred children to these organizations for shelter and other assistance. The government-funded, NGO-run drop-in center for sexually abused children, which provided counseling to approximately 16 girls engaged in prostitution in 2008, advertised its services through bumper stickers, a toll-free number, and community outreach; its social worker continued to promote the services in schools and local communities. Nonetheless, due the drop-in center's lack of shelter facilities and the often crowded conditions at NGO shelters, comprehensive protective services were not readily available to all victims identified within the country. To remedy this, the MOWCD acquired land and obtained funding to construct a residential center for victims of child commercial sexual exploitation late in the year. The ministry also operated a 24-hour hotline for reporting cases of sexual abuse; three cases of child prostitution were reported to the hotline in 2008. Mauritius has a formal protocol on the provision of assistance to all victims of sexual abuse; minors victimized by commercial sexual exploitation are accompanied to the hospital by a child welfare officer and police work in conjunction with this officer to obtain a statement. Medical treatment and psychological support were readily available at public clinics and NGO centers in Mauritius. In December 2008, the parliament passed the Child Protection (Amendment) Act, which created a child mentoring scheme to provide support and rehabilitation to children in distress, including children engaged in prostitution. In May 2008, the government launched a capacity-building program for its five District Child Protection Committees, which report cases of vulnerable children in their respective localities, including those involving child prostitution. The government encourages victims' assistance in the investigation and prosecution of trafficking crimes. The government ensures that victims are not inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of being trafficked.
The government made notable efforts to prevent the sex trafficking of children and reduce the demand for commercial sex acts during the year. In 2008, the Ministry of Tourism, Leisure, and External Communications published and distributed to hotels and tour operators 3,000 pamphlets regarding the responsibility of the tourism sector to combat child sex trafficking. Law enforcement and child welfare officials conducted surveillance at bus stops, night clubs, gaming houses, and other places frequented by children to identify and interact with students who were at a high risk of sex trafficking. The Police Family Protection Unit and the Minor's Brigade, in conjunction with the MOWCD's Child Development Unit, conducted a widespread child abuse awareness campaign at schools and community centers that included a session on the dangers and consequences of engaging in prostitution; this campaign reached over 12,035 persons in 2008, including 145 parents, 300 primary school teachers, and 35 youth leaders. In addition, the police provided specific training on avoiding child prostitution to over 100 children in Flic en Flac, a tourist destination on the west coast of the island.
As observed in the previous section, there exist certain limitations in the legislations present in Mauritius concerning the issue of human trafficking. This part will take into consideration mainly those recommendations which can help in improving our situation. To start with, since the legislator provides for a weak and a deficient definition of human trafficking, the latter must be further developed so as to widen the scope of its legal jurisdiction. This measure is imperative so as to ensure that offenders be held liable for offence of human trafficking. Moreover, the country must implement appropriate actions for the crime to be introduced into the criminal code according to the principle, nullen crimen, nulla poena, sine lege, that is, "there is no crime, there is no punishment, without law”. Furthermore, as necessitated by the Palermo Convention, a clear line of demarcation must be drawn between the offenders and victims of human trafficking so as to improve the enforcement of the law as well as to add to the protection of human rights.
As seen inter alia, the principle clearly states that there is a need for words drafted in law in order to criminalise an attempt to commit an offence of trafficking in person as well as complicity of state officials must clearly be provided.
Furthermore, the other related piece of legislation must be amended like the Immigration Act. These amendments are fundamental for instance to provide for wider discretion and authority to immigration officers as well as establish procedures in case of international human trafficking as well as human smuggling. On the same wave length, the Combating Trafficking in Persons Act has to be modified to provide for the prosecution liability of legal person in cases of trafficking in person. In other words, the present legislation must recognize that persons may become human trafficking victims of bogus companies and other organisations
The legislator must revise the law so as to provide for a far more comprehensive assistance to the victims as is the case in Texas in the US where assistance is offered to domestic victims of human-trafficking with a landmark law. This section of the legislation establishes not only a statewide Human Trafficking Prevention Task Force in the Attorney General's office but also brings in training Programs for law-enforcement officers. It also funds a program with a view to connect services to trafficking victims as well as it allows grant program for groups that provide assistance to domestic trafficking victims. Therefore, it is not only fundamental to penalize the offence but also to ensure that there are enough and well trained enforcers so as to prevent such offences and to assist victims. There is also a need to work with the various NGO's and train them with the most knowledgeable information plus the ability to help combat such scourge because very often they are the ones who are present on the field with.
Payment of compensation is also a form of justice for the victims for the suffering and distress. It also has restorative and preventive effects as they may reconstruct their life once in their country of origin. They may even counter the risk of falling once again into the traps of traffickers. These may be as a result of material damages suffered, non material damages such as personal suffering owing to physical and psychological distress and withheld income. In case compensation cannot be guaranteed, for instance if the offender does not have the means or these cannot be located, the State may compensate the victims. According to the National Referral Mechanism Handbook countries may create funds for which victims may claim compensation. The OSCE Action Plan on Combating Trafficking in Human Beings and the Council of Europe Convention on Action Against Trafficking in Human Beings also recommend the setting up of such compensation funds or that trafficking victims been allowed access to funds provided for violent crimes victims.
Trafficking is undoubtedly a criminal justice issue. It affects territorial integrity of States through violations of criminal and immigration laws. It also undermines the rule of law and political foundation of States, because organized groups of traffickers resort to violence and corruption as a means to advance their business. The usual response to trafficking at the national level has been crime and immigration control with a view to prosecuting and punishing traffickers and reducing the flow of trafficked people. The Trafficking Protocol seeks to strengthen this criminal justice response, as it is essentially an instrument designed to foster effective suppression and prevention.