Human Rights Violation And Trafficking

Introduction

Slavery is believed to be a no longer existing phenomenon because of its worldwide abolishment but the enslavement in other forms still remains strong. With the transnational operation called human trafficking, slavery remains alive and thriving. Trafficking in persons is a global issue. This is estimated to be a multibillion-dollar business. Human trafficking is now second only to drug trafficking in relation to international organized crime. This, in part, is because the exploitation of trafficking victims in brothels, sweatshops, and fields around the world exists free of “geographic limitations.” Trafficking in persons is the equivalent of modern-day slavery. It is no longer a question of race and color for those being enslaved; it is now a question of vulnerability.

In the past, one person legally owning another person defined slavery, but modern-day slavery has changed its definition. Today slavery is illegal everywhere, therefore no one can legally own another human being. Slaveholders maintain control of a person, having all the “benefits of ownership” without the “legalities”. This lack of legality dismisses the slaveholder's responsibility, which is interpreted as an improvement in the eyes of a slaveholder.

The fight against trafficking is still maturing; because of this a general universal consensus about concepts, definitions, or terminology does not exist. A distinction between “smuggling” and “trafficking”, however, has been established. The trafficking of persons is coupled with coercion, exploitation, deception, violence, and other forms of either physical or psychological abuse. Trafficking is a human rights concern, whereas smuggling is a migration concern.

A smuggler generally makes his or her profit upfront once entry into the desired country has taken place, at which time the relationship with the “client” ceases to exist. Human trafficking, in contrast, is founded upon the institution of an exploitive relationship that continues beyond the initial transporting phase; this generally implies the further controlling of the victim by the trafficker for a long period of time after entering the new country.

When enacting laws against trafficking, it is of extreme importance to define trafficking in a broad manner so as ascertain that all the allied violations of human rights fall within its ambit.

This paper will examine what defines trafficking in persons and what the operation of trafficking in persons entails. Who is being trafficked will be analyzed as well as what allows this to continue to exist and thrive as a business.

Palermo Protocol at the international level and the ITPA Act at the national level are the two major weapons in the fight against trafficking. In this project, the two documents will be critically analyzed. Furthermore, this paper will look at what needs to be done by the international community to combat the human rights violation that is human trafficking.

Trafficking - Definition And Overview

The international community is sharply divided in its approach to the definition of trafficking in women. Until the drafting of the 2001 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime, the main international legal document concerning trafficking was the 1949 United Nations Convention on the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. The 1949 Convention took an approach to trafficking and prostitution that required states parties to punish any person who "procures, entices or leads away, for the purposes of prostitution, another person, even with the consent of that person; or exploits the prostitution of another person, even with the consent of that person."

The 2001 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons was the next major document on this issue. In defining trafficking, drafters of the Protocol had to negotiate around the differences between advocates endorsing the approach similar to that taken in the 1949 convention and advocates favoring the regulation of commercial sex work. These differences centered on the question of consent in commercial sex work.

The definition of trafficking adopted in the 2001 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons reflects a compromise. The language adopted allows individual states to choose how they will address prostitution. The definition states:

"Trafficking in persons" shall mean the 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. 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;

Interpretive Note 13 of the Protocol explains that the terms "exploitation of the prostitution of others" or "other forms of sexual exploitation" are not defined in the Protocol, which is therefore without prejudice to how States Parties address prostitution in their respective domestic laws.

By allowing domestic laws on prostitution to prevail, the Protocol allows states to regulate or ban prostitution as they choose but at the same time gives a leeway to a lax system of implementation of corrective laws. However, the inclusion of a definition of trafficking in a law that deals with not only trafficking but also prostitution itself, conflates the issues of prostitution (included under the category of exploitation in the definition) and trafficking, which according to a significant number of activists, NGOs and even prostitutes themselves need to be looked at separately. The phrase ‘position of vulnerability' included in the definition of trafficking is highly ambiguous and could be interpreted to disregard the right to self-determination of a prostitute or sex worker.

The ITPA, the only central Indian legislation that deals with trafficking, inexplicably fails to provide an original definition for the same. The amendment to the Act inserts the following definition of trafficking as clause 2(k) as per the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, also called the Palermo Protocol.

In addition, it is debatable whether the incorporation of the Palermo Protocol definition that covers all forms of trafficking in a legislation, which deals solely with trafficking for commercial sexual exploitation shall be of much help. If this definition is incorporated, the character of the ITPA shall have to change completely and become a new legislation on all forms of trafficking in human beings.

Despite signs of a growing consensus on the international definition of trafficking in human beings, there remains debate over the correct approach to trafficking in domestic law. Human rights advocates and government institutions continue to discuss exactly what activities should and should not be considered trafficking. As trafficking is a complex issue, with interrelated social and economic factors, the most effective approach may be to adapt one's working definition of the problem to the specific task or project. For example, while legislation requires a precise description of prohibited behavior, outreach or rehabilitative work may be the most effective if trafficking is defined expansively.

Palermo Protocol And The ITPA Act - An Analysis

There have been numerous documents registering the actions of the international community against human trafficking. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially women and Children supplementing the United Nations Convention Against Transnational Organised Crime, also called the Palermo Protocol, provides the definition of trafficking in human beings as currently agreed upon by the international community. The Protocol deals with the problem of modern day slavery hints at the nexus between migration and trafficking while distinguishing trafficking and smuggling.

The definition of trafficking as given in the Palermo Protocol also clarifies that trafficking includes not only the transportation of a person from one place to another, but also their recruitment and receipt so that anyone involved in the movement of another individual from his/her exploitation is part of the trafficking process. It also states that trafficking in humans is not restricted to commercial sexual exploitation alone but also takes place for forced labour and other practices akin to slavery.

On comparison with the 1949 Convention of Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, it is evident that the Palermo Protocol takes cognizance of the importance of consent and does not confine the definition of trafficking to prostitution alone. It combines traditional crime control measures for investigating and punishing offenders with measures to protect victims of trafficking.

Legislative Framework Regarding Trafficking

Under the Indian constitution, all forms of trafficking of humans or forced labor are banned. Article 23 clearly lays down that nobody can be forced to provide bonded labour.

Immoral Traffic (Prevention) Act, 1956 or the ITPA is perhaps the only Indian law dealing with trafficking that too only of prostitutes. . In addition to this, there exists an entire range of laws that, in reality, tend to be utilized more often in tackling prostitution than the ITPA itself. These laws include the Indian Penal Code, 1860 (which has provisions against trafficking and slavery of women and children) and the state-level police, railways, beggary, health and public order statutes. Apart from these laws, state governments are permitted to frame rules under the ITPA, as regards the licensing and running of protective homes. ITPA came to existence as result of the amendment of the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, which in turn passed due to the fact that India had become signatory to United Nations Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949. It was in 1986 that SITA was renamed ITA.

Enactment of ITPA and the subsequent amendments to it are steps in the right direction but are still insufficient due to inherent flaws that are still present. For example the act mainly lays down that the process of maintain and running a brothel is illegal (section 3) but other activities are held to be legal which include the act of a woman carrying out prostitution in her own premise. One of the key features to the amendment to the ITA is the removal of Section 8 which held that actions such as soliciting to be illegal and causes of public disturbance. Thus majority of the arrests that were made under this section happened to the women whereas the traffickers would not b charged with this section.

The deletion of Section 8, though, is a step in the right direction, protecting the interests of prostitutes or sex workers instead of treating them as criminals.

To be really effective, the amendments need to ensure that adequate legal aid and representation is provided to prostitutes and trafficked women. Additional provisions for setting a time limit to be set for speedy record of evidence have also been made under the amendment to Section 21A the ITPA. While the need for speedy access to justice cannot be denied, the amendments should contain safeguards to ensure that proper procedures are followed and human rights are not violated. Also, a clause ensuring that the court protects the dignity and privacy of the indicted through the provision of mandatory in camera proceedings has been added. However, the crucial issue of the sensitization of the judiciary and law enforcement agencies to the plight of prostitutes and the need for approaching such cases without a moral bias resulting from social perceptions has not been addressed by the amendments.

One of the most controversial amendments is the addition of Section 5C that punishers clients of prostitutes for the first time. It penalizes those persons ‘who visit or are found in a brothel for the purpose of sexual exploitation of any victim of trafficking' with a term of imprisonment and/or fine. The section has ostensibly been drafted to penalize clients who seek sexual services from a trafficked victim and in the words of the Department of Women and Child Development, which has drafted the Amendment Bill, will provide a penal remedy against clients who stimulate the demand for trafficking for commercial sexual exploitation yet remain untouched by existing law.

The intention behind inserting Section 5C is undoubtedly noble but the section itself is quite ambiguous.

The term ‘sexual exploitation' has not been defined anywhere in the amendment bill. Furthermore, neither the ITPA not its amendment takes into account the issue of consent. The definition of trafficking as laid down in Section 2(f) fails to make a distinction between consensual prostitution and sexual exploitation. It brings any form of commercial sex work or prostitution within the ambit of trafficking for sexual exploitation; thereby denying sex workers who have willing entered the profession for economic reasons their rights to earn a livelihood and freedom of choice and profession. The failure to make this distinction further conflates the issues of trafficking and induction into commercial sexual exploitation and voluntary sex work or prostitution. The insertion of Section 5C is likely to hurt the interests of those workers the most who have willingly entered the profession by punishing clients, on whom they depend on to make a living as it can be interpreted to punish all clients who visit brothels. Moreover, the amendment does not specify how law enforcement personnel shall distinguish between clients found in a brothel who avail the services of a trafficking victim and clients who are found with sex workers who have voluntarily entered the profession.

In practice, Section 5C is likely to become another tool for the harassment and extortion of persons found in the vicinity of brothels. This section, instead of empowering sex workers, further denies them their rights. It also completely negates the purpose of deleting Section 8. If the clients themselves are liable to be arrested then decriminalizing soliciting serves no real gain and fails to empower sex workers as it was meant to. Instead, the section threatens the very existence of sex workers. Moreover, the section does not require the client to have sex with the trafficked victim; the act of visiting a brothel is sufficient ground for arrest. This gives wide ranging discretionary powers to the police that might be misused, further victimizing sex workers.

In conclusion, it is clear that the ITPA amendments have not have had the desired effect. The act still aims and punishes the prostitutes rather protecting them. In addition, the law must take cognizance of the fact that the enforcement of the ITPA discriminates against women and provide safeguards to check the abuse of powers by law enforcement agencies. A greater role has to be played by NGOs in the protection and rehabilitation of prostitutes arrested or convicted under the Act. The Palermo Protocol definition should either be a part of the IPC or a separate legislation to comprehensively deal with all forms of trafficking in human beings. But most importantly, the amendments have to be implemented properly for the law to be truly effective

Conclusion And Suggestions

The Universal Declaration of Human Rights states: “Everyone has the right to life, liberty and security of person (Article 3), No one shall be held in slavery or servitude; Slavery and the slave trade shall be prohibited in all their forms (Article 4), No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 5). International conventional law has recognized trafficking in persons as a human rights violation. The 1956 Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery outlawed slavery practices including debt bondage, serfdom, bride price and exploitation of child labor. The 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) explicitly prohibited “exploitation or prostitution of women” and “all forms of trafficking in women” [Article 6]. The 1989 Convention on the Rights of the Child mandated that state parties must take all appropriate measures to prevent “the abduction of, the sale of or traffic in children for any purpose or in any form” [Article 35].

Recognition of trafficking in persons as a transnational crime is essential in combating human trafficking. Cooperation between countries of origin and countries of destination must be a part of any transnational legal response since apprehension of traffickers, investigation of cases of trafficking and prosecution of the traffickers sometimes require cooperation between countries of origin and countries of destination in matters “including request for assistance, search, seizure, attachment and surrender of property, measures from securing assets, service of judicial decision, judgments and verdicts.”

In response to recent international mandates a number of new anti-trafficking legislation has been enacted which have shifted the focus from criminalizing the behavior of the trafficked person to recognizing such a person as a victim of a crime. In these legislations the crime control approach to trafficking in persons has been coupled with a human rights-based approach to trafficking. Many immigration policies have been redefined to allow for a legitimate immigration status for the trafficked person.

International conventions against slavery, trafficking, and the rights of migrants and the rights of women are a significant source of publicity, these conventions broadcast the abuses involved in human trafficking and draw attention to government neglect of its commitments. Publicity of the crime of trafficking in persons and awareness in the community is vital to fighting human trafficking. Government agencies must play a major role in raising awareness. This includes the spread of information about the facts, the provision of counseling for those thinking of migration and work with families and communities in order to build alternatives to leaving home.

With regards to trafficking in persons as a severe violation of human rights, states should implement programs that deal with the victims of trafficking in a “comprehensive and compassionate” manner. These programs are necessary to treating victims with the dignity and care that they deserve, but they are also helpful in establishing victim cooperation, which is essential for combating trafficking. Deportation is still the norm in most parts of the world, which, as mentioned early, does nothing to diminish the traffic and instead makes the victims of trafficking less likely to report their situation and more dependent upon traffickers and pimps. This is an essential issue that needs to be addressed. Victims of trafficking are entitled to basic human rights; efforts need to be made insure that these rights are no longer violated by legal systems.

Of course it is assumed that each country will have to find an approach to combat trafficking in persons that suits the specific needs of that country, as trafficking affects sending, receiving, and transit countries differently.

Unlike international law, U.S. domestic legislation recognizes that slavery is “defined primarily by the power of an individual to control another for economic gain.” The definitions of trafficking in the U.N. Trafficking Protocol and the United States Trafficking Act are similar, however, the difference lies in the United States' “aggressive, proactive approach” to the human

trafficking. For example, unlike the Trafficking Protocol, the US Anti Trafficking Act contains international monitoring and funding restriction provisions. The Trafficking Act also establishes obligatory restitution from convicted traffickers, as a recent amendment to the Trafficking Act allows survivors to “sue their former captors for civil damages or violations of the statute.”

In spite of the strengths of both international and U.S. anti-trafficking laws, they both consist of weaknesses when it comes to protections for victims. Both the U.N. Protocol and the U.S. Trafficking Act recognize trafficked individuals are victims of a crime rather than illegal migrants; however, they are not “consistent in this victim-centered approach.”

The Trafficking Protocol established the inclusion of provisions of immigration relief, social services, and compensation to victims optional rather than mandatory. United States law has established an immigration status and social services for victims, yet, these benefits are only available victims of a “severe form of trafficking” who are cooperating with and needed for the prosecution of their traffickers. The stipulations placed on immigration relief and social services create the “perception that victims are primarily instruments of law enforcement rather than individuals who are, in and of themselves, deserving of protection and restoration of their human rights.”

Bibliography

Books And Articles

  • Altink, Sietske, “Stolen Lives: Trading Women into Sex and Slavery”, Harrington Park Press, New York, 1995.

  • Anon., ‘Human Rights Standards for the Treatment of Trafficked Persons', Global Alliance Against Traffic in Women Publication, 1999. Found at -

www.ihrlgtraffickin_tsStandards.pdf.

  • Bales, Kevin, “Disposable People: New Slavery in the Global Economy” ,California:

University of California Press, Berkeley, 1999.

  • Cook Rebecca, ‘Human Rights of Women', University of Pennsylvania Press, Philadelphia, 1994.

  • Coonan, Terry, “Ancient Evil, Modern Face: A Fight Against Human Trafficking” Georgetown Journal of International Affairs, Edmund A. Walsh School of Foreign Service, 2005

  • Defeis, Elizabeth F, “Protocol to Prevent, Suppress & Punish Trafficking in Persons- A

New Approach” 10 ILSA Journal of International & Comparative Law, 2004.

  • Jordan Ann, ‘The Annotated Guide to the Complete UN Trafficking Protocol', International Human Rights Law Group Publication, Washington, 2002. Found at - www.hrlawgroup.org/initiatives/trafficking_persons/.

  • Kyle, David, and Rey Koslowski, “Global Human Smuggling: Comparative Perspectives” Baltimore, Md.; London: Johns Hopkins University Press, 2001.

  • Mc Kinnon Catherine, ‘Are Women Human', The Belknap Press of Harvard University Press, London, 2006.

  • Rao Mamata, ‘Law Relating to Women and Children', Ed. II, Eastern Book Company, Lucknow, 2008.

  • Sen Shankar, ‘Trafficking of Women and Children in India', Orient Longman Publications, New Delhi, 2005.

  • Skrobanek, Siriporn, “The Traffic in Women: Human Realities of the International Sex

Trade” London, 1997.

Web Sites -

  • “Assessment of U.S. Activities to Combat Trafficking in Persons.” U.S. Department of Justice. Last visited on 28th December, 2008. Available at -

http://www.state.gov/g/tip/rls/rpt/23495.htm

  • “U.S. State Department Trafficking Report Undercut by Lack of Analysis.” Human

Rights Watch. Available at - http://www.hrw.org/press/2002/06/usreport0606.htm

  • United States Congress: Trafficking in Persons Report of 2004. “United States of America.” April 2005. Available at -

http://www.humantrafficking.org/countries/eap/united_states/

Primary Documents -

  • Convention on Slavery of the League of Nations, 1927.

  • Universal Declaration of Human Rights, 1948.

  • United Nations Convention on the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of 1949.

  • Constitution of India, 1950.

  • Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, 1956.

  • Suppression of Immoral Traffic in women and Girls Act, 1956

  • Convention on the Elimination of All Forms of Discrimination against Women, 1979.

  • The Immoral Traffic (Prevention) Act, 1986.

  • Convention on the Rights of the Child, 1989.

  • ILO Convention on the Worst Forms of Child Labour, 1999.

  • United Nations Convention Against Transnational Organised Crime, 2000.

  • United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, 2001.