Human trafficking

Introduction

HumanTrafficking was a violation against humanity around 200 years ago and today, itis considered as modern-day slavery involving victims who are forced, defraudedor coerced into labour or sexual exploitation. Trafficking in Persons, being aninternational subject, is first and foremost, a human rights issue whichviolates the fundamental rights of the individual (New York Times, 2000). This is a flourishinginternational trade whereby scrupulous criminals make billions of dollars at theexpense of millions of innocent victims who are robbed of their rights,self-respect and freedom.

Practically, allcountries of the world are affected by this scourge. These may be points oforigin, transit, destination or internal trafficking (Polaris Project, 2009).Approximately 600,000 to 800,000 people are trafficked annually acrossinternational borders while millions more are enslaved in their own countries.The annual total revenue estimated to be derived from trafficking in persons isbetween $5 billion and $9 billion (UNECE, 2004). Over the pastdecade, human trafficking with a global annual market of about $ 42.5 billionhas reached epidemic point (Council of Europe, [COE] 2009).

It is estimated thataround 12.3 million adults and children are held in forced and bonded labour, aswell as commercial sexual servitude at any given time (United States Departmentof States, [US] 2009, pg 8). Out of this figure, at least 1.39 million arevictims of commercial sexual servitude, both across and within countries (US,2009, pg 8). Traffickers often target the most vulnerable people for their awfultrade and the figures speak for themselves as out of the number of victims forforced labour, 56 % are women and girls (US, 2009, pg 8). They use very cunningdevices including the promise for employment, education or even marriage.Therefore, some people become victim of trafficking in their home countrieswhile others leave their countries with the dream of improving their lives byaccepting jobs requiring low qualifications and skills.

Chapter Onebasically makes an expose of the history behind human trafficking as well as itprovides for definition. It also analyses the different forms and main causes ofthis scourge. Moreover, it also examines the difference between HumanTrafficking and Migrant Smuggling.

Chapter Twowill study the criminalisation of human trafficking as well as the otheroffences related to it.

Chapter Threeis where the legal provision put in place to tackle the problem of HumanTrafficking will thoroughly be analysed.

Eventually,Chapter Four will try to analyse some common forms of exploitation present inMauritius to see if these really amount human trafficking.

Historical Background Of Human Trafficking

From history it has been observed that women, men, and children havebeen put for sale against their consent, pushed into forced labour andprostitution. The saddest part of all is that such practice still persists inpractically every country around the world. The term ‘trafficking’ in itselfis not new since it was first used during the 16th Century as a synonym fortrading and ‘going back and forth’ (International Labour Organisation, [ILO],2005, pg 7). By the 19th century trafficking incorporated the trade in personsand was later referred to as ‘white slave trade’. However, the earliestunderstanding of ‘trafficking’ camefrom the United Nations instruments (ElainePearson, 2000, pg 20).

The InternationalAgreement for the Suppression of the White Slave Traffic which aimed to defendwomen and girls from slave trade was signed in 1904. At that time, the word‘traffic’ was referred to as the movement of women for an immoral purpose, thatis, prostitution. As such it was only in the late 1990s that trafficking becamewas attached to prostitution and sexual exploitation of women and children. Itwas at an international convention organised by the League of Nation that therepresentative of 34 countries asked that the white slave traffic must besubstituted by traffic in women and children. As a result, the International Conventionfor the Suppression of the Traffic in Women was ratified whicheventually extended the scope of trafficking to include persons other than whitewomen as well as children of both sexes. Thus, boys could also be victims oftrafficking. Additionally, ithighlighted that there is a need to protect women and children by givingrelevant information.

The firstinstrument which was legally binding was the United NationsConvention for the Suppression of the Traffic in Persons and of the Exploitationof the Prostitution of Others, which came into forcein 1951 and as of today, only 66 countries have signed it (Kangaspunta, 2009). Several other tools were passedto tackle specific issues on trafficking in person namely the Optional Protocol to theConvention on the Rights of the Child on the sale of children, childprostitution and child pornography, signed by Mauritius in2001, which primarily dealt with trafficking in children. The ILO also came withconventions on forced labour relating to children, namely the Worst Forms of ChildLabour Convention 1999 as ratified by Mauritiusin 2000.

The nextinternational legal document, namely the UN Protocol againstTrafficking in Persons, which focused wholly ontrafficking, came into existence 51 years later (Kangaspunta, 2009). It is the onlyinternational legal instrument which tackles human trafficking as a crimeencompassing all forms of exploitation and provides a definition for the firsttime. It also balances enforcement of law and defends the victims and theirrights. At international platforms, the main topic of discussion is forcedlabour and the link among migration and trafficking.

HumanTrafficking has evolved from the early to the modern forms of slavery and willcontinue to transform with the help of globalisation and rapid advances intechnology. The international community has and is still striving to combattrafficking in person in the traditional as well as modern forms of slavery. TheUN has denounced different types of slavery-like practices on various platforms,in the legislations as well as through policy instruments. In spite of thetremendous efforts to curtail trafficking in person, it is still in existencearound the world.

Definiton

After asynopsis of the historical evolution of human trafficking, this section willprimarily provide for a definition to the latter. Formulating the appropriateterminology to describe Human Trafficking remains a persisting challenge. Themajority of these formulations used to depict trafficking, lay emphasis on thebuying and selling of people, or they relate closely to smuggling. As such thesewords, and the term ‘trafficking’, may not sufficiently assimilate the practicalaspect, that is, exploitation.

Therefore, themost widely accepted definition of ‘trafficking in persons’ which captures thisaspect exploitation is provided by the Protocolto Prevent, Suppress and Punish Trafficking in Persons, Especially Women andChildren, Supplemented the United Nations Convention Against TransnationalOrganized Crime (2000) and is as follows: “Traffickingin persons shall mean the recruitment, transportation, transfer, harbouring orreceipt of persons, by means of a threat or use of force or other forms ofcoercion, of abduction, of fraud, of deception, of the abuse of power or of aposition of vulnerability or of the giving or receiving of payments or benefitsto achieve the consent of a person having control over another person, for thepurpose of exploitation. Exploitation shall include, at a minimum, theexploitation of the prostitution of others or other forms of sexualexploitation, forced labour or services, slavery or practices similar toslavery, servitude or the removal of organs.”

This definitionessentially addresses that this activity can be broken down into three separateparts, namely; criminal acts, the means used to commit those acts, and goals,that is, the purpose of various forms of exploitation. (UnitedNations Office on Drugs and Crime [UNODC] pg 51) As such, HumanTrafficking is a process constituting of three elements namely an action by thetrafficker, the means and the purpose of exploitation. An action refers to whatis done, for example, recruitment, transportation, transfer, harbouring orreceipt of persons. The means, that is, how it is done includesthreat or use of force, coercion, abduction, fraud, deception, abuse of power orvulnerability, or giving payments or benefits to a person in control of thevictim. Finally, for the purpose, that is why it is done, which includesexploiting the prostitution of others, sexual exploitation, forced labour,slavery or similar practices and the removal of organs or other types ofexploitation. It is to be noted that at least one element from each of thesethree groups as described above, is required before the definition provided bythe protocol applies. In case of trafficking involving children below 18, onlythe action and the purpose of exploitation will be required. Another importantaspect is that there is no need for a person to be physically transported fromone place to another, for the crime to be covered by the definition.

Theprovisions on consent neither impose any restriction on the right of accusedpersons to a full defence and to the presumption of innocence nor place theburden of proof on the victim. This obligation remains on the State or publicprosecutor as in any criminal case. There is no transformation of therelationship between the accused and the prosecution rather only addition of anew criminal offence as regards to trafficking.

Thedefinition of these activities may pose a challenge to the legislator, inparticular with regard to the distinction between genuine commercial activitiesand criminal activities linked to trafficking. “Recruitment”, for example, caninvolve activities in the country of origin, of transit or of destination,involving legal or semi-legal private recruitment agencies. Legislatures have totake into account that the initial recruitment can be voluntary and that thecoercive mechanisms to keep a person in an exploitative situation may come intoplay at a later stage. “Transportation”

mayinvolve traffickers or it may be carried out by airlines or other transportcompanies in good faith. It may also be carried out by an organized crime group.“Transfer” will include the activities of individuals who may be facilitatingtrafficking in transit countries. Finally “harbouring” and “receipt” oftrafficked persons also present sensitive issues about the knowledge of theaccused person. For instance, staying in a hotel or guesthouse may or may notinvolve the owner in trafficking depending on the amount of knowledge which heor she has of the activities, and whether he or she was in fact participating inthe trafficking or merely renting out rooms in the normal course ofbusiness.

Acritical element of the definition is the purpose of trafficking, namelyexploitation. This refers to the intention of the trafficker. At a minimum,“exploitation” must include exploitation for the prostitution of others, orother forms of sexual exploitation, forced labour or services, slavery orpractices similar to slavery, servitude or the removal of organs.” The inclusionof “exploitation for the prostitution of others” creates some separatedifficulties. There is no duty under the Protocol to criminalize prostitution.However, the definition could include an individual who employs a prostitutedepending on whether the employment relationship is one that falls within thedefinition of exploitation. Dealing with prostitution and related mattersoutside the scope of trafficking in persons is specifically reserved for thelaws and policies of individual States Parties.

Article5, paragraph 1 of the Protocol requires the criminalization of trafficking inpersons as defined in Article 3. In addition, States Parties are obliged to makethe following activities related to trafficking in persons criminaloffences:

(1)attempting to commit the offence of trafficking in persons, subject to thebasic conceptsof its legal system;

(2)participating as an accomplice in the offence; and

(3)organizing or directing other persons to commit the offence.

Thusthere are four criminal offences which must be created: trafficking in persons,subject to the basic concepts of the national legal system; attempting to do so;participating as an accomplice in doing so; and organizing or directing othersto do so. For the first offence, trafficking, there is a fairly wide scope ofactivities which will be included and which the prosecution must prove. For theother three, attempting, participating and organizing or directing traffickingin persons, the evidential burden on the State to prove the relationship withthe principal offender to the standard of proof required by a criminal trial maybe difficult. These concepts are particularly sensitive in some countries. Whenlaw enforcement agencies seek to prosecute offences, which may not (yet) havetaken place, such as an attempt at trafficking, often a particularly strongevidential base is needed to secure a conviction.

Forms Of HumanTrafficking

Aftera comprehensivedefinition, this section will analyse the major forms of human traffickingpresent worldwide as a scourge. Thus, it is essential to discuss the forms oftrafficking since it is not restricted to prostitution but encompasses manyforms of slavery.

ForcedLabour

TheConstitution of Mauritius under Section 6(1) prohibits forced labour but nodefinition 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 12.3million victims of forced labour are estimated worldwide (ILO, 2005, pg 10).According to the Article 2(1) Forced LabourConvention, ForcedLabour is defined as: “allwork or service which is exacted from any person under the menace of any penaltyand for which the said person has not offered himselfvoluntarily”.

Consequently,three main elements are provided namely work or service, performance undermenace and involuntariness. It is important to highlight that although theperson may have initially consented but once the work becomes involuntary andthe employer utilizes force, fraud, or coercion to keep the person underemployment, the latter becomes a victim of human trafficking.

Re Prosecutor v.Krnojelac, the court recognisedthat involuntariness represents the definitional aspect of forced labour andthat only relevant circumstances of each case will be decisive. The mostimportant factor is that the person did not have the choice whether or not towork. Employers cannot utilise force labour to achieve economic development, forpolitical education, discriminate, enforce discipline or for sanctions forparticipation in strike (Abolitionof Forced Labour Convention, (1957, (Article 1)). The law provides forsome elements that amount to a state of vulnerability or dependence, namelygender, youth, physical and mental incapability and migrant status while therest is left to the discretion of courts. Re Procureur de laRépublique v. Monsieur B, the risk of unemploymentwas identified as generating a situation of workers’ economic dependence inrelation to their employers.

Another aspectof the definition is the penalty which can be of financial nature andaccommodates economic penalties as well as loss of rights and privileges. As faras the menace of a penalty is concerned, it can be of different forms rangingfrom the least, that is, of psychological nature to the most extreme, forinstance, threats of death.

Althougha person holds a previous work history, he may still be considered as a victimof trafficking, if the person was forced or coerced to do the work. Courts inthe United States have pointed out that although the person is remunerated forthe work, the latter may still be a victim of trafficking or forced labour ifthe trafficker has forced him by threat of financial harm.

Re Siliadin v.France, the court applied thethree elements and highlighted that even though the victim was not menaced bypenalty, the circumstances in which the person was working showed that theemployers fostered a climate of fear for her to continue toiling for themwithout any compensation. Furthermore, the element of voluntary acceptance ofthe work, it was determined that the fact that her passport was held and she wasnot remunerated for her service showed that she had no alternative.

BondedLabour

Bonded labouralso referred to as debt bondage designates the situations whereby labour orservice 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 orservitude. The debt bondage is defined by the Article1(a) of UNSupplementary Convention on the Abolition of Slavery, the Slave Trade, andInstitutions and Practices Similar to Slavery as: “the status or conditionarising from a pledge by a debtor of his personal services or those of a personunder his control as security for a debt, if the value of those services asreasonably assessed is not applied towards the liquidation of the debt or thelength and nature of those services are not respectively limited anddefined.”

This form offorced labour existed in many ancient civilizations and is widespread incountries like India, Nepal and Pakistan, especially in rural region despite thelaws that outlaw such practice. It is not in all situations that bonded labourwill be characterized as being imposed although there exists the bonded element.Re Peoples Union forDemocratic Rights & Others the court decided thatany factor which denies a person of his choice and constraints the latter toaccept a particular course of action will be regarded as force. Therefore, theworker is compelled to provide his labour or service through the force, itamounts to forced labour.

Often this debtis passed to an adult or children in the family who are forced to work to repaythe loan through their salary. The children involved in bonded labour work inhazardous conditions for long hours to free themselves.

Involuntary Domestic Servitude

Currently thereis no international definition of servitude, however the early drafts of thePalermo Convention defined servitude as “the status or conditionof dependency of a person who is unlawfully compelled or coerced by another torender any service to the same person or to others and who has no reasonablealternative but to perform the service; it includes domestic service and debtbondage”, (UN) which leads to thesame elements required for human trafficking as seen in previous section. Assuch it is the distinctiveform of forced labor whereby the workers stays at his workplace in anenvironment which is considered as exploitative. Often this practice remainsundiscovered as authorities cannot easily inspect private property compared toformal workplaces. Re Siliadinv. France thecourt concluded that the conditions of work of the person did not amounted toslavery since the accused employers had no legal right of ownership over theservant.

The EuropeanCommission referred to servitude as the obligation to provide certain servicesas well as that to live on the property and the impossibility of changing hiscurrent status. As such the court held that servitudeis the obligation to provide services imposed by force or coercion and theworker was indeed a victim of servitude by pointing out the followingcircumstances; the latter worked fifteen hours a day, seven days a week, hadliterally no other alternative as a climate of fear was created against thepossibility of being caught by the police, had neither freedom of movement norfree leisure time, being a minor had no other means of subsistence, her paperswere seized and was promised that her immigration status will be legalize andwill have to opportunity to continue her schooling but in vain.

Foreignmigrants, mostly women, are hired from developing countries like Asia, Africa,and Latin America to work as domestic servants and caretakers in developedlocations like Singapore, Europe, and the United States. It is regrettable thatmost of these countries do not provide these workers the same legal protectionas for foreign workers in other industries. Thus, they are forced into workingas domestic servants via threat or force exerted by the employers. Often, theemployers confiscate the papers of these workers and exploit the worker’s fearof being caught by the police and deported to their countries.

Child Trafficking

Trafficking ofchildren is also considered as human trafficking and in Mauritius, it isconsidered a crime punishable as a criminal offence as provided by Section 15and 18 of the Child Protection Act as well as Section 262 of Criminal Code Act.Child Labour is another form of trafficking referredto as a situation where a child undertakes a job even though the latter has notyet reached the legal minimum age for work. The consent of thechildren is irrelevant if force or coercion has been used against the child forthe rendering of labour or service. For instance, 2 million children worldwideare forced to work in perilous conditions in mines.

Traffickedchildren are left at the mercy of the traffickers who control their lives andundergo sexual assault and beating amongst other forms of violence. According tothe Worst Forms of Child Labour Convention, 1999, worst forms of child labourincludes all forms of slavery or similar practices, trafficking throughdisguised adoption, recruitment in armed conflicts, prostitution, pornography,drug trafficking and any work harmful for the children.

Sex Trafficking

This form oftrafficking involves a person who is brought into prostitution through force,coercion or fraud which may also occur in conjunction with debt bondage. Most ofthe time women and girls are sold and coerced to step into prostitution throughillegal debt which they must pay off for their freedom. For instance, inBelgrade, girls and women are exposed like objects and traded at auctions to thehighest bidder at where they are and inspected like cattle.

Organ Trafficking

HumanTrafficking for exploitation for organs, especially kidneys is a fast growingcriminal industry. Neither human body nor its parts can be subject oftransactions as well as compensation or reward for organs is prohibited exceptpayment of reasonable expenses incurred for example in preserving, supplying ordonating the organs for transplantation. (World Health Organisation, [WHO],1990) The victims are often deceived on the medical implications of organremoval and commonly operations are carried out clandestinely without furthertreatment. Even doctors as well as other medical assistants are involved in thiscrime.

Differences Between Human Trafficking & Migrant Smuggling

After havingprobed into the various forms of human trafficking, in this section a cleardistinction will be made between human trafficking and migrant smuggling. Assuch Migrant Smuggling is provided for in the Migration Protocol whiletrafficking in human beings as seen earlier is provided for in the PalermoProtocol. Thereare some main elements that constitute migrant smuggling namely acquiring entrythrough illegal means of another person, into another State and for theintention of a financial or material gain and eventually there should be thecriminalization of this offence.

Severalagencies have drawn a line of demarcation between trafficking and smuggling.According to the Europol Convention of 1995 illicit migrant smugglingencompasses activities with the intention to facilitate, obtain a monetary gain,enter into a country seeking residence or employment but in a manner that isagainst the relevant rules and laws of the country whilst trafficking meanssubjugation of the victim by the trafficker through the use of force orcoercion, abuse of authority, or fraud with a view to exploit that person invarious forms. (International Organisation for Migration, [IOM] pg21)

Thus, Smugglingis distinct from trafficking in person as in the first one the migrants beingsmuggled have given their consent while in the latter the victims either havenot given their consent or their preliminary consents have been obtained throughfraud, force or coercion. Furthermore, human trafficking does not requirephysical movement of the victim but rather there must be the exploitation of theperson for labour, commercial sex or other forms of exploitation. Even if thereis a movement across borders, this fact is irrelevant. On the other hand,smuggling imperatively involves crossing borders and as such it is alwaystransnational.

Additionally,the smuggler and the smuggled migrant share a commercial transition relationshipwhich normally ends after having crossed the border while trafficking involves thecontinuous exploitation of the victims in a way to provide illegal profits forthe traffickers. However, there can be some instance whereby smuggling evolvesto trafficking, for instance, when the smuggler uses force, coercion, or fraudthe migrant to work off transportation expenses under abusive conditions.Finally, smugglers obtain income from fees to move the people while traffickersgenerate illegal profit from continuous exploitation of the victims. (IOM, pg21)

Factors Causing Human Trafficking

The root causesof trafficking are various, complex and often interrelated. Most of the time,they are different for each country. This section will deal with the major rootcauses of trafficking in persons.

DEMAND &SUPPLY FORCES

Furthermore,demand is acrucial cause of human trafficking because people get involved in this trade tofulfill the avid demand for women and girls by the employers of illegal labourand the purchasers of sexual and other services extorted from victims.(Bertone, 2000, Pg 8) The traffickers takeadvantage of demand for cheap and vulnerable workers as well as the promotion ofsex tourism in the destination countries who perceive migrants as highlyprofitable and low risk commodities. In the absence of efficient legislationsand abundant supply of migrant workers unfree labour are exploited scrupulously.In this way in search of a better life, they are enslaved andexploited.

Globalisation & Poverty

Over the last decadesthere has been a remarkable increase in the number of trafficked victims alongwith the globalization. The gap between the rich and the poor has been extremelywidened with globalization. (Pope JeanPaul,___) The world 225 richestpeople together posses wealth of more than $1trillion which equals to the annualincome of 47 % of the world poorest population, which amount to around 2.5billion people. These vulnerable peopleare deceived and sold for sexual slavery or involuntary servitude which is theresult of increased international mobility and globalization. The demand fortrafficked labour has also increase with globalization since employers requirecheap and low skilled workers who are attracted to developed countries becauseof high unemployment in their counties. Most of the time, women and girls sufferthe most from such inequalities and as such prefer to go in an unknown countryto search for work as subsistence means for their family. Unfortunately they aretrapped into the nets of the traffickers.

Lack Of LegalMigration Opportunities

Most ofthe people become victim of trafficking owing to their wish to migrate abroadbut cannot do so legally because of strict rules. Therefore, they look for otheralternatives for which they have to seek help from traffickers and smugglers.These people then seize the papers of these people and exploit them in variousways. The victims cannot even report such crimes because of their fear of beingarrested by the police or immigration officers. Thus, they keep on suffering insilence.

Other Offences Related To Human Trafficking

HumanTrafficking is a process rather than as a single offence, which starts witheither the recruitment or abduction of a person and prolongs with the transportand entry of the latter to another location. Later, the victim exploited invarious ways in the exploitation process. (UNDOC, 107) During the entireprocess, traffickers normally commit different forms of offences. Traffickingactivities and other criminal offences are interrelated, for instance smugglingof drugs or weapons. There are other offences that are committed in furtheranceor protection of the trafficking operation, for example, money-laundering andtax evasion. To understand this process of trafficking, UNDOC has provided for asimple table thereto presented in the Appendix.

Traffickingis often only one of the crimes committed against trafficked persons. Othercrimes may be committed to ensure the compliance of victims, maintain control,protect trafficking operations or maximize profits. Victims may be subjected tothreats, physical and sexual violence or other mistreatment. Their passports andother identity documents may be taken from them. They may be forced to workwithout payment, often in occupations that are unpleasant, difficult, dangerousor illegal in the State where they are carried out, for example prostitution,the making of pornography and trafficking in illicit commodities such asnarcotic drugs. Apart from offences committed against victims, former victimswho assist the authorities may be threatened with or subjected to retaliatoryviolence and public officials may be the subjects of corruption, subjected tothreats or both. These acts constitute criminal offences in most States andcould be invoked to address certain elements of the full range of crimesinvolved in trafficking in persons. This could be useful in States where adistinct criminal offence of trafficking does not yet exist, or where penaltiesfor trafficking do not sufficiently reflect the seriousness of the crime. Theremay also be cases where the evidence is not sufficient to support prosecutionfor human Trafficking, but may be sufficient for a prosecution for relatedoffences. The prosecution of accused individuals for additional or overlappingoffences may also be useful in demonstrating to courts the serious nature of aparticular trafficking operation. For example, in some instances, evidencerelating to certain aspects of the trafficking operation (e.g. the total numberof victims, the length of time of the operation, the corruption involved and theseriousness of the harm done to the victims) may only be fully revealed bybringing additional charges before the court. Such offences include, but are notlimited to, the following:

Slavery

Slavery-like practices

Involuntary servitude

Forcedor compulsory labour

Debtbondage

Forcedmarriage

Forcedprostitution

Forcedabortion

Forcedpregnancy

Torture

Cruel,inhuman or degrading treatment

Rapeor sexual assault

Causing bodily injury

Murder

Kidnapping

Unlawful confinement

Labourexploitation

Withholding of identity papers

Corruption

It isalso important not to overlook violations that are less criminal in nature, suchas:

Administrativeand regulatory violations

Violation of wage and labour standards

Violation of regulations concerning hours and standards of work

Licensing,land use and other infractions

Notmeeting requirements for permits

Impermissible use of premises

Unlawful assembly

Excessive noise or nuisance

Promisingpractice

Prior tothe implementation of anti-trafficking legislation, countries have resorted torelying

on otheroffences. Examples include the following:

Afghanistan relies on kidnapping and other statutes to prosecutetrafficking.

Angolacould prosecute traffickers through elements of its Constitution andstatutory

lawswhich criminalize forced and bonded labour.

Argentina relies on criminal and immigration statutes which offer penalties thatare

sufficientlystringent to satisfy the requirements of the Trafficking in PersonsProtocol.

Beninhas used provisions of the Penal Code, such as those relating to kidnappingand

tocontributing to the delinquency of a minor, in order to pursue child-traffickingcases.

InChad, arrests are made under kidnapping laws.

Chinacriminalizes forced prostitution, abduction, commercial sexual exploitation ofgirls

under 14and forced labour.

Côted’Ivoire uses laws against child abuse, forced labour and pimping toprosecute

traffickers.

Djibouti could potentially use its laws relating to pimping, the employment ofminors,

forcedlabour and the debauching of a minor to prosecute traffickers.

InJordan, anti-slavery, kidnapping, assault and rape laws could be used in theprosecution

oftraffickers.

Madagascar could refer to laws on the procurement of minors for prostitution,paedophilia

orpimping and on deceptive labour practices.

Morocco has relied on laws relating to prostitution and immigration, as well asthose

concerningkidnapping, fraud and coercion.

Adulttrafficking cases in Uruguay often rely on commercial laws relating to sexualexploitation, fraud or slavery.

Combating OfTrafficking InPersons Act: AnOverview

Inadequatelegislation is often a major obstacle in fighting against human trafficking. Thedevelopment of an appropriate legal framework, that is consistent with relevantinternational instruments and standards, will also play an important role in theprevention of trafficking and other related exploitations (UN, 2002). The PalermoProtocol also emphasizes that the countries must criminalise human traffickingby making specific provisions for it rather than offences that underlies it.Fortunately, Mauritius has recently enacted the Combating of Trafficking inPersons Act and this section will mainly provide an overview of its salientprovisions.

The Actprovides for definition of Trafficking similar to that of the Palermo Protocolas well as some forms of this crime namely slavery, forced labour, sex and organtrafficking. This legislation, beinga supplement to the provisions of the Child Protection Act, provides temporaryaccommodation, counseling and rehabilitation as well as education and trainingfor the reintegration of the victims through drop-in centre.

A victim oftrafficking although being a non-citizen of Mauritius may stay for anonrenewable period of not more than 42 days. A temporary visitor’s permit maybe issued to the victim if the latter is present in Mauritius and has agreed tocooperate with the authorities in relation to a case of trafficking. There maybe extension of the permit for humanitarian grounds.

In case thereis a risk that a non-citizen victim may be in danger of being killed ortrafficked again, the latter will not be repatriated to his home country orcountry from which he has been trafficked without his consent, unless his safetyhas been provided for. Arrangements will be made for the repatriation of avictim who is citizen or permanent resident of Mauritius. Minors will beaccompanied home by an adult at the expense of the Mauritian government. Ontheir arrival in Mauritius the child will be referred to the Child DevelopmentUnit while for the adult it is the Centre for Victims of Trafficking.

If it has beenproved that person has indulged in trafficking of persons or allows a person tobe trafficked will commit an offence whether or not the victim given consentearlier. Even a person who deliberately either, rents a room or building orallows its usage for harbouring a victim of trafficking or makes or causesadvertisement, publication broadcast or distribution of information to lure totrafficking by any means, even through the Internet. The Internet ServiceProvider who fails to report immediately to the Police, any side of his serverwhich holds information that ensnares to trafficking, will be committing anoffence. It is the same case for any person who knowingly benefits from theservices of the victim or uses or enables another person to make such use. Allthe above offences, which fall under Section 11 of the Act, will be liable to bepunished by penal servitude for a term not exceeding 15 years.

In certaincircumstances, Courts have extra territorial jurisdiction to hear a case oftrafficking in persons, although the offence has taken place outside theterritories of Mauritius and regardless of whether the crime constitute anoffence in the country where it has been committed. This is the case of anoffender who is a citizen or ordinary resident of Mauritius or is arrested inits territory or territorial waters.

The court maymake an order for the payment of appropriate compensation not exceeding Rs500,000 by offender to the victim and the State in compensation for expensesincurred in relation to the accommodation, transportation, care or repatriationof the victim.

ACritical Analysis

The firstcriticism that can be raised is that it provides inadequate definition since itaddresses only forced labour, slavery, sexual and organ trafficking and ignoresother forms of exploitation like serfdom, bonded labour, involuntary servitude.The Palermo Protocol requires that the definition, while being dynamic andflexible, must encompass a wide range of exploitative purposes.

As compared tothe UnitedStates Victims of Trafficking and Violence Protection Act of 2000 which providesfor trafficking with respect to peonage, slavery, involuntary servitude, orforced labour as well as child sex trafficking. It also distinguishes sextrafficking from other forms of trafficking. As such sex trafficking is acriminal offence only if force, fraud or coercion is used. In case of a minor,force, fraud or coercion is required. If sex trafficking involves debt bondage,slavery, involuntary servitude or forced labour, it can also beprosecuted.

The protocolalso requires that other legislations are amended. The Child Protection Act hasbeen updated to incorporate trafficking. However, the immigration Act shouldalso be amended.

Recommendations

Prevention

1. To establish, togetherwith NGOs and civil society, comprehensiveregional and national policies and programmes toprevent and combat human traffickingand to protect the victims.

2. To implement, togetherwith NGOs and civil society, research,information and media campaigns and social andeconomic initiatives to prevent andcombat trafficking in persons.

3. To undertake measuresto alleviate the vulnerability of people(women and children in particular) to humantrafficking, such as poverty, underdevelopmentand lack of equal opportunity.

4. To undertake measuresto discourage demand that fostersexploitation that leads to trafficking inpersons.

5. To provide training torelevant officials in the prevention, prosecution oftrafficking in persons and protection ofthe rights of the victims.

6. To exchange informationon human trafficking routes, modusoperandi, Thestarting point in the fight against human trafficking is theimplementation of the Protocol to Prevent,Suppress and Punish Trafficking in Persons,especially Women and Children, which supplements theUnited Nations Convention against TransnationalOrganized Crime.

As onepart of that commitment, UNODC urges all countriesto work on producing greater information ontrafficking in persons. This is needed, worldwide, to enableall actors combating human trafficking to designand implement more effective responses.

Moreextensive and accurate data can also help to measureprogress in national and international effortsto combat trafficking. traffickers profiles andvictims identification.

7. To undertake measuresto prevent means of transport operated bycommercial carriers to be used in thecommission of human traffickingoffences.

8. To strengthencooperation among border control agencies by, interalia, establishing and maintaining directchannels of communication.

Prosecution

9. To undertake measuresto ensure that travel and identitydocuments cannot easily be misused, falsified,unlawfully altered, replicated or issued; andto ensure the integrity and security oftravel and identity documents and to preventtheir unlawful creation, issuance anduse.

10. To enact domestic lawsmaking human trafficking a criminaloffence. Such laws should also establish ascriminal offences attempting to commit,participating as an accomplice, and organizingor directing other persons to commit humantrafficking.

11. To ensure suchlegislation applies to victims of all ages and bothsexes; and clearly Whenimplementing the Trafficking Protocol, Member States should consider thefollowing recommendations:

13 distinguish betweentrafficking in persons and other forms of irregularmigration.

12. To ensure that thesystem of penalties is adequate, given theseverity of the crime.

13. To protect the privacyand identity of victims in appropriatecases.

14. To establish measuresto protect victims fromrevictimization.

15. To implement measuresproviding to victims information onproceedings, assistance to enable theirviews and concerns to be presentedand considered at appropriate stages ofcriminal proceedings.

16. To implement measuresthat offer victims the possibility ofobtaining compensation.

Protection

17. To implement measuresto provide for the physical, psychologicaland social recovery of victims. This shouldinclude housing and counselling in a languagethe victims can understand, medical,psychological and material assistance aswell as employment, educational and trainingopportunities. The special needs of victims,in particular children, are to be taken intoaccount.

18. To provide for thephysical safety of victims followingrescue.

19. To adopt measures thatpermit victims to remain in the territory,temporarily or permanently, inappropriate cases, giving consideration tohumanitarian and compassionatefactors.

20. To facilitatepreferably voluntary return of the victim without undueor unreasonable delay, with due regard forthe safety of the victim.

Tofully implement the Trafficking Protocol and to enable effective oversight ofthat implementation,

Member States areencouraged to also consider the following recommendations:

Information

21.Todevote resources to create the infrastructurenecessary to collect information aboutall aspects of human trafficking.

22. Todevelop methods at the national level toorganize data collection through acomprehensive system of data classification.

23. Toassign responsibility for information collection to acentralized agency or someequivalent co-ordinated statistics system.

24. Togather more information in particular on:victims of trafficking; offenders; organizedcrime groups; and internal trafficking.

25. Tocollect information regarding victim identification,referral, assistance and repatriation.

26. Tocollect qualitative as well as quantitativeinformation.

27. Toengage in greater multilateral collaboration toensure more intensive gatheringand analysis of primary data.

28. Toreport such information to the Conference of theState Parties to the UnitedNations Convention Against TransnationalCrime.

Mauritius was placed inTier 2 in the 2008 Report of Trafficking in Persons published by the USDepartment of State. Tier 2 refers to countries whose Governments do not fullycomply with the US Trafficking Victims Protection Act, but are makingsignificant efforts to bring themselves into compliance with these standards.These minimum standards for the elimination of trafficking in persons relate tothe prohibition of trafficking, punishment of instigators of trafficking andprevention of trafficking. In February last, the Reports Officer for Africa, atthe US Department of State, visited Mauritius and confirmed that the enactmentof legislation by Mauritius specifically prohibiting human trafficking wouldresult in Mauritius moving to Tier 1 in the US assessmentmethodology.

The United Nations Officeon Drugs and Crime has also launched a Global Initiative to Fight HumanTrafficking, also known as UN.GIFT. UN.GIFT aims at mobilizing State andNon-State actors to eradicate human trafficking by reducing both thevulnerability of potential victims and the demand for exploitation in all itsforms. It also ensures adequate protection to victims while, at the same time,supporting the effective prosecution of the criminals involved. The Bill whichemphasizes the prevention of trafficking in persons, protection of victims ofsuch trafficking and prosecution of traffickers in persons, is a strong responseto such global initiatives in the fight against trafficking.

conscious ofthe fact that the impact of human trafficking is not only destructive, but alsototally unacceptable. That is why we have focused on protective and preventiveefforts. The Police Family Protection Unit and the Brigade desMineurs are two Units in thePolice dealing with child protection. A Community Child Protection Programme waslaunched in August 2007 to ensure that local communities are also involved inthe prevention of child abuse, including commercial sexual exploitation. TheMinistry of Tourism, Leisure & External Communication is also addressing theproblem of child prostitution and those involved in the Tourism Sector are beingsensitised. In this struggle against child prostitution, the Ministry of Women’sRights, Child Development & Family Welfare, with the assistance of Policeand the NGOs organises sensitization campaigns to explain to youngsters as wellas to adults the nature of the problem of trafficking and to involve civilsociety in the fight against child trafficking.

It is alsotrue, Mr Speaker, Sir, that trafficking in persons have a close link with theproblem of poverty. The eradication of poverty has been one of the majorobjectives of the economic policy of my Government. In our relentless fightagainst poverty, we have been focussing on education,

training,housing, health, integration, job opportunities as well as empowerment. Throughthe Empowerment Programme we have been reintegrating those who have been left atthe margins of development. The National Empowerment Programme is expanding itsreach to the broadest

areas ofsocio-economic inclusion by training the unemployed, re-skilling those who havelost their jobs in declining sectors and providing financial and technicalsupport to entrepreneurs. We have been intensifying our efforts to fosterbroader socioeconomic empowerment so that men, women and children do not gettrapped in these social ills because of poverty. We have also continued ourendeavour to help those who are the most needy and vulnerable through the TrustFund of the Social Integration of Vulnerable Groups. The Fund attempts toalleviate poverty through community-based projects initiated and implementedthrough Non-Governmental Organisations and empowers the poor through this microcredit scheme with a view to integrating the vulnerable in the mainstream ofsocial and economic development. In this connection, since July 2005 to date,3,895 housing units for the total sum of around Rs200 m. have been constructedand 830 micro credit projects for a total sum of Rs29 m. have beenapproved.

In addition, the VTVPA calls forcollaborations between NGOs and the federal government in creating preventive strategies andincreasing awareness of trafficking, thus recognizing that effectiveactions require civil societycooperation. To ensure effective implementation, the VTVPA authorizesCongress to appropriate funds forgovernment and NGO activities.

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