The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children: Reflections After Five Years. Concord Center Annual Conference on Disposable People: Trafficking in Persons. Mohamed Y. Mattar Adjunct Professor of Law and Executive Director of The Protection Project at The Johns Hopkins School of Advanced International Studies Tel Aviv, Israel December 22, 2005 I am delighted to be here in Israel and as you may know I am originally from Egypt, so we have something to talk about since Egypt is a country of transit for women being trafficked from European and former Soviet countries to Israel. I have been asked to talk about International Law of Trafficking, in particular the United Nations Protocol. The United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons is the first universal treaty law that covers all aspects of trafficking in persons: 1. All forms of trafficking 2. The five Ps: Prevention, Protection, Prosecution, Provision and Participation The Protocol was adopted in December 2000 and it became international law on Christmas Day, December 25 th, 2003, so it took only three years for countries to satisfy article 17 of the Protocol that requires forty instruments of ratification. Israel signed the Protocol, but it has not ratified it yet. Israel acceded to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography on November 14, 2001. The early drafts of the UN Protocol limited its application to trafficking in women and children. The scope of the Protocol was then modified to cover trafficking in persons, especially women and children, in order to recognize that men are trafficked too. The most controversial aspect of negotiating the protocol was the definition of trafficking, because there was no agreement on the definition itself. Moreover, because of the link between trafficking and prostitution, three main issues were debated: 1. Prostitution 2. Consent v. Coercion 3. Use v. Exploitation With respect to the debate about prostitution or the prostitution debate:
Some consider prostitution to be inherently coercive and thus forced Others argue that sexual autonomy includes the freedom of an individual to decide to act as a prostitute and allow another person to profit from his or her earnings. One group of state (Argentina, Philippines), supported by a coalition of NGO s argued that: 1. Consent is irrelevant; 2. There should be no distinction between forced and voluntary prostitution; 3. Any coercion requirement in the definition of trafficking would implicitly give legitimacy to prostitution. The United States opposed this position and led the move to reject the inclusion of non-coerced prostitution into the trafficking definition. That was the US position initially, although in response to domestic pressure it wavered occasionally. The second issue that was debated was the issue of consent. The debate focused on whether or not the offense of trafficking should be recognized, irrespective of the consent of the person so that the trafficker could not escape conviction by using the victim s consent as a defense. The third debate concerned the purpose of trafficking. The Committee reached an early consensus on the need to move beyond the traditional focus on prostitution and sex to include forced labor, debt bondage and forced marriage. The purpose debate was about whether to include use in prostitution as a separate purpose. Some states wanted a specific reference to prostitution in the Protocol, arguing that the abolitionist approach had been already used in the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others. These countries also advocated to broaden the definition to include all forms of prostitution. Opponents of this position argued that inclusion of voluntary prostitution as an end purpose of trafficking would make the definition of trafficking too broad. A compromise had to be reached, and the final solution was to consider the consent irrelevant only when illegal means are used. A similar compromise was reached on the prostitution issue. Instead of including prostitution among the purposes of trafficking, a more narrowly focused reference to exploitation of the prostitution of others was used. In this way, everyone claimed victory but the Travaux Preparatoires of the Protocol, para. 64, clearly state that: 1. The Protocol addresses the issue of prostitution only in the context of trafficking. 2. The references to prostitution are without prejudice as to how states address this issue in their respective domestic laws.
The definition of trafficking, as it finally appears in the Protocol, requires three separate elements: AN ACT 1. Recruitment 2. Transportation 3. Transfer 4. Harboring 5. Receipt of persons ILLEGAL MEANS 1. Threat or use of force 2. or, other forms of coercion 3. Abduction 4. Framed 5. Deception 6. Abuse of power 7. or, position of vulnerability 8. Giving or receiving payments or benefits to achieve consent of a person having control over another. The Travaux preparatories, in paragraph 63, indicate that the reference to the abuse of a position of vulnerability is understood to refer to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved. UNLAWFUL PURPOSE Exploitation, which includes, at a minimum: 1. the exploitation of the prostitution of others 2. or other forms of sexual exploitation 3. forced labor or services 4. slavery or practices similar to slavery 5. servitude 6. or the removal of organs. All three elements must be present. The only exception is for child victims of trafficking who do not require illegal means. The Protocol does not define for us any of these forms of trafficking. But we can find a definition for each of them in the relevant international convention. For example, the 1930 International Labor Organization Convention on the Abolition of Forced or Compulsory Labor defines forced labor to include [ ] 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.
The 1957 Supplementary Convention on the Elimination of Slavery, Slave Trade, and Institutions and Practice Similar to Slavery defines Slavery as the status or condition of a person over whom any or all of the powers attaching to the rights of ownership are exercised. The 1956 Convention also defines debt bondage, a practice 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. The term, servitude, has not been defined by international instruments. Both The Universal Declaration of Human Rights of 1948, art. 4, and the International Covenant on Civil and Political Rights of 1966, art. 8(2) state that no person shall be held in servitude, but neither of them defines the term. Servitude has been interpreted to be broader than slavery. Some argue that it includes: 1. All conceivable forms of domination and degradation of human beings by human beings. 2. That debt bondage is a form of servitude. An early draft of the Protocol (7th revised draft) defined servitude in the context of trafficking as: The condition 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, and shall include domestic service and debt-bondage. The Supplementary Convention, art. 1(c) defines marriage as a form of slavery. Any institution or practice, whereby (i) a woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or guys, (ii) the husband of a woman, his family, or his clan has the right to transfer her to another person for value received or otherwise, or (iii) a woman on the death of her husband is liable to be inherited by another person. As stated in paragraph 66 of the Travaux Preparatoires to the Protocol, illicit adoption is considered a practice similar to slavery. The proposal to include organ removal as a purpose of trafficking was made very late in the negotiations. It survived the objection that the protocol was dealing with trafficking in persons, not organs. Early drafts of the Protocol made specific references to specific forms of trafficking such as: 1. forced marriage 2. marriage of convenience 3. illegal adoption 4. sex tourism 5. forced domestic labor
6. pornography These specific forms may be addressed and may fall within the current purposes of trafficking, as stated in the Protocol. For example, pornography can be considered as another form of sexual exploitation. Similarly, domestic service could be either considered a form of trafficking for labor or services or a form of servitude. Besides, state parties may add other forms of exploitation since the Protocol s definition only covers these forms of trafficking as a minimum. The United States definition of trafficking is limited to sex trafficking and labor trafficking. Article 111-b of the Law of Serbia specifically refers to trafficking for pornography and exploitation in armed conflicts. Moldovan Criminal Code 165 draws a distinction between commercial sex and non-commercial sex that will take care of forced marriages, mail order brides, and trafficking for child bearing. Other forms of trafficking might be criminalized, including: 1. trafficking for military purposes 2. trafficking for begging (street children) Article 5 of the UN Protocol mandates that state parties criminalize trafficking in persons. That means: 1. the recognition of trafficking as a specific offense, not only as a prostitution related activity; 2. criminalization of all forms trafficking; 3. criminalization of trafficking regardless of consent; 4. the recognition of trafficking as a serious offense. Since the UN Protocol supplements the UN Convention on Transnational Organized Crime, it only covers forms of international trafficking committed by organized criminal groups, although the transnationality of trafficking and the involvement of an organized criminal group are not requirements for the establishment of the offense of trafficking under the domestic law of a particular country. Therefore, crossing international borders should not be an element of the crime itself, although it may warrant an additional penalty. And criminal liability of the offender should not depend upon whether the activity is organized. Many cases of trafficking involve only an individual, and individual trafficking should not be excluded from the definition of the crime. However, if the act of trafficking is committed by a criminal group, the punishment for such crime should be enhanced. For instance, Article 181 of the German law on trafficking in human beings provides for an enhanced penalty in case of professional recruitment. The UN Protocol adopts a weak language with respect to some issues. One of them is the protection of the victims.
Part two of the protocol, dealing with the protection of the trafficked person contains very little in the way of a definitive obligation. In fact, one may question whether the Protocol is about rights of victims of trafficking or state responsibilities to combat an organized criminal activity that constitute a threat to the State. So the language that you find in part tw article 6 Assistance to and protection of victims of trafficking in persons, article 7 Status of trafficking in persons in receiving states, article 8 Repatriation of victims of trafficking in persons is not really about rights of victims of trafficking but mainly about states obligation to attempt to provide for these rights. Under Article 6(1) of the Protocol, state parties are enjoined to provide assistance for and protection of trafficked persons in appropriate cases and to the extent possible under domestic law In terms of residency status, article 7 of the protocol only provides that state parties are to consider adopting legislative or other measure permitting victims of trafficking to remain in their territories temporarily or permanently. The Protocol calls on member states to adopt those measures in appropriate cases and taking into consideration humanitarian and compassionate factors. Moreover, the Travaux Preparatoires talk about permanent residence, meaning longterm residence, but not necessarily indefinite residence. The same non-obligatory style was followed regarding the prevention issue without reference to the root causes of the trafficking infrastructure. Article 9 generally mentions poverty, underdevelopment, and lack of equal opportunity. The language adopted for the prevention issue is also weak. For instance, article 9(2) provides that state parties shall endeavor to undertake measures such as research, information and mass media campaigns, and social and economic initiative to prevent and combat trafficking in persons. Article 9(5) provides that state parties shall adopt or strengthen legislative or other measures such as educational, social, and cultural matters to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking. The United States, on Women s Day, March 8, 2005 introduced a new Resolution to the United Nations Commission on the Status of Women. The U.N. Resolution was adopted calling upon governments to Take all appropriate measures to eliminate demand for trafficked women and girls for all forms of exploitation, and Adopt or strengthen and enforce legislative or other measures, such as educational, social and cultural measures, including through bilateral and multilateral cooperation, to deter exploiters and eliminate the demand that fosters trafficking of women and girls for all forms of exploitation. The early draft of the Resolution recognizes that prostitution and the trafficking in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community, basically adopting the
language of the 1949 Convention but countries that legalize prostitution did not like this language so it was deleted in the final draft. But the resolution is in line with article 9(5), of the Trafficking Protocol that calls upon countries to discourage demand for sex that fosters exploitation of women and children and that leads to trafficking. The UN Convention against Transnational Organized Crime, which the Protocol supplements, provides that state parties are to take appropriate measures within (their) means to provide assistance and protection to victims. In particular, the Convention refers, in article 25, t 1. threats of retaliation or intimidation; 2. compensation and restitution; 3. right to be heard in court; 4. under art. 24, witness protection; and 5. under article 31.7, alleviating the circumstances that render socially marginalized groups vulnerable to the action of transnational organized crime. Another major weakness is related to the law enforcement/border control provisions. The protocol fails to address the issue of how victims of trafficking are to be identified. If authorities have no means of determining among the intercepted or arrested who is being trafficked, how could they offer the victims the measures of protection they are committing themselves to? The Protocol, also, does not provide for protecting the trafficked persons from prosecution for status-related offenses, such as, 1. illegal immigration 2. working without proper documentation 3. prostitution This is due to the fact that states fear the widespread use of the trafficking defense in the application of criminal sanctions. A final weakness concerns the issue of implementation. The Convention against Transnational Organized Crime establishes a Conference of the Parties, which is responsible for periodic examination of the implementation of the convention. The Conference of Parties is making recommendations to improve the convention and its implementation. And under article 32, State parties are required to provide regular reports on progress made in implementation. But, the Conference of Parties will be concerned solely with the Convention and will not have any authority in respect to the Protocol. And when we talk about the Protocol, we have to understand that it is a part of the Convention against Transnational Organized Crime, and the provisions of the Convention are relevant to understand the international law on trafficking.
Article 1(1) This Protocol supplements the United Nations Convention Against Transnational Organized Crime. It shall be interpreted together with the Convention. Article 1(2) This provision of the Convention shall apply[ ]to this Protocol unless otherwise provided therein. And we saw that the Protocol, like the Convention, applies only to organized trafficking not individual trafficking, and transnational trafficking, not domestic trafficking. (article 4 of the Protocol) Let me give some examples. Forfeiture of assets : an earlier draft provision on seizure, confiscation and forfeiture of gains from trafficking was deleted following the argument that the relevant article of the Convention would apply. The original provision stated: State parties shall take all necessary and appropriate measures to allow the seizure and confiscation of gains obtained by the criminal organizations from offences covered by this Protocol. The proceeds from such seizure and confiscation shall be used to defray the costs of providing due assistance to the victims, where deemed appropriate by state parties and as agreed by them in conformity with individual guarantees enshrined in their domestic legislation. Article 14(2) of the Convention provides that When acting on the request made by another state party in accordance with article 13 of this Convention, State Parties shall, to the extent permitted by domestic law and if so regulated, give priority consideration to returning the confiscated proceeds of crime of property to the requesting State Party so that it can give compensation to the victims of the crime or return such proceeds of crime or property to their legitimate owners. Witness protection : is it part of the Protocol? Article 6(5) of the Protocol merely refers to physical safety of victims of trafficking. But protection of witnesses is covered under article 24 of the Convention. Money laundering : it is covered under article 6 of the Convention that calls for the criminalization of the laundering of the proceeds of crime and Title 7 provides for measures to combat the crime of money laundering. Corruption: it is covered by the Convention under article 8 and 9 And I like article 11 that states: Each State Party shall make the commission of an offence established in accordance with articles 5, 6, 8 and 23 of this Convention liable to sanctions that take into account the gravity of that offence. [ ]Each State Party shall, where appropriate, establish under its domestic law a long statute of limitations period in which to commence proceedings for any offence covered by this Convention and a longer period where the alleged offender has evaded the administration of justice. Article 10 provides for the liability of the legal persons. Article 16 makes trafficking an extraditable offence and makes the Convention a basis for extradition, so you do not need an extradition treaty. And almost 5 years have passed since the passage of the Protocol and the impact in my judgment has been great. Many countries now comply with article 5
LEGISLATION NUMBER OF COUNTRIES Comprehensive Anti-Trafficking Law 29 Draft of Comprehensive Anti-Trafficking Law 11 Specific Anti-Trafficking Provision in Criminal Code 64 Draft of Specific Anti-Trafficking Provision in Criminal Code 2 None 89 I understand that Israel has taken several steps in combating the problem: The Government of Israel does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. Trafficked workers are often categorized as illegal foreigners, unless in rare cases they seek legal action against their traffickers. Israel still lacks a national task force and an official coordinator for the government s anti-trafficking efforts. The government lacks a law against trafficking for the purpose of labor exploitation, although such a law was drafted in 2003 and awaits approval. The government has not established either a procedure for the systematic identification and referral of trafficking victims to places where they can seek care, or a coordinated and transparent system for the humane repatriation of victims. In 2004, a Permanent Committee on Trafficking in Persons was established. This Committee drafted laws to enable closure of brothels, provide national health insurance to trafficking victims, grant witness protection for non-israeli citizens and residents, and postpone the deportation of trafficking victims. Israel showed improvement in its law enforcement response to trafficking. In 2004, the government investigated 602 cases relating to trafficking for sexual exploitation, arrested 103 suspects and handed down 28 convictions. In its response to labor trafficking, the government prosecuted at least two employers for offenses such as withholding of passports and forgery. With some exceptions, only trafficking victims for sexual exploitation who agree to testify against their traffickers are accorded protection in the shelter. Such victims are now granted visa extensions; work permits; and legal, medical, and psychological services during their stay in Israel. Most trafficking victims in prostitution who are arrested are subsequently deported, as the police do not use a systematic screening procedure to differentiate trafficking victims from violators of immigration laws. The Israeli Government undertook new steps in the area of prevention. The government provided three training sessions for a total of 90 police officers on how to recognize, investigate, and prepare trafficking cases for prosecution. It also conducted antitrafficking information campaigns in source countries of victims trafficked for the purpose of sexual exploitation.