Discussion
Paper on
"Effective Legal Strategies to Combat Trafficking in Women
and Children"
Shanthi
Dairiam, Director, IWRAW Asia Pacific
Prepared
for the Seminar on
Promoting Gender Equality to Combat Trafficking in Women and Children
7-9 October 2002
Bangkok, Thailand
Organised by UNIFEM and ASEM
"The problem of trafficking in women is not only a result
of a complex of social, economic and political factors and a reflection
of discrimination against women embedded in social and cultural
roots, but it is also an act of violence against women and a crime
against humanity."[1] Trafficking in persons, the vast majority
of whom are women is most likely to occur through the process
of labour migration and is often not recognised by receiving countries
as a violation of human rights. Rather it is addressed as illegal
migration and action is taken against trafficked persons for illegal
entry. The phenomenon of trafficking in persons requires serious
consideration as its incidence is likely to increase as globalisation
intensifies and as the development policies of poorer nations
fail to provide viable and sustainable economic options for their
citizens. Women are at greater risk because of a combination of
poverty and factors related to their subordinated position as
women. What is fact is that trafficking takes place for a variety
of reasons such as prostitution, forced labour or forced marriage.
What has got to be clearly recognised however is that not all
women are trafficked into prostitution and not all women who migrate
for purposes of prostitution are victims of trafficking.
Legal remedies
available at the national level in some countries are applicable
to trafficking or to elements such as migration that are associated
with trafficking or to the components of the crime involved in
the process of trafficking such as kidnapping, forced prostitution,
slavery etc. which are punishable. Direct legal remedies to address
trafficking are also available or being considered at the international
levels. For example, the South Asian Association for Regional
Cooperation (SAARC) has a draft Convention on Preventing and Combating
Trafficking in Women and Children and the United Nations Commission
on Crime Prevention has developed a Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention Against Transnational
Organised Crime.
This paper
intends to outline the essential elements of legal strategies
to address the problem of trafficking. In so doing some examples
and assessment of existing legal strategies will be made. The
following issues are raised as a basis for discussion.
Underlying
causes of trafficking: The issue of discrimination
The Foundation
for Women and The Global Alliance against Traffic in Women (GATTW),
both based in Thailand, have mentioned the following factors and
circumstances that at the root of trafficking.
1. Causes
of female labour migration and women entering the sex industry
-
Development
of urban-centered industrial and service sectors, leaving rural
sectors underdeveloped
-
Traditional
ideology and roles of women that emphasise familial responsibility
for women
-
Limited
employment opportunities and gendered division of labour
-
Demand
for services in the sex industry
-
Double
standards in society that value chastity in women
-
Violence
in the family and failed marriages
2. Factors
that facilitate trafficking: Vulnerable circumstances of women
-
Lack
of social support for women in difficult circumstances
-
Difficulties
of obtaining contracts through official channels for women
-
Lack
of information and understanding about the risks
-
Complicity
of government officials
The CEDAW
Committee[2] views trafficking as a form of discrimination. Based
on Article 1 of the CEDAW Convention that defines discrimination
as any act of "restriction, exclusion or distinction"
that denies women the exercise of any right, the CEDAW Committee
in its General Recommendation 19, presents the view that as many
rights of women are violated in the process of being trafficked,
it is indeed a form of discrimination. Because of this view, it
is possible to use the full range of the provisions of the CEDAW
Convention, depending on the identification of the rights violated,
to address the problem of trafficking holistically and provide
remedies for victims. This approach enables States Parties to
determine the actions by which they can fulfil their obligations
under article 6 of the CEDAW Convention, which requires them "to
take measures to suppress all forms of trafficking."
In fact the
CEDAW Committee is of the view, not only that trafficking in women
is a form of discrimination, but also that discrimination against
women generally has made women vulnerable to trafficking. So taking
legal and other measures to eliminate all forms of discrimination
against women would be the first step to prevent trafficking in
women.
Making
the protection of the human rights of women the focus of attention
-
The
guiding principle of and the human rights approach to any effort
to bring about a solution to this problem has to be, that trafficked
women must be placed at the centre of such concern. Any solution
that is adopted should not result in a further violation of
their rights. Solutions must be empowering.
Decriminalising
the victim
-
The
trafficked woman must be viewed as a victim and the fact that
she may have violated immigration laws of the country in which
she is trafficked should not be the focus of criminal law and
attention. This is often the approach taken by officials in
countries in which women find themselves as victims. Most foreign
workers, do not have legal status. When they are arrested, they
will be charged with illegal entry and will be put in a detention
centre waiting for deportation. Although many of the illegal
migrants are victims of trafficking or they were not trafficked
but had to work in exploitative labour conditions and faced
different forms of abuse and violence, there is usually no system
to provide assistance and protection for them once arrested.
This vulnerability to arrest and deportation just leads to greater
victimisation of the women and makes them more vulnerable to
exploitation by traffickers as the latter know that the women
will not be offered protection by the policies and agents of
the State.
Avoiding
conflating trafficking with migration
-
Since
trafficking takes place in the process of the movement of persons
from their places of origin within their countries or across
borders, such migration itself is seen as the cause of trafficking.
This has been the case in Nepal where The Foreign Employment
Act 1985, restricts the rights of women under the age of 35
to travel abroad to work unless accompanied by a male relative
or only with the consent of .a guardian. This has resulted in
the restriction of the movement of women leading to the violation
of women's right to mobility, and a reduction in their job options.
It further reinforces women's dependency on male relatives and
generally increases their vulnerability.
Need for
a clear and realistic definition of trafficking
-
Clear
and realistic definition of trafficking is important but still
missing in the attempts to curb trafficking worldwide. Existing
understanding of trafficking has tended to conflate trafficking
with smuggling of migrants or with prostitution. The United
Nations Commission on Crime Prevention has proposed a distinction
between trafficking and migrant smuggling. The latter has been
defined by this body to be "the procurement, in order to
obtain, directly or indirectly, a financial or other material
benefit, of the illegal entry of a person into a State Party
of which the person is not a national or a permanent resident."[3]
The first international definition of trafficking has also been
produced by this body and is contained in the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women
and Children. In this protocol trafficking is defined as:
"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 purposes 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."[4]
While this
definition seems to be comprehensive and takes into consideration
the actions of many parties who are responsible for transporting,
harbouring or the receiving of trafficked persons, it seems to
emphasise the criminalisation of the process of movement of the
trafficked person. The emphasis is better placed in the outcomes
of trafficking when women may find themselves unwilling parties
not only during the process of transportation but perhaps after
they have been trafficked and placed in certain "jobs".
In fact they may have been willing parties during the process
of movement and they may fall victims of trafficking, their vulnerability
as a result from the illegal status and language difficulty, making
them an easy prey for exploitation. Many countries like Sweden
that has a proposed law on trafficking also have a definition
of trafficking that recognises trafficking only if a person has
been coerced or deceived into "moving". Under this definition,
if a person comes willingly from her country but finds herself
in a coercive situation after arrival, she will not be protected
by the law on trafficking. Women activists in Thailand have provided
a different picture of the situation describing a continuum of
contexts in the process of trafficking.
The context
of trafficking - for different purposes - can be understood through
a trafficking continuum as outlined by Dr. Kritiya Archavanitkul
(1998):[5]
Trafficking
Continuum
Totally
forced
labour |
|
Totally
Voluntary Labour |
A. Victims
are forced and/or kidnapped, and trafficked.
B. Victims are given false information, and are trafficked into
types of business other than promised.
C. Victims are aware of the kind of work, but not the work condition.
D. Victims are aware of the kind of work and work condition, but
are not aware and/or are able to foresee the difficult situations
they may encounter.
E. The workers (who may have been trafficked victims before) are
aware of the kind of work and work conditions, but are not given
alternative work-site (cannot choose where they want to work).
F. The workers (who may have been trafficked victims before) are
aware of the kind of work and work conditions and are able to
select their work-site.
The above
continuum of contexts helps us cast the net wide and enable most
of the affected women to benefit from the law.
Need for
bilateral and multilateral agreements
· Trafficking
involves more than one country hence it is important that bilateral
or multilateral agreements such as the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention Against Transnational
Organised Crime are entered into. It is then imperative that according
to article 5 of the above protocol domestic legislation and other
measures are adopted to establish criminal offence regarding abusive
brokerage practices, deception and coercion during the recruitment
and transport process on the one hand and the exploitative working
and living conditions once at the destination on the other as
well as to provide protection and support to victims as committed
to in the bilateral or multilateral agreements.
Addressing
all violations comprehensively
During the
recruitment process, there is usually a degree of deception involved:
The women may not be told the truth about the kind of work they
will do, or the working and living conditions they will find.
During the
process of transportation, the women may face different forms
of violence including rape. In many cases, they are given false
documents to travel which make them vulnerable as illegal migrants
and are subjected to prosecution under immigration laws.
At a transit
or destination place, the women also face with different degrees
of violence and exploitation. They may find themselves in a situation
of debt-bondage, slavery i.e. being sold and resold, and are made
to accept work in the conditions that they did not expect. In
many cases, these conditions include poor and unhygienic working
and living environment, confinement, long working hours and very
low or no wage. In many cases, trafficked women are threatened
about different dangers that they or their family may face if
they try to run away. Trafficked women are also vulnerable to
sexual abuse by the employers. In addition to the above conditions,
for women who are forced into prostitution, most are denied rights
to choose clients and conditions of selling sex as well as methods
to prevent themselves from sexually transmitted diseases and HIV/AIDS."
Enumerating
the legal obligations of receiving and sending country to protect
the rights of the victim
-
The
legal provisions in the agreements will set out different and
to some extent common sets of obligations of receiving and sending
countries. It would be essential for both sets of countries
to have laws that criminalise brokerage practices, deception
and coercion during the recruitment and transport process as
agents may be from both sides. Along with this, the legal provisions
should also provide for adequate victim protection and support,
legal aid and information about rights. In the country of entry
provisions for various forms of social support such as on going
income earning opportunities, housing, asylum, and potential
for permanent stay etc. is essential. The privacy of the women
must also have legal protection
In countries
like the Netherlands it was reported at the CEDAW session in June
2000 that with regard to trafficking in women, there were provisions
for granting asylum and for granting residence permits to victims
of trafficking in women. The granting of residence permits applied
to a victim of trafficking who could be granted a temporary residence
permit or possibly a permanent one on humanitarian grounds. Victims
were given three months to decide whether they wished to press
charges, during which time they could remain in the Netherlands
and take advantage of financial, legal and other services. If
the available evidence indicated that returning to the home country
would be too dangerous, a permanent permit would be granted. The
granting of temporary resident permits were automatically done
within 24 hours of filing the complaint.
But there
were flaws in the implementation of these laws. There is a lack
of information among legal and other organisations on the types
of protection available and women end up in hopeless asylum seeking
situations and the fact they are victims of trafficking is ignored
or not recognised and do not get protection. No support is given
to victims to build a new future when investigations are on; they
are in shelters but not granted work permits. Once the case is
heard they have to go home even if in danger of reprisal. This
is because it is difficult to prove in the courts of the Netherlands
that the women would be in danger of reprisal on return. So it
is not enough to have protective laws, the effects of the laws
need to be monitored.
-
Sending
countries must undertake legal obligations for repatriation,
and multi sectoral programmes for reintegration into society,
which would include, health services, shelter, and building
up of economic capability and for physical and psychological
recovery. Such programmes need to be provided without coercion.
Special
attention to be given to ethnic minorities and stateless persons
-
Women
of ethnic minorities or stateless women who fall victims of
trafficking often face problems in returning home. In a detention
centre in Taiwan, there were six Thai women and a child who
had been there for three years. The women had been trafficked
to Taiwan and forced into prostitution. The delay in their deportation
was due to the fact that they were stateless, being descendants
of refugees from China who had not been granted Thai citizenship.
Similar situations have also been documented among Vietnamese
women who are arrested and detained in Thailand. The law must
provide for special treatment for the most vulnerable groups.
Information
exchange and cooperation
-
There
must be provisions in the agreements to establish cooperation
between and among countries regarding sharing of information
such as methods of transport of the trafficked persons, border
controls and obligations placed on carriers to monitor and keep
of the use of the carriers for trafficking of persons.
Legal obligation
for capacity building
The elimination
of all forms of discrimination
-
Long
term and short term measures for prevention should be a key
focus. Discrimination against women in all its forms must be
eliminated in countries of origins. In receiving countries,
all laws and policies need to be examined to assess whether
they contribute to the vulnerability of migrant women. For example,
in the Netherlands, non-European Union migrants not given permits
to work legally as prostitutes although more than half the prostitutes
working in the Netherlands come from non-European Union countries.
These women are more vulnerable to trafficking.
Discussion
points
1. What are
the strengths and weaknesses of the SAARC draft Convention on
Trafficking and the Protocol to Prevent, Suppress and Punish Trafficking
in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organised Crime from
the perspective of the human rights of trafficked women?
2. Identify
and discuss country level good practices (laws and programmes)
in addressing trafficking: prevention, prosecution of crime, protection
of the rights of trafficked women, and support services in country
of origin upon return and in country of receipt.
3. Identify
strategies and actions to fill gaps in current practices, national/bilateral
and multilateral.
ENDNOTES
[1] GAATW.
"Trafficking in Women in Thailand". Baseline report
prepared for the IWRAW Asia Pacific Project on 'Facilitating the
Fulfilment of State Obligation to Women's Equality'. Draft.
[2] This is the expert UN Committee that monitors the compliance
of States with their obligations under the Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW Convention).
[3] Protocol against Smuggling of Migrants by Land, Sea and Air,
supplementing the United Nations Convention against Transnational
Organised Crime.
[4] Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations
Convention against Transnational Organised Crime.
[5] Cited in GAATW. op. cit.
[6] GAATW. op. cit.
[7] GAATW. op. cit.
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page was last updated on July 25, 2003
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