Combating Trafficking in Women and Children (Date: 27/03/2005)

Combating Trafficking in Women and Children
Trafficking in women and children is a consequence of structured gender inequality and is a form of violence. Counter-trafficking strategies must be anchored in a human rights framework.

As trafficking in persons, especially women and children for forced labour or "sex slavery", becomes increasingly linked to transnational organized crime, Governments have decided that a separate legal instrument - a Protocol against Trafficking in Persons, especially Women and Children - is needed to fight it. Despite the existence of a number of instruments to combat the exploitation of persons, especially women and children, a universal instrument that addresses all aspects of trafficking in persons was needed. Its aim is to Prevent, Suppress and Punish trafficking in persons especially women and children. The Palermo Protocol as it is more commonly known, supplements the United Nations Convention against Transnational Organised Crime.

The treaty and its protocols were drafted by a special committee involving more than 120 UN member countries and adopted in November 2000 by the Millennium General Assembly. They were opened for signature at a high-level meeting in Palermo, Italy, the following month and will go into force after 40 governments have ratified them.

The purposes of this protocol are to prevent and combat trafficking of persons; to protect and assist the victims of such trafficking with full respect for their human rights and to promote cooperation among state parties

While states, acting both individually and collectively, have taken measures aimed at ensuring the criminalization of trafficking – including through the adoption of legislation at the national level and binding multilateral treaties such as the Palermo Protocol, there is growing recognition that more needs to be done to protect the rights of trafficked persons. For these reasons, among others, Amnesty International and Anti-Slavery International welcome the Council of Europe’s focus on trafficking in human beings.

In particular, the organizations welcome the fact that the Council of Europe’s Committee of Ministers has mandated a body of representatives of the member states, the Ad Hoc Committee on Action against Trafficking in Human Beings, (known as CAHTEH) to draft a European Convention on Action against Trafficking in Human Beings (hereinafter draft European Convention against Trafficking) which enhances the protection of the rights of trafficked persons. If the Council of Europe succeeds in this endeavour, it will fill a significant gap as there are currently no binding international standards which comprehensively address states obligations to respect and protect the rights of trafficked persons.

Definition of Trafficking
According to the Palermo Protocol, "Trafficking in persons" means ‘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 includes, 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’
(b) The consent of a victim of trafficking in persons to the intended exploitation is irrelevant
Protecting the victims: While the draft protocol calls for a crackdown on traffickers, it also stresses that trafficking victims should be better protected than in the past. The protocol obliges nations to:
• Consider immigration laws permitting victims of trafficking to remain on their territory, temporarily or permanently;
• Give housing, education and care to child victims in governmental custody;
• Accept and aid, without delay, the return of trafficking victims who are nationals or residents of that nation;
• Inform victims about relevant court and other proceedings against offenders and ensure victims' privacy; and
• Enable victims to seek compensation for damages, including fines, penalties or forfeited proceeds as well as restitution from offender
Keeping witnesses safe: Witnesses may hold evidence crucial for criminal convictions, but the clout wielded by organized crime often frightens them away from criminal proceedings. To encourage witnesses and keep them safe from possible retaliation, nations agree to adopt measures to:
• Keep witnesses physically safe, which may mean relocating them or keeping their identity and whereabouts secret;
• Ensure that testimonies are safe by using communications technology or other methods;
• Allow victims' views to be presented and help them claim restitution from offenders.
Preventing Organized Crime: Keeping criminal groups out of legal businesses and markets is a key strategy for preventing organized crime. Under the Convention, Governments are urged to:
• Tighten cooperation between law enforcers and private entities, including industry;
• Promote codes of conduct for relevant professions, in particular lawyers, notaries public, tax consultants and accountants;
• Prevent organized crime groups from manipulating bidding procedures for public contracts as well as public subsidies and licenses for commercial activity.
Under the Convention, nations seek to stop organized crime from misusing companies or corporations by:
• Setting up public records on companies or corporations as well as persons involved in their establishment, management and funding;
• Using court orders or other means to keep people convicted of organized criminal activities - for a reasonable period of time C from acting as directors of companies or corporations;
• Setting up national registers of people disqualified as directors of companies or corporations.
At the international level, countries will seek to prevent organized crime by exchanging information on trends in transnational organized crime and on best practices to prevent it. They will also take part in international projects aimed at preventing transnational organized crime.
Sharing information: To boost links between law enforcers in countries of trafficking origin, transit and destination, nations agree through the protocol to exchange information they have gleaned about offenders, including:
• Whether individuals crossing international borders with false papers or no documents are traffickers or victims;
• The methods used by criminal groups to transport trafficking victims under false identities;
• Other trafficking techniques, including recruitment practices, trafficking routes and links between as well as among individuals and trafficking groups.
The working session organized in Geneve (December 2004) by the International Council of Women (ICW) in preparation for the ECE Regional Preparatory Meeting on the 2005 Review of the Implementation of the Beijing Platform of Action made the following recommendations:
• Governments must recognize that trafficking in human beings and particularly in women and children, is a major violation of human rights. They must therefore implement and monitor the Palermo Protocol and all other relevant human right instruments and allocate sufficient resources to prevent and combat this gross human rights violation.
• Safeguarding the human rights of women and of all victims of trafficking must be central to all considerations and measures in relation to prevention, protection of victims and prosecution of perpetrators.
• The safety and protection of women and children who are victims of trafficking must be the overriding consideration at all times, so that:
Protection of victims must not be conditional on any agreements to give evidence to or to cooperate with the criminal justice system and other authorities.
There shall be no penalties for victims of trafficking in countries of origin, transit or destination. Victims of trafficking must never be treated as illegal immigrants or any other way criminalized.
- Protection and support must be provided to all women and children who are victims of trafficking regardless of their legal status, or the presence or absence of documents showing their status.
- Destination countries must establish mechanisms for legal migration. Counter- trafficking strategies should not be used as a means to stem legal migration.
- A person must be granted protection as soon as she is recognized as a victim of trafficking and must be granted rights as stated in article 6 of the Palermo Protocol, including all forms of social, employment, legal and housing support, as well as comprehensive health services and specifically access to sexual and reproductive health rights.
- National legislation should ensure the right to compensation to victims of trafficking for physical, psychological and material damages.

• Prevention strategies of countries of origin must reflect and be reflected in poverty reduction and social development strategies with specific reference to economic opportunities for women.
• Long term prevention strategies must address the root causes of trafficking and these include poverty, discrimination, racism, patriarchal structures, violence against women, fundamentalisms, gender inequality, lack of social safety nets, money laundering, corruption, political instability, conflicts and uncontrolled zones, barriers and disparities between countries.
• All governments must introduce measures that recognize the unequal power relations between women and men and must introduce positive measures to promote the empowerment of women in all areas of life.
• Forced marriage can be seen as a form of trafficking and is a gross violation of women’s and girls’ human rights and a form of violence against women, particularly sexual violence. Governments must take all necessary measures, including legal and policy measures, to eliminate this practice.
• Governments must develop a comprehensive witness protection mechanism including the legal representation and protection of the privacy of victims, anonymous certified statements in courts, and special protection throughout the duration of the criminal proceedings.
• Governments must strengthen legislation and the enforcement of the legislation in relation to sanctions against all perpetrators of trafficking including transnational criminals. The states must establish special funds supplied by confiscated asset or by fines paid by traffickers who are convicted in criminal proceedings.
• Research must be conducted in the countries and regions of origin, transit and destination in order to generate a more comprehensive understanding of the dynamics of human trafficking and to develop effective strategies to combat trafficking in women and children.
• Trade agreements and agreeements related to development cooperation must be monitored from a gender perspective with specific reference to countries and situations where trafficking in women and children is known to be a reality.
• In relation to the demand that fosters trafficking, governments shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral or multilateral cooperation to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.

Amnesty International and Anti-Slavery International believe that the draft European Convention against Trafficking in Human Beings builds upon existing international standards of protection for trafficked persons, in particular by expanding the definition of trafficking set out in the Palermo Protocol to expressly include internal (in-state) trafficking and trafficking not necessarily involving organized criminal groups;.
Other recommendations on the December Draft European Convention on Trafficking in Human Beings include measures regarding trafficked children stating that "When the age of the victim is uncertain and there are reasons to believe that the victim is a child, the presumption shall be that the victim is a child, and she/he will be accorded special protection measures pending verification of his/her age.

As soon as a child is identified as a victim Governments shall:
• provide for representation of the child by a legal guardian, organisation or authority, with relevant appropriate training, experience and skills, which is responsible to act in the best interests of that child;
• take the necessary steps to establish his/her identity and nationality;
• make every effort to locate his/her family when the child is unaccompanied and this is in the best interests of the child;
• appoint a relevantly-experienced lawyer to represent the child;
• ensure that, in all actions concerning child victims, whether undertaken by public or private social welfare institutions, police, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be the primary consideration;
• ensure that child victims are, as soon as possible after their identification, informed of their rights and the assistance and services available to them in a language that they understand and are placed in safe and suitable accommodation (i.e. temporary shelter or location of alternative care arrangement)."

Malta has signed and ratified the UN Convention and the subsequent protocols on trafficking of human beings, women and children in particular. However implementation requires capacity building. Above all there is a dire need to create awareness in society of the implications of trafficking; it is a violation of human rights. The fact that there is little awareness of these crimes makes it all the more necessary for Government to allocate the necessary funds and take the necessary measures to prevent and combat trafficking of human beings not only by organised criminal groups but also by individuals who seek to enrich themselves at the expense of desperate human beings in their attempt to seek a better life.