1. Trafficking and related threats to human security ISS & IOM Training on Countering Human Trafficking at Addis Ababa, Ethiopia, on 28 November, 2012 Eric Peasah Migration consultant epeasah@yahoo.com

2.  All content of this presentation is based on best practices and experiences in other countries;  Any criminal justice response to a crime is dependant on a number of country-specific factors including: legal systemslegal systems penal definitionspenal definitions proceduresprocedures infrastructure and resourcesinfrastructure and resources case-loadscase-loads PolicyPolicy  However, basic principles should remain the same  expression of a commitment of a state to combat a known form of organized crime; INTRODUCTION & ASSUMPTIONS

3. INTERNATIONAL CRIME VS. TRANSNATIONAL CRIME  International crime: offense against the world community (acts that threaten world order and security, crimes against humanity and fundamental human rights, war crimes, and genocide)  Transnational crime: affecting the interests of more than one state (drug trafficking, transborder organized criminal activity, counterfeiting, money laundering, financial crimes, terrorism, and willful damage to the environment).

4. CHALLANGES  Globalisation of criminal activities vs. international efforts to combat transnational crime  Prevention & prosecution - multi-dimensional and complex.  Crimes diversify with global development  Jurisdiction  Prisoner transfer,  Extradition,  Procedural issues

5. COMBATING TRANSNATIONAL ORGANIZED CRIME  Beyond legal prohibitions and prosecutions  Independent judiciary, civil service reform, and rule of law - centerpieces  The absence of an international police force  Corruption - undermine the ability to combat organized crime

6. CHARACTERISTICS  Transnational organized crime -- major challenge for legislators, prosecutors and law enforcement officials.  Criminal groups -- communicate/ coordinate -- elude law enforcement  Criminal groups - take advantage of gaps in national law, jurisdictional problems or a lack of accurate information about the full scope of their activities  Increase in flow of information -- new opportunities for organized crime.

7. SPECIFIC CRIMES  Human Rights and War Crimes  Organized Crime (Narcotics, trafficking, money laundering)  CyberCrime  Environmental Crime  Terrorism

8. TRANSNATIONAL CRIME AS A SECURITY ISSUE Transnational crime -- increasingly a security threat terrorism, corruption (including military and law enforcement) involvement of governmental actors with organized crime and terrorists financing and perpetuating regional conflicts post-conflict situations involvement in the international economy active in both the legitimate and illegitimate economies (money laundering) underground banking systems

9.  participation in an organized criminal group - balancing conspiracy (common law) with various versions in continental jurisdictions. Aim -> facilitate cooperation  money laundering;  corruption; and  obstruction of justice UN CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME – OFFENCES:

10. TRANSNATIONALITY  transnational in nature if: it is committed in more than one State; it is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State; it is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; it is committed in one State but has substantial effects in another State.

11. IOM - International Organization for Migration COMBATING TRAFFICKING IN HUMAN BEINGS AND SMUGGLING OF MIGRANTS

12. UN CONVENTION & PROTOCOLS  Palermo Convention & Protocols - new approach to the problem in several respects official definition of “trafficking in persons”/ smuggling, combines traditional crime control measures (investigate, prosecute, punish) with measures to protect victims

13. DEFINITION OF TRAFFICKING three elements [action:] the recruitment, transportation, transfer, harbouring, or receipt of persons [means:] by means of the threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim [purpose:] for the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices, and the removal of organs.

14. DEFINITION OF SMUGGLING OF MIGRANTS “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”

15.  Forced labour – agriculture, fishery, construction, mines, sweatshops, catering  Sexual Exploitation  Domestic servitude  Criminality  Forced Military service  Organ removals  Etc. EXPLOITATION

16.  Poverty  Lack of opportunities/ unemployment  Social and Political Conflicts - (destabilize and displace population)  Social and cultural practices Marginalisation/Subordination of women and girlsMarginalisation/Subordination of women and girls Sale of young women by their familiesSale of young women by their families Entrusting poor children to more affluent friends or relativesEntrusting poor children to more affluent friends or relatives  Feminization of migration  Lack of information SOME ROOT CAUSES

17.  Demand for inexpensive labour  Unrealistic/ Restrictive immigration policies PULL FACTORS

18.  Few risks for traffickers Absence of legislation Limited Capacity Lack of law enforcement training/ coordination; corruption  Low investment  Victims can be re-sold several times  Huge profits  Support networks related to other criminal activities MOTIVATIONS FOR TRAFFICKERS

19.  Violation of human rights  Abuse/ coercion  Illegal status in the country of destination  Victims treated as criminals  Risk/ danger of death and serious diseases (physical and mental)  Difficult reintegration / stigmatisation CONSEQUENCES FOR VICTIMS

20.  Increase of irregular migration  Presence of criminal organizations/ activities  Networks of corruption  Problems of national security border control relations with bordering countries  Challenges to national legislation migration labour Human rights CONSEQUENCES

21. SMUGGLING OF MIGRANTS Procurement of Illegal Entry For financial or other material gain Across a border into another state In other words, trafficking in persons is smuggling plus coercion or deception at the beginning of the process and exploitation at the end

22. DIFFERENCES BETWEEN TRAFFICKING AND SMUGGLING The smuggling of migrants, while often undertaken in dangerous or degrading conditions, involves migrants who have consented to the smuggling. Trafficking victims, on the other hand, have either never consented or, if they initially consented, that consent has been rendered meaningless by the coercive, deceptive or abusive actions of the traffickers Consent smuggling ends with the arrival of the migrants at their destination, whereas trafficking involves the ongoing exploitation of the victims in some manner to generate illicit profits for the traffickers. Exploitation Smuggling is always transnational, whereas trafficking need not be. Trafficking can occur regardless of whether victims are taken to another country or only moved from one place to another within the same country Transnationality

23. CRIMES RELATED TO TRAFFICKING/ SMUGGLING

24. IOM - International Organization for Migration Trafficking in Human Beings: THE CRIMINAL JUSTICE RESPONSE Trafficking in Human Beings: THE CRIMINAL JUSTICE RESPONSE

25.  Blurring of borders between source, destination and transit country  Victims trafficked to and from neighboring countries but also to and from more distant countries – international criminal networks;  Victim trafficked within one country;  Increased complexity/ dynamism of trafficking patterns  Increased pressure to migrate  increased pool of potential victims; MODERN TRAFFICKING TYPOLOGY IOM - International Organization for Migration

29. CASE STUDY INTERRELATION OF ORGANIZED CRIME WEST AFRICA FINANCING OF TERRORISM DIAMONDS TIMBER DRUGS ARMS CONFLICT FINANCING OF ORGANIZED CRIME

30. IOM - International Organization for Migration

31. WHAT CAN A SINGLE COUNTRY DO? QUESTION IOM - International Organization for Migration

32.  Clear understanding of the situation to which legislation/ criminal system should apply;  Understanding trafficking patterns and particularities;  Understanding Criminal Justice Patterns (even very subtle patterns have an impact);  Allowing flexibility in application – containing potential future changes in trafficking patterns  Adapting Abstract principles to: -Infrastructure; -Judicial/ administrative culture; -Institutional framework; CHALLENGES IOM - International Organization for Migration

33. LEGISLATION vs. CRIMINAL JUSTICE  Legislation must create an environment for efficient criminal justice response in practice.  Legislation defines the abstract rules but has no effects without an adequate criminal justice system.  Factors: administrative systems role of law enforcement, prosecution, courts criminal proceedings and civil/ private law proceedings evidence status of victims and witnesses KEY WORD: PRAGMATISM

34. IOM - International Organization for Migration CRIMINAL JUSTICE - ACTORS  Main actors  Law enforcement agencies and courts;  The success in individual cases may depend on the involvement of other actors in various stages (NGOs).  Always, criminal justice agencies must operate within rule of law – EASIER IN THEORY THAN IN PRACTICE

35. IOM - International Organization for Migration TRAFFICKING SPECIFIC CHALLANGES Victim identification Early identification – very important Victims of trafficking are often mistakenly classified and treated as illegal migrants rather than as victims of serious crimes; Genuine trafficked victims are likely to have immediate and acute physical, medical and psychosocial needs that are not normally present in cases of smuggling or other irregular migrants. Proper identification and treatment of genuine victims prevents their re- victimization by law enforcement agencies.

36. IOM - International Organization for Migration TRAFFICKING SPECIFIC CHALLANGES Victims reluctant to co-operate Fear of violent reprisal from traffickers or traffickers’ associates; Poor understanding and/or fear of the criminal justice system; Lack of trust in law enforcement/judicial system Do not want to experience the delay of the judicial proceedings and want to return home as soon as possible and/or return to normality Many believe they will receive no satisfaction from following through with the prosecution; Some are overwhelmed by feelings of guilt and shame; Some think they have obtained their goal with the arrest of their traffickers and do not want to pursue the prosecution all the way until court.

37. IOM - International Organization for Migration TRAFFICKING SPECIFIC CHALLANGES Difficulties in obtaining Evidence Many activities look like or border legitimate activities; Crimes happen in confined spaces, without witnesses; Victims usually “outside system”; MORE?

38. IOM - International Organization for Migration INTERVENTION, INTELLIGENCE & EVIDENCE At what stage does the intelligence-gathering activity stop and the proactive evidence-gathering operation begin?

39. IOM - International Organization for Migration DON‘Ts  Be discouraged by the lack of resources and abandoning individual cases;  Reject hypothesis of trafficking in cases when an apparent legal contract exists between victim and exploiter;  Miss-qualify cases of trafficking as fraud, etc.  Assume prostitution is always voluntary

40. IOM - International Organization for Migration FACTORS THAT IMPROVE EFFICIENCY OF CRIMINAL JUSTICE RESPONSE:  inter-agency cooperation  exchange of information  cooperation with NGOs  International cooperation/ cross border  Judicial cooperation

41. IOM - International Organization for Migration PRINCIPLES  all elements of the crime must be effectively prosecuted  all persons engaged in trafficking, intermediaries, accomplices, facilitators etc must be subject to sanction  Penalties should take account of the grave nature of the offences  no penalization of the victims of trafficking, through the use of the criminal, immigration or other law

42. IOM - International Organization for Migration THE CIVIL/ PRIVATE LAW AVENUE  Principle: somebody who has been harmed has the right to compensation  Victim  harmed by the trafficking process  Victim  has a standing in a claim for compensation against trafficker  Claim  governed by private law WHY IS THIS RELEVANT FOR THE CRIMINAL JUSTICE PROCESS?

43. IOM - International Organization for Migration THE CIVIL/ PRIVATE LAW AVENUE  The decision in a criminal court is admitted as fact in a civil court  the plaintiff need not prove the existence of trafficking, once a criminal court has decided.  Incentives: For victim to cooperate with prosecution For victim to seek/ accept legal representation For legal professionals to get involved

44. IOM - International Organization for Migration THE VICIOUS CIRCLE OF ORGANIZED CRIME DRUG ABUSE Spreading along trafficking routes TRAFFICKING Narcotics, arms, human beings, natural resources, etc ORGANIZED CRIME Emerging cartels Pervasive corruption Recourse to violence Document fraud HIV-AIDS Spill over effect from trafficking of both narcotics and human beings

45. DON’T CLOSE YOUR EYES TO HUMAN TRAFFICKING IT IS REAL

46. THANK YOU ! FOR YOUR ATTENTION AND PARTICIPATION Eric Peasah epeasah@yahoo.com