Trafficking in Human Beings: Definition and Legal Framework

Trafficking in Human Beings: Definition and Legal Framework
“Training for Diplomatic and Consular Personnel” Helsinki 11 November 2009 Tatiana Jardan IOM Moldova

THB: Definition and Legal Framework
Objectives: To learn about: IOM’s approach to Counter Trafficking Basics of Human Trafficking phenomenon International Legal Framework Differences and similarities between trafficking and smuggling; Differences and similarities between trafficking and prostitution; Case Studies – group discussions THB: Definition and Legal Framework

THB: Definition and Legal Framework

IOM’s approach in Counter Trafficking
Governing Principles: Respect for human rights Physical, mental and social well-being of the individual and his or her community Sustainability through institutional capacity building of governments and civil society Operational Standards: provide protection and empower trafficked women, men, girls and boys raise awareness and understanding of the issue bring justice to trafficked persons Since 1994: 500 projects in 85 countries approximately 15,000 trafficked persons assisted IOM takes a comprehensive approach to trafficking in persons within the wider context of managing migration. IOM's wide range of activities are implemented in partnership with governmental institutions, NGOs and international organizations. The approach is based on three principles that govern all counter trafficking activities: Respect for human rights Physical, mental and social well-being of the individual and his or her community Sustainability through institutional capacity building of governments and civil society To fight against exploitation of migrants in all its forms, especially the severe human rights violations suffered by trafficked persons. Building on our individual commitment and global presence, we strengthen the capacities of our partners in government and civil society and set operational standards to achieve sustainable results that will: provide protection and empower trafficked women, men, girls and boys raise awareness and understanding of the issue bring justice to trafficked persons The International Organization for Migration (IOM) has been working to counter the trafficking in persons since In this time, the Organization has implemented almost 500 projects in 85 countries, and has provided assistance to approximately 15,000 trafficked persons. IOM's primary aims are to prevent trafficking in persons, and to protect victims of the trade while offering them options of safe and sustainable reintegration and/or return to their home countries. Prevention – better than cure Technical cooperation – capacity building for both government and NGOs Direct Assistance – working directly with victim’s Counter Trafficking Module Database - In 2000, IOM developed and implemented a standardized CT data-management tool, the Counter-Trafficking Module (CTM), which is the largest global database with primary data on VoTs. THB: Definition and Legal Framework

What is Trafficking in Human Beings?
Trafficking in persons is an underreported crime- each year a high number of women, men, boys and girls become victims of trafficking Trafficking should be seen as a process, starting with the recruitment and ending with the exploitation of the victim Trafficking is a severe crime that violates the human rights of its many victims The patterns of human trafficking are constantly changing- global economic changes and the inventiveness of traffickers THB: Definition and Legal Framework

What is Trafficking in Human Beings?
Trafficking of Human Beings Actions Recruitment Transportation Transfer Harboring/Receipt Exploitation Means Threat/use of force Forms of coercion Abduction Fraud Deception Abuse of power Situation of vulnerability Receiving of payments/benefits Purpose Sexual exploitation Forced labor or services Slavery/practices similar to slavery Servitude Begging Organ/tissue removal Armed conflicts Organized crime Surrogate mother Combined

How does THB work? Recruitment: Abduction, forcible recruitment, fully deceptive recruitment, partially deceptive recruitment Transportation: Country of origin, country of transit, country of destination; Types: Legal or illegal; Means: Plane, bus, car, train, ship; Exploitation: Sexual exploitation, forced labor, forms of slavery, begging, organ transplant, armed conflicts, organized crime, surrogate mother; Trafficking is No. 3 in the world after the illegal sales of arms and narcotics in terms of profit. Fully deceptive recruitment – victims are attracted by false promises of a well-paid job being totally deceived about real intentions of traffickers: destination place, job, working conditions, freedom, remuneration, etc. Partially deceptive recruitment – victims understand at the beginning what type or services they will provide, but DO NOT know the conditions; Country of origin – the country of residence from which a victim comes; Characteristics of Countries of Origin: Poor economic performance, development Lack of job opportunities, especially for women Traditional sex-segregation of employment and other opportunities Growth of women as income earners, sole supports of families (feminization of migration) Country of transit – the intermediate country/ies of passage positioned on a victim’s route to an intended destination Country of destination – the country where the victim is harbored and exploited Characteristics of Countries of Destination Developed states, with relatively higher economic standards and prospects High demand for cheap and unskilled labor, low wages Aging native population Native population unwilling to work in unskilled, low wage jobs Strict migration regimes making legal migration difficult Trafficking routes will always reflect a consistent factor: the destination countries for victims will always be those where exists demand for their services , where the potential benefit from their exploitation is the biggest. THB: Definition and Legal Framework

The Causes Human trafficking is a highly profitable economic crime that is based on the principles of supply and demand and which exploits a series of “push and pull” factors in the countries of origin and destination A continuous supply of victims within the countries of origin A constant and growing demand for the services of the victims in the countries of destination The criminal exploitation of these two factors by international organised criminals Human trafficking is a highly profitable economic crime that is based upon the principles of supply and demand and which exploits a series of ‘push and pull’ factors in the countries of origin and destination THB: Definition and Legal Framework

Push Factors: Poverty – and the feminisation of poverty Lack of education Unemployment Gender discrimination Domestic violence Life within dysfunctional families Impact of conflict or transition on countries Lack of opportunity for legal migration Lack of opportunity or alternatives THB: Definition and Legal Framework

Pull Factors: Expectation of employment and financial reward In the sex industry, expectation of rich financial rewards Access to material benefits associated with the West Improved social position and treatment Perceived ‘glamour’ of Western European daily life Demand of reproductive work of women Demand of the “exotic” women as prostitute Demand of cheap labour men and women THB: Definition and Legal Framework

(country of destination)
Home (country of origin) Abroad (country of destination) Causes of Trafficking  Forced Migration? Few job opportunities for women Limited legal alternatives to work abroad Growth of women as sole supports of families Gender and youth issues Lack of social safety nets Domestic violence Prostitution Substance abuse Unequal access to opportunities due to corruption  Re-integration into the same socio-economic environment? Prevention Exploited & Trapped Circumstances of Trafficking Circumstances of Return Cure Areas covered by counter-trafficking activities THB: Definition and Legal Framework

Palermo Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000)- supplementing the UN Convention Against Trans-national Organised Crime 2000 The Council of Europe Convention on Action against Trafficking in Human Beings (entered into force in February 2008) Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (entered into force on 18 January 2002) National/Domestic Law The United Nations Convention against Transnational Organized Crime, adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. It opened for signature by Member States at a High-level Political Conference convened for that purpose in Palermo, Italy, on December 2000 and entered into force on 29 September The Convention is further supplemented by three Protocols, which target specific areas and manifestations of organized crime: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the Protocol against the Smuggling of Migrants by Land, Sea and Air; and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition. Countries must become parties to the Convention itself before they can become parties to any of the Protocols. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, was adopted by General Assembly resolution 55/25. It entered into force on 25 December It is the first global legally binding instrument with an agreed definition on trafficking in persons. The intention behind this definition is to facilitate convergence in national approaches with regard to the establishment of domestic criminal offences that would support efficient international cooperation in investigating and prosecuting trafficking in persons cases. An additional objective of the Protocol is to protect and assist the victims of trafficking in persons with full respect for their human rights. THB: Definition and Legal Framework

Palermo Protocol “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children” Article 2 - purpose of the protocol is: Prevent and combat trafficking in persons, particular attention to women and children Protect and assist the victims of such trafficking, with full respect for their human rights Promote co-operation amongst States in order to meet the two above-mentioned objectives. Article Three of the Protocol provides a definition of the crime of trafficking: A) ‘Trafficking in persons’ shall mean 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’ 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. (B) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph 3A of this article shall be irrelevant where any of the means set forth in subparagraph 3A have been used. (C) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (A) of this article. (Child – Under 18 years) THB: Definition and Legal Framework

Article 3 of the Protocol
A) ‘Trafficking in persons’ shall mean 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’ 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. (B) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph 3A of this article shall be irrelevant where any of the means set forth in subparagraph 3A have been used. (C) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (A) of this article. (Child – Under 18 years) Children - No need for the the crime to involve any of the means set forth in the definition of trafficking in persons Consent- rendered meaningless if any of the means have been used- can never consent to the means THB: Definition and Legal Framework

The added value of CoE Convention on action against THB
Came into force in the beginning of 2008 THB - an affront to human dignity and a violation of human rights; Definition of the term “Victim” – any natural person who is subject to THB; Proper balance between respect for human rights and prosecution; Comprehensive scope of application: national/ transnational; linked or not with organised crime; Comprehensive legal framework for the protection of and assistance to victims and witnesses GRETA - an efficient and independent monitoring mechanism; Mainstreaming gender equality in its provisions. The Preamble of the Council of Europe Convention contains an enumeration of the most important international legal instruments which directly deal with trafficking in human beings in the framework of the Council of Europe, the European Union and United Nations. The important place that this Convention attributes to the Palermo Protocol is reflected in the adoption of the definition on “trafficking in human beings” agreed upon in this Protocol. As a complement to and development of this United Nations Protocol, which emphasises the crime prevention aspect of trafficking, the Council of Europe Convention clearly defines trafficking as being first and foremost an issue of violation of human rights and emphasises the victims’ protection aspect of trafficking. The aim is to improve the protection afforded by it and to develop the standards contained therein. The drafters wanted the Convention to make clear that it applied to both national and transnational trafficking, whether or not related to organised crime. That is, the Convention is wider in scope than the Palermo Protocol and, as stated in Article 39, is intended to enhance the protection which the Palermo Protocol affords. The need for a European legal instrument in this field became evident once the Council of Europe member States identified the potential added value of a new convention in relation to the other international legal instruments, adopted by United Nations and European Union. The drafters agreed that the future Convention should: focus on effective victims protection; centred on victims needs in order to not use them merely for fighting against trafficking in human beings; avoid, as possible, the references to domestic law; establish an independent and efficient monitoring mechanism; get over the divergences between countries of origin and destination, in order to fight effectively against this new form of slavery. Furthermore, the Convention includes in its title the term “action” in order to underline that the Convention provides not only legislative measures but also other initiatives to be taken to combat trafficking in human beings. Action against trafficking in human beings should be understood to include prevention and assistance to victims as well as criminal law measures designed to combat trafficking in human beings. In conclusion, it could be said that the added value of this new Council of Europe Convention in relation to the other existing international legal instruments is: SLIDE In addition, a European Convention benefits from the more limited and uniform context of the Council of Europe, contain more precise provisions and may go beyond the minimum standards agreed upon in other international instruments. THB: Definition and Legal Framework

Schengen Agreement and EU Acquis
Schengen Agreement: 25 countries - eliminated border controls with other Schengen members while simultaneously strengthening border controls with non-member states EU Acquis and free movement of people, one of the four basic freedoms + The Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely (Freedom of movement for workers) [In addition, the Schengen co-operation is being evaluated specifically in regard to its operation against THB. An evaluation report will … and be further discussed in the Council’s working structures with a view to make best possible use of its findings, including the identification of best practices on visa issuance, border controls and police cooperation for the benefit of all Schengen Member States.] Freedom of movement – does it make the THB problem more complicated? To discuss with the participants. What does it mean for traffickers? It means that their “clients” and our beneficiaries can be transported without any border control. What does it mean for anti-trafficking GO and NGO? THB: Definition and Legal Framework

EU Action against THB Council Framework Decision on Combating THB (July 2002) – New proposal under revision – a more integrated and holistic approach in the fight against THB; Council Directive on the residence permit issued to third-country nationals who are victims of THB or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (April 2004) - define the conditions for granting residence permits of limited duration; Council Directive relating to compensation to crime victims (April 2004 ) EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings ( Dec. 2005) - coordination of EU action, scoping the problem, prevention, reducing the demand, investigating and prosecuting, protecting and supporting victims of trafficking, returns and reintegration, external relations. Council Framework Decision - This framework decision aims to approximate the laws and regulations of the Member States in the field of police and judicial cooperation in criminal matters relating to the fight against trafficking in human beings. It also aims to introduce at European level, common framework provisions in order to address certain issues such as criminalisation, penalties and other sanctions, aggravating circumstances, jurisdiction and extradition. In spring 2009, the European Commission presented a proposal for a new Framework Decision on preventing and combating trafficking in human beings, and protecting victims. The aim of the proposal, which is intended to replace the current Framework Decision on human trafficking from 2002, is to create a more integrated, holistic approach in the fight against trafficking in human beings. The objective is to prevent and prosecute human trafficking crimes and protect those who fall victim to these crimes more extensively. It is intended to discuss this proposal at the Justice and Home Affairs Council on 23 October 2009, and to reach a political agreement on the Framework Decision at the next Council meeting on 30 November-1 December 2009. THB: Definition and Legal Framework

Additional Relevant International Legal Instruments
Slavery Conventions 1926, 1930 and 1956 Worst Forms of Child Labour Convention 1999 UN Convention on the Rights of the Child Articles 1 and 2 provisions UNHCR Principles & Guidelines UNICEF Guidelines on Child Trafficking ILO Convention Concerning Forced Labour (1932) The purpose of the Schengen Agreement is to enable people to move freely between the countries that are a party to it. All who enter or leave the Schengen zone, however, are to be carefully checked. The guiding principle is that all persons legally present in the Schengen zone can move about freely without having to show passports when crossing internal frontiers. These internal frontiers are defined as the national boundaries between the countries taking part in Schengen, together with airports and seaports in the case of traffic to and from a Schengen country. You can cross the internal frontiers wherever and when-ever you like without having to undergo being checked personally. THB: Definition and Legal Framework

Trafficking and Smuggling / Illegal Migration
Article 2 Statement of purpose The purpose of this Protocol is to prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants. Article 3 Use of terms For the purposes of this Protocol: (a) “Smuggling of migrants” shall mean 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; (b) “Illegal entry” shall mean crossing borders without complying with the necessary requirements for legal entry into the receiving State; (c) “Fraudulent travel or identity document” shall mean any travel or identity document: (i) That has been falsely made or altered in some material way by anyone other than a person or agency lawfully authorized to make or issue the travel or identity document on behalf of a State; or That has been improperly issued or obtained through misrepresentation, corruption or duress or in any other unlawful manner; or (iii) That is being used by a person other than the rightful holder; (d) “Vessel” shall mean any type of water craft, including nondisplacement craft and seaplanes, used or capable of being used as a means of transportation on water, except a warship, naval auxiliary or other vessel owned or operated by a Government and used, for the time being, only on government non-commercial service. THB: Definition and Legal Framework

Definitions of Trafficking and Smuggling: Differences/Similarities
Illegal crossing of national borders and entry to a country, part of illegal migration Anyone can be smuggled Victim is not the person smuggled, but the state which is entered illegally Consent of migrant Intermediaries, criminal networks: facilitate the illegal migration for financial gain TRAFFICKING: Violation of an individual’s human rights Victims: men, women, boys, girls Particularly: women, girls, minorities One aim: financial gain Often organized by criminal networks but a trafficker can also be a friend, a relative, employee… Can happen anywhere, does not have to be international The Protocol against the Smuggling of Migrants by Land, Sea and Air, adopted by General Assembly resolution 55/25, entered into force on 28 January It deals with the growing problem of organized criminal groups who smuggle migrants, often at high risk to the migrants and at great profit for the offenders. A major achievement of the Protocol was that, for the first time in a global international instrument, a definition of smuggling of migrants was developed and agreed upon. The Protocol aims at preventing and combating the smuggling of migrants, as well as promoting cooperation among States parties, while protecting the rights of smuggled migrants and preventing the worst forms of their exploitation which often characterize the smuggling process. FORTRESS EUROPE: Asylum process Majority of smuggled for humanitarian reason even with the help of criminals. (DUBLIN) FINANCIAL GAIN: intermediaries, criminal networks… or HUMANITARIAN MOTIVES: asylum seekers, family reunifications… INDEPENDENT ACTION: crossing a border alone THB: Definition and Legal Framework

Definitions of Trafficked and Smuggled Persons: Differences/Similarities TRAFFICKED PERSONS: Often physical and psychological abuse Often denied freedom of movement and other basic rights Often illegal / irregular migrants Always coerced/subservient/ dependent May have consented to the job/journey but not to the exploitation SMUGGLED MIGRANTS: Want to cross a border into another state without visa/residence permit Active participants in the process Dependent on the smuggler for the duration of the journey, otherwise independent Usually know about the conditions of travel Take part voluntarily Can become victims of exploitation if can not pay for the journey or the smuggler/intermediary is also a trafficker THB: Definition and Legal Framework

Trafficking and Prostitution/Pimping
THB: Definition and Legal Framework

Prostitution/Pimping
Prostitution: Selling sexual services Pimping: Facilitating, encouraging, forcing into selling sexual services Purpose: Financial gain Can be Exploitation Children - No need for the the crime to involve any of the means set forth in the definition of trafficking in persons Consent- rendered meaningless if any of the means have been used- can never consent to the means THB: Definition and Legal Framework

Thank you for your kind attention!
IOM International Organization for Migration Thank you for your kind attention! Mission to The Republic of Moldova Ciuflea 36/1 str., Chisinau, MD 2001, Republic of Moldova Tel ; ; Fax Web: THB: Definition and Legal Framework

TRAFFICKING OR NOT??? Case Study 1: Liliana is a 16-year-old Romanian girl from the rural area who is taken by a family friend to the city to find work to help to support her family that lives in desperate poverty. The family friend takes her to the city streets where she is obliged to exercise begging under control and pressure of this family friend. Some of her earnings are directly paid to her family. The rest is kept by the family friend, as agreed with Lili’s parents… THB: Definition and Legal Framework

TRAFFICKING OR NOT??? Case Study 2: Maria is a 30 year old divorced woman with two little children from a small village in Russia. She lives in a very poor house with no appropriate commodities and has got no job to provide for her family. She decides to come to the city and starts begging, asking people for help. Finally she was offered a job by an owner of a bar to work as a waitress. Her working hours are to be from afternoon until late at night. She is asked by the owner of the bar to provide sexual services to clients. She agrees, as she desperately needs the money for her children. Maria is paid her salary as well as the tips that her clients give her…. THB: Definition and Legal Framework

TRAFFICKING OR NOT??? Case Study 3: Piotr is a 26 year old man from Ukraine who wanted to migrate to Italy for work in order to help is family. A friend provided him contacts of a Mr. X who arranged documents and travel to Italy. He gave Petru false passport and together with a group of other 6 men, he was transported illegally to Italy for which he owed to Mr. X 3000 Euro. Once in Italy, Piotr and the other 6 men were sent to work at a shoe factory. Piotr worked for about 12 hours per day and agreed not to receive salary for 3 month in order to pay back his debts. The owner paid Piotr’s salary to Mr. X. The owner of the factory provided to the workers one meal per day and accommodation in a store room of the factory. In the end, Piotr worked at the factory for 9 months and didn’t receive a penny, even when all the debts were paid off. Piotr was afraid to protest since he had entered and stayed in Italy illegally… THB: Definition and Legal Framework

TRAFFICKING OR NOT??? Case Study 4: Maria has accepted an offer to work as a waitress in Italy knowing the fact that her job may include providing sexual services to clients. However, she was smuggled to a suburb of a city in Bulgaria and she was not paid for her waitressing. Moreover, she was forced to provide sexual services in the evenings under threats of violence. Her documents were taken away and all her income went to her employer. She could not leave the restaurant and didn’t have access to telephone. She was also sometimes mistreated, if she didn’t comply… THB: Definition and Legal Framework

TRAFFICKING OR NOT??? Case Study 5: Samira is a 19-year-old Kurdish girl. Her parents arranged for her to get married to her cousin who has lived in Finland for years. In Helsinki Samira has to do all the housework and she is not allowed to leave the house without her husband. She does not have her own money, she speaks only Kurdish, her husband sometimes hits her. Samira feels miserable and does not want to bring a child into the marriage. However, her husband wants children and forbids contraception. He tells her that if she says to anyone she is not happy in Finland, he will make sure she is sent back to their home village. Samira can use her husband’s mobile to call home, and has managed to tell her parents what is happening to her. Her parents tell her that all marriages all difficult in the beginning but that her husband is a good man and she should do as he says. THB: Definition and Legal Framework

TRAFFICKING OR NOT??? Case Study 6: Nicolai N. was stopped at the border while trying to take three minors (13-15 years old) out of the country using false notary’s documents. It was identified that the children were going through Bulgaria to their parents who are working in France and Nicolai was accompanying children only to Bulgaria and going to Greece afterwards. Upon investigations, it was identified that Serghei T. and Alla S. were the main organizers of the scheme and were involved in such activities during the last 3 years. For their services, Serghei T. and Alla S. were asking Euros from each client. THB: Definition and Legal Framework

TRAFFICKING OR NOT??? Case Study 7: Ivan decided to leave his home country to search for work because needed money to pay for his children’s education. A man from his hometown offered his assistance to enter another country illegally. Once being in destination country, Ivan found a job in constructions. After several weeks a co-worker approached Ivan and proposed a better job in another city. Ivan gave the man all his savings, and one night they traveled by a truck to the city, where Ivan had to work at a factory and live in a dormitory near it. Upon meeting his employer, Ivan gave his travel documents to him for arrangement of a work permit. He was told that the employer will deduct his living expenses from his salary. When Ivan tried to go out the first evening to find a phone and call his family, a man with a gun told him that workers where not allowed to leave the premises. Ivan was threatened with deportation and told that his family would be harmed if he caused any trouble… THB: Definition and Legal Framework

Trafficking in Human Beings: Definition and Legal Framework

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