Human Trafficking Dissertation

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INTRODUCTION

Human Trafficking has been considered to be a violation against humanity around 200 years ago and today, it is seen as an instance of modern-day slavery. This slavery, called human trafficking, is a hidden evil that affects everyone, but especially women and children. Each year, millions of men, women and children are victimized and exploited for labour and sexual purposes. Often, while hoping for a better future for themselves and their families they are lured by false promises into a life of slavery and deprivation. Trafficking in person is viewed as a criminal activity by organized transnational groups (Bruckert and Colette, 2002). For others it is a human rights or public health issue within forced labour or modern form of slavery (Ruggiero, 1997, ILO, 2005, Bales, 2005,). Although being an international matter, ‘Trafficking in Persons’ is first and foremost, a human rights issue that breaches the fundamental rights of the individual (New York Times, 2000). Therefore, it has appeared in the national and international discourse as being a human rights violation as well as a serious threat to security. Accordingly, it is imperative that law enforcement bodies and justice seekers be constantly assessed so as to deploy effective measures and actions to combat and re-abolish slavery which today appears in the form of human trafficking across the globe.

According to Tom Obokata, “it has increasingly been recognized that trafficking can rank among the most serious crimes of concern to the international community as a whole or delictajuris gentium”. The international community has recognised trafficking as a crime against humanity amid the various categories of crimes (Obokata, 2005). Re Prosecutor v. Kunarac[1], the International Criminal Tribunal for the Former Yugoslavia (ICTY) found that “…enslavement as a crime against humanity included trafficking of human beings”. This is a flourishing international trade whereby scrupulous criminals generate billions of dollars to the detriment of millions of innocent victims who are robbed of their rights, self-respect, freedom and so much more.

It can be said that a large majority of countries in the world are affected by this scourge. These countries may participate in the human trafficking in such a way that they give origin, or assist in the transit or are even the final destination of the trafficking (Polaris Project, 2009). Annually around 600,000 to 800,000 people are traded across transnational borders while millions are enslaved in their own countries. The annual total revenue estimated to be derived from trafficking in persons is between $5 billion and $9 billion (UNECE, 2004). Over the past decade, human trafficking with a global annual market of about $ 42.5 billion has reached the epidemic point (Council of Europe, [COE] 2009).

It is estimated that around 12.3 million adults and children are held in forced and bonded labour, as well as ‘commercial sexual servitude’ at any given time (United States Department of States, [US] 2009, pg 8). Out of this , around 1.39 million are ‘commercial sexual servitude’ victims, both within countries and internationally (US, 2009, p. 8). Traffickers often target the most vulnerable groups of people for their inhumane trade and the s speak for themselves; out of the number of victims of forced labour, 56 % involve girl children and women (US, 2009, p. 8)[2]. Initial global trend estimates ranges from 700,000 and two millions (O’Neill Richard, 1999). Even though there are no disaggregated statistics on earnings derived from the sex industry, country reports disclose significant signs. For instance, an analysis of the economy of Thailand reveals that the value of trafficking in women from Thailand to Japan, Germany and Taiwan might arrive at $ 3 billion. In 1994 alone, Thai women involved in the sex trade in Japan could yield around $ 4.7 billion. O’Neill Richard (1999), on the basis of evidence extracted from arrested traffickers, suggested that in the United States, traffickers could generate between $1.5 million to $ 110.000 yearly through their networks. They utilise shrewd and astute means comprising of fake promises of employment, education or marriage in order to trap individuals into this vicious circle. Subsequently, some people become victims of trafficking in their home countries while others leave their countries with the hopes of improving their lives by accepting jobs requiring low qualifications and skills.

Chapter One basically makes an exposé of the history behind human trafficking as well as it provides for definition. It also analyses the different forms and main causes of this scourge.

Chapter Two will examine the differences between Human Trafficking and Migrant Smuggling, study the causes of human trafficking as well as the other offences related to it.

Chapter Three accounts for the fraction where the legal provision put in place to tackle the problem of Human Trafficking will thoroughly be analysed in relation to international convention and legislations in America.

Chapter Four will eventually try to analyse some common forms of exploitation present in Mauritius to investigate if these really amount to the phenomenon of human trafficking.

Finally, there will be a section dedicated for a number of recommendations along with the concluding remarks.

HISTORICAL BACKGROUND OF HUMAN TRAFFICKING

History has witnessed the incessant moments in time when women, men and children have been put for sale against their consent and pushed into forced labour and prostitution. Warnath (1998), cited by Alexis A. Aronowitz (2000, p.1) stated that “Trafficking of women and children is not a new problem, it has occurred throughout history. What is new is the growing involvement of organised crime and increasing sophistication of its methods.” The most dreadful and deplorable part of all is that such practices of trading in human lives still persist and have developed into a global phenomenon from which no country, whether developed or developing, is immune. The term ‘trafficking’ in itself is not new since it was first utilised during the 16th Century as a synonym for buying and selling and ‘going back and forth’ (International Labour Organisation, [ILO], 2005, p. 7). By the 19th century trafficking incorporated the trade in persons and was later referred to as ‘white slave trade'[3]. However, the earliest understanding of ‘trafficking’ came from the United Nations instruments (Elaine Pearson, 2000, p. 20).

The “International Agreement for the Suppression of the White Slave Traffic” which aimed to defend women and girls from slave trade was signed in 1904. At that time, the word ‘traffic’ was referred to “movement of women for a morally wrong purpose; that is, prostitution. As such, trafficking was linked with prostitution and sexual exploitation[4]. At an international convention organised by the League of Nation, the representatives of 34 countries asked that the white slave traffic be substituted by traffic in women and children. As a result, the “International Convention for the Suppression of the Traffic in Women” was ratified which eventually extended the scope of trafficking to include persons other than white women as well as children of both sexes. Thus, people belonging to the male gender could also be victims of trafficking. Additionally, it highlighted the need to protect women and children through the dissemination of adequate and relevant information.

The first ‘legally binding’ instrument was the “United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others”. It came into force in 1951 and as of today, only 66 countries have signed it (Kangaspunta, 2009). Several other actions were passed to tackle specific issues on trafficking in person namely the “Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography”, signed by Mauritius in 2001, which primarily dealt with trafficking in children. The ILO also came with conventions on forced labour relating to children, namely the “Worst Forms of Child Labour Convention 1999” as sanctioned by Mauritius in 2000.

The subsequent international legal document, “UN Protocol against Trafficking in Persons”, which focused wholly on trafficking, came into existence 51 years later (Kangaspunta, 2009). It is the only international legal manuscript which tackles human trafficking as a crime encompassing all forms of exploitation and which for the first time, provides a definition. It also balances enforcement of law and defends the victims and their rights. Furthermore, at international platforms, the main topic of discussion is forced labour and the link among migration and trafficking.

Human Trafficking has evolved from the most primitive to most modern forms of slavery and will continue to transform with the issue of globalisation and rapid advances in technology. The international community has and is still striving to combat trafficking in person in the traditional as well as modern forms of slavery. The UN has denounced different types of slavery along with practices on various platforms in the legislations as well as through policy instruments. In spite of the tremendous efforts to limit the trafficking in person, it still remains a widespread and an alarming predicament around the world.

DEFINITON

After a synopsis of the historical evolution, this section will primarily provide for a definition to the term human trafficking. Formulating the appropriate terminology to describe Human Trafficking remains a persisting challenge. The majority of these formulations used to depict trafficking either lay emphasis on the buying and selling of people or they relate closely to smuggling. As such these words, and the term ‘trafficking’, may not sufficiently incorporate the practical aspect, that is, exploitation.[5]

Therefore, the most widely accepted definition of ‘trafficking in persons’ which entails the aspect of exploitation is furnished by the “Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplemented the United Nations Convention Against Transnational Organized Crime (2000)”[6]. Thus, human trafficking implies, “…the recruitment, transportation, transfer, harbouring or receipt of persons, by means of a 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.” According to the United States Department of State (TIP Report 2005, p. 12), many countries misunderstand this definition by overlapping in their own legislations internal trafficking and thus, fail to differentiate trafficking from smuggling of migrants.

This definition essentially addresses that this activity can be broken into three distinctive parts, namely; criminal acts, means and purposes for commission of the acts. (United Nations Office on Drugs and Crime [UNODC] p. 2) As such, Human Trafficking is a process constituting of three elements namely an action by the trafficker, the means and the purpose of exploitation. An action refers to what is done, for example, recruiting, transporting, transferring, harbouring or receipt of persons. The means refers to how is human trafficking carried out and includes abuse of power or vulnerability, usage of fraud, force, threat or kidnapping, or benefits or payments to the person controlling the victim. Finally, as far as the purpose is concerned; that is why it is done, includes acts such as forced labour, exploiting the prostitution of person, sexual exploitation, slavery or other similar practices and the organs removal or other types of exploitation. It is to be noted that at least one constituent of each of these groups as described above, is required before the definition provided by the protocol applies. In case of trafficking involving children below 18, only the action and the purpose of exploitation will be required. Another important aspect is that there is no need for a person to be physically transferred from one place to another, for the crime to be covered by the definition.

The provisions on consent neither restrict the right of the accused to have full defence and ‘presumption of innocence’ nor are the ‘burden of proof’ shifted on the victim. This obligation remains on the State or public prosecutor as in any criminal case. There is no transformation of the relationship between the alleged offender and the trial rather only addition of a new criminal offence.

FORMS OF HUMAN TRAFFICKING

After a wide-ranging definition, this section will analyse the major forms of human trafficking present worldwide as a scourge. Thus, it is essential to discuss the forms of trafficking since it is not only restricted to prostitution but also encompasses many forms of slavery.

FORCED LABOUR

The Constitution of Mauritius under Section 6(1) prohibits forced labour but no definition is provided for, apart from some circumstances which are excluded. For instance, any labour required in relation to a sentence of the court, employment in naval, military or air force and for public emergency. Around 12.3 million victims of forced labour are estimated worldwide (ILO, 2005, p. 10). According to Article 2(1) of the Forced Labour Convention, Forced Labour involves: “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”.

Consequently, three main elements are provided namely work or service, performance under menace and involuntariness. It is important to highlight that although the person may have initially consented, but once the work becomes involuntary and the employer utilizes force, fraud, or coercion to keep the person under employment, the latter becomes a victim of human trafficking.

Re Prosecutor v. Krnojelac[7], the court recognised that involuntariness represents the definitional aspect of forced labour and that only relevant circumstances of each case will be decisive. The most important factor is that the person did not have the choice whether or not to work. Employers cannot utilise force labour to achieve economic development, for political education, discriminate, enforce discipline or for sanctions for participation in strike (“Abolition of Forced Labour Convention”, (1957, (Article 1)). The law provides for some elements that amount to a state of vulnerability or dependence, namely gender, youth, physical and mental incapability and migrant status while the rest is left to the discretion of courts. Re Procureur de la République v. Monsieur B[8], the risk of unemployment was identified as generating a situation of workers’ economic dependence in relation to their employers.

Another aspect of the definition is the penalty which can be of financial nature and accommodates economic penalties[9] as well as loss of rights and privileges. As far as the menace of a penalty is concerned, it can be of different forms ranging from the least, that is, of psychological nature to the most extreme, for instance, threats of death.

Although a person holds a previous work history, he may still be considered as a victim of trafficking, if the latter was forced or pressurized to do the work. Courts in the United States have pointed out that although the person is remunerated for the work, the latter may still be a victim of trafficking or forced labour if the trafficker has forced him by threat of financial harm.

Re Siliadin v. France[10], the court applied the three elements and highlighted that even though the victim was not menaced by penalty, the circumstances in which the person was working showed that the employers fostered a climate of fear for her to continue toiling for them without any compensation. Furthermore, concerning the element of voluntary acceptance of the work, it was determined that the fact that her passport was held and she was not remunerated for her service showed that she had no alternative.

BONDED LABOUR

Bonded labour also referred to as ‘debt bondage’ designates the situations whereby labour or service is pledged as repayment of or as security to a debt. As per Section 6(2) of the Mauritian Constitution, the citizens are protected against slavery or servitude. The debt bondage is defined by the Article (1)(a) of the ‘UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices 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.”

This form of forced labour existed in many ancient civilizations and is still widespread in countries like India, Nepal and Pakistan, especially in rural regions despite the laws that condemn such practice. It is not in all situations that bonded labour[11] will be characterized as being imposed, although there is the bonded element. Re Peoples Union for Democratic Rights & Others[12], the court decided that any factor which denies a person of his choice and restraints the latter to accept a particular course of action will be regarded as force. Therefore, if the worker is compelled to provide his labour or service through the force, it amounts to a case of forced labour.

Often this debt is passed to an adult or children in the family who are forced to work to repay the loan through their salary. The children involved in bonded labour work in hazardous conditions for long hours to free themselves.

Involuntary Domestic Servitude

Currently there is no international definition of servitude; however it was defined in the early drafts of the Palermo Convention as being “the status or condition of dependency 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; it includes domestic service and debt bondage”, (UN) which leads to the same elements required for human trafficking as seen in the previous section. As such, it is the distinctive form of forced labor whereby the worker stays at his workplace in an environment which is considered as exploitative. Often this practice remains undiscovered as authorities cannot easily inspect private property compared to formal workplaces. Re Siliadin v. France, the court concluded that the conditions of work of the person did not amount to slavery since the accused employers had no legal right of ownership over the servant.

The European Commission referred to servitude as the obligation to provide certain services as well as that to live on the property and the impossibility of changing his current status. As such the court held that servitude is the obligation to provide services imposed by force or coercion and the worker was indeed a victim of servitude by pointing out the following circumstances; the latter worked fifteen hours per day, seven days per week, had literally no other alternative as a climate of fear was created against the possibility of being caught by the police, had neither freedom of movement nor free leisure time, being a minor had no other means of subsistence, her papers were seized and was promised that her immigration status will be legalized and that she will have the opportunity to continue her schooling but all these assurances ended up as being fake.

Foreign migrants, mostly women, are hired from developing countries like Asia, Africa, and Latin America to provide domestic and caretaking services and in developed locations like Singapore, Europe, and the United States. It is deplorable that most of these countries do not provide these workers with the same legal protection as for foreign workers in other industries. Thus, they are compelled into working as domestic servants via threats or force exerted by the employers. Often, the employers impound the papers of these workers and take advantage of their apprehension of being caught by the police and being deported to their countries.

Child Trafficking

According to IOM, in 2005, “Child trafficking is demand-driven where there is a huge market for cheap labour and sex and insufficient legal frameworks or trained authorities to prevent it.” Children Trafficking, being another form of human trafficking, is defined as “the act of recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation……….within or outside a country.” by Article 3 (c) of Palermo Protocol. In Mauritius, it is a crime punishable as a criminal offence as provided by Section 15 and 18 of the “Child Protection Act” as well as Section 262 of “Criminal Code Act”. Child Labour is another form of trafficking referring to a situation where a child undertakes a job even if the latter has not yet reached the minimum legal age for work. The consent of the children is irrelevant if force or coercion has been used against the child for the rendering of labour or service. This mode of exploitation is a very relevant case today since 2 million children worldwide are forced to work in perilous conditions in mines.

Trafficked children are left at the mercy of the traffickers who control their lives and inflict upon them sexual assault and beating amongst other forms of violence. According to “Worst Forms of Child Labour Convention, 1999”, ‘worst forms’ of child labour embrace all types of slavery or similar practices, trafficking through disguised adoption, recruitment in armed conflicts, prostitution, pornography, drug trafficking and any work harmful for the children.

Sex Trafficking

This form of trafficking involves a person who is brought into prostitution through force, coercion or fraud which may also occur in concurrence with debt bondage. Most of the time women and girls are intimidated, sold and coerced to step into prostitution through illegal debt[13] which they must pay off for their freedom, for instance, Re United States v. Castaneda,[14] three women were ensnared and forced to indulge in sexual services against their consent in a night club. Another instance is of the case in Belgrade where girls and women are exposed like objects and are traded at bids to the highest bidder.

Organ Trafficking

Human Trafficking for exploitation of organs, especially kidneys is a fast growing criminal industry. Neither the human body nor its parts can be subject to transactions as well as compensation or reward since deal in organs is prohibited except in situations whereby payment of reasonable expenses is incurred, for example, in preserving, supplying or donating the organs for transplantation. (World Health Organisation, [WHO], 1990). Harrison found that in the United States alone, the demand for organs has raised by 45 % over a four-year period (Harrison, 1999, p. 25). The victims are often deceived on the medical implications of organ removal and operations are commonly carried out clandestinely in unhygienic conditions without further treatment. Even doctors as well as other medical assistants are often found to be involved in this crime.

Differences between Human Trafficking &

Migrant Smuggling

After having probed into the various forms of human trafficking, in this section a clear distinction will be made between human trafficking and migrant smuggling. As such smuggling in migrant is provided for in the Migration Protocol[15] while trafficking in human beings as seen earlier is provided for in the Palermo Protocol. The Article 3(a) of the Migration Protocol identifies migrant smuggling as being “…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”. There are some main elements that constitute migrant smuggling namely acquiring entry through illegal means of another person, into another State and for the intention of a financial or material gain and eventually the need of the criminalization of this offence[16].

Several agencies have drawn a line of demarcation between trafficking and smuggling. According to the Europol Convention of 1995, illicit migrant smuggling encompasses activities with the intention to facilitate, obtain a monetary gain, enter into a country seeking residence or employment but in a manner that is against the relevant rules and laws of the country whilst trafficking means subjugation of the victim by the trafficker through the use of force or coercion, abuse of authority, or fraud with a view to exploit that person in various forms. (International Organisation for Migration, [IOM] p. 21)

Accordingly, Smuggling is distinct from trafficking in person as in the case of the former, the migrants being smuggled have given their consent while in that of the latter, the victims have either not given their consent or their preliminary consents have been obtained through fraud, force or coercion. In addition, human trafficking does not require physical movement of the victim but rather it implies the occurrence of exploitation of the person for labour, commercial sex or other forms of abuse. Even if there is a movement across borders, this fact is irrelevant. On the other hand, smuggling imperatively involves crossing borders and as a result, it is always transnational.

Furthermore, the smuggler and the smuggled migrant share a commercial transition relationship which normally ends after having crossed the border while trafficking involves the continuous exploitation of the victims in such a way as to provide illegal profits for the traffickers. However, there can be some instances whereby smuggling may evolve to trafficking. For instance, smugglers utilise force, coercion, or fraud on the migrant to work off transportation expenses under abusive conditions. Conclusively, smugglers obtain income from fees to move the people while traffickers generate illegal profit from continuous exploitation of the victims. (IOM, p. 21)

Factors Causing Human Trafficking

The trafficking in person crisis has been intensified by factors like a global economy, increased travelling, high demand for low cost labour, deficiency in law enforcement, legislation as well as potential criminalization of victims, predominantly for immigration related felonies”. It is clear that the root causes of trafficking are diverse, complex and often interrelated. Most of the time, they are different for each country and this section shall deal with the major root causes of trafficking in persons.

DEMAND & SUPPLY FORCES

Demand is a crucial cause of human trafficking because people get involved in this trade to fulfill the avid demand for women and girls by the employers of illegal labour and the buyers of sexual services extorted from victims. (Bertone, 2000, P. 8) The traffickers take advantage of demand for cheap and vulnerable workers as well as the sex tourism promotion in countries who perceive migrants as highly profitable and low risk commodities. In the absence of effective and competent legislations and the abundant supply of migrant workers, unfree labour is exploited scrupulously. In this way, in their search for a better life, they are enslaved and exploited.

GLOBALISATION & POVERTY

Over the last decades, there has been a notable increase in the number of trafficked victims along with globalization. Usually globalization is considered as being a major driving force that has enabled criminals while impoverished agencies set up for fighting them (Naïm, 2006). The gap between the rich and the poor has been extremely widened with globalization. (Pope Jean Paul, 2004) The world’s 225 richest people together possess wealth of more than $1 trillion which equates to the annual income of 47 % of the world poorest population, which amounts to around 2.5 billion people. This vulnerable group of people are deceived and sold for sexual slavery or involuntary servitude which is the result of increased international mobility and globalization. The demand for trafficked labour has also increased with globalization since employers require cheap and low skilled workers who are attracted to developed countries because of high unemployment in their counties. Most of the time, women and girls suffer the most from such inequalities and thus prefer to go in an unknown country in search of work so as to provide subsistence means for their family. Unfortunately, they are trapped and end up as victims in the hands of the traffickers.

LACK OF LEGAL MIGRATION OPPORTUNITIES

Most of the people who are exploited become victims of trafficking owing to their aspiration to migrate abroad but cannot do so legally due to the existence of strict rules. Therefore, they look for other alternatives for which they have to seek help from traffickers and smugglers who in turn then seize the papers of these people and exploit them in various ways. The victims cannot even report such crimes because of their fear of being arrested by the police or immigration officers. As a consequence, they are bound to keep silent and suffer the misery inflicted on them.

OTHER OFFENCES RELATED

TO HUMAN TRAFFICKING

Human Trafficking refers to an entire process rather than simply encompassing just one offence. This process starts with either the recruitment or abduction of a person and prolongs with the transport and entry of the latter to another location. Later, in the exploitation process, the victim is exploited in various ways. During the entire process, traffickers normally commit different forms of offences. Trafficking activities and other criminal offences are interrelated, for instance smuggling of drugs or weapons. There are other offences that are committed in prolongation or protection of the trafficking operation, for example, money-laundering and tax evasion. To exemplify, Re U.S. v. Kil Soo Lee[17], whereby the offender was sentenced to 40 years of imprisonment for violation of human rights, money laundering and extortion. To understand the process of trafficking, UNDOC has provided for a simple table as illustrated in the Appendix.

Trafficking in person is often only one of the offences perpetuated against trafficked persons, since other crimes may be committed to control victims, protect trafficking operations and raise profits. (UNDOC, 107) The victims are often threatened, physically and sexually ill-treated and their passports and other documents are confiscated. They may be forced to toil without salary, frequently in dangerous and illegal activities, like prostitution, pornography and trafficking of drugs. Apart from the direct victims, ex-victims helping the authorities may also become preys of threats and retaliatory violence while public officials may be corrupted, threatened or both.

These acts total to criminal offences in most countries and could be cited to tackle certain elements of the different crimes involved in trafficking in persons. This could be useful in nations where a specific criminal offence of trafficking is not yet present, or where penalties for trafficking

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