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CHAPTER 3

THE LEGAL PROHIBITION AGAINST TRAFFICKING OF


WOMEN AND CHILDREN

Introduction

Human Trafficking, especially, trafficking of women and children is a dreadful reality in


today’s modern world. Women and children are trafficked all over the world for forced
prostitution, sexual slavery and forced labour. The mere
monetary benefits through this inhuman flourishing trade has gained
momentum among people who accomplish such organized crimes
internationally. According to CRS Report for Congress (2010), Department of
State, USA, every year around 800,000 and 900,000 people are trafficked
across the borders worldwide and around 18,000 to 20,000 to the United
States.109

The aim of this chapter is to discuss the state’s obligation under International Human
Right Law, International Labour Law and International Criminal Law in order to prevent
this hideous act of trafficking in persons. Some of the most important and crucial
international human rights instruments adopted by the
United Nations actually make reference to the abolition of slave trade and
slave practices and trafficking in persons too. As far as the International
Labour Law is concerned this chapter discusses the conventions and the legal
framework adopted by the International Labour Organizations. Further, this chapter
also focuses on the legal responses in dealing with human trafficking and highlights
the various conventions, protocols and treaties adopted and
enforced by the United Nations in curbing and combating the human
trafficking with a specific focus on the trafficking of women and children.

Many conventions and protocols have been framed by the United Nations
Office of Drugs and Crimes (UNODC) under the International Law to prohibit and
prosecute human trafficking such as United Nations Convention Against Transnational
Organized Crime, Supplementary Convention on the Abolition of

109
CRS Report for Congress, US. Available from http://fpc.state.gov/documents/organization/139278.pdf .
[Accessed on 19th September 2012]

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Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery,
United Nations Protocol to Prevent, Suppress, and Punish Trafficking in
Persons, Especially Women and Children and the United Nations Protocol
against the Smuggling of Migrants by Land, Sea and Air. The UNODC has
also instituted the United Nations Global Initiative to Fight Human Trafficking (UN
GIFT) in March 2007 to combat human trafficking in cooperation with the
International Labour Organization (ILO), UN Children’s Fund (UNICEF),
International Organization for Migration (IOM), Organization for Security and
Co-operation in Europe (OSCE) and Office of the High Commissioner for
Human Rights (OHCHR).110

Furthermore, International Law has also included the Universal Declaration of Human
Rights, 1948; the United Nations Convention for the Suppression of Trafficking in
Persons and of the Exploitation of the Prostitution of Others, 1949; the International
Covenants on Civil and Political Rights, 1966 and the Convention on the Elimination
of all Forms of Discrimination Against Women, 1979 towards the initiative of prohibiting
and combating trafficking of human beings.

Despite the various laws, conventions and protocols being enforced by the United
Nations as well as, the States which have been party to these conventions and
protocols, there have been many deficiencies which have aggravated this problem and
eventually helped the organized crime group to
flourish in this trade of human trafficking. The deficiencies have also given
rise to various problems in dealing with the cases of human trafficking,
especially of the women and children who have been the majority among the
victims of trafficking and have been exploited again and again. This chapter
also highlights the gender perspective in human trafficking of women and
children and the role of women in the sexual exploitation of other women as
well as children. The women involved in human trafficking often take up the
role at the top level of this organized crime and facilitate the trafficking of
women and children from their country of origin and community.

110
Fisher,J., Human Trafficking: Law Enforcement Resource Guide, Create Space Independent Publishing Platform
(2009)

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The Legal Response to deal with various aspects of Human Trafficking

Human trafficking has emerged as a flourishing cross border trade and has
become a major area of concern. As per the United Nations, it has been
estimated that 700,000 to 4 million people are being trafficked every year all
over the world.111 Among them, the majority of the trafficked persons are
women and children who are forcefully indulged into prostitution, slavery,
labour and many other types of exploitation. It is seen that sometimes the trafficked
persons are subject to such exploitation voluntarily due to their poor economic
condition.

The need for immediate remedy to this illegal trade, which is a violation of human rights
is of utmost importance in the current scenario. The United Nations has been working
on this major issue with the help of its conventions and protocols to prevent, prosecute,
punish and eradicate this problem. But the United Nations conventions, protocols and
legislations are interpreted in a different manner in different countries and the meaning
of the word ‘trafficking’
also varies from country to country. Since it is a social issue, it also depends
on the social and economic conditions as well as traditions and culture of
each country. The legislations of the countries of the world and the United
Nations conventions and protocols needs to be streamlined and aligned to
deal with human trafficking in a better way.

Human Trafficking, as per the UN protocol, is defined as the “recruitment


transportation, transfer, harbouring or receipt of persons, by means of
coercion, of abduction, of fraud, of deception, of 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” 112 and Exploitation includes exploiting the prostitution
of others, sexual exploitation, forced labour, slavery or similar practices and

the removal of organs.113

US Department of State, Trafficking in Persons Report 2010


United Nations General Assembly. (2000). Protocol to Prevent, Suppress and Punish Trafficking in Persons
Especially Women and Children, supplementing the United National Convention against Transnational Organized
Crime. (Palermo Protocol), Article 3.
UNODC. Available from http://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html.
[Accessed on 19th June 2012]

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The UN Protocols should make sure that the people who are found guilty of trafficking
should be penalized; the victims should be dealt with sympathy, should be given proper
protection and should also be given a temporary or permanent residence in the country
of destination.114 The UN Protocols and Conventions for combating human trafficking,
especially women and children, have been accepted globally but a major question
which arises is how far are
these effective in preventing or combating human trafficking in all the
countries. This requires a common consensus which is beneficial and efficient
for all countries irrespective of various legislations operative in individual
countries.

The Legal framework for combating human trafficking was first institutionalized
in 1904 as an international agreement to suppress the white slaves by the
League of Nations and later in 1910 a Convention for the suppression of the
White Slave Traffic came into force. During that period, white slaves were
referred to prostitutes and white slavery was referred to prostitution. In 1921,
the convention included children and in 1933, it made provision for female
children. The above mentioned convention was again amended by the
Protocol signed at Lake Success, New York on 4 th May 1949.115

To combat human trafficking; slavery, servitude, sexual exploitation through


forced prostitution and other forms of exploitation which are being carried out
because of human trafficking, the protocols and treaties enforced by United
Nations must conform to the International Law and should be complied by the
state / countries at the domestic level. The UNHRC monitors the
implementation and compliance of the protocols and conventions in the
countries of the parties with the help of its rapporteurs, groups and NGOs.
The parties also prepare a yearly report about the activities undertaken and various
steps and actions taken in combating human trafficking in their own countries and
submit it to the United Nations for review. The enforcement of legislations at the
domestic level in conformity with the International Law and related protocols and
conventions enforced by the United Nations is the most
effective way in combating human trafficking, especially of women and
children. But in most of the cases it has been noticed that efficient working

Op cit 35
International Convention for the Suppression of the White Slave Traffic, signed at Paris on 4 May 1910, amended
by the Protocol signed at Lake Success, New York, 4 May 1949. Available from
http://treaties.un.org/pages/ViewDetails.aspx. [Accessed on 21st June 2012]

72
of legal mechanisms to combat this crime is not so effective due to the fact of
increasing number of cases of trafficking across the world and the sophisticated
methods being used by the traffickers in response to these legal prohibitive measures
against this organized crime.

With reference to the laws prevalent in South Asia in combating cross border trafficking
of human beings, these laws are majorly domestic legislations since
most of the cases are monitored or dealt locally. This is particularly because
the countries in South Asia depend on the criminal justice system prevailing
in their own countries for the enforcement of legislations and punishment of
116
the offenders thereby.

The United Nations has thus enforced many conventions and protocols to deal with
human trafficking and taken various measures to combat this organized crime with the
help and support of major countries all over the world. Some of these conventions and
protocols which have been enforced towards the prohibition of human trafficking,
especially of women and children and protecting their basic human rights have been
discussed under the subsequent points.

The Universal Declaration of Human Rights

It was on 10th December 1948 that the United Nations adopted the Universal
Declaration of Human Rights. Its preamble acknowledged that the recognition
of inherent dignity and of the equal and inalienable rights of all the members
of the human family is the foundation of justice, equality, freedom and peace
in the world. The General Assembly of the UN considers the UDHR as a common
standard of achievement for all the nations and mankind and expects that every
individual and the society should promote and respect the human rights and freedom
by educating people keeping in mind the declaration. 117

Article 1 of UDHR states that everyone is born free with equal dignity and rights and
that they should act in a spirit of brotherhood with reason and conscience. From the
basic assumption that all human beings are free and

Thomas, S. E., ‘Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka’, Review by UNODC
– Regional Office for South Asia under the UN.GIFT. UNODC Publications, New Delhi (2011)
The Universal Declaration of Human Rights. Available from http://www.un.org/en/documents/udhr/#atop.
[Accessed on 12th August 2012]

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equal, means that the principles of slavery, slave trade and servitude must be
abolished. Further, Article 4 of UDHR states that no person shall be held in slavery or
servitude, and that slavery and slave trade shall be prohibited in all
forms. Furthermore, Article 13 of UDHR states that every person has the right
to freedom of movement and residence in any state. Also Article 23 (1)
states that every person has the right to freely choose the employment and

to obtain favourable conditions of work.118

The International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) was adopted in 1966
on the same guidelines of the UDHR. It recognizes that the human beings can enjoy
the civil and political freedom and can achieve freedom from fear only if the states
create such environment in which every individual can enjoy these rights along with
the economic, social and cultural rights. It also lays stress that the States under the
Charter of the UN, should promote universal respect for human rights and freedom
and observe the same in every deed. This responsibility should also be spread and
instilled among the
individuals of the States.
Article 8 clearly states that 119 –
1. No one shall be held in slavery; slavery and the slave-trade in all their
forms shall be prohibited.
No one shall be held in servitude.
(a) No one shall be required to perform forced or compulsory labour;
(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment
with hard labour may be imposed as a punishment for a crime,
the performance of hard labour in pursuance of a sentence to such
punishment by a competent court;
(c) For the purpose of this paragraph the term "forced or compulsory labour" shall not
include:
(i) Any work or service, not referred to in subparagraph (b), normally required
of a person who is under detention in consequence of a lawful order of a
court, or of a person during conditional release from such detention;

Ibid
International Covenant on Civil and Political Rights. Available from http://www2.ohchr.org/english/law/ccpr.htm
[Accessed on 12th November 2011]

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(ii) Any service of a military character and, in countries where conscientious objection
is recognized, any national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or well-
being of the community;
(iv) Any work or service which forms part of normal civil obligations. Notwithstanding
any lacunas, ICCPR is determined to its cause, abolition of slavery and slave trade.

3.2.3 The International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights was also adopted
in December 1966.120 Unfortunately, the ICESCR does not have any specific provision
dealing with slavery or slave related trade although it does
states some rights for fair trade and just conditions of work which does apply
to people who have been trafficked. For the purpose of labour exploitation,
the Covenant provides that the state must recognize the rights of everyone to gain his
living by work and also to join free trade Unions to safeguard his stand. Under this
covenant there was a committee set up known as the Committee on Economic, Social
and Cultural Rights. In the year 2002, this committee expressed concern over the
trafficking of women and children for sexual exploitation in the Czech Republic and
Slovakia. Most recently this committee has made recommendations on the issue of
trafficking in persons to Slovenia and Uzbekistan and in both the cases the need to
assist and
protect the victims is a recurring principle. Therefore, it is evident that the
focus of this committee was on the victims of trafficking in humans.

The Convention on the Elimination of All Forms of Discrimination Against


Women
The CEDAW or the Convention on the Elimination of All Forms of

Discriminations Against Women was adopted on 18th December 1979 by the


United Nations General Assembly and was entered into force on 3 rd
September 1981 as an international treaty.121 It was enforced in order to
monitor and scrutinize the condition and the position of women and to

The International Covenant on Economic, Social and Cultural Rights. Available from
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx. [Accessed on 12th August 2012.]
The Convention on the Elimination of All Forms of Discrimination Against Women. Available from
http://www.un.org/womenwatch/daw/cedaw/cedaw.htm. [Accessed on 12th August 2012.]

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promote their rights. CEDAW has been involved ensuring equality of women with men
and denied all such areas which denied equality with men.

Article 6 of this convention is dedicated to trafficking in women and it


provides that ‘state parties shall take appropriate measures including
legislations to suppress all types of trafficking in women and exploitation of

prostitution of women’.122 During the drafting process, the proposal of Morocco


to draft this measure in a way to fight against prostitution in all forms was
not accepted. Such a proposal could have challenged the entire convention
and would not have received ratification from many states. Another proposal
was made by Denmark suggesting that it is unacceptable to accept the
adding of the word illicit before the word trafficking. There was a committee
set up for the Elimination of Discrimination against women and in 1992 this committee
adopted General Recommendation No 19 on the issue of violence against women.

Since then the committee has been dedicated to the cause and in 2004 the committee
concluded its first inquiry regarding the abduction, rape and murder of women in
Mexico. In 2003 more than three hundred women disappeared from this area. The
committee recommended that Mexico gravely violated
CEDAW.

3.2.5 The Convention on the Rights of the Child


The Convention on the Rights of the Child was adopted by the UN in

November 1989 and was entered into force on September 1990. 123 Article 1
of this convention defines a child as every human being below the age of 18
years. The provisions of this convention are determined to protect the inherent rights
of the child. The Convention considered that since child is a part of a community and
a fundamental group of the society called the family should be given the required
protection and assistance for the development of personality in a harmonious manner
and should grow up in an environment of
love, care, affection, happiness and understanding and are entitled to special
care and assistance and should be protected. The Convention on the Rights
of the Child also states that ‘the child, by reason of his physical and mental

Ibid
The Convention on the Rights of the Child. Available from http://www.unicef.org/crc/. [Accessed on 12th August
2012]

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immaturity, needs special safeguards and care, including appropriate legal protection,
before as well as after birth’124.

Article 31 of the CRC oblige the states to take all appropriate national,
bilateral and multilateral measures to prevent the abduction of the child, the
sale of or traffic of children for any purpose or in any form. The other
provisions of the Convention must be taken into consideration.

Article 19 requires the state parties to protect children from all forms of
physical and mental violence, injury or abuse, neglect or neglecting treatment,
maltreatment or exploitation including sexual abuse while in the care of
parents, legal guardian or in care of any individuals.

Article 20 provides for special assistance and protection to be granted by the state to
the children who are temporarily or permanently deprived of their family environment.

Article 21 ensures that the adoption of child shall, in all respect, be in the
best interest of the child in case of national or inter country adoptions.

Article 32, 34 and 36 provide for children’s protection from economic, sexual
or other exploitation.

Article 33 of the convention calls for all the state parties to prevent the use
of children for production of trafficking, drugs and psychotropic substance.

And article 39 recognized the right of the child to physical and psychological recovery
and social reintegration in case where they have been subjected to any kind of abuse.

3.2.6 Protocol to the Convention on Rights of a Child on the


involvement of Children in Armed Conflict

The protocol to the convention on the rights of a child dealing with


involvement of children in armed conflict is a human rights instrument that

124
Ibid

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can supplement the UN Trafficking Protocol with regard to children specifically
trafficked for involvement in armed conflict. The protocol is aimed at enhancing
international humanitarian law on recruitment of children in conflicts and was adopted
in 2000.125 Article 4 (2) imposes all the states to take efficient measures to fight against
recruitment and involvement of children in armed conflict, criminalizing the practice
and Article 6 (3) provides the states parties to demobilize those children who have
been involved in armed conflict and to assist them in their physical and psychological
needs and bring them back into the society. Article 70 (1) imposes them to cooperate
to prevent the
involvement of children in armed conflict. This protocol has been ratified by
119 states, however, there are still many states where children are used
during armed conflict namely, Iraq, Indonesia, Iran, Burma etc. The committee
under this protocol stared its work of examining states in 2005 and is
dedicated towards its cause.

Protocol to the Convention on Rights of a Child, on Sale of Children and Child


Prostitution and Child Pornography

The Protocol to the Convention on Rights of a Child, on Sale of Children and

Child Prostitution and Child Pornography came into force in 2002.126 Article
2(A) of the protocol gives the definition of sale of children as being ‘any act
or transaction whereby a child is transferred by any person or a group of persons to
another for remuneration or any other consideration’ and Article 3
(1) calls all the state parties to criminalize the following domestic transnational offence
committed by individuals or domestic groups: the offering, delivering or
accepting of a child for the purpose of sexual exploitation, removal of organs
for profit and forced labour, acting as an intermediary for inter country/state
illegal adoption, the offering, obtaining, procuring and providing a child for
child prostitution and producing, distributing, disseminating, importing, exporting,
offering, selling or possessing child pornography. Finally Article 8, 9 and 10 provide for
the responsibility of the state to provide assistance to the victims.

The protocol to the convention on the rights of a child dealing with involvement of children in armed conflict,
Available from http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx. [Accessed on 12th August 2012]
The Protocol to the Convention on Rights of a Child, on Sale of Children and Child Prostitution and Child Pornography.

Available from http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPSCCRC.aspx. [Accessed on 12th August 2012]

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International Convention on Elimination of All Forms of Racial
Discrimination Against Women

This convention was adopted in 1965 by the UN General Assembly. 127 It does not
contain any measure directly dealing with the term trafficking in person or the forms of
slavery, even though its monitoring body, the committee on the Elimination of Racial
Discrimination made reference to trafficking in persons in some recommendations and
observations to the state parties on the basis of Article 5. Notwithstanding the lack of
measures specifically dedicated to human trafficking, the committee recognizes that
Azerbaijan protects and assists trafficking victims wherever possible in their own
language.

International Convention against Torture, Cruel Inhuman Degrading


Treatment and Punishment (Torture Convention)

The International Convention against Torture, Cruel Inhuman Degrading Treatment


and Punishment (CAT) was adopted by the UN General Assembly in 1984 and it
entered into force three years later in 1987. Although, the Torture convention does not
contain any measure specifically dealing with
trafficking of women and children or any kind of slave trade, but it includes
any kind of treatment against human beings which comes under the purview
of torture which means ‘any act by which severe pain or suffering, whether physical or
mental’.128

Since human trafficking involves torture of human beings for the purpose of slavery,
servitude, prostitution, sexual slavery, labour and other forms of exploitation by force
or coercion, the Convention has its share of responsibility in protecting human
trafficking.

International Convention on the Protection of the Rights of Migrant Workers


and Members of their Families

It was in the year 1990 that the United Nations General Assembly adopted
the International Convention on the protection of the Rights of Migrant

127 International Convention on Elimination of All Forms of Racial Discrimination Against Women. Available
from http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx. [Accessed on 12th August 2012]
128 The International Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

Available from http://www2.ohchr.org/english/law/cat.htm. [Accessed on 12th August 2012]

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Workers and Members of their Families, however, it finally came into force on
1st July 2003. The convention provides for elimination of the exploitation of
migrant workers throughout the entire process of migration and for the
protection of the human rights of both documented and undocumented
migrants. This treaty also contributes to the fight on transnational trafficking in human
beings. As per Article 2 of this convention, a migrant worker is a person who is to be
engaged, is engaged or has been engaged in a remunerated activity in a state where
he or she is not a national. 129 Till date only 37 states have ratified this convention and
the most unfortunate thing is
that the countries which are the destination hubs of trafficking are not
signatories to this convention. It took 13 years for this convention to come
into force because of less ratification as it required minimum 20 states to
ratify the convention to come into force. Unfortunately, there are other issues such as
fight against illegal migrants which are generally on the top of the agenda of these
states.

The Committee on the Protection of the rights of all Migrant Workers and Members of
their Families is a monitoring and a supervising body under this convention. This
Committee monitors the proper implementation of this Convention in the member
States. All the State parties to this Convention are required to submit their reports to
this Committee within one year of their ratification and are also obliged to send their
periodic reports after every 5 years regarding the implementation of the Convention in
their States and
conformation to the Convention. Their reports also contain the present
scenarios in the individual countries and the activities being undertaken to
protect the rights of all Migrant Workers. The Committee after receiving the reports
examines and gives its recommendations and also expresses its concerns to the State
Parties in the form of ‘Concluding Observations’. The Committee holds two sessions
in a year and meets in Geneva every year. 130

3.2.11 Convention and Protocol relating to the status of Refugees

The 1951 Convention and the 1967 Protocol relating to the status of
Refugees are the most important international steps taken for the protection of

The International Convention on the Protection of Rights of All Migrant Workers and Members of Their Families. Available
from http://www2.ohchr.org/english/law/cmw.htm. [Accessed on 12 th August 2012]
Committee on Migrant Workers. Available from http://www2.ohchr.org/english/bodies/cmw/. [Accessed on 12 th August
2012]

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the Refugees. Article 1 of the Refugee Convention defines ‘Refugee’ as being
any individual who is outside the country of his or her nationality or a
habitual resident who has a well founded fear of persecution for reasons of
race, religion, membership of a particular social group, nationality or a political
opinion and is unable or unwilling to avail himself of the protection of that
country or return to it. In 2002, the UNHRC adopted guidelines dealing with
the issue of gender persecution and recognized that it did not mention gender among
the list of the five persecutions. Further, UNHRC recognized that even if being a victim
of trafficking is not sufficient to claim the recognition of the refugee status, there are
some cases in which the well founded fear of persecution and the inability or
unwillingness of the state to act and justify the claim exists. 131

Although the guideline is restricted to women and children trafficked for the purpose of
forced prostitution or other forms of sexual exploitation, it is recommended that the
state parties to the convention extend their purpose to all the victims i.e. women and
children who are trafficked for the purpose of exploitation (sexual, labour or other)

Deficiencies embedded in Law to deal with Human Trafficking

Though the United Nations has enforced protocols, conventions and treaties in
conformity with International law and International Humanitarian law to
safeguard the Human Rights and to combat human trafficking, slavery,
organized crimes, and prevent such crimes; some drawbacks / flaws are still
in existence due to which this trade is still flourishing and the players of this
trade are still untouched and out of reach from the hands of law protectors.
The major reason behind this is the huge difference in the economic and
cultural conditions prevailing between the developing and the developed
nations and lack of compliance of the legislations or enforcement of stringent
laws in every country including those who are a party to the United Nations protocols
and conventions with regard to human trafficking.

During the drafting of the United Nations protocol for combating human trafficking,
especially trafficking of women and children, all stakeholders of the

131
Convention and Protocol Relating to the Status of Refugees. Available from.
http://www.unhcr.org/3b66c2aa10.html. [Accessed on 30th August 2012]

81
Protocol have taken into account the human trafficking for prostitution (whether forced
or voluntary) and sexual slavery, since it has been a major concern
worldwide. Countries all over the world have tried to deal with it through
various legislations at the domestic level but ultimately a legislation / protocol
was sought internationally to stop cross border trafficking and also within the borders
of the country. The trafficking of human is also a violation of human rights as it involves
forced prostitution and slavery and damage to human dignity. The difference in the
economic conditions prevailing in the nations has
been a major cause behind this crime. The UNHRC has taken several steps
in controlling this violation considering it as a major issue and ultimately with

a target of abolishing this exploitation. 132

Many activists and members of various organizations who are dealing with human
trafficking, human rights, gender advocacy etc. have mentioned in their reports that
the protocol itself has contradictory definitions which is interpreted differently in
different countries. According to many such members of organizations and lobbies
working for the protection of human rights, consider all forms of prostitution, whether
voluntary or forced, as a violation of human rights and the sex workers and migrants
are the victims of human trafficking.
The study reveals that the word ‘exploitation’, which is mentioned in the
protocol, is understood by some organizations as well as, some countries as
all acts of migration involving exploitation of people sexually is trafficking and
the persons being migrated are victims of trafficking and the same term
excludes all other forms of trafficking involving exploitation. Whereas, in some
countries it has included all types of exploitation including forced prostitution and has
taken various steps towards abolishing it. Such misinterpretations by
various countries, organizations and people have raised a question – how far
is this protocol going to address the issues of human trafficking in any form
and also those involving women and children. It has become a matter of
major concern. It has also been observed that the lack of proper explanation and
misinterpretations of the terms such as ‘trafficking’ and ‘exploitation’ by different
countries has helped traffickers to move around and commit such crimes without any
legal complications. Such ambiguous and contradictory

132
UNHCHR, principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1 (2002). Available from
http://www1.umn.edu/humanrts/instree/traffickingGuidelinesHCHR.html. [Accessed on 16th August 2012]

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definitions and laws have given opportunities to traffickers to further flourish
and given rise to disagreement among the members and law makers. 133

A question also arises, how far are the victims of such crime of trafficking
and exploitation being protected and given their basic and fundamental human rights?
It has been noticed that the most important person, the victim, in this
heinous act is being ignored. This has revealed a flaw in the protocols of UN
in the prevention of this crime. It has also been noticed that the enforcement
of various international laws to prevent trafficking of women, to prevent gender
bias and to protect women’s rights of equality, non-discriminations and to
ensure economic stability are dependent on the UN protocols which have
been framed based on the predominant concepts of male dominated
governments of various countries. This very dependency permeates the United
Nations system for enforcement of laws, protocols and conventions to protect

the organized crime against women.134

Furthermore, it has been noticed that there is a lack of coordination between the
nations all over the world which has provided a platform for the persons involved in
such trans-border organized crimes. There is also a deficiency in imposing stringent
punishment on traffickers and proper enforcement of laws in the countries. Another
flaw noticed in combating human trafficking is the lack of protection of the victims of
such crimes due to which the victims are never willing to come forth to fight for their
rights and punish the traffickers.

Further studies of laws enforced in prohibiting human trafficking have revealed


that there is a deficient of integrated laws in combating human trafficking
among many countries, despite the fact that most of the countries have
enforced laws against trafficking. It has also been noticed that various
countries interpret laws against human trafficking differently. In some countries
of Europe, laws against trafficking were used to prosecute victims of both trafficking
and smuggling whereas in some countries, trafficking in persons is
referred to victims of trafficking for prostitution only. It is a big flaw in the
laws that consider trafficking equivalent to prostitution and this has created an

133
ILO, Human Trafficking and Forced Labour, Guidelines for legislation and Law Enforcement, Special Action
Programme to combat Forced Labour (2005)
134
Phyllis Coontz and Catherine Griebel, International Approaches to Human Trafficking: The Call for a
Gender-Sensitive Perspective in International Law, Women’s Health Journal 4 (2004)

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adverse impact on the persons who are being trafficked and other forms of
exploitation and thereby on the prosecution of these victims.

Problems experienced while dealing with Human Trafficking

It is a known fact that human trafficking is a thriving business and ranks third
in the world among the organized crimes, just behind the arms and
ammunition and drug trafficking in the global markets. 135 Among the trafficked victims
all over the world, around 80% are women and 50% are children. The enforcement of
law at the international level as well as at the state level is not stringent enough to
rescue the victims and to protect them from the traffickers. The victims of this organized
crime are forced into slavery and prostitution and are left in a pathetic condition of living
by the traffickers.136

It has been noticed that trafficked victims (women and children) are mostly helpless
and are deprived of their basic human rights. To protect their rights, the United Nations
Commissioner for Refugees (UNHCR) has undertaken various initiatives to ensure the
basic human rights to be provided to the victims of this trade and also helps them to
obtain the refugee status in the destination country.

Despite the initiatives taken by UNHCR, the victims of human trafficking face various
problems in the destination country during their slavery and
exploitation and also in their countries of origin after they escape from the
traffickers when they return to the country of origin or when they are
deported by the immigration officials of the destination countries. During their
stay in the destination country, the trafficking victims are totally left at the
mercy of the traffickers, and they are often found to be living in an inhuman condition,
facing ill treatment and are exploited continuously. Their passports are seized and are
left with no hopes of liberty but to be exploited forcefully.
Even if they escape from the hands of the traffickers, or are rescued from
the traffickers, their plight does not seem to end. They still face problems
such as lack of protection, danger of being caught and exploited again,
difficulty to get refugee status, difficulty in immigration, trafficking visa,

135
Jamal, B, Women Victims of Human Trafficking in Globalized world of Entertainment and Sex Industry: and
Humiliation of Human Dignity and existence, New York, Columbia University. (2007)
136
Op cit 94

84
deportation etc. In many cases, it is found that after they are deported to
their countries of origin, they are re-trafficked; out cast from the society and
face retaliations from the traffickers. Studies and researches have identified significant
reasons of retaliations by the traffickers and the members of their families and friends
in the country of origin.

Studies have even revealed that police protection provided for the witnesses
and the victims of trafficking were inappropriate as they were not informed
about the suitable measures taken for their protection. In some cases, the
confidentiality measures and safety measures taken to protect the victims in
the countries of destination were seen effective but despite this fact the
traffickers trouble the members of the family in the country of origin. Such retaliation
faced by the victims assisting in the investigation and legal action against the traffickers
being taken as well as the closed ones of the victims occurring in the country of origin
include threats, bribes, coercion, violence, terrorization by the traffickers as well as the
officials involved in trafficking. The local law enforcers are even found to be unprepared
to deal with such cases of victim protection and are most of the time found to be
corrupted.137

There is an incongruity noticed between laws which are concerned with the migrants,
especially those without any documentation and the laws which provide protection of
the trafficked persons and their permit to reside in the country of destination. It has
been noticed that the persons who are found to be trafficked and are not recognized
by the law enforcers are immediately deported to the country of origin and these
persons also face detention at the immigration. These persons who are the victims of
trafficking or the illegal migrants are mostly unaware about their rights. They even face
discrimination even after being sexually exploited. There are many cases where they
have
been accused, criminal actions being taken against them, arrested and
punished for being into forced prostitution and sexual exploitation.

The UNHCR and other Human Rights organizations have been working
towards rescuing and providing justice to the victims and also in eradicating
this serious crime across the borders as well as within the borders. But it
has been noticed that the organizations working towards this objective also

137
Winterdyk, J. et. al., Human Trafficking: Exploring the International Nature, Concerns and Complexities,
CRC Press, 1st Edition (2011)

85
face serious consequences from the society as well as the government in various
countries, especially in South East Asia. This is because of the
prevalence of criminal justice system which is followed in these countries
locally, deficiency in proper enforcement of anti-trafficking laws,
misinterpretation of UN protocols by the government and other officials, lack of
knowledge about these laws and protocols among the citizens. Another reason
is that the members of the family and society do not cooperate with them in
this noble cause as they fear facing serious retaliation from the traffickers.
The organizations working towards the objective of eradicating this crime
globally face threats from the traffickers as well.

Another problem faced in dealing with human trafficking cases is lack of coordination
between the stakeholders of law enforcement officers and
government officials as they have their own conflicting agendas while dealing

with the victims of trafficking and such illegal migrants. 138

The delay in prosecution of human trafficking cases and investigations is yet another
problem faced during dealing with the victims and their cases. The
victims are therefore held in the destination country, they are not given
refugee status and they face risk of being exploited again. These victims are
not even provided residence permit despite being included in the laws for
protecting the victims of trafficking. These victims are not apprised of their
rights and hence face difficulty in getting justice for the crime being done
against them.139

Lack of clarity, lack of proper understanding of anti-trafficking laws by the law


enforcement officials and lack of availability of resources also add up to the
impediment in prosecuting human trafficking victims.

Gender Perspective and Human Trafficking

Human Trafficking is probably the only area of transnational organized crime


in which women are significantly represented may it be as victims, as
perpetrators or as activists seeking to combat this crime. According to

Clawson H. J., Dutch, N., Cummings, M., Law Enforcement Response to Human trafficking and the Implications for
Victims: Current Practices and Lessons learned, US Department of Justice (2006)
Op cit 138

86
International Labour Organization, women are disproportionately the victims of human
trafficking, particularly trafficking for sexual exploitation, domestic servitude, and / or
marriage. Thus women are often the perpetrators and facilitators of human trafficking.
At the same time women are increasingly mobilizing on regional and national level to
combat human trafficking. Women and girls are victimized all over the world but this is
seen more in countries where the women and girls are denied education, rights to live
with dignity, economic or political rights. Women and children are vulnerable to
trafficking because in some countries they have no social status at all. 140

A research suggests that the women and children have been the greatest losers of
globalization.141 The 2008 global crises led to women and girls being pulled out of
schools, given less to eat, forced to work at young ages to support their families.
Though women are victims, they themselves are the
facilitators to this illicit trade of human trafficking. Women exploit other women
for servitude. It is seen that women support the trafficking activities of their
lovers and husbands. Of course, a woman can act independently too. In
many countries the persons who run the brothels are women. The significant
role of women in human trafficking is differentiated from that in drug
trafficking, where women rarely have any position of authority.

Studies and researches have shown that gender plays a very important role
in human trafficking and exploitation of women. Women are mostly and are often
primarily involved in facilitating human trafficking and sexual exploitation of other
women and girl children. The analysis of most cases of human trafficking reveals this
fact about the gender perspective and involvement of women in facilitating this
organized crime across the borders. It has also been seen that in many countries men
play a role of a recruiter and hire women through fake employments, false marriages
and facilitate trafficking of women. In many cases which are reported in Arab countries,
Russia, Turkey, African countries etc., it has been seen that women are actively
involved in trafficking and they are the ones who hand over other women and girls to
the pimps and brothel owners who are women again. The women involved in human
trafficking and facilitating movement of women across the borders for sexual

Masika, R., Gender, Trafficking and Slavery, Oxfam Publishing (2002)


Women and the Economy Globalization. Available from www.unpac.ca/economy/g_migration.html. [Accessed on 12th
December 2012]

87
exploitation and forced prostitution are generally found between the range of 20 - 50
years. These women place themselves at the top level of the organized crime group
since they are the biggest facilitator of women in trafficking. 142

Studies and research further reveal that the women who are involved in trafficking of
women are among those who have been earlier a victim of trafficking themselves and
have been sexually exploited. The women after being into the trafficking business for
a considerable time, being sexually exploited and leading life as prostitutes, turn into
pimps and brothel owners in the latter part of their life and act as predator. Even young
women who have
been victims of trafficking earlier get involved in this crime of human
trafficking. These women are set free and allowed to go back to their country
of origin in a condition that they will continue with the trafficking business and recruit
and facilitate other women and girls for human trafficking. But they are
also kept under control by the traffickers who constantly monitor their
movements and activities. 143

It is evident from various findings in different countries that these women get involved
in the human trafficking crime because of various reasons such as debts, pressure
from traffickers, fear of punishment from police, fear from the members of the family
and friends, fear from society, receiving incentives and gaining profits from traffickers,
getting a higher position in the business, and even a sense or feeling of revenge for
the sufferings from exploitation.

Apart from the women in becoming perpetrators and facilitating the crime of
trafficking, women getting trapped and becoming vulnerable to human
trafficking more than men are based on some of the reasons which they face

in the society. These reasons and factors144 can be enumerated below:


Inequality in the status of the women in the family as well as in the society


Unequal opportunity to education

Lack of proper employment

Lack of proper information and awareness regarding employment 

D’Cunha, J., Trafficking in Persons: A Gender and Rights Perspective, Expert Group Meeting on Trafficking in Women
and Girls, New York (2002)
Ibid
Ibid

88
 Culture and tradition of society and community
 Tolerance of violence against women in the society
 Lack of access to legal redressal
Poor economic and living condition of the families

The fact that women are enemies of fellow women has been clearly evident in several
cases of human trafficking, sexual exploitation, voluntary or forced prostitution. These
women take advantage of the above mentioned factors of the women and girl children
and exploit them thereby facilitating human trafficking across the borders. Such
incidents take place majorly in South-east Asia, African countries, Russia, Turkey,
Arab countries and some European nations. This has also been evident from the first
global report of the UNODC published in Vienna which states, "Indeed, female
offenders have a more prominent role in trafficking in persons than in any other crime.
In Eastern Europe and Central Asia, females account for more than 60 percent of
convictions for trafficking in persons.”145

Responses to Law Enforcement against Human Trafficking: A Regional


Outlook

The increasing rate of human trafficking for labour, sexual servitude, slavery and
prostitution all over the world has led to the enforcement of various laws worldwide to
combat this crime. The response to law enforcement in human trafficking is different in
different countries. Various International laws, conventions and protocols have been
adopted and enforced by the United Nations and its allied organizations such as
UNODC, UNTOC and UN.GIFT. In addition to this, many more legislations have been
enforced by each and every country all over the world to combat human trafficking.

The major activities of human trafficking take place in the developing nations such as
countries of South Asian region including the Indian sub-continent, Central Asia,
Middle East region, African region and some parts of Eastern Europe. These regions
have strived to combat human trafficking by enforcing various laws at the domestic
level in conformation with the International Laws and protocols of the United Nations.
The legal systems in these regions are

145
UNODC Global Report, Vienna

89
diverse and the responses to the law enforcement against trafficking are also varied.
The region wise outlook of the responses to the laws enforced in these regions is
illustrated in the following paragraphs.

South Asia:
In South Asian region, the cross border trafficking of women and children is a
major area of concern. The trafficking activities take place in the countries of
this region which acts as country of origin, destination as well as transit.
Human trafficking is a very severe form of organized crime in this region. But
it is very difficult to find out the exact number of victims of trafficking
because of the subversive nature of the crime and the insufficient response
and lack of proper effective measures to tackle this heinous crime. The
exploitation of women and young girls in this region is continuously on the
rise despite the enforcement of various domestic laws in the countries of

South Asian region.146

Most of the women and girls trafficked in the South Asian region hail from
the Indian sub-continent countries such as Bangladesh, Nepal and India and even from
Sri Lanka and Pakistan. These women and girls are mostly sent to brothels operating
in India and also trafficked to the Middle East region for exploitation, sexual servitude,
and prostitution. The trafficking of women and children takes place in this region mainly
because of the poor economic condition, lack of employment, lack of education and
the poor societal status
of women prevailing in this region. Due to these reasons, the response to the
law enforcement in this region is not much effective. The victims of trafficking
are not properly taken care of properly as per the standards laid down by the
United Nations protocols and conventions, they do not receive any protection
during prosecution as well as after being released. They always have a fear
147
of being trafficked again.

The South Asian Region has a different legal system. They have a domestic legislation
to combat human trafficking in this region but these are primarily based on the criminal
justice system which is the predominant justice system prevailing in the region. The
domestic legislation plays a prominent role in

Derks, A., Combating Trafficking in South East Asia: A Review of Policy and Programme Responses, 2/2000, IOM Migration
Research Series (2000)
South Asia Regional Conference Compendium, Responding to Trafficking for Sexual Exploitation in South Asia, UNODC
& UN.GIFT, New Delhi (2007)

90
dealing with the human trafficking and other related crimes. The criminal justice system
prevalent here comprises the police, the prosecutors and the judiciary and depends
on the domestic laws to deal with human trafficking.

Studies and reports of the National Human Rights Commission of India states that the
registered number of cases and conviction rate of the victims are low due to the
insufficient law enforcement in the region. The studies also state that the rate of
corruption among the police, judiciary, bureaucrats and prosecuting officers is ever
increasing. The victims are re-victimized and even re-trafficked involving these
personnel with the help of the organized crime groups. 148

The government initiatives and various measures undertaken as part of responses to


the law enforcement has greatly helped in prosecuting the
traffickers, rescuing the victims and reducing the number of trafficking of
human and children in the South Asian region. Training of police personnel,
law enforcement officers, involvement of non government organizations have greatly
encouraged in bringing down the human trafficking rate in this region though it still
holds the highest rank among the countries of origin. The government as well as non
governmental organizations provide shelter, protection and support to the victims of
trafficking. Awareness programmes are also conducted to spread the information
about human trafficking, especially of women and children, in the region and the most
vulnerable community are
apprised of the severity of this crime and the laws enforced to curb this
crime so that they do not fall prey to the traffickers.

3.6.2. Middle East and Central Asia:

Middle East countries are primarily considered as countries of destination and transit
for the victims of trafficking. The trafficked persons generally hail from the countries of
South Asia such as India, Bangladesh, Nepal, Pakistan, Sri Lanka, Thailand,
Indonesia, China etc. The trafficked persons are also found hailing from African
countries, mainly the East African countries. The women and children are trafficked as
migrants for forced labour or for employment purpose or for domestic service or other
sectors where they require labour.

148
Ibid

91
But when the trafficked persons reach the country of destination, they are forced into
the condition of exploitation. The exploitation begins with seizing of
their passport and other legal documents, they are kept captive in places
without basic human needs and then they are subjected to severe ill
treatment, sexual exploitation, abuses, forced labour, debt bondage and are
further indulged into prostitution forcefully. The employment agencies working in the
South Asian countries as well as in the United Arab Emirates, Oman, Iran, Iraq, Syria
as well as other countries of this region lure the vulnerable persons by providing fake
employment opportunities. 149

The countries of the Central Asian region are mostly and exclusively categorised as
the countries of origin. These countries include Kazakhstan, Turkey, Turkmenistan,
Tajikistan, Ukraine and Russia. The victims hailing from this region are trafficked to the
neighbouring countries of Asia and also to parts of Europe such as the Western and
Central Europe. The victims are mostly adult women who are trafficked basically for
sexual exploitation and for forced labour and servitude. 150

The government of the countries in this region, like all other countries dealing with this
organized crime, are also working towards combating the trafficking of the labour force
which comprises mostly women but the measures and
initiatives undertaken by the government are just not enough in eradicating
this crime from the region. However, effective and important initiatives are
being undertaken by way of proper enforcement of laws as per the
international standards laid down by the United Nations. 151 The government in this
region is also prosecuting the offenders, arresting them, punishing them through
imprisonment by means of the enforced laws but still they lack in combating this crime
fully in the region. Better laws are still required to be effective in this region. The
government, though, is helping and supporting the victims of trafficking by providing
them with shelters and protection and also assists them in leading a normal life without
any bondage or threat but still it
lacks proper infrastructure for the victim. The government is still required to
look after the legal provisions, to enforce effective legal measures, to frame
better policies with regard to the migrant persons, to punish the traffickers, to

UN.GIFT, Human Trafficking: An Overview, United Nations, New York (2008)


Ibid
UNODC, International Framework for Action to Implement the Trafficking in Persons Protocol , United Nations
Publications, New York (2009)

92
take adequate measures in terms of immigration, identification of the traffickers
as well as the victims of forced labour and prostitution etc.

The government in this region is still trying to establish an effective anti-trafficking law
to be enforced to completely eliminate the crime of trafficking of human beings from
this region. The government is bringing changes in the prevalent laws as per the
International guidelines and standards so as to effectively tackle the problem of forced
labour, forced prostitution, migrants and
sexual exploitation of women and children specifically through the act of
human trafficking. The citizens are also apprised of this growing crime rate
and are made aware of the possible traffickers; the immigrant officials and
law enforcement officers are also given adequate training to identify the
violators of immigration and the offenders of the anti-trafficking laws. The
education system is being developed in the region, better economic policies
are framed and socio-cultural condition of the people is being developed
through various awareness programmes through governmental agencies as well as
non governmental agencies.

African Region:

The African continent, specifically the eastern part of the continent, is the most
vulnerable region in terms of human trafficking of women and children in the region. 152
This region is predominantly the region identified as country of origin for the victims of
trafficking. As it is already known that the African countries are among the
underserved, under-privileged community and have severely poor economic, social
and political conditions, crime has thus spread to its roots very effectively in the region.
The social, economic and political
condition of this region is a dominant factor in facilitating the organized crime
of human trafficking besides the drug trafficking crime and arms trafficking
crime. The women and children are being trafficked in search of better
employment opportunities, better living conditions in other developed nations.
The children are being trafficked through adoption process and are forced into labour,
domestic servitude and sexual exploitation. The young girls are forced
into sexual servitude and forced prostitution. These victims are mostly
trafficked in the Middle East countries, United States, European countries and

152
UNODC, The problem of Drug and Organized Crime in West and Central Africa, Available from
http://www.unodc.org/westandcentralafrica/en/regional-programme-framework.html. [Accessed on 21st August 2012]

93
other developed nations. They are even trafficked in other parts of the African continent
such as Western, Central and Southern Africa. 153

Since the people are not aware of their basic human rights, the laws
enforced to protect and prevent human trafficking, to prevent labour
exploitation, they are easily lured by the traffickers and are trafficked to the
above mentioned countries of destination which are mostly the developed
nations where they are exploited. The government, in recent times, is striving
to enforce effective legal measures and enforcing laws to prevent and
eliminate the crime of human trafficking and prevention of slavery or the debt bondage
of the people. Many non governmental agencies have also come forward to assist and
help the government to effectively manage this prevention act of human trafficking.
They offer education to the people, they make them aware about the rights of the
people, the laws being enforced to protect them and help in preventing trafficking in
the region. These agencies and organizations also provide shelters for the rescued
victims of trafficking; educate them and help them to be a part of the normal life again.
The government is also trying to improve the economic conditions of the region by
facilitating various policies in protecting the rights of its citizens, providing education to
the children and women and curb this menace of human trafficking.

European Region:

The countries of European region are amongst the destination countries for
the victims of trafficking. But it is also been considered as the country of
origin as there is evidence of trafficking within the borders and also between
the countries of this region. The victims of trafficking comprise majorly the
residents from the eastern part of the Europe and are trafficked to the
Western and the Central part of the European region. The victims also hail
from the Asian countries. The victims of trafficking in this region are adult
women mostly and they are trafficked solely for sexual exploitation, sexual
servitude and prostitution. These victims have also been reported to be
154
exploited for domestic service, abuse, forced labour etc.

Op cit 152
Ibid

94
The law enforcement in this region are as per the International standards and
strive to comply with the various protocols and conventions of the United
Nations by providing fundamental human rights, victim protection, refugee
status to the victims of trafficking in the country of destination, proper
deportation and framing of immigration laws to combat human trafficking,
enforcement of various anti-trafficking laws to combat trafficking for labour,
slavery and sexual servitude. The government with the help of the United
Nations organizations and various non governmental organizations are also
trying to bring down the rate of human trafficking in this part of the world.

The officials, law enforcement officers and the bureaucrats are given proper training
and information about the prevalent laws, international as well as the domestic laws
so as to help them to identify the traffickers and their activities, their nature of working
in the region and the possible victims of trafficking and taking effective measures and
actions in combating and preventing the organized crime.

Latin America and Caribbean:


The Latin American and the Caribbean region are identified as the intra-
regional trafficking zone as well as inter-regional trafficking zone. The victims
of trafficking are trafficked to European countries and also to Northern
American countries and also to some parts of Asia and the Middle East. The countries
of origin in this region in the case of intra-regional trafficking have been found to be
mostly the Dominican Republic, Ecuador, Bolivia, Paraguay
etc. While the countries of this region such as Chile, Guatemala and countries
of Eastern Caribbean are mostly the countries of destination. 155

The victims of human trafficking in this region are mostly found to be adult women in
addition to men and boys. They are trafficked for forced labour, forced begging and
domestic servitude. The children are also used for sex tourism in the countries of this
region such as Brazil, Costa Rica, Mexico, Jamaica, the Dominican Republic,
Colombia, Nicaragua, Guatemala etc. 156

The major reason of human trafficking and sexual servitude in this region is
due to the existence of poverty and poor economic conditions. The poor

155
Op cit 150
156
Ibid

95
families themselves facilitate trafficking by sending their children and girls for
prostitution, sexual servitude for exchange of money, gifts and other favours.

The government has been enforcing various anti-trafficking laws to combat trafficking
in this region and also enforce the conventions and protocols of the United Nations to
eliminate trafficking. The development in this region has been very important in
combating this organized crime. Even the Non Governmental Organizations and
various government agencies are working towards helping and coordinating with
immigration officials, judiciary and law enforcement officers to prosecute the victims
and the traffickers and help in reducing the crime in the region. The government is also
enforcing various policies in immigration to keep a check on illegal migration to and
from the nations. These Non Governmental Organizations also help in providing
shelters and protection for the rescued victims and the refugees of human trafficking.

Statistics of Human Trafficking as per ILO, UNODC, IOM and UN.GIFT:


Qualitative Reports
The nature of the organized crime involving trafficking of human is very
subversive and are also hidden and hence to get an exact and actual figure
of the victims of men, women and children being trafficked for forced labour
and sexual servitude is a very difficult task. Even to get the actual profits
earned by the actors of this organized crime group is not possible.
Nevertheless, the international organizations such as the International Labour
Organizations (ILO), United Nations Office on Drugs and Crimes (UNODC),
International Organizations for Migration (IOM) and United Nations Global Initiative to
Fight Trafficking (UN.GIFT) have provided the statistical data about
the amount of persons being trafficked, the profits earned by the traffickers
and costs incurred in the transportation of the trafficked persons is quite
alarming. The data provided by the international organizations has helped us
to get the knowledge and information about the severity of the crime which is taking
place across the borders as well as within the borders. These figures and statistics
help various countries, governments and other organizations working towards the
eradication of human trafficking and also framing and implementing relevant laws at
the domestic and regional level. 157

157
ILO Action Against Trafficking in Human Beings (2008)

96
From this data, it has come to light that the largest percentages of the victim are
trafficked solely for sexual exploitation and servitude. The number of victims trafficked
are more than 2.45 million as per International Labour Organization during the year
1999 to 2004. The type of exploitation of the
trafficked persons has been the highest in commercial sex which is 87% and
in Economic or Forced labour is 28% as per UNODC. The gender and the
age have been reported to be majorly women. UNODC reported that the victims
comprised 77% female, 9% male and 3% children, ILO reported as 80% female and
40% minors and IOM reported as 83% female, 15% male, 13% minors and 2% as
unidentified.158

It is already known that the business of human trafficking is a high profit


business with a low risk in the world with ample growth opportunities and it
holds the third rank in the world trade among the organized crimes. The
profits earned and costs incurred due to the human trafficking business can
be summarised in the following two tables as per the ILO Global Report and
database.

Table 3.1 Annual Profits from All Trafficked Forced Laborers159

Profits per Forced Profits per Forced Total Profit


Labourer (Exploitation Labourer (in USD)
– Commercial Sex) (Exploitation –
(in USD) Other Economic
Exploitation)
(in USD)
Industrialized 67,200 30,154 15,513
Economies

Transition 23,500 2,353 3,422


Economies

Latin America & 18,200 3,570 1,348


Caribbean

Asia & the Pacific 10,000 412 9,704

Victim Profiles in ILO, UNODC and IOM Database, GAO (2006)


ILO Global Report, A Global Alliance Against Forced Labor (2005)

97
Sub-Saharan 10,100 360 159
Africa

Middle East & 45,000 2,340 1,508


North Africa

Global Profits -- -- 31,654

The ILO, in its recent Global report has given an estimation of the financial
cost of coercion on the victims of human trafficking by way of forced labour
and other means of exploitation. The report has also estimated the total
amount as 20 billion USD160 but this data which has been made available
does not include the data of trafficked victims for forced commercial sexual
exploitation. This estimated cost given in the report includes loss of income
due to non payment and underpayment of wages, recruiting fees, travel cost,
fees paid to the agents and other related costs. The following table depicts
the estimation of the cost of coercion.

Table 3.2 Estimate of the Total Cost of Coercion (in USD)161


Number of Number Total Total Total cost
Victims – of Victims Underpaid Recruiting of coercion
Forced Trafficked Wages Fees
labour
Industrialized 113,000 74,133 2,508,368,21 400,270,777 2,908,638,99
Economies 8 5
Transition 61,500 59,096 648,682,323 42,675,823 691,358,145
Economies
Asia & the 6,181,000 408,969 8,897,581,90 142,855,489 9,040,437,39
Pacific 9 8
Latin 995,500 217,470 3,390,199,77 212,396,124 3,602,595,89
America & 0 4
the
Caribbean
Sub-Saharan 537,500 112,444 1,494,276,64 16,994,438 1,511,271,07
Africa 0 9

Report of the Director General, The Cost of Coercion, ILO (2009)


Ibid

98
Middle East 229,000 203,029 2,658,911,48 551,719,286 3,210,630,76
& North 3 9
Africa
Total 8,117,500 1,075,141 19,598,020,3 1,366,911,93 20,964,932,2
43 6 79

Identification of the victims of Human Trafficking

The victims of human trafficking have been identified as mostly adult women
in the age group of 18 – 24 years as per the IOM database. These
trafficking victims have, on an average, acquired middle level education. These
victims are identified during their movement across the border, during transit
and also when they are rescued after exploitation in the country of
destination. The following graphical representation depicts the education level
of the victims of human trafficking where it is clearly evident that the victims
are mostly of middle level, high school level and technical school level.
Besides, there are also a number of victims who have acquired primary
school education.

Figure 3.1 Education level of the victims of Human Trafficking162


2000
1800
1600
1400
1200
1000

800
600
400
200
0
None Primary Middle level High School Technical University Others
Education Education School

162
IOM Counter-Trafficking Database

99
Summary of Discussions

The trafficking of women and children are increasing day by day and has become a
booming trade all over the world across the borders. Human trafficking crime has
undermined the legal framework of all the countries across the world. This organized
crime is now the biggest threat to humanity and human dignity. To eradicate this
transnational organized crime, the government, the law enforcers, peace makers and
human rights organizations have come together from across the world to work towards
this common goal.
Various legal prohibitions have been enforced to combat and eradicate this
crime from its roots.

The main focus of this chapter is the legal prohibitions against trafficking, especially of
women and children. In its introduction, the chapter gives an insight on the statistics of
the people being trafficked and the UN protocols, conventions and laws which have
been enforced to check the trafficking nuisance. It also highlights the various protocols
and laws enforced by United Nations organizations such as UNODC, UN.GIFT,
UNICEF, ILO, IOM, OSCE and OHCHR towards the eradication of this crime. It also
gives an insight on
various laws which have been enforced by the United Nations under the
aegis of international law.

Further, various legal responses in dealing with this organized crime has been
discussed. United Nations has adopted and enforced a considerable number
of conventions, protocols and treaties to combat human trafficking and deal
with this organized crime in an efficient manner. Each of this conventions
protocols and treaties have been highlighted and discussed in the chapter.
The chapter also describes how the people are victimized in this crime and
how the human rights are violated and human dignity is damaged and shattered. The
reasons which have been discussed are majorly the poor economic conditions, fake
and attractive employment opportunities, lack of education, lack of information and
awareness, inequality status of women in the society etc. The crime and the doers of
this crime are still far away from
legalities and legal prohibitions. The UN protocols and conventions in
combating trafficking of women and children have been highlighted in the
chapter and how the United Nations work in every country all over the world
in helping and coordinating with the nations in dealing with this organized

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crime. The chapter also discusses the various steps taken towards combating this
crime in different nations.

A focus on the flaws and loopholes in legislations, protocols and conventions of the
United Nations and misinterpretations of some terms by different States has been
described due to which this crime has not yet been eradicated fully from the world. And
the traffickers have become the biggest gainers in this business taking advantage of
such loopholes in the legal prohibitions. Such deficiencies observed in the legal
prohibitions have been one of the reasons behind this booming and flourishing trade.

The plight of the victims have raised questions about proper justice, proper prosecution
and punishment to traffickers, protection and providing human dignity and the basic
rights to the victims have been highlighted mainly while describing the deficiencies and
problems faced while dealing with human trafficking. Various studies and reports
revealed that the people who are
victimized in this crime are often left in miserable conditions and even after
they are rescued from the hands of the traffickers and brothels, their
problems never seem to end. They face problems in living in the destination
country, face problems in getting refugee status, have risk of being victimized
in another crime, if deported to country of origin, they face immigration
problems, risk of being re-trafficked etc. Even the people and organizations working
with the objective of combating human trafficking and assisting the victims, face threats
from the traffickers. Besides this, the legalities to combat human trafficking faces
problems due to lack of coordination between government and other officials including
the ones involved in immigration. Problems are too many and coordination between
states, officials and governments are still lacking.

The chapter also highlights the gender perspective in human trafficking and the role of
women in sexual exploitation. Women, as discussed, have been
themselves victims of human trafficking and sexual exploitation and later they
get into the trade of human trafficking and facilitate trafficking of other women
in the country of their origin of these victims and their communities. This
chapter highlights various reasons and factors due to which women get
involved in this organized crime. Most of the women traffickers have been
seen that they have been previously victims of trafficking and have faced

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sexual exploitation themselves. The traffickers rescue and employ these women in an
agreement that they will facilitate in trafficking other women from their country of origin
and community.

Further, the chapter also discusses and highlights the responses of law enforcement
against human trafficking at various regions across the world. It takes a region wise
outlook on the extent of human trafficking crime and the laws enforced to combat the
trafficking of human in these regions. This region wise study has been referred from
the reports of UNODC and UN.GIFT. The
major regions identified and discussed are South Asian region, Middle East
and Central Asia, African Region, Europe, Latin American and Caribbean
region. In the discussion and highlights on these region, it has been found
that most of the countries of the South Asian, African, Latin American,
Caribbean and Central Asian region are identified as the countries of origin whereas
the countries of the European region, Middle East region and some
parts of the European and African region have been identified as the
countries of destination.

This chapter then highlights the statistical data which has been made
available from the reports of the International Labour Organizations (ILO),
United Nations Office of Drugs and Crimes (UNODC), International
Organizations for Migration (IOM) and United Nations Global Initiative to Fight
Trafficking (UN.GIFT). The reports of these international organizations have revealed
that most of the trafficked victims are women and young girls who are trafficked only
for the reason of sexual exploitation and forced prostitution. These reports also
highlight the severity of the human trafficking crime which is being carried out efficiently
and successfully across the borders all over the world. The data also states that the
age of the women who are trafficked for sexual exploitation is between 18 and 24 years
and majority of the victims of trafficking are of middle school level though many of
these victims have also acquired high school education, technical school and few of
them at the
university level.

The discussion in this chapter has covered various aspects of human


trafficking, trafficking of women and children, the reason behind such
organized crimes being carried out effectively and efficiently despite the laws being
enforced against such crimes. The chapter has also given a description

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of the legal aspects to deal with such crimes and the problems faced while dealing with
such crimes, further going into a detailed study and discussion on the role of women
in human trafficking and emphasized on the gender perspective. The region wise
status of human trafficking in the world has also been described and supported with a
statistical data available from the various reports published by the International Labour
Organization (ILO), UNODC, UN.GIFT and IOM.

This discussion now poses a need of a proper and effective legal response in dealing
with human trafficking, especially of women and children. The following chapter deals
with the importance of a strong legal response, how effective is
the international legal responses towards human trafficking, gives an overview
of the international law and human trafficking with a brief description of
various approaches towards prevention of human trafficking, also gives an overview
of the human rights aspect and the crime, provides a description on the enforcement
action of the state and the success of International Criminal Court (ICC) in prosecuting
human trafficking cases thereby providing an effective legal response to deal with this
heinous form of organized crime and combat trafficking of women and children.

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