Mickelson Human Trafficking Research Paper | Human Trafficking | People Smuggling

Mickelson 1 Prevention, Protection and Prosecution: The United Nation’s Fight Against Human Trafficking Compared by some people

to slavery, human trafficking has become a major concern and top priority of major officials within the United Nations. It is one of the few problems that have the breadth to impact every member state in one way, shape or form. Although attention has been given to the problem and awareness raised, minimal resources and legislative loopholes, among other things, have hindered the United Nations ability to reach one of its primary goals, the conviction of criminals involved in human trafficking and migrant smuggling. This analysis of the issue will explain the roles that the United Nations Office on Drug and Crime (UNODC) and the United Nations Convention Against Transnational Organized Crime (UNTOC) play in combating human trafficking, define precisely what human trafficking is, and will go in-depth to compare what is being done in Sri Lanka and Nepal to fight human trafficking violations. The UNODC and the UNOTC Within the framework of the United Nations, two subgroups have come to the forefront as major combatants against human trafficking and migrant smuggling. These are the UNODC and UNTOC. The UNODC was established in 1997 and works in every state in the world to help combat problems of ‘illicit drugs, crime and terrorism.’



("About unodc," 2011)

Mickelson 2 organization itself is founded on the following guiding principles:2 • Field-based technical cooperation projects to enhance the capacity of Member States to counteract illicit drugs, crime and terrorism • Research and analytical work to increase knowledge and understanding of drugs and crime issues and expand the evidence base for policy and operational decisions • Normative work to assist States in the ratification and implementation of the relevant international treaties, the development of domestic legislation on drugs, crime and terrorism, and the provision of secretariat and substantive services to the treaty-based governing bodies As you will see, progress is being made by the UNODC in raising awareness and increasing convictions in human trafficking cases, however, there are still many limitations that need to be overcome. Of those limitations, funding is a main concern. Seeing as how the organization is funded entirely by voluntary donations, generally from the governments of member states, it has become difficult to provide the resources necessary to effectively make progress. However, with the funds provided, the UNODC has been able to assist in drafting national legislation as well as create ant-trafficking strategies. Furthermore, the organization has provided members states directly with resources to assist in implementing some of its strategies and recommendations.


Mickelson 3 Another organization within the scope of the United Nations and under jurisdiction of the UNODC is the UNTOC. Established in 2000 by the General Assembly, the UNTOC is described as the “main international instrument in the fight against transnational organized crime.”3 Within UNTOC, member states are allowed access to the benefits and recommendations provided in the three protocols established by the organization. The two relating to human trafficking and migrant smuggling are the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air.4 Both of these protocols provide an explicit definition that can be used internationally for what constitutes human trafficking and migrant smuggling respectively. However, it has been clear in states in South Asia that domestic legislation is still failing to incorporate all aspects of human trafficking. In India for example, it remains that only prostitution or trafficking for sexual exploitation is criminalized.5 Further, both protocols call for measures to prevent the problems, protect the victims and promote cooperation between member states. This cooperation includes commitments from member states to abide by certain rules of the UNTOC. Included among these are promises to create certain domestic criminal offenses, new framework for

3 4 5

("United nations convention," 2011) ("United nations convention," 2011) (Thomas, 2011, page 3)

Mickelson 4 legislation, cooperation between law enforcement officials and training of national leaders and authority.6 Comparisons are made between the goals and procedures of the UNODC and the UNTOC and rightfully so. One main difference would be the funds that the UNODC provides its member states. While the UNODC provides direct assistance to states, the UNTOC is limited to just offering recommendations and suggestions compared to actual monetary funds or resources. With a general background knowledge of what the UNODC and UNTOC are, it is important to turn to the issues of human trafficking and migrant smuggling and provide an in-depth analysis of the problem at hand.

Human Trafficking: What is it? The issue of human trafficking is one that has become more serious over the past several years. In an attempt to create a sense of consistency and cooperation between states, the first protocol of the UNTOC created a definition in Article 3. Defined, human trafficking is “the recruitment, transportation, transfer, harbouring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over


("United nations convention," 2011)

Mickelson 5 another person, for the purpose of exploitation.7 Broken down, the definition can be simplified into three main parts: the act, the means and the purpose. If any combination of these three things occurs, as outlined in the definition, it is considered to be a human trafficking offense. While creating a recognized definition for states use is a promising step in fighting human trafficking, there is still much more work that needs to be done. First and foremost is creating awareness to the severity of the problem and all the people that it affects. There are several misconceptions about human trafficking and its impact in the world. First, many people think it only affects women. What they do not see are the thousands of men and children who are also victimized by human traffickers. Another misconception is that sexual exploitation is the only type of human trafficking. This is an issue that has led to many failed convictions due to loopholes in domestic legislation. One such loophole can be found in the state of Bangladesh. One article addresses forced labor (article 34) and another criminalizes prostitution (article 18) but none of the articles explicitly address human trafficking as a whole, which ultimately leads to fewer convictions.8 Further, Sri Lanka’s Constitution only mentions the protection of children in regards to human trafficking.

While sexual

exploitation is by far the most common type of human trafficking (with

7 8 9

("Human trafficking," 2011) (Thomas, 2011, page 2) Ibid.

Mickelson 6 estimates at 79%), other forms of human trafficking such as forced labor, organ removal and exploitation of children are also occurring across the globe.10 A third fallacy is that human trafficking only affects third world countries. The fact is that it affects every country, either as a country of origin (where victims are from) or as a country of destination (where victims are sent to be exploited). These falsehoods are the first challenge faced by the UNODC and the UNTOC as they try to prevent human trafficking, protect the victims and convict criminals. However, there are many more challenges that still present themselves. One is producing accurate information to member states in order to help pass legislation. With most of human trafficking violations occurring underground and out of the public eye, it is very difficult to get an accurate sense of how serious this issue is. Another challenge is that within the UNODC, human trafficking is only one of the major areas of concern (along with other forms of crime, drug prevention, HIV and AIDS and terrorism). This makes it difficult for the UNODC to supply member states with the resources or spend the time to appropriately combat the issue. Amidst all these challenges, the UNODC has made some big steps toward limiting human trafficking. Various measures have been taken to prevent, protect and convict in cases of human trafficking. Toolkits have been created to help train authorities on how to spot and support victims of criminal activity and


("Human trafficking faqs," 2011)

Mickelson 7 provide a wide variety of assistance to victims.11 It is promising to note that these steps have increased conviction rates across the globe, but the UNODC is determined to continue working toward eliminating all cases of human trafficking, a goal which is undoubtedly unreachable. Migrant Smuggling Defined Along with human trafficking, one of the main issues addressed by the UN is migrant smuggling. Similarly to human trafficking, an explicit definition for what migrant smuggling is can be found in the Protocol against the Smuggling of Migrants by Land, Sea and Air. The agreed upon definition is 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 permanent resident.”12 Many aspects of migrant smuggling parallel that of human trafficking and it has raised the question why the UNODC and the UNTOC chose to address these two issues separately rather than combining resources to fight them as one issue. Like human trafficking, migrant smuggling affects nearly every country and victimizes people or both genders and every age. Also, migrant smuggling is a very low risk and high profit business that often times is influenced by other types of organized crime such as drug trafficking and the trafficking of firearms. However, there are a few differences

11 12

("Human trafficking faqs," 2011) : ("Migrant smuggling," 2011)

Mickelson 8 that separate the two issues. The differences between the two issues are in four main areas: consent, exploitation, transnationality and sources of profits.13 First, migrant smuggling will always involve consent on the behalf of the person being smuggled. Human trafficking is different in the sense that even if a person consents, use of any of the outlined ‘means’ constitutes a crime of human trafficking. The next difference is that migrant smuggling ends as soon as a person crosses a border into another country whereas crimes of human trafficking continue with the further exploitation of human beings. Third is the issue of transnationality. While human trafficking can occur within the borders of a state, migrant smuggling will always be transnational (occurring between states). Lastly, profits from migrant smuggling are derived from the illegal entry of a person into a foreign state whereas profits from human trafficking are derived from the exploitation of a person.14 Ultimately, these four differences give enough reason to the UNODC to differentiate between migrant smuggling and human trafficking and is the reason that these issues are addressed separately. This also brings to attention how UNODC addresses funding issues of migrant smuggling. Unlike human trafficking, the UNODC does not actively provide resources to combat migrant smuggling. However, the UNODC has created toolkits and other tools that recommend actions and make suggestions to help prevent migrant
13 14

("Human trafficking faqs," 2011) Ibid.

Mickelson 9 smuggling and protect the victims.15 Human Trafficking in Bangladesh, India, Nepal and Sri Lanka Understanding what exactly human trafficking is and how the United Nations has worked to address the issue is important and allows us to look closely at a particular case in which the UNODC has intervened on behalf of a country to fight human trafficking. Perhaps the largest portion of victims come from Asia therefore one of the focuses of the UNODC has been in the states of Bangladesh, India, Nepal and Sri Lanka (which are all member states of the South Asian Association for Regional Cooperation, SAARC). The impact of the UNODC and how these states have been influenced by legislative measures is outlined in a document titled “Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka” that was published by the UNODC.16 This document also contains a break down of each specific state to see what is being done within its borders. The first major thing to consider when looking at the UNODC’s ability to regulate human trafficking is domestic legislation. As pointed out by the article, many local law enforcement officials and criminal justice system have a standard domestic policy that they abide by and many times are unaware of the policy of the UNODC or are hesitant to adopt it.17 Other issues such as the open border policy between Nepal and
15 16 17

: ("Migrant smuggling," 2011) (Thomas, 2011) (Thomas, 2011, page 2)

Mickelson 10 India essentially make it too easy for human trafficking violations to occur. The main question at heart however, is still how the domestic legislation compares to what the UNODC and the UNTOC have asked of its member states. The UNTOC trafficking protocol, as mentioned earlier, focuses on three standards: prevention, protection and prosecution. Within each standard, there are some variances between the protocols expectations and national legislation. For instance, the Sri Lankan Constitution fails to include any provisions that would protect victims of human trafficking.18 Although there are still some loopholes and states are not completely adhering to the UNTOC protocol, it still serves as a strong basis for combating the issue and, as shown, has led to various campaigns and initiatives to raise aware to help prevent, protect and prosecute victims. Case Study of Human Trafficking in Sri Lanka One of the countries that is located in South Asia and is a member of the SAARC is Sri Lanka. It is also home to a variety of serious human trafficking offenses coupled with an inadequate domestic legislation to fight the issue. With a domestic dispute as top priority for authorities in Sri Lanka, the issue of human trafficking has been put on the back burner. However, the state itself is a key source of men, women and children being trafficked for a variety of


(Thomas, 2011, page 5)

Mickelson 11 exploitative methods.19 These methods have included forced labor, child sex tourism and being forced to work as child soldiers. Thus far, minor arrests have been made but convictions are still very rare. Several organizations have been founded and legislation has been passed but the problem continues to exist, and even more disheartening, it is getting worse. In line with the goal of the UNTOC and the UNODC, a National Force on Human Trafficking has been established in conjunction with the International Organization for Migration to help protect victims and increase convictions.20 Further, the states Parliament also passed the Convention Preventing and Combating Trafficking in Women and Children for Prostitution Act in 2005 but six years later, the convention is still not in effect (an issue that highlights another problem faced by the UNODC).

Specifically related to the goals of the UNTOC

(prevention, protection and prosecution) Sri Lanka is trying to take steps in the right direction by focusing on tweaking laws and regulating migration but the state is faced with many crippling obstacles. Prevention awareness programs took place and policies to protect workers abroad has been drafted but nothing is in place yet and time is of the essence. Also, protecting victims and prosecution efforts have

Adapted from Global Report on Trafficking in Persons as well as the Trafficking in Persons Report, 2010, United States Department of State, 14 June 2010 sourced from http://www.unhcr.org/refworld/docid/4c1883c52d.html accessed on 08 July 2010 as in the Asia document page 58 20 ("International organization for," 2011) 21 (Thomas, 2011, page 58)

Mickelson 12 been negatively impact by a weak judiciary system within the state that prevents victims from speaking out against the offenders. Looking at the legislation in the Sri Lankan Constitution it becomes very evident, as previously mentioned, that there are some major flaws in the specifics. Only two articles, article 27(13) and article 12(4), mention any of the acts that constitute trafficking and both are focused solely on children. Nothing is mentioned about adult men and women. Article 27(13) declares that the state has an obligation to protect children and article 12(4) says that action must be taken by the state to ensure that protection.22 Nowhere in the Constitution is anything pertaining to forced labor mentioned. In turn, this limits the effectiveness of the UNODC in its efforts in that state. Although the Constitution has nothing regarding human trafficking of people other than children, there is an act, the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution Act in 2005. Again however, this is limited to sexual exploitation in women and children and isn’t official yet so it can’t be enforced in court. Other legislation does criminalize acts that may be viewed as similar to the acts acknowledged in the UNTOC’s definition of human trafficking, but there is still some variance. Similarly, the SAARC’s definition of trafficking is limited to ‘commercial sexual exploitation’ of women and children and fails to address other issues of human trafficking.23 As
22 23

(Thomas, 2011, page 59) (Thomas, 2011, page 62)

Mickelson 13 shown earlier, the definitions of human trafficking of both Sri Lanka and the SAARC are in stark contrast with that of the UNTOC’s protocol. This leads to several issues in enforcement and punishing criminals. Further, there are several gaps between the UNTOC prevention, protection and prosecution goals and the reality in Sri Lanka. These are all outlined in the “Responses to Human Trafficking in Bangladesh, India, Nepal and Sri Lanka.” Gaps in prosecution are perhaps the biggest issue. These range from a lack of cooperation in dealing with cross border trafficking in terms of providing information, joint investigations and legal assistance.24 Protective gaps can vary from a lack of funding to an atmosphere where victims feel safe is not created by officials. Finally, there are gaps in the prevention of human trafficking in Sri Lanka. As mentioned, there are some training methods put in place but more are still needed and legislation needs to be drafted and adopted in a more efficient manner to start cleaning up the issue in a timely fashion. All of these are obstacles that Sri Lanka is currently facing and needs to address as it moves forward in its combat against human trafficking.

Case Study of Human Trafficking in Nepal Another member state of the UNTOC and SAARC that continues

(Thomas, 2011, page 66)

Mickelson 14 to struggle with human trafficking is Nepal. Overall, it has addressed the issue more effectively than Sri Lanka but by no means is it free from trafficking. Like Sri Lanka, Nepal is generally a country of origin with men, women and children all being victimized by human trafficking. The types of trafficking victims in Nepal is much more elaborate than found in Sri Lanka. Many women and girls end up in brothels, while other victims go voluntarily to other countries and fall victim to exploitation such as lower wages or physical abuse upon arrive. The major factor is the open border policy between Nepal and India that creates fourteen legal entry points, which makes trafficking even more difficult to track.25 Some of the same crimes such as child sex tourism are also common in Nepal. Considering the legislation to prevent, protect and prosecute in Nepal, there is a lot of work to do. Currently, there is no permanent Constitution in place because the state is still recovering from the fall of a monarchy.26 This obviously raises some concerns. However, Article 29 of the interim Constitution that is in place prohibits the “trafficking in human beings, slavery, and bonded labor.”27 This is a much more inclusive policy than is found in Sri Lanka but it still falls short of all the types of human trafficking outlined by the UNTOC. Also, Nepal has implemented the Trafficking in Persons and Transportation Control Act

25 26 27

(Thomas, 2011, page 44) Ibid. Ibid.

Mickelson 15 of 2007. This parallels many of the ideas of the UNTOC’s protocol in the sense that it aims to protect and prosecute in human trafficking cases. The definition defined by the act considers human trafficking violations to consider any of the following: selling or buying a person for any reason, engaging a person in prostitution, illegally removing organs and having sexual intercourse with a prostitute.28 While not as broad as the UNTOC definition, it is much closer than is the SAARC’s definition. The act itself also takes many things into consideration such as protection of whistle blowers, confidentiality of informant’s identity, and not publicly releasing names of victims so the rehabilitation is easier on them.29 Perhaps the biggest step toward gaining more convictions is that the act requires the accused has the burden of proof placed on their shoulders, any testimony of a trafficked person is sufficient evidence, and victims are provided a competent legal representation.30 Finally, the act places a great deal of importance on the rescue and rehabilitation of victims. The government has a fund that provides financial assistance to any victim of human trafficking, even if no conviction was made.31 While Sri Lanka had no major convictions in regards to human trafficking, Nepal has had more success in increasing convictions. In Permanent Resident v HMG on the FIR of Tara Devi Dahal, the higher
28 29 30 31

(Thomas, 2011, page 48) (Thomas, 2011, page 45) Ibid. (Thomas, 2011, page 46)

Mickelson 16 court upheld a decision that found a man guilty for falsely promising a girl that he would marry her. Ultimately, he took her across the border into India and sold her to a brothel. Before the transaction could go through, the girl was rescued. But it was determined that the victims complaint was to be “considered trustworthy until otherwise proved by the defendant.”32 This case alone shows the importance of the provision in the act mentioned that calls for the burden of proof to be placed on the shoulders of the accused and allows the testimony of a victim to be sufficient evidence. Without these provisions, it is likely that a conviction would not have been possible. However, like Sri Lanka, there are a variety of gaps between the domestic legislation of Nepal and the UNTOC protocol in terms of prevention, protection and prosecution. The gaps in all three aspects mirror those in Sri Lanka. Perhaps the biggest issue is a lack of funds that leads to a lack of training (prevention) and insufficient funds for existing programs (protection). Also, legal assistance and sharing of information between states is very minimal.33 The important thing to note here is that, unlike Sri Lanka, Nepal has yet to actually sign the Protocol so while their domestic legislation is similar to UNTOC, they are not committed to the organization itself.34 As shown, Nepal has taken more measures to limit human trafficking than Sri Lanka however; perhaps its biggest

Adapted from Landmark Decisions on Violence Against Women and Children in South Asia, SARI/EQUITY available at http://www.childtrafficking.com/Docs/judge_woman_childvio_0607.pdf 33 (Thomas, 2011, page 53) 34 Ibid.

Mickelson 17 step would be to sign the Protocol of UNTOC. This would be a huge sign of progression for the state in its fight against human trafficking. What’s Next? After examining the specifics of what human trafficking is and examining the role of the UNODC and the UNTOC in combating the problem, as well as look at two case studies of states that are working to limit the problem, it is clear that progress has been made in certain areas, but overall there is a lot of work that needs to be done. In order for substantial progress to be made, there will need to be an increase in funds and cooperation between member states. Not until this happens will the UNTOC’s goals of prevention, protection and prosecution start to actually be realized on a large scale. This will be in the form of common definitions of human trafficking across borders, domestic legislation that cracks down and pushes for more convictions and an increased training among government and police officials in identifying and aiding victims of human trafficking. Realistically, the chances are slim that drastic changes are made in the near future, but the United Nations and the sub-organizations within it (the UNODC and UNTOC), as well as states such as Sri Lanka and Nepal, seem determined to create a change for the better.

Mickelson 18

Works Cited Adapted from Global Report on Trafficking in Persons as well as the Trafficking in Persons Report, 2010, United States Department of State, 14 June 2010 sourced from http://www.unhcr.org/refworld/docid/4c1883c52d.html accessed on 08 July 2010 as in the Asia document page 58 Adapted from Landmark Decisions on Violence Against Women and Children in South Asia, SARI/EQUITY available at http://www.childtrafficking.com/Docs/judge_woman_childvio_0607.pdf International organization for migration: The migration agency. (2011, November 10). Retrieved from http://www.iomsrilanka.org/iom/ Thomas, S. E. (2011). Responses to human trafficking in bangladesh, india, nepal, and sri lanka. Chanakyapuri, New Delhi: United Nations Office on Drugs and Crime, Regional Office for South Asia. International organization for migration: The migration agency. (2011, November 10). Retrieved from http://www.iomsrilanka.org/iom/ (2011). About unodc. United Nations Office on Drugs and Crime.

Mickelson 19 (2011). Human trafficking. United Nations Office on Drugs and Crime. (2011). Human trafficking faqs. United Nations Office on Drugs and Crime. (2011). Migrant smuggling. United Nations Office on Drugs and Crime. (2011). United nations convention against transnational organized crime and its protocols. United Nations Office on Drugs and Crime.

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