Legal Regime Related to Women Trafficking

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Introduction

Human trafficking is an international issue that has violated human rights. It entails human transportation from one location to the other without the victims’ knowledge for the purposes of exploitation in their destined country. This emerging world phenomenon is a gross violation of human rights comparable to modern slavery. On the receiving end of human trafficking are mainly children and women who face sexual exploitation from the perpetrators of these criminal acts. Apart from sex exploitation, the victims also face other forms of human rights violations such as forced labour, selling of their sexual organs, among other forms of violation. Due to frustrations the victims face, they can resort to begging for survival in a given foreign destination, and this may lead to adoption or faint marriages. Major international crime acts like trade-in drugs and illegal arms and ammunition are the world’s largest international crimes, and they are closely followed by international human trafficking. These forms of illegal trade are so lucrative that the global trends seem to increase instead of decreasing with the current estimation of $44 billion per annum for human trafficking.

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It is due to these widespread illegalities that have prompted the formulation of human rights legislation to protect the interests of the victims and enhance international relations between one or more countries, who could feel their citizens are targeted for human trafficking. In this essay, we are going to look at the in depth analysis of human trafficking (women) and legislative measures set to curb this international criminal act.

Definition of Human Trafficking

“By 2003, an explosion in political, legislative and academic interest in the field of trafficking and smuggling of human beings in Europe was well underway.” Human trafficking is an international concern that was expressed in the Convention held by United Nations to combat transnational organised crime. The main victims of human trafficking, as has already been mentioned, are women and children. The Convention came up with two draft protocols: Prevent, Suppress, and Punish Trafficking in Person and preventing smugglers from carrying supplements. Trafficking involves forced sexual exploitation/prostitution in EU countries carried out by organised groups for the sake of getting hefty monetary rewards. According to Palermo Protocol, human trafficking refers to “…the recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation.”

The Palermo Protocol definition has been applauded and criticised at the same time. Whereas others feel it gives a more comprehensive definition, its critics are of the opinion that it is too complex to be understood by all people. From the definition, trafficking is distinguished from smuggling, an illegal entry of an individual into a foreign country directly/indirectly with the motive of gaining financial and other benefits. The striking observation in the definition of these two words is that human trafficking involves the exploitation of an individual without their consent, and should they know, then they have been coerced to do so. On the other hand, for a smuggler, the illegal entry is out of their own making and, therefore, the aspect of coercion does not apply. Smuggling is also a concern mainly for the state, unlike individual ordeal suffered by human trafficking victims. Though smuggling and human trafficking vary in definitions and practice, they are related as smuggling can lead to human trafficking in the long run. This is because a smuggled person can be frustrated in a given territory and end up as vulnerable as a human trafficked victim when certain demands are not met. The definitions of these two terms by the Palermo Protocol are complex so that they can be interpreted in legal terms at times of imposing international laws.

International Legislation against Human Trafficking

The main goal of the Palermo Protocol was to institute a legal framework that would curb human trafficking, especially against children and women. This document is meant to protect and give assistance to any human trafficking victim amid the promotion of international relations and cooperation.5 The Protocol gives mechanisms through which various countries can tackle the problem of human trafficking. One such mechanism is the provision of legislation under which countries that adopt its use can criminalise the act. The act of human trafficking is a criminal offence as stipulated in the Palermo Protocol, and potential victims are liable to prosecution and eventual conviction if found guilty. Besides legislation, the Protocol also takes preventive measures geared at curbing human trafficking. Such measures include the establishment of policies and programs in addition to other ways deemed necessary in dealing with human trafficking.

Article 6 of the Palermo Protocol outlines the reasons for the protection of victims of trafficking by urging states to ensure the privacy of human trafficking victims; for instance, the making of cases related to human trafficking private and confidential. Nations are also asked to provide avenues under which the victims of human trafficking are physically and psychologically rehabilitated. Such rehabilitation, if possible, should involve the help of non-governmental organisations, human rights activists, and other bodies that are appropriate in giving any form of aid. This is because the victims of human trafficking will, at one point or the other, need shelter, counselling, and access to information about legal rights and in language understandable to the victims. Nations that host human trafficking victims should make efforts of ensuring victims are safe and offer compensation for the physical, psychological, and other damages caused to them. However, the Protocol lacks firm action, compelling states to take legal actions over the matter. In addition, the Protocol lays more emphasis on curbing and preventing crimes rather than protecting the rights of human trafficking victims. The UK is among the states that have agreed to the provisions of the Protocol and had yet to ratify it by the year 2005-06.

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Secondly, besides the Palermo Protocol, measures have also been taken by the European Union to curb human trafficking. The efforts by the European Union follows the 2002 Framework Decision on Trafficking meant to strengthen the effort of the United Nations in matters relating to human trafficking. The Framework Decision on Trafficking aim was to interpret the provision of the United Nations to suit EU’s legislation and procedures of curbing crimes relating to human trafficking: sex exploitation and labour exploitation. The Framework Decision refers to human trafficking in the same terms as the Palermo Protocol and proposes to the EU bloc member states to institutes legal mechanisms for perpetrators of human trafficking through imposing appropriate, proportionate, and dissuasive measures. Again in this provision, there are only measures to prosecute rather than protect the well being of the victims. Following this inadequacy, there was the Short Term Residence Permits, an EU Directive, to aid in the prosecution of human traffickers. The Short Tern Residence Permit also provides avenues for the victims of trafficking to cooperate with states’ administrations in the prosecution of traffickers.

Another important issue addressed by the Short Term Resilience Permit is found in Article 6, the reflection period. The reflection period is used to refer to the moment when human trafficking victims get rehabilitated from the ordeal suffered and time to ponder whether they are ready to cooperate with the relevant authority in the prosecution of traffickers. The Directive further stipulates that during the period when prosecution is underway, the victim has to be given temporary residence in the country for a minimum of six months so that they can provide full information before a trafficker is convicted of human trafficking. During this six month period, a state has to provide victims with any help and care. Help and care come to inform of medical and psychological treatment, full accommodation, and all other social amenities deemed necessary. In addition, the authority has to provide free legal assistance and interpretation during prosecution. The victims also can take training and job opportunities before the period lapses. In human rights terms, however, these provisions are not that good because they are linked to cooperation in achieving prosecution of traffickers. This sort of cooperation has also been questioned in terms of reliability on evidence provided by the victims during prosecution.

Consequently, following the shortcomings of the Directive by the EU and the Palermo Protocol, the Council of Europe came with other stringent measures to correct the loopholes of the two initial efforts geared at curbing the issue of human trafficking. In 2005, the Council of Europe organised a meeting dabbed ‘Convention on Action against Trafficking in Human Beings.’ This follows the need to offer more protection and strength of the two instruments that preceded it. The main goal of the Convention was to develop avenues for human rights protection that are lacking in the EU Directive and Palermo Protocol in regard to curbing human trafficking. As a result, the Convention brought additional provisions and more specific legislation targeting the victims of trafficking; for instance, provision of education for children, a victim’s willingness to be a witness in a given case, and secure accommodation, among other personal measures. In addition, the Convention provides for a reflection period of 30 days during which human trafficking victims can reflect and recover from the pain they have undergone and an avenue for repatriation of victims to their countries of origin.

Among implementation measures set by the Convention was the formation of the Group of Experts on Action against Trafficking in Human Beings (GRETA). The roles of this body are to monitor and evaluate the efforts made by the member states in regard to providing the basis for the legislations made in the Convention. The report of GRETA is to be made public for accessibility in a bid to realise the impacts of measures taken to curb human trafficking. The huddle faced in the implementation of the provisions of the Convention is the laid back adoption of the legislation by member states given that only a number of them have risen to the challenge, and ratification followed in the year 2008.

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The fourth measure to curb human trafficking is the setting up of international human rights legislation against trafficking due to the lack of adequate mechanisms to curb trafficking on human rights basis. Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) is one of the bodies that has come to defend the plight of women by recommending that the use of ‘appropriate measures’ is too general and that it should be replaced by a more definite description of the measures. CEDAW is just one of the many bodies that have come up to fend for the plight of women in the society. CEDAW has advocated for the protection of victims of trafficking, especially women and girls and urging member states to adopt preventive measures of curbing the issue of human trafficking. CEDAW is more specific in bending the legislation to address the plight of women and girls who are the main victims of human trafficking. Other bodies have also come up to defend women, “It is being sketched out in discussions, demands, and demonstrations by sex-workers lobbying governments to interpret the Protocol to protect the rights of trafficking victims,” (Singh M 2005)

The UN also held a convention to address a more specific issue of the right of the child. The Convention on the Right of the Child was held to compel member states to prevent child exploitation, more so, sexual and labour exploitations. Under the UN’s Right of the Child, member states are required to combat child trafficking through the illegalisation of abduction, sale or child trafficking. Committee on the Right of the Child (CRC) is a body established to monitor the efforts made by member states in curbing child trafficking just like CEDAW does for women and girls. CRC advocates for the need to take more comprehensive steps to combat child trafficking and offer aid to the victims. Such aids include: avenues for physical and psychological recovery and being totally responsible for child trafficking victims.

European Court of Human Rights (ECHR) saw the light when the case of Soering v United Kingdom was decided on the grounds of human rights issues. “The European Court of Human Rights is an institution of the Council of Europe established in 1959 as one of three mechanisms designed to enforce the European Convention on Human Rights and Fundamental Freedoms.” (Department of Foreign affairs, 2010). This, together with a number of other cases that followed suit depicting compliance of member states with the provisions that were made in the Convention. The provisions in the articles contained in the Convention have at least been realised, and the drafters are hopeful that the realisation of the concept of trafficking as a whole is yet to be seen. The significance of the Convention became eminent after the banning of slavery and forced labour as contained in Article 4 ECHR and pertaining to human trafficking. The practicality of this article was realised in the case of Siliadin v France concerning child trafficking and labour exploitation. French court out her case saying no Penal Code of the state were broken but following the applicants continued pressure in seeking justice, the provisions in the ECHR allowed for the prosecution and punishment of the victims. The court agreed to take action as it was compelled to do so by Article 4 of ECHR and that by refuting the section, it was going to be discordant with the international mechanisms agreed by the EU to curb human trafficking.

Article 8 of the ECHR identifies an individual’s right to respect. The aspect of respect as contained in the article refers to the physical and moral integrity of a person subjected to actions of human trafficking. The article gives more specific repercussions for anyone/the state for having caused pain to another person, and it also recommends that legislation be taken against anyone/state for causing pain, physical or moral degrading. Hence, courts in the member states recognise the right in the Convection to provide trafficking victims with the right to shelter, treatment, physical and psychological treatment, and access to emergency medical needs, among other necessities for ensuring well being of an individual’s physical and moral integrity. Any state that fails to meet these demands can be viewed as reluctant to enhancing human rights issues that arise in the modern world cycles.

ECHR made an attempt to guard against the safety of trafficking victims in their country of origin against revictimisation by traffickers. If a victim fears for their return to the country of origin, then consideration by the courts has to be made to guarantee asylum for such victims. On the contrary, it must be admitted that the sanctification of the truth in regard to victims claim of a potential threat if returned to their country of origin. As a result, the Council of Europe’s Convention on Trafficking gave a recommendation for the victims to be given a period of reflection so that they may come to terms with the ordeals they could have encountered. This period also provides safety for victims to be protected from the wrath of traffickers, weigh the level of risks a victim may be subjected to suppose they were to be returned to the country of origin, and time to determine whether they can cooperate in the prosecution of potential traffickers. The implementation of the Convention is yet to be adopted by all member states, and this is a great impedance to the ECHR to rectify the missing link between trafficking and the guarantee of justice for human rights.

In conclusion, it can be said that legislative measures have been developed with time to curb the issues of human trafficking. These measures have been taken following the plight of the suffering victims who mainly are caught in a web of trade they know little about. It is, therefore, necessary for all states to ratify the implementation of the legislation to necessitate the effectiveness of the measures taken to combat human trafficking.

Reference

Belser, P. Forced Labour and Human Trafficking: Estimating the Profits, ILO, 2005, Web.

Coalition against Trafficking in Women, Guide to the New UN Trafficking Protocol 2001, p.4. Web.

Department of Foreign Affairs. European court of Human Rights. Web.

Doebbler, C.F. Introduction to International Human Rights Law. CD Publishing, 2006, p. 108

Egan, S (2008). “Protecting the Victims of trafficking: Problems and Prospects.” European Human Rights Law Review

Ekberg, G.S. The Palermo Protocol, 2002, Web.

Great Britain. Parliament. Joint Committee on Human Trafficking. “Human Trafficking: Twenty-sixth Report of Session 2005-06: Oral and Written Evidence.” Volume 2 of Human trafficking: twenty-sixth Report of Session 2005. The Stationery Office, 2006, p. 190

Guild, E. & Minderhoud, P. “Immigration and criminal law in the European Union: the legal measures and social consequences of criminal law in member states on trafficking and smuggling in human beings.” Volume 9 of Immigration and asylum law and Policy in Europe. Martinus Nijhoff Publishers, 2006, p. 108

MacKinnon, C.A. “Are women human?: and other International Dialogues.” Belknap Press Series. Harvard University Press, 2006. p. 1

Singh, M. Debate on Trafficking and Sex-Slavery, 2010. Web.

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DemoEssays. "Legal Regime Related to Women Trafficking." February 9, 2022. https://demoessays.com/legal-regime-related-to-women-trafficking/.