[Stop-traffic] URGENT ACTION-UN Trafficking Protocol

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Subject: [Stop-traffic] URGENT ACTION-UN Trafficking Protocol
From: Ann Jordan (Annj@HRLawgroup.org)
Date: Fri Aug 04 2000 - 09:54:00 EDT


Dear friends,
 
We are writing to ask for your help in encouraging governments to adopt the
strongest possible international treaty to prosecute traffickers and protect
the rights of all trafficked persons. The undersigned Human Rights Caucus
has attended every meeting of the UN Crime Commission in Vienna where this
important new international agreement to combat trafficking (the Trafficking
Protocol) is being negotiated.

All you need to do to help is read this email, reply to
trafficking@hrlawgroup.org with your name, the name of your organization and
your country and we will do the rest. We will send the letter to as many
governments as possible before the next UN Crime Commission meeting and will
distribute the letter to every delegate at the next and last meeting in
October.

We have been working to ensure that the Trafficking Protocol:
* Can be signed by all governments
* Distinguishes clearly between trafficking and smuggling
* Contains mandatory government obligations to protect the rights of
trafficked persons.

Unfortunately, these all of these goals are at risk. If we fail, criminal
organizations will be able to operate freely in those countries that do not
sign, governments will crack down on voluntary undocumented migrant workers,
and trafficked persons will continue to be deported and deprived of their
right to justice.

The last meeting to negotiate the Trafficking Protocol takes place the first
week of October. This will be our only opportunity for an international
agreement by all governments to combat this rapidly-growing human rights
violation.

In addition to signing the letter, if you would like to raise these concerns
with your country's delegates to the negotiations, please contact Ann Jordan
(annj@hrlawgroup.org) for their names.

The deadline to sign on to the letter is August 25, 2000.

Please feel free to disseminate this email widely.

Thank you very much,

HUMAN RIGHTS CAUCUS:

You can download all the relevant UN documents at:
<http://www.uncjin.org/Documents/Conventions/conventions.html>
The latest draft Trafficking Protocol on the web is in June 2000. The
revised draft containing changes made during the June 2000 session are not
yet available. It should be on the web sometime in September.

You can access the statement of the UN High Commissioner for Human Rights,
Mary Robinson regarding the trafficking protocol at
<http://www.uncjin.org/Documents/Conventions/dcatoc/4session/16e.pdf>
and
The statement of The Office of the United Nations High Commissioner for
Human Rights, the United Nations Children's Fund and the International
Organization for Migration on the draft protocols concerning migrant
smuggling and trafficking in persons at
<http://www.uncjin.org/Documents/Conventions/dcatoc/8session/27e.pdf>

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Dear Delegate,

The undersigned organizations are writing to encourage your government to
consider several proposals that we believe will improve and strengthen the
final text of the Trafficking Protocol currently being negotiated at the UN
Crime Commission in Vienna. Some of the undersigned have attended the
negotiations and others have been following the development of the Protocol
with strong interest.

We are concerned about the dangerous direction in which the negotiations are
headed as we believe they will undermine consensus and result in a dangerous
new international approach to trafficking. Only one more meeting remains in
which to develop a strong rights-protective, law enforcement instrument and
delegates must take this opportunity to protect the rights of migrant
workers, including trafficked persons, while, at the same time, creating a
strong instrument for prosecuting traffickers.

Therefore, we call upon your government to take the steps necessary to
accomplish the following goals in the October negotiations:

1. achieve consensus on the Trafficking Protocol so that all countries can
sign;
2. adopt a definition of trafficking that clearly distinguishes between
trafficking and smuggling; and
3. adopt mandatory protections for trafficked persons.

Consensus and the definition of trafficking.
A consensus definition of trafficking exists. All governments agree that
traffickers use coercion, force, deceit, fraud, debt bondage or abuse of
authority to place victims in slavery, forced labor or servitude and deprive
them of their fundamental human rights. These elements clearly distinguish
the heinous crime of trafficking from smuggling because smugglers do nothing
more than move (sometimes dangerously) voluntary migrant workers and other
migrants across borders for a fee. For this reason, two Protocols, one on
trafficking and one on smuggling, are being negotiated at the UN Crime
Commission in Vienna.

Despite the clear understanding of the distinction between these two crimes,
a few delegates are proposing to move mutually-agreed, non-coerced migrant
sex work (but no other form of migrant work) from the Smuggling Protocol
into the Trafficking Protocol. This would transform the Trafficking
Protocol into an anti-prostitution and anti-trafficking instrument.
Consensus would be impossible if this occurs. The 1949 'Trafficking'
Convention (which is actually an anti-prostitution convention) has been
signed by fewer than half of the world's governments for this same reason.
 
Regardless of one's personal views on prostitution, delegates must be
willing to compromise because countries that tolerate prostitution or have
decriminalized or legalized prostitution would be unable to sign an
anti-prostitution Protocol. Other countries have already expressed their
objections to the proposal because they understand the negative consequences
of including voluntary migrant sex work in the Trafficking Protocol.
Trafficking is a transnational crime and it requires an international
coordinated response. If ratification is not universal, traffickers will be
free to move their operations to countries that have not signed and be able
to operate with impunity.

The phrases below in bold (and with *) must be deleted from the definition
in order to ensure consensus and to focus actions and resources on the
heinous crime of trafficking:
 
                "Trafficking in persons" shall mean the recruitment,
transportation, transfer, harbouring, or receipt of persons, by the threat
or use of force, by abduction, by fraud, deception, [*inducement], coercion,
the abuse of power, or by giving or receiving of payments of benefits to
achieve the consent of a person having control over another person, for the
purpose of exploitation, [*irrespective of the consent of the person];
exploitation shall include, at a minimum, [*use in prostitution or other
forms of] sexual exploitation, forced labour or services, slavery or
practices similar to slavery, [or servitude] [or removal of organs for
illicit purposes].

In addition to breaking consensus, the phrases in bold would bring about
other dangerous and negative consequences, some of which are:

Anyone who offers a woman money for sex or who 'induces' or uses minor
deception or fraud to recruit or transport a migrant sex worker would be
punishable as a 'trafficker'. Criminalizing such minor behavior as
trafficking would violate the principle of proportionality and conflict with
the Protocol's concern about "the grave nature' of the offense of
trafficking (see art. 3, Obligation to Criminalize).
* A man who asks ('recruits) a taxi driver to find an adult sex worker
could be convicted as a trafficker or an accomplice to trafficking if he
engages in fraud or deception in the 'recruitment' of the sex worker. For
example, he promises to pay $25 and only pays $20. If 'inducement' is in
the definition, the man could be charged with trafficking, even if there is
no fraud or deception.
* A person who recruits and deceives a voluntary, non-coerced migrant
sex worker by paying her $30 a client instead of the $50 promised to would
be trafficker, despite the fact that sex worker is free to leave at any
time. This is not a trafficking issue; it is a contract issue.
* If 'inducement' is in the definition, a mother who 'induces' her
voluntary, non-coerced sex working daughter to travel to another country to
engage in sex work could be prosecuted as a trafficker.
* If the United States were to adopt such a definition, the persons
above could be sentenced to life imprisonment, which would be an unjust
means to solve a simple contract dispute.

New anti-prostitution/trafficking laws would be used to harass, arrest,
imprison and deport women in the sex industry rather than to punish
traffickers.
* Migrant sex workers could be prosecuted as accomplices to
trafficking because the terms 'irrespective of the consent of the person'
ensures that women who consent to migrate and who work voluntarily will be
'accomplices' to their own 'trafficking'.
* Experience with so-called 'trafficking' laws in many countries that
are based upon the 1949 'Trafficking' (anti-prostitution) Convention focus
on the sex industry and are used to harass and prosecute sex workers. Few
traffickers are ever arrested, much less punished with these laws.
* Government crackdowns on all prostitution involving adult migrant
sex workers will deprive women and their families of the only income they
may have. If the anti-prostitution laws were successful, migrant sex workers
who now send home millions of dollars would be deported back to their
country of origin into unemployment.

Scarce resources will be diverted from real trafficking cases in order to
'rescue' and enforce 'rehabilitation' of non-coerced migrant sex workers who
do not want to be 'rescued' or 'rehabilitated.'
* States will have to pay hundreds of millions of dollars to "help"
voluntary migrant sex workers who do not ask for nor want help or
assistance. This will divert funds away from trafficking victims.
* Voluntary, non-coerced migrant sex workers would be redefined as
"victims" who may be eligible receive benefits, such as, appropriate housing
information about legal rights, medical, psychological, economic assistance,
employment, education, and training opportunities.

The result of exposing everyone connected with sex workers, including
clients and the women themselves, their children and other family members to
prosecution as traffickers would be to drive the sex industry further
underground, ensure that anyone who could possibly be arrested as a
'trafficker' would never report any case of real trafficking to the
authorities or act as witnesses against traffickers. Obviously, this would
undermine the purpose of the Protocol by increasing, rather than tearing
down, barriers to prosecutions.

A number of delegates at the June negotiations said they want "irrespective
of the consent of the person" included in the definition because it would
make it 'easier' for them to prosecute traffickers. Successful prosecutions
are built upon strong evidence, which requires trained and knowledgeable
police and prosecutors. The issue of 'consent' is a matter of evidence, not
definition, because, once the prosecution presents evidence proving the
existence of forced prostitution, forced labor, slavery or servitude,
'consent' is irrelevant. It is only when the prosecution fails to present
adequate evidence, that consent is relevant. Governments should not solve
their internal problem by criminalizing behavior that is not really about
trafficking. They should improve their investigation and prosecutorial
skills instead.

If governments want to increase prosecutions and convictions, they should
also adopt laws protecting trafficked persons from being treated like
criminals and summary deportation, which are major reasons many victims
refuse to cooperate with the police.

We do not support the Mexican delegation proposal to use "exploitation of
prostitution" rather than "use in prostitution" because it does not solve
the problem. The term "exploitation of prostitution" is defined in the 1949
Trafficking Convention as all prostitution, with or without the consent of
the person. Thus, it has the same meaning as "use in prostitution" and
would also include voluntary, non-coerced sex work and lead to the same
results outlined above.
 
We understand that some delegates want to have a specific reference in the
definition to trafficking into the sex industry and, although we believe
such reference is not necessary, we would not object to using only the term
"sexual exploitation," as long as it remains undefined. 'Sexual
exploitation' is not defined in international law and can mean anything; it
can mean only forced, coercive prostitution and it can mean all
prostitution. It will not force any country to change their domestic laws
on prostitution, unless they want to and so all countries would be able to
sign the Protocol.

Need for Mandatory Protections
Governments need to make a commitment to protect the rights of trafficked
persons, particularly if they want victims and their advocates to cooperate
with them in prosecutions. The OHCHR, UNICEF, IOM and UNHCR (A/AC.254/27)
stated their objection to the discretionary nature of the protections
provisions as "unnecessarily restrictive and not in accordance with
international human rights laws." Unfortunately, the protections provisions
in articles 4 and 5 will be discretionary if changes are not made at the
October meeting.

We understand the concerns of many countries about the cost of providing
such protections and assistance and so we support language exempting
governments that are financially incapable of providing any protections or
services ('to the extent possible' and 'within available means').

If the protections language is not strengthened by October, then persons who
are trafficked into Europe, North America, and other developed countries
could be summarily deported without an opportunity to file a complaint
against their trafficker or seek compensation from the assets of the
traffickers (because governments will keep all the assets). They could also
be arrested and prosecuted for acts committed while they were victims of
trafficking (holding false documents, working without permits or in illegal
industries) and then deported back into the hands of traffickers.
Governments in developing countries would be forced to bear all the costs of
reintegration, including medical and psychological care, housing and other
services needed by traumatized, ill and unemployed trafficked persons.

The Protocol allows governments in destination countries to treat victims as
'disposable witnesses' whose sole value is their ability to assist in
trafficking prosecutions. Without adequate mandatory protections for
trafficked persons, NGOs will not advise trafficked persons to become
witnesses and the Protocol will fail to accomplish the goal of increasing
prosecutions.

If delegates fail to agree to mandatory protections in the October meeting,
the final text will contain provisions that will ensure non-cooperation by
trafficked persons and their advocates. Delegates from countries of origin
should be particularly concerned because, without mandatory language, the
final text could permit governments in destination countries to:
 
* Disclose of the identity of trafficked persons during legal
proceedings, thus endangering their lives.
* Keep trafficked persons in the dark as to events in relevant court
and administrative proceedings.
* Refuse trafficked persons the ability present their views in
criminal proceedings.
* Not provide shelter, counseling or information, in a language they
understand, about their legal rights.
* Not provide medical, psychological or economic assistance.
* Not permit trafficked persons to work or have access to educational
or training assistance, even if they are forced to remain in the country as
witnesses.
* Ensure that the assets of traffickers cannot be used to satisfy
victim compensation judgments against traffickers because governments can
confiscate the traffickers assets and are not obligated to make them
available to victims.
* Prevent trafficked persons from remaining in the destination
country, even if return poses a serious risk of harm from traffickers back
home.

We also encourage you to consider the excellent proposals made by Italy and
Mexico at the June session. They were not discussed but are extremely
important and should be re-introduced and considered in October. These
provisions would also encourage trafficked persons to act as witnesses.

* Italy proposed a change of identity and relocation if a treat of
retaliation is extremely serious, victim notification of the release of
suspected or convicted traffickers and investigation techniques that
minimize intrusion into the private lives of trafficked persons and are free
from gender bias,
* Mexico proposed a provision ensuring that trafficked persons should
not be punished for offenses related to their having been trafficked.

Lastly, if the human rights protections in the final draft are not
strengthened, then the Protocol will represent a regression in international
human rights law. It will undermine commitments in other international
human rights instruments because it transforms rights into privileges that
can be conferred or withheld by governments according for any reason.

In our view, it would be preferable to eliminate these regressive provisions
altogether rather than to establish a new category of second-class
international 'rights'. At least in this way, advocates and trafficked
persons would be able to rely upon existing state commitments to uphold and
protect the human rights of all persons, without distinction.

We hope we can count upon your support in creating a strong law enforcement
and human rights-protective anti-trafficking bill. Many of us will be in
Vienna for the October meeting and will be happy to discuss our concerns and
proposals then. In the meantime, you can contact Ann Jordan at the email
address below if you have questions.

Signed:

Human Rights Caucus (partial listing):
International Human Rights Law Group (US), trafficking@hrlawgroup.org
Global Alliance Against Traffic in Women (Thailand)
Fundacion Esperenza (Colombia, Spain, Netherlands)
Ludwig Boltzmann Institute of Human Rights (Austria)
Program for Appropriate Technology in Health (US)
Stop-Traffic Listserv (US)
Salamon Alapitvany (Hungary)
Morava Foundation (Albania)
Tanya Foundation (UK)
Women and Child Foundation (Germany)
Melissa Ditmore, Ph.D candidate, City University of New York (US)
Paulo H Longo, Núcleo de Orientação em Saúde Social (Brazil)
Kathleen Peratis, Attorney (US)

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