[Stop-traffic] UN Trafficking Protocol: Lost Opportunity to Protect Rights of T rafficked Persons

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Subject: [Stop-traffic] UN Trafficking Protocol: Lost Opportunity to Protect Rights of T rafficked Persons
From: Ann Jordan (Annj@HRLawgroup.org)
Date: Mon Oct 23 2000 - 16:22:30 EDT


> HUMAN RIGHTS CAUCUS
> International Human Rights Law Group Foundation
> Against Trafficking in Women Global Alliance Against Traffic in Women
> Asian Women's Human Rights Council
> La Strada Ban-Ying Fundacion
> Esperanza Foundation for Women KOK-NGO Network Against
> Trafficking in Women Solomon
> Foundation Women's Consortium of Nigeria Women, Law
> and Development in Africa (Nigeria)
>
> October 23, 2000
>
>
> UN TRAFFICKING PROTOCOL: LOST OPPORTUNITY TO PROTECT
> THE RIGHTS OF TRAFFICKED PERSONS
>
> The UN Crime Commission will complete the last details on a new
> international treaty to combat trafficking at the end of October. The new
> Protocol to Prevent, Suppress and Punish Trafficking in Persons contains
> strong law enforcement provisions and the first-ever international
> definition of 'trafficking in persons.' Unfortunately, it does not
> require governments to provide any services to trafficked persons. This
> serious gap in the Protocol is partly due to government reluctance to make
> any commitment to provide services and protections to undocumented
> migrants, even if they are victims of a horrific crime. Governments were
> aided in their efforts to avoid discussion of the need for mandatory
> protections by a drawn-out and unnecessary debate over the definition of
> trafficking.
>
> Unfortunately, some countries, led by the Philippines, Belgium, the
> Vatican and several conservative (on this subject) feminist NGOs, insisted
> that the trafficking definition include all sex work, whether voluntary or
> forced, despite the fact that such a definition would break consensus.
> They were able to distract attention from the real issues at stake in the
> Protocol by being completely unwilling to compromise.
>
> The Human Rights Caucus attended all of the negotiations and advocated
> strongly for a broad definition to cover all forms of trafficking into
> slavery, forced labor and servitude and also for mandatory government
> commitments to protect the rights of trafficked persons. Our definition
> focused on forced labor, slavery and servitude, which reflects the common
> understanding of trafficking; however, we also proposed a compromise
> definition including the (undefined) phrase "sexual exploitation."
> Fortunately, the compromise definition was ultimately adopted, but not
> before valuable time was lost. The definition is annexed at the end of
> this Press Release (see particularly footnote 2)..
>
> The Human Rights Caucus is deeply disturbed by the apparent unwillingness
> of governments to distinguish between trafficking and smuggling because it
> means governments are prepared to treat victims of trafficking in the same
> manner as they treat undocumented migrants: detain and/or punish and
> deport. They also appear to view protections and assistance as
> prosecution tools rather than as state obligations. Numerous governments
> expressed the view that trafficked persons are valuable as witnesses, and
> therefore deserving of protections during trials, but that they should be
> deported immediately after the trial. One delegate even sought assurances
> that the Protocol would not prevent his government from 'prosecuting the
> victims'.
>
> Unfortunately, this means that local NGOs will encounter tremendous
> obstacles in advocating for the inclusion of mandatory protections in
> their domestic trafficking laws. Some will succeed but many will fail
> because the Protocol provides no basis for insisting that governments
> treat trafficked persons differently from undocumented migrants. It does
> not require governments to:
>
> * provide (even emergency) shelter, medical or psychological services
> or legal counseling;
> * cease arresting, imprisoning and summarily deporting victims;
> * use confiscated assets to assist victims or to pay judgments
> against traffickers;
> * notify victims when traffickers are released from prison;
> * protect the identity of victims; or
> * permit victims to remain in the country, even temporarily, if it is
> unsafe for them to return home.
>
> Consequently, NGOs will continue to fill the vacuum left by the Protocol.
> NGOs will bear the burden of caring for the needs of trafficked persons
> because victims will turn to NGOs for protection rather than the
> government. Equally disturbing, traffickers will continue to operate with
> impunity because, without victims willing to identify traffickers, many
> traffickers will never come to the attention of officials, and
> prosecutions will be difficult.
>
> The Trafficking Protocol clearly does not live up to our expectations for
> responsible government action. We had hoped that governments would
> recognize their obligations under international human rights law but we
> were wrong. Now these questions remain: Will some governments recognize
> their international human rights obligations and pass legislation
> protecting the rights or trafficked persons? Or will they adopt laws
> reflecting the anti-immigrant bias and law enforcement approach we
> witnessed during the Protocol negotiations prevail? Everyone who is
> concerned about human rights and about stopping this horrible human rights
> abuse should encourage their governments to do the latter.
>
> The Human Rights thanks everyone and every organization that supported our
> efforts. We believe that our joint efforts were able to improve
> substantially on the Protocol language. We will distribute shortly an
> unofficial version of the final Protocol as the official version will not
> be available for at least a month. You can contact:
>
> Ann Jordan, trafficking@hrlawgroup.org (English)
> Fanny Polina Molina osyfan@andinet.com (Spanish and English)
> Stana Buchowski, strada@strada.pl (Polish, Russian and English)
> Jan Boontinand, gaatw@mozart.inet.co.th (Thai and English)
> Nelia Sancho, awhrc@edsmail.com.ph (Tagalog and English)
> Melissa Ditmore, mhd12@cornell.edu (French and English)
> Eszter Birven, ebirven@yahoo.com (Hungarian and English)
> Nita Prasad, ban-ying@ipn-b.comlink.apc.org (German and English)
> Barbel Uhl, kok.potsdam@t-online.de (German, Czech and English)
>
>
> ************
>
> [Unofficial] Definition of Trafficking in Persons
>
> "(a) 'Trafficking in persons' shall mean 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 [footnote 1] or of
> the giving or receiving of payments or benefits to achieve the consent of
> a person having control over another person, for the purpose of
> exploitation. Exploitation shall include, at a minimum, the exploitation
> of the prostitution of others or other forms of sexual exploitation
> [footnote 2 ], forced labour or services, slavery or practices similar to
> slavery [with footnote on illegal adoptions], servitude or the removal or
> organs [with footnote explanation];
>
> Footnote (1): "The travaux preparatoires should indicate that the
> reference to the abuse of a position of vulnerability is understood to
> refer to any situation in which the person involved has no real and
> acceptable alternative but to submit to the abuse involved."
>
> Footnote (2): "The travaux preparatoires should indicate that this
> Protocol addresses the exploitation of prostitution and other forms of
> sexual exploitation only in the context of trafficking in persons. The
> terms 'exploitation of the prostitution of other' or 'other forms of
> sexual exploitation' are not defined in the Protocol. The Protocol is
> therefore without prejudice to how States Parties address prostitution in
> their respective domestic laws."
>
> "(b) The consent of a victim of trafficking in persons to the intended
> exploitation set forth in subparagraph (a) shall be irrelevant where any
> of the means set forth in subparagraph (a) are established; [footnotes 4
> and 5]"
>
> Footnote (4): The travaux preparatoires should indicate that this
> subparagraph should not be construed as imposing any restriction on the
> right of accused persons to a full defence and to the presumption of
> innocence.***"
>
> Footnote (5): "Paragraph b of this Article should not be
> interpreted as laying upon the victim the burden of proof, as in any
> criminal proceedings, it is incumbent upon the public prosecutor to prove
> the elements of the offense in accordance with domestic law."
>
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