Sex trafficking – are states responsible for violating core human rights of women and girls?
Posted 1:54 PM by Internal Voices in Labels: 12th Edition |
| UNICEF |
Miriam Aced, UNRWA
Trafficking in human beings (THB), an age-old crime, has received increased media attention in the last decade. THB violates a host of core human rights and it is also one of the most severe forms of violence against women - especially sex trafficking. Trafficking to work in the agriculture and horticulture sectors, construction, textile, hospitality, catering and mining sectors as well as domestic service sectors also occurs and is no less serious than trafficking for the purposes of sexual exploitation. However, sex trafficking is of particular importance because women and girls are disproportionately affected by it. This article will focus on the paradox between how the international community says this crime should be dealt with in theory and how it is dealt with in practice.
Because the nature of human trafficking often involves the crossing of state borders and heinous physical and mental violations, protection of trafficking victims invokes international law instead of domestic law. Oddly enough, an internationally recognized common definition of THB did not exist until the coming into force of the UN Convention against Transnational Organized Crime. This Convention is important because it brought about a uniform idea of what trafficking is in order to combat it, to share information regarding this crime and in order to recognize and protect victims. Another important outcome of the Convention is the clear distinction between human trafficking and human smuggling - two crimes previously used interchangeably. Trafficking and smuggling take place for different reasons, under different conditions and have different legal consequences. Lansink writes, “Trafficking is done for the purpose of exploiting the labour or services of the trafficked person, whereas in the case of smuggling migrants, the relationship between the smuggler and the smuggled person comes to an end after the illegal entry into the state.” In other words, trafficking is a crime violating an individual’s rights and smuggling is a crime violating the state.
The Convention considers a situation to amount to trafficking if the following three elements exist: (1) recruitment, transportation, transfer, harboring or receipt of persons; (2) threat, use of force or other forms of coercion, abduction, deception, the abuse of power or of a position of vulnerability, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person; (3) for the purpose of exploitation.
One of the reasons why a uniform definition of trafficking did not come into place until recently is because states had differing views on prostitution (whether it should be regulated or deregulated and whether prostitution itself is a human rights violation against women). Those that advocated the making illegal of prostitution lobbied for a trafficking definition that said that all prostitution is a form of trafficking. As the definition stands now, states are free to handle prostitution as they wish. The definition of trafficking is broad and covers a multitude of situations in which an act can be considered trafficking, even when someone is willingly transferred only to find out later in the trafficking process that they have been coerced, much like the situation many women face. For example, it is common practice to give young women false hope of moving abroad to work as waitresses with good pay, only to confiscate travel documentation upon entry into the country of destination and force them into sex slavery.
A host of other human rights instruments specifically mention human trafficking. For example, the Convention on the Elimination of all Forms of Discrimination against Women, the International Covenant on Civil and Political Rights and the Convention against Torture include trafficking-related provisions which can protect trafficking victims.
The international community has explicitly recognized that trafficking violates many and some of the most important human rights guaranteed to every human being. Countries have done their duty by signing and ratifying a host of international and bilateral treaties related to trafficking. However, when it comes down to the implementation of provisions found in these treaties, states are not willing to pledge cooperation and assistance in a meaningful way. Instead of focusing on the women who have fallen victim to traffickers, some who lived through the most unimaginable of situations, when state authorities identify victims, in most cases they have no more than one month to decide whether they want to cooperate with criminal investigations against their trafficker or not. If not, deportation is the solution. By focusing on the criminalization of the traffickers instead of on the well-being of the victims, states act in complete contradiction to the promises they made when signing the dotted line of instruments such as those previously mentioned. In addition, this procedure makes little sense practically.
As stated in the international trafficking definition, deception and coercion are common traits of a trafficking situation. Thus, often victims have limited information about their trafficking situation and their trafficker which could be helpful for a prosecution. This is especially the case if a victim was trafficked by an organized crime group. In the case that a woman does decide to cooperate with state authorities, she fears and is at risk of reprisals against herself and her family in the country of origin; she is traumatized from the trafficking itself and could have very little trust in police officials due to possible negative experiences with corruption in the country of origin; she is traumatized from the trafficking itself and could have very little trust in police officials due to possible negative experiences with corruption in the country of origin. Nonetheless, controlling who enters one’s state and who stays is, as Chetail and Aleinikoff (2003) stated, “…one of the last bastions of the truly sovereign state’ and states’ reasons for linking protection to criminal cooperation are far from invalid.
It is easier for states to deal with non-state actors, i.e., holding traffickers criminally liable as opposed to dealing with other governments. Another explanation could be that states see trafficking as a security problem and thus, desire to inhibit the continuing cycles of trafficking. States may want to retain the ultimate jurisdiction over how to deal with what is essentially an in-state question. Or, states do not want to encourage people to enter into trafficking situations with the knowledge that they will be protected under international law if discovered.
These justifications for dealing with trafficking as a criminal matter make sense; however, they do not remove the weighty justification for also treating victims of trafficking as individuals deserving protection, regardless of their cooperation with the authorities. Major human rights norms that states allegedly pledged themselves to be concerned with are being violated. States and governments do not know whether to tackle the trafficking problem from a human rights approach or a criminal approach and thus leave its victims out in the cold. A better human rights – state security balance is needed.
States may be weary to pledge cooperation and assistance in a meaningful way, but they should be more scared of the spread of human trafficking, which is something that experience has shown they cannot handle on their own – as the problem still persists. By retaining so much sovereignty, they only make it easier for traffickers to forum shop.
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