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Angela Bortel. IREX Fellow at the Moscow State University
Покончить с торговлей женщинами: использование законодательства для защиты жертвы. Анжела Бортел, стажёр АЙРЕКС по программе Молодые лидеры. Работа выполнена на ф-те государственного управления МГУ им. Ломоносова.
Работа выполнена в период научной стажировки на ф-те государственного управления МГУ им. Ломоносова по программе АЙРЕКС Молодые лидеры. (Научный руководитель зав. лаб. развития гендерного образования ф-та педобразования МГУ Костикова И.В.)
Статья посвящена современным подходам к решению проблемы торговли женщинами. В центре внимания автора анализ несовершенства законодательства в том, что касается адекватного ответа на огромный размах вывоза женщин, в первую очередь из стран Восточной Европы, за рубеж для сексуальных услуг. Автор проводит сравнительный анализ законодательства разных стран и рассматривает возможности его совершенствования с целью защиты жертв секс-торговли. Рассматриваются связь между торговлей женщинами и другими разновидностями секс-индустрии. Особое внимание уделяется проблемам взаимодействия между правоохранительными органами и неправительственными организациями по оказанию помощи жертвам и профилактике торговли женщинами.
Trafficking of women into the global sex industry is an estimated
7-12 billion dollar trade (Hughes, 1999; Leidholdt, 1998). It is quickly surpassing
narcotics and drugs as the good of choice among organized crime groups due to the lower
risk and resale potential of women. Traffickers, pimps, and recruiters conspire in
networks of various sizes to take advantage of women and put them to work in various
sectors of the sex industry. Although sending countries (i.e., where trafficking victims
originate from) tend to be economically depressed, and receiving countries (i.e., where
women end up in the sex industry) tend to be wealthier, trafficking patterns reveal a more
intricate system. For example, sites of military conflict, such as Kosovo, are popular
destinations for trafficking victims. This simply supports the position that male demand
for women's bodies drives trafficking patterns. However, no matter the country, how women
are brought there, or what so-called service they may perform, women are held captive,
abused, raped, and make little, if any, money.
Combating trafficking requires a unified, coordinated response from
governments, law enforcement agencies, NGOs, as well as the public. However, service
provision and information campaigns are only part of this response. A comprehensive,
well-drafted anti-trafficking law is essential to curbing the tide of trafficking in
women. As human rights activist Fyodor Sinitsin succinctly stated, where there is no law,
there is no crime (St. Petersburg Women's Crisis Center, 2000: 27). The dearth of
actionable laws, has left advocates relying on the existing body of international human
rights law, which offers realistic redress to few as violators must be state actors.
Moreover, prosecutors note that pimps know international law better than most attorneys
(Minnesota Advocates for Human Rights, 2000: 43). Existing statutes can be used to
successfully prosecute traffickers. However, with this approach, the harm sustained by
women who have been trafficked goes unrecognized, clouded by a barrage of charges for tax
fraud, document falsification, and so on. These women never receive justice. As the United
Nations has concluded, generic approaches to the trafficking of human beings can have
disastrous effects: A lack of adequate witness protection and victim protection programmes
may result in reduced efficiency of investigation, prosecution and court proceedings
(Bird, 1999: 5).
The need for a victim-centered perspective to secure victims' right to
viable legal recourse in legislation is clear. Using international and domestic law from
various countries as references, this paper strives to delineate important features of any
anti-trafficking law with a view to providing insight into immediate and potential legal
strategies available or desirable for trafficking victims the world over. Important
features of a comprehensive anti-trafficking law will be explored, with an extensive
overview of victim issues and existing legislation. This will be followed by conclusions
and recommendations to recommend governmental and non-governmental initiatives to
complement an anti-trafficking law.
To adequately address trafficking in women requires an appreciation for its complexities and dynamic character. Methods of recruitment, significant players, and routes are constantly changing in response to socio-economic conditions, political stability, and profitability. Thus, the need to carefully draft anti-sex trafficking legislation to ensure successful implementation and adaptation as trafficking evolves is clear.
Keeping the harm incurred by women who have been trafficked visible
constitutes the essence of a victim-centered approach to trafficking legislation. Analyses
of trafficking equal the number of issues involved in this phenomenon. For example, some
view trafficking as a migration or labor problem motivated by strict immigration policies
or constricted labor markets. Others view trafficking as outgrowth of organized crime
operations. Although considering the myriad issues involved in trafficking of women is
essential to devising comprehensive solutions, the victims must remain at the forefront of
any discussion on trafficking.
A victim-centered approach not only assures that trafficking will be
contextualized not within the rubrics of illegal or irregular migration or as a
side-effect of organized crime, but as a manifestation of systemic violence against women.
It also signals a prioritization of the violation of victims' fundamental human rights
over any administrative concerns of implementing laws. Otherwise, the well-intentioned
work of law enforcement officials, NGOs, elected representatives, etc. will yield precious
little for those most in need.
The definition of trafficking is the central piece of any
legislation. This definition will establish what constitutes a victim, a trafficker, and
trafficking itself. Keeping in mind that legislation will be used to aid victims,
prosecute traffickers and perhaps determine aid to foreign countries, the definition must
use clearly defined terminology applicable in a court of law.
The main feature of an anti-trafficking law utilizing a victim-centered
approach is the irrelevance of the victim's consent. That is to say, even if the victim
initially consented to be trafficked, she still has a legal claim as a victim. This point
of view is hardly contemporary. The United Nations Convention for the Suppression of the
Traffic in Persons and of the Exploitation of the Prostitution of Others was passed in
1949 and recognizes that trafficking and prostitution occurs even with the consent of the
victim. In this manner, the 1949 Convention acknowledges the explicit and/or implicit
economic, societal, psychological and political coercion underlying a woman's so-called
choice to be trafficked. The Ukrainian anti-trafficking law also disregards the consent of
the victim.
This step is imperative to helping women victims in the legal arena.
One need only examine dismal conviction rates for rape cases to ascertain that raising the
issue of consent in relation to violence or exploitation a woman has endured almost
guarantees her no justice. Consent is often the central issue in rape trials. Patriarchal
standards of force and resistance are used to infer a woman's consent. In other words, if
she failed to physically ward off her attacker and sustained no injuries, courts often
conclude she tacitly consented to the acts and the rapist goes free. Applying this
standard to a trafficking case would require the prosecution to prove the victim did not
consent, or that the alleged trafficker was in possession of the victim with the intention
of using her in some form of sexual exploitation. Such an analysis exhibits gender-bias
and is irreconcilable with the legal traditions of some countries, especially as concerns
trafficking. In the United States, the Thirteenth Amendment outlawing slavery prohibits an
individual from selling himself or herself into any form of bondage.
In contrast, the recent United Nations Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children (the Protocol), which
supplements the Convention Against Transnational Organized Crime, offers a definition
which almost wholly skirts the issue of consent. Instead, the Protocol focuses on the
exploitation a woman suffers. To underline the irrelevance of consent as regards
trafficking, the Protocol addresses and promptly dismisses the issue of consent in a
separate subsection: (b) The consent of the victim of trafficking in persons to the
intended exploitation set forth in subparagraph (a) of this article shall be irrelevant
where any of the means set forth in subparagraph (a) have been used. Thus, the emphasis
remains on the harm women endured while in the sex industry.
In addition to the issue of consent, terminology used in
anti-trafficking legislation is key to its success. Vague terminology is impeding the
effectiveness of the anti-trafficking law in Ukraine. Since its enactment in 1998, there
have been only two convictions (Prince, 2001). While Article 124-1 of the Ukrainian
criminal code covers important aspects of trafficking--such as the sale or transfer of
persons, disregard for legal or illegal exit from the country, as well as the victim's
consent--key phrases impede the legal efficacy of this statute. The terms debt bondage and
sexual exploitation have posed prosecutors and investigators problems. As the statute
fails to define these terms, they are subject to interpretation by judges, or manipulation
by defense attorneys.
By definition, the American Trafficking Victims Protection Act of 2000
(the Act) represents an administrative, rather than victim-centered, approach to
anti-trafficking legislation. Rife with detailed implementation measures and punitive
actions, the Act seems a model piece of legislation. However, the Act provides for two
types of trafficking victims. Only victims of a severe form of trafficking can receive the
benefits set forth in the Act. Beside the narrow definition of coercion only as actual or
threats of physical harm, this is the fundamental flaw of the American anti-trafficking
law. The minimal commitment of the United States to trafficking victims is further
supported by the omission of the 1949 Convention from the list of documents relating to
trafficking (Post, 2000). Such an approach belittles the suffering of the vast majority of
trafficking victims and severely curtails the number of victims who will be helped.
However, the likely limited application of the American act makes indisputable the
importance of an encompassing, clear victim-centered definition of trafficking.
Victims' experiences demonstrate the need to specifically recognize
the interrelations of different sectors of the sex industry. Trafficking takes place not
only into prostitution, but into pornography, forced marriage, use in escort services and
combinations thereof. For example, three women who had been trafficked into prostitution
in Cyprus were shocked when law enforcement officers found pornographic pictures of the
women on a website advertising the club (no more than a brothel) where they were
prostituted. Despite the fact that these women had returned home, they continued to be
exploited on their former pimp's website.
The Declaration of Stockholm recognizes the need to broaden our
understanding of trafficking. This document warns of the futility of all anti-trafficking
work that fails to include connections between trafficking and all spheres of the sex
industry (National Organization of Battered Women's Shelters in Sweden (ROKS), 2001). The
Ukrainian anti-trafficking law specifically includes the phrase use in pornography in its
enumeration of violations. Such inclusions are particularly vital to helping victims of
mail-order bride agencies and pornographers. In the case of the former, the fact of a
woman having consented to marriage can easily preclude legal claims. In the latter,
pornography itself can be used in a legal forum to prove the victim in fact liked what she
is shown doing. Recognition of such violations is more complicated in those countries with
a normalized or legalized sex industry, as evidentiary standards of consent are augmented
by the acceptance of pornography and prostitution as `choices'.
If anti-trafficking legislation is to impact and curtail trafficking in women, it must contain explicit provisions for its realization. This is the primarily administrative and executive segment of the law. The responsibilities and expectations of law enforcement agencies, federal organs, prosecutors, judges, NGOs and the like must be outlined in as much detail as possible. Otherwise, the law runs the risk of minimal or inconsistent implementation.
Both on the national and international levels lack of express law
enforcement directives and procedures has proven problematic. Precisely this problem has
inhibited the potential success of the Ukrainian anti-trafficking law. The lack of
executive commentary to the statute has caused one police chief to devise his own
directives for investigating trafficking cases (Minnesota, 2000: 37). In the same way, one
member of the Ukrainian police explained, Prosecutors don't have a unit to go to the place
where the victim was trafficked and identify the crime and get the necessary
documentation. So it falls on [special units of the militia] to document the crime and
then submit that to the prosecutor (Ibid: 38).
Thus, based on the experiences of those countries already having
anti-trafficking laws, as well as victims' input, national legislation must clarify the
job of law enforcement officials as much as possible. Whether this is done in the law
itself, accompanying commentary, or simply providing for special training or an
inter-agency task force to address trafficking depends on the most desirable scenario for
a particular country. The legislation itself should delineate each agency's
responsibilities, so as to streamline the investigative process. A training component
focusing on techniques, monitoring, prevention, and intervention must also be included.
American agents' experience in investigating trafficking cases has shown the role of
ethnic crime groups complicates the task of penetrating such groups, as language
subtleties, certain dialects, and cultural mannerisms are difficult to mimic (O'Neill
Richard, 2000: 31). In like manner, the pernicious nature of trafficking precludes the use
of women in undercover work because she would have to be a victim (Ibid). Clear procedures
for obtaining warrants and tools such as wire taps should also be laid out.
Partnerships must be forged with the NGO sector, as it has first and
more frequent contact with victims. Accordingly, law enforcement agents should be
sensitized to techniques for working with victims. As many women have been threatened with
retaliation if they go the authorities, or simply harbor cultural biases against
authorities, police and prosecutors must familiarize themselves with victims' needs in
order to build their case. This could entail training on cultural and gender biases of law
enforcement agents.
Due to the often international nature of trafficking into the sex
industry, it is imperative to address cooperation between governments, law enforcement
agencies, and NGOs. Only the efficient cooperation of these entities will keep victims
safe and prosecute traffickers. While certain aspects of international law enforcement are
out of the scope of domestic law, a national anti-trafficking law can at least provide a
mandate for law enforcement agencies to more effectively cooperate with their counterparts
in other countries, or to make better use of international agencies such as Interpol.
Recent successes, such as the joint Russian-American investigation of the Blue Orchid
international child pornography ring, attest to the merit of such efforts. Raids in Bosnia
coordinated between over 500 Bosnian police officers, UN police monitors, migration
officials, and NATO-led peace keepers have rescued more than 400 women from brothels (
Bosnian, 2001). Despite these successes, international cooperation is still more
accurately characterized by nations' inclusion of Interpol in the investigation of
trafficking. There were only 89 cases reported to Interpol during the period 1998 through
early 1999, while IOM estimates that 500,000 women are trafficked per year to Western
Europe alone (Bird, 1999: 9). Thus, improving international coordination must become a
priority.
Here, too, the question of consistent data collection arises. A
priority of international endeavors would be the creation of a systematized set of
standards and methodology to be employed in tracking trafficking. According to Europol,
[i]n most countries, no organisation is tasked to systematically and centrally collect
data on trafficking in human beings. Furthermore, no international body is responsible for
collecting this kind of data (Ibid: 10). This is a grave deficiency in national and
international channels. Incorporating a victim-centered approach to data-collection (i.e.,
profiles of victims) would vastly augment the capabilities of both governmental and
non-governmental agencies in victim-assistance.
Men who purchase women are hardly benign players in the cycle of
trafficking. Their demand for sexual access to women and their willingness to pay for this
access drives the trade. To curb demand, buyers of trafficked women must be punished. In
fact, consistency requires the criminalization of purchasing women for sexual services,
if--as discussed in the section Defining Trafficking: Semantic Obstacles--the links
between trafficking and other sectors of the sex-industry are recognized. It is a logical
extension: how can it be legal to purchase such services if it is illegal to provide them?
The landmark Swedish anti-violence against women law passed in 1998 provides an excellent
model. The law prohibits obtaining or attempting to obtain sexual services for payment. It
is punishable by fines or imprisonment for up to six months. This revolutionary action
helps to reestablish the connections between prostitution and trafficking to combat the
trend to legalize prostitution as work and to put prostitution on the political agenda.
However, an anti-trafficking NGO La Strada in Poland reports that 50%
of hotline calls from clients trying to help women who have been trafficked (Minnesota,
2000: 27). So clients will not be discouraged from assisting women, legislation should
make allowances for such men. If clients have indeed helped women, they should be subject
to fines and enrollment in a john school to learn about the realities of trafficking and
prostitution. In john schools, survivors put a human face to prostitution, and in this
case trafficking, for those convicted of soliciting. Programs throughout the United States
have met with success and could be consulted as models for other programs. Nevertheless,
even men who try to help women in crisis must be subject to criminal charges and held
accountable for their acts.
Legislation must impose harsher penalties for traffickers. For
instance, in the United States the statutory maximum for sale into involuntary servitude
is only ten years per count, while the statutory maximum for dealing in ten grams of LSD
or distributing a kilo of heroin is life (O'Neill Richard, 2000: 32). Thus, judging by
sentencing requirements, there is a perception that trafficking in women qualifies as a
lesser crime than trafficking drugs. In California, in the case of accused trafficker
Lakireddy Bali Reddy, prosecutors are seeking only 5 to 5 1/2 years
of incarceration, while the judge could sentence a maximum of 38 years (Russel, 2001).
While the presence of multiple victims and various crimes can yield multiple charges which
would garner a lengthy sentence, this strategy can backfire, as in the aforementioned
case. Sentence enhancements should also be considered when a large number of victims were
involved or in connection with such associated crimes as money laundering, racketeering,
or involvement in organized crime.
In addition, a compensation scheme based on traffickers' seized assets
traceable to their trafficking operation must be instituted. Trafficking Thai women to a
New York brothel, traffickers made $1.5 million in roughly a 15-month period (O'Neill
Richard, 2000: 21). Seized assets should go directly to victims in the form of
restitution, service provision to victims, as well as into law enforcement and
anti-trafficking campaigns.
Obviously, money represents the critical link between rhetoric and
action. If the 94.5 million dollars appropriated for the implementation of the American
Trafficking Victims Protection Act of 2000 still fails to meet the vast needs of victims,
law enforcement agencies, federal agencies, this leaves countries such as Moldova with
dismal prospects to effectively combat trafficking. Police officers in Ukraine get to
crime scenes on public buses (Minnesota, 2000: 31). Furthermore, in 1999 30,000 officers
were dismissed from the ranks of the Ukrainian police. Another 40,000 were expected to
have been laid off by July 1, 2000 (Ibid: 32). Clearly, the lack of financial and human
resources obstructs any anti-trafficking efforts. This also opens the door to
corruption--or official complicity in trafficking. A Moldovan police chief comments: The
desperate economy creates an impossible situation. There is nothing I can do about my men
taking bribes, they have not been paid in four months. Their children have to eat (Ibid:
31).
Thus, to create the necessary network to actively prevent and prosecute
trafficking, the international community must provide assistance to those nations unable
to effectively wage a campaign. As previously noted, a portion of this money could come
from the seized assets of traffickers. Alternately, Section 109 of the American Act indeed
provides for assistance to countries to meet the stipulated minimum standards of fighting
trafficking. This assistance includes direct foreign aid or in the form of grants to NGOs.
Conversely, Section 110 sets forth penalties for those countries failing to meet said
minimum standards. However, the exemption of cuts from humanitarian aid, as well as
nontrade-related assistance characterize the likely token nature of such cuts (Post,
2000). Nonetheless, the provision of financial support to countries is a welcomed gesture.
Effective implementation depends largely on the cooperation of trafficking victims. Without their involvement prosecutors have no case. No one has reliable statistics. Until anti-trafficking initiatives prioritize victim-assistance and victim protection programs, traffickers will go unpunished. Victims must be the starting point of any anti-trafficking strategies.
Victims' Legal Status After escaping, being rescued or detained, the question of victims'
legal status arises. As victims either are trafficked using falsified documents, or more
often, legal tourist visas which they overstay, they find themselves in precarious
situations with immigration officials. A case in point, despite official recognition of
trafficking from Eastern Europe as a problem, Israel nevertheless employs retrogressive
immigration procedures with trafficked women. Essentially, when arrested during police
raids of brothels, which are illegal in Israel, women are charged with immigration
offenses. The Knesset is currently considering remedial legislation.
By contrast, German authorities seem more progressive in that they will
allow a trafficked woman to continue to reside in Germany if this would be of significant
benefit to the public. As a rule, this is true, if the women are supposed to testify in
court as witnesses(Bird, 1999: 13). Although enrollment in a witness protection program is
possible, only a small number of victims participate (2%). Moreover, in a statement made
to Interpol about the provisions available for victims of human trafficking, Germany made
no mention of special provisions available to women who were unable or unwilling to
testify.
This will likely be the practical effect of the American Act as well.
The Act only a victim of a severe form of trafficking in persons is eligible for
assistance as other aliens under the confines of the current welfare program. These
victims can also utilize services of non-entitlement programs, such as legal aid,
regardless of their immigration status or appropriations to these programs (Post, 2000).
Consequently, to qualify as a victims of a severe form of trafficking effectively requires
proof of force, fraud and coercion and minor status, or having been certified by the
Secretary of Health and Human Services via a restrictive bureaucratic process.
Certification clearly has administrative, rather than rehabilitative, objectives. The
certification requires the victim to go to extensive lengths to acquire the necessary
paperwork. Without this certification, only minors can receive services.
The approaches of these and other countries fail to account for the
reluctance of trafficking victims to report to the police or to testify against
traffickers. The extreme incidence of underreporting exists for many reasons: fear of
perpetrator retaliation, inadequate knowledge of local police and legal procedure,
cultural perceptions of the police, the possibility of deportation, shame at the stigma of
prostitution, and the desire to forget the extreme abuse they suffered. Indeed, La Strada
Ukraine reports that victims either disappear, or try to return to life as usual. Thus,
legal provisions for women who are trafficking victims are thus promising but inadequate
to deal with the reality of intense fear and intimidation surrounding the phenomenon of
trafficking (Bird, 1999: 13).
A special visa category, such as the American T visa, is an
advantageous approach. Unlike the T visa, however, this visa must not be so difficult to
obtain so as to minimize its effectiveness. First of all, NGOs, who often have first
contact with victims, must be aware of such a visa and prepared to help them navigate the
application procedures. This visa should also be available to all victims regardless of
their status as a witness in a case or their prior involvement in the sex industry. The
latter element becomes particularly important in countries where prostitution or
involvement in pornography is illegal. As many trafficking victims do manage to send some
money home during their captivity, this could leave victims' families in dire straits.
Thus, governments should consider some form of compensation or work programs for victims.
Such a step could also facilitate women testifying, as they would not have to chose
between justice and earning a living.
With these examples in mind, a model for effective victim assistance
must recognize the trauma women have endured and lay out clear, maneuverable channels for
legal aid and compensation, as well as other social services. Unless victims' safety is
secured, no traffickers will be prosecuted.
First of all, victims must be found. Rescue efforts such as those
coordinated by local and international organs in Bosnia should be a top priority.
Investigative efforts by police must be supported and in tune with the victims'
well-being. This includes non-threatening interrogation techniques and suitable housing
for victims, as opposed to putting them in jail.
Logistical support for providing services to victims is a must. Funding
must be provided for crisis centers to sensitize their staff to special issues faced by
trafficked women. While some problems of trafficked women mirror those of rape, battered,
or prostituted women, there are the additional issues of security and cultural and
language barriers unique to the case of the trafficked woman. Also, shelter staff may not
have the expertise in international law, or relevant domestic laws on trafficking and
related crimes to provide adequate legal aid. As noted beforehand, crisis centers must be
ready to help women through the necessary bureaucratic channels to obtain legal status in
the destination country.
As existing crisis centers all over the world never have enough human
or financial capital to meet demand, an initiative for specialized, government-run
services should be mandated by law. A government-funded toll-free hotline for victims of
trafficking, such as in Italy, could be the starting point of such a project. In two
months, the Italian hotline received 40,000 calls from women, families and others wanting
to help (Mann, 2001). As a result, 3,000 women have either received residence permits or
places in shelters. For those women wishing to return home, governments should partner
with local NGOs in the home country to provide financial and logistical assistance for
victims' return. Governments themselves should provide adequate shelter and care for
victims. American NGOs complain that many trafficking victims are placed in Immigration
and Naturalization Services (INS) detention facilities and then deported (O'Neill Richard,
2000: 37). The few trafficking victims who are designated material witnesses in the rare
federal criminal case are sometimes placed in US marshals' custody and held in jails
(Ibid). Incarcerating women suggests their complicity, as well as denying them access to
much needed medical, psychological, and legal assistance. Victims must not have their
basic human rights denied or infringed by law enforcement procedures or lack finances. It
is imperative to rapidly boost service provision and women's awareness of such services,
as many women are from cultures where such social service providers do not exist or whose
services are not yet widely sought.
Prevention of trafficking must be a top priority of anti-trafficking
legislation. This should take the form of aid to foreign NGOs and governments to counter
the disproportionate impact of economic and social policies on women. Money should be
allocated to support micro-credit efforts, business education and job training for women
(Ibid: 42). Furthermore, an incentive structure with regards to foreign aid should
encourage governments of other countries to take definitive action to combat trafficking.
As previously mentioned, under the American Act, certain categories of aid will be
conferred based on a country's anti-trafficking efforts. Such efforts would include
targeted anti-trafficking efforts, as well as initiatives to combat job discrimination,
disproportionate access to education, and limited political representation.
Coordinated, culturally-specific public informational campaigns have
been proven an effective component of prevention efforts. In 1998, the International
Organization for Migration led a successful, multi-media campaign in Ukraine to sensitize
young women to the potential dangers of seeking work abroad. Before and after analyses of
target groups demonstrated a heightened awareness about trafficking and ill-informed
migration choices (IOM, 2000). In the spring of 2001, the Angel Coalition, a 43-member
anti-sex trafficking coalition with members in numerous CIS countries, spearheaded a
successful information campaign in six administrative regions in the Russian Federation.
In a two month-period, hotlines received thousands of phone calls from women interested in
working abroad, as well as people with information on women in crisis abroad. In
conjunction with top-down measures, such grassroots initiatives will enable organizations
to better serve victims, and ideally prevent women from becoming victims altogether.
The complex, transnational nature of trafficking requires
governments, NGOs, and international organs to collaborate on an unprecedented level. This
requires forging fruitful relationships both with each other and with victims of
trafficking. The inclusion of victims is absolutely essential to addressing trafficking in
an effective and timely manner.
While NGOs, policy makers, and legislators should lobby their
representative bodies to pass a comprehensive anti-trafficking law, this strategy alone
will prove insufficient. Governments must be encouraged to sign and ratify the United
Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children, Supplementing the United Nations Convention Against Transnational Organized
Crime. Ratification of this protocol could be a stepping stone to a domestic law.
Furthermore, widespread ratification could serve as a harmonizing tool, providing a
uniform foundation for domestic anti-trafficking laws around the world. Either with or
without a domestic law, governments should be pressured to adhere to obligations incurred
as signatories of other international human rights conventions such as the International
Declaration of Human Rights, the International Convention on Civil and Political Rights,
and the Convention on the Elimination of all Forms of Discrimination Against Women. These
documents are largely unable to help individual victims lay claims to the International
Criminal Court. However, if state actors are found to be complicitous or acquiesce or fail
to act to ensure that human rights are not violated, that constitutes a violation of human
rights law. Although these are tenuous grounds for a case, careful presentation of
violations could form a successful claim.
On a regional level, various mechanisms already exist which could
address trafficking victims legal claims. For example, the Committee of Ministers of the
Council of Europe has adopted the Recommendation on Action Against Trafficking Human
Beings for the Purposes of Sexual Exploitation. This document urges members of the Council
of Europe to undertake myriad actions to research and address trafficking, as well as
provide assistance to victims. However, as with much of the body of international human
rights law, the Convention of Human Rights and Fundamental Freedoms offers limited bases
for individual victims' claims, favoring individuals complaints against states or disputes
between states.
The Inter-American Human Rights System, on the other hand, explicitly
prohibits trafficking and in some cases favors an individual's complaint over a state's
(Bird, 1999: 4). In this way, it is better suited to handle cases in the trafficking of
women. However, the Inter-American System also contains a right-to-life provision that
could restrict a pregnant woman's right to a medical abortion (O'Neill Richard, 2000: 47).
In this case, the victim's situation could impede her ability to petition judicial organs.
As a result, it is clear that victims of sexual trafficking suffer severely restricted
access to legal recourse at an international level.
Of course, the lack of a government commitment to fighting trafficking,
obliges NGOs and women's crisis centers to continue developing innovative approaches to
address trafficking. This includes prevention, service provision, assistance in rescue
efforts, as well as pressuring national and international policy makers to devise
comprehensive, victim-centered approaches against trafficking. Effective action requires
the cooperation and trust of these sectors.
In closing, it is essential that victims' input figures prominently in
anti-trafficking legislation and accompanying activities. They have vital first-hand
experience which is invaluable to prosecution and prevention efforts. While such an
approach may seem too difficult to administer, but the ineffectiveness of existing, more
administratively-oriented approaches, suggests the need to rethink and restructure
programs and legislation in a timely manner. Administrative and fiscal concerns should not
overshadow the fact that women's lives hang in the balance. Their desperate situations
require government and non-governmental agencies to respond creatively and promptly.
Research for this article was supported in part by a grant from the
Russian-US Young Leadership Fellows for Public Service Program, a program of the Bureau of
Education and Cultural Affairs (ECA) of the US State Department, administered by the
International Research and Exchanges Board (IREX). Neither ECA nor IREX is responsible for
the views expressed.
Additionally, the author would like to thank Juliette Engel, M.D., and
Ludmila Zavadskaya for their support and assistance in the writing of this paper.
Bibliography
June 2001