Human Trafficking - The Root of the Problem and the Way Forward by GħSL - Policy

HUMAN

TRAFFICKING

THE ROOT OF THE PROBLEM AND THE PATH FORWARD

TABLE OF CONTENTS

CONTRIBUTORS

OPENING MESSAGE

By Lara Attard GħSL President

FOREWARD

By Celine Cuschieri Debono GħSL Policy Officer

INTRODUCTION

WHAT IS HUMAN TRAFFICKING?

CHAPTER ONE Analysing the Historical and Present Context of Human Trafficking

INTRODUCTION • A short history of human trafficking • Forced Labour • Sex Trafficking • Ransom Kidnapping • The Path Forward • Statistics

26 28 31 39 42 44 47

CHAPTER TWO Comparative Law Analysis of Human Trafficking

INTRODUCTION • Treaties • Conventions • Domestic Law Analysis • Malta • Sweden • Russia • China • United States of America • Austria

52 54 56 62 62 84 91 98 108 113

CHAPTER THREE Consequences of Human Trafficking

119

INTRODUCTION • Physical and Psychological Effects • Effects on Society • Economic Effects

120 123 132 136

PROPOSALS

143

BIBLIOGRAPHY

151

GÄ§SL Executive 2018/2019 President Lara Attard Vice President for Educational Affairs Cynthia Duncan Vice President for Social Affairs Aidan Cutajar Secretary General Jessica Napier Financial Controller Nathaniel Falzon Academic Officer Raphael Sammut DeMarco International Officer Aleandro Mifsud Marketing Officer Michela Galea Events Officer Marc Dimech Policy Officer Celine Cuschieri Debono

Publications Officer Emma-Marie Sammut

GÄ§SL Policy Committee 2018/2019

Policy Officer Celine Cuschieri Debono Contributors Justine Xuereb Rachel Ellul Neil Zahra Publication Designer Matthew Charles Zammit

OPENING MESSAGE

GħSL is an organisation which has grown accustomed to change...

everal innovative and different initiatives have been throughout the years implemented by the executive, to ascertain that the organisation remained on the forefront of student activism, and the responsibilities and duties that came with this commitment. As a student organisation, representing the totality of the law students within the University of Malta’s Faculty of Laws, GħSL felt that it would be seriously lacking, if the organisation did not take it upon itself to be a vociferous instrument and a critical analyst of issues which would be of interest, both to the students and the organisation itself. It is for this reason, that four years ago, the Policy Office was introduced within the GħSL executive team. This addition to the GħSL executive was made with the sole scope of ascertaining that the organisation would be given an added voice, through which students would be given a strong platform, and can channel their activist sentiment in a more productive, tangible and effective manner. Throughout the years, the Policy Office has grown and maintained a yearly output, as more and more

students were actively involved in this office, sharing their ideas, opinions and research, which ultimately lead to the substantial volume of policy papers published by GħSL throughout these four years. This year, will be no exception. The GħSL executive, through the diligent work of the policy office, with the consistent help and input of the policy committee and the meticulous review of various professionals in the field is proudly presenting a Policy Paper discussing Human Trafficking. With the publication of such a paper, the GħSLExecutive is keeping true to its commitment to be pro-active in the legal field. The organisation is constantly striving to spark informed and educated debates, both within the University grounds and on a national level. Therefore the policy office made sure to give the tools to the reader to be informed on the subject in a complete manner, by not solely restricting the discussion to the legal aspect on the matter but by also delving into psychological, medical and economic aspects of Human Trafficking. Finally, GħSL always seeks to provide a number of proposals, which in the organisation’s opinion, would be pivotal in the struggle to ameliorate the current legislative structure surrounding the topic at hand. Upon the presentation of this paper, GħSL is not only creating a discussion, but also showcasing the desire that students have to critically analyse subjects which capture their interest. GħSL truly hopes that the students will be listened to and allowed to leave their

mark on national levels, with the hopes that this will only encourage them to pursue their interest further and be able to shape tomorrow’s legal world. I would like to congratulate the GħSL Policy Officer, Celine Cuschieri Debono, as well as the rest of the Policy Committee, for their sterling work in the compilation of this paper. Concurrently, I would also like to invite you, dear reader, to continue the discussion on this topic, and involve yourself in any similar projects in the future. Should the points examined hereunder stay on paper, the effort shown by the Policy Committee in this paper would be inconsequential, and with this in mind, we ask all the relevant stakeholders to engage with us, in whatever way you deem fit. Many thanks,

LARA ATTARD GħSL President

FOREWARD

Dear Reader...

am delighted to present GħSL’s Policy Paper on Human Trafficking, which is aimed at discussing the subject from various angles. The work of the Policy Committee was pivotal for this paper to come into fruition. I would like to thank the Committee for their hard work and dedication throughout the process of this report.

Throughout the years, GħSL has been at the forefront of the discussion of policy issues through the drafting of policy proposals. We have sought to discuss topics which not only impact the student body, but society as a whole. GħSL has created policy proposals for a variety of topics, ranging from the Legalisation of Prostitution, Euthanasia, and Rule of Law, amongst others. This paper continues to build on the legacy of proactiveness which GħSL prides itself in having established. As a phenomenon which is unfortunately still prevalent in many corners of the world, including Malta, Human Trafficking is an issue worthy of examination. This is precisely what we aim to do through this paper,

wherein different aspects and extents of human trafficking will be understood and discussed. The paper will start off by defining the concept of human trafficking and the different types of human trafficking. Building on this definition, a more factual analysis of the phenomenon will be given. This section will be delving into the history of human trafficking, statistics, and cases worldwide, in an attempt to pinpoint the root of the phenomenon while also shedding light on important aspects of human trafficking. A comparative law examination follows; here the paper will be dealing with International Conventions as well as the domestic laws of different countries. The countries discussed range from Tier 1, such as the United States and Austria, to Tier 3 countries such as China and Russia. Upon discussing the domestic laws of each of these countries, the paper will focus more closely on the Maltese legal scenario and will discuss both domestic law and international and regional treaties applicable to Malta. The consequences on human trafficking will then be discussed; the physical and psychological effects on the affected individual and the effect on society at large, including economic effects. From here onwards, the policy paper will shift its perspective towards using the data gathered to provide practical solutions to the problem. The paper will conclude by providing solutions to mitigating the presence of human trafficking on a domestic level.

The GħSL Policy Team would like to thank the professional contributors which took the time to vet and analyse of our work. Special thanks go to Dr Joseph Giglio, Dr Andrew Muscat and Dr Sarah Mifsud for reviewing this paper. On behalf of the Policy Committee and GħSL Executive – thank you. We hope that this paper helps in raising awareness on the prevalence of human trafficking and in mitigating the phenomenon and its effects on society. Sincerely,

CELINE CUSCHIERI DEBONO GħSL Policy Officer

INTRODUCTION

WHAT IS TRAFFICKING?

HUMAN

ith the many transnational implications of the complex phenomenon of human trafficking, it is difficult to regard one definition as final and complete. However, with 117 signatory States, the Protocol to Prevent, Suppress and Punish Trafficking in Persons (2003), can be regarded as a source which can be relied upon in defining human trafficking. Article 3 of Protocol defines Trafficking in Persons as ‘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.’ Article 3 qualifies this definition by giving examples of human trafficking: ‘the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’. It is useful to note that the Protocol does not give an exhaustive

list of what may constitute human trafficking. This is evidenced through the use of the words, â&#x20AC;&#x2DC;shall include, at a minimumâ&#x20AC;&#x2122;.1 The definition provided by the above mentioned Protocol, exposes the three elements for the crime of human trafficking to subsist: the act, the means, and the purpose. The act is what is done, meaning recruitment, transportation, transfer, harbouring or receipt of persons; the means is how it is done (can be through use of force, abduction, fraud, abuse of power, or by remunerating the person in effective control of the victim); and the purpose is the underlying exploitative purpose which can be for forced labour, slavery, prostitution of others, and sexual exploitation.2

Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Adopted and opened for signature, ratification and accession by General Assembly resolution 55/25 of 15 November 2000 2 < https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking. html> accessed 4 Nov 2018

CHAPTER ONE ANALYSING THE HISTORICAL AND PRESENT CONTEXT OF HUMAN TRAFFICKING

INTRODUCTION

uman trafficking, a form of modern-day slavery, is in no terms a new or recent innovation. The act of recruiting, transporting, transferring, harbouring or receiving persons through the many forms of coercion for the purpose of exploitation is a concept as old as time immemorial. It had been treated as an established institution in writings as old as the Code of Hammurabi and the Bible, the former even laying out a punishment for taking a slave outside the city walls. How has such an â&#x20AC;&#x2DC;institutionâ&#x20AC;&#x2122; managed to evolve and adapt over the last four millennia, and continues to elude the measures taken to eradicate it in todayâ&#x20AC;&#x2122;s world? Before forging ahead, one must differentiate and highlight the differences between human smuggling and trafficking; while the former focuses on getting persons from point A to B undetected and unfettered, the latter encompasses a far wider area as mentioned above. It is also very important to note that any figures

quoted are rough estimates as it is beyond the grasp of international and national institutions combating human trafficking and modern-day slavery since both illegal practices fall under the shadow economy to avoid the law and the consequences of their criminal actions. It would be quite ironic and contradictory to have accurate figures pertaining to these multi-billion industries and yet still allow them to continue and prosper; although some governments are beyond moral reproach both within their own country and even on the international stage.

A short history of Human Trafficking

lavery was widely considered to be normal, if not even divine as stated in the papal bull Dum Diversas issued by Pope Nicholas V in 1452 condemning Muslims to â&#x20AC;&#x153;perpetual servitudeâ&#x20AC;?. It was only through momentous events in the 18th and 19th century that this status quo was challenged. Notable among many others is the judgment in Somerset v Stewart in 1772 declaring that slavery is incompatible with common law, the Slave Trade Act passed by the British Parliament in 1807 abolishing the slave trade and the Slavery Abolition Act of 1833 abolishing slavery, along with the outbreak of the American Civil War because of the slavery question and the subsequent 13th amendment to the constitution abolishing slavery. Slavery and the fight to abolish it took their own turn and pace of events differently according to the given country, region and culture. The strides made over the last few centuries and decades are undeniable and should be applauded, but as the information in this paper will demonstrate, a lot remains to be done. The commercialisation and commodification of fellow humans has certainly adapted to the changing

environment it found itself in. Although slavery in Roman and Greek times is different from todayâ&#x20AC;&#x2122;s sex and labor trafficking for example, the concept remains the same, while it is marketed and devised differently. Whereas in ancient times, a slave was under total and complete subservience to their master in all areas deemed necessary, in todayâ&#x20AC;&#x2122;s world someone who is a victim of the trafficking trade will most probably have a specific purpose to fulfil; from the agriculture workers forced to work unwanted jobs in North America, to the many girls and women forced to have sex with paying customers all around the world and so on. Human trafficking and modern-day slavery have evolved to such an extent, that whereas in the distant past the trade and institutionalisation of such practices were protected and enshrined in the law, today they rely on the many loopholes of both the law and law enforcement to carry on in what looks to be perpetuity. To give concrete examples closer to home, human smugglers put migrants on a boat and ferry them from war-torn Libya to Europe against an extortionate amount of money and without guarantee of safe passage and arrival, with more than 5,000 finding their final resting place at the bottom of the Mediterranean Sea while making the journey. The fatal side of human trafficking is also present in highlydeveloped countries such as the United States of America where 9 Mexicans were found dead in the back of a van in the sweltering Texan summer heat3, 3

Faggard AR, â&#x20AC;&#x153;Human Trafficking And Migrant Smuggling Highways: Examin-

with all indicators pointing to trafficking Mexicans across the border to avoid the lengthy, bureaucratic immigration checks at the border which might not even allow them into the United States given recently introduced and harsher admission requirements by the Trump Administration, and the United Kingdom where trained doctor Emmanuel Edet and his wife Antan kept Ofonime Sunday Inuk as a slave in their west London home, making him work 17 hour days, keeping his passport from him and not paying him for his 24 years of services rendered, when he had originally thought that he was to receive an education through the couple.4 Forced servitude against his will ignored for almost a quarter-century, more than 4,000 miles away from his country of origin of Nigeria, in one of the richest countries in the world, a founding-member of the United Nations and coincidentally in the same city where Anti-Slavery International, the world’s oldest human rights organization was founded in 1839.

ing Nodal Points And Potential Strategies To Reduce Human Trafficking And Migrant Smuggling” (thesis 2018) 1 4 “R v Emmanuel Edet” December 7 2015 (The Law Pages) accessed November 30, 2018

Forced Labour

local case of human trafficking is the Leisure Clothing manufacturing company in Malta which engaged Vietnamese and Chinese nationals to operate textile machinery to produce clothes for brands such as Hugo Boss, Karen Millen and Armani. The workers were forced to work in squalid conditions and their own passport was confiscated by the company’s managing director Han Bin and kept in the company’s safe, were paid wages far below the legal minimum which applies to all workers working in Malta’s territory regardless of nationality, and even kept a part of their wages as a guarantee that they would not leave5. The workers were swindled into accepting to come to Malta voluntarily under the impression that they would be paid a fair amount of money, a point which was not adhered to by the Chinese owners who paid their workers well below the legal minimum and overworked them to an inhumane and illegal degree. The case is ongoing but the company has closed shop at its Bulebel factory and its parent company has put 5

Allied Newspapers Ltd, “Leisure Clothing Managing Director Received €30,000 Performance Bonus a Year” (Times of Malta) <https://www.timesofmalta.com/articles/view/20150121/local/leisure-clothing-managing-director-received-30000-performance-bonus-a.552816> accessed November 18, 2018

its assets on sale6. To return to the Libya smuggling example, not all migrants are fortunate enough to make their way to a safer and more stable Europe just across the Mediterranean and are forced to live in overpopulated and overrun detention centres resulting in rampant criminality and abuse. Migrants are even falling victim to fully-fledged slavery, without the pretences and false guises of human trafficking, as footage reported by CNN in November of 2017 depicts7. An auctioneer asks for bids on “big strong boys for farm work” for as little as $400. This, happening in Malta’s next door neighbour and once considered close ally, just last year. Human trafficking is very much alive and kicking. Interestingly enough, the case of slavery in Libya can be attributed to the stricter Libyan coast guard preventing smugglers from ferrying their “stock” to Europe. And so, with the aforementioned deteriorating situation at detention centres, smugglers are faced with an overflow of “stock” and a dip in revenue, forcing them to think outside the box and revert to previous enterprises which were guaranteed, tried and tested, and proven to be profitable. Even though slaves are cheaper than ever, while a slave in 1850 cost around $40,000 in today’s money, a slave today costs $90 6

“Leisure Clothing Shuttered, Assets up for Sale by UK Firm” (MaltaToday. com.mt) <https://www.maltatoday.com.mt/news/national/75819/leisure_clothing_ shuttered_assets_up_for_sale_by_uk_firm#.W_FaRHpKiRs> accessed November 18, 2018 7 Feldstein S, “Moral Failure in Libya” (2018) 7 Oxford Monitor of Forced Migration 5

on average8, the large demand for forced labour and the disposability of the victims make it all the more attractive; it is easier to rid oneself of a sick or injured “slave” in today’s world than to spend money on their health and wellbeing, both in monetary terms and avoiding a run in with the authorities. It is therefore no surprise that modern-day slavery generates some $35 billion annually, and enslaves an estimated 45.8 million people9 globally. It is also important to take a step back and look at what happened over the past decade in Libya. While then dictator Colonel Gaddafi was a known authoritarian tyrant who violated human rights and financed global terrorism, Libya was stable and safe for a good 30 years prior to the revolution aided and abetted by NATO governments who intervened and exacerbated an already dire situation through airstrikes; without any plan to provide closure to the conflict. It can be argued that Western countries contributed to the anarchic mess that is Libya today, some of the same countries who colonised nearly all of Africa in the latter half of the 19th century and subjugated the natives to inhumane treatment and then left Africa to the whims of ruthless dictators once the exploits reached saturation point, adamantly refuse to take the migrants pouring into lawless Libya in the hope of reaching European shores; aggravating the affliction and indignity of an ever-growing concentration of 8 Bales K, Disposable People: New Slavery in the Global Economy (University of California Press 2012) accessed November 17, 2018 9 Walk Free Foundation, “Prevalence” The Global Slavery Index 2016 51 accessed November 30 2018

human rights abuses by the rival militias, the Libyan Coast guard and the many human trafficking rings. The contributory factors to human trafficking are manifold. Poverty oftentimes creates despair, which in turn makes what would have otherwise seemed obscene and illogical, desirable and even advantageous at that moment in time. This is not to say that human trafficking is reserved solely to third world countries or areas of acute economic problems, as the betterfaring countries and classes most certainly play a major contributory role. A voluntary or involuntary political and judicial vacuum or blind-eye to confronting and taking action against human trafficking are necessary for its survival and continuity. A prime example of the combination of these factors is the kafala system in Arab countries. In it, an employer sponsors foreigners to come live and work in the country, and the employer is responsible for granting permission to the foreigner in their employ to enter the country, transfer employment, or leave the country. Even though this is legal in most Arab countries, most prominently Saudi Arabia and Qatar, it is very fertile ground for abuse and commodifies human work and value. The Human Rights Watch has deemed the kafala system to be incompatible with Article 13 of the Universal Declaration of Human Rights and stated that “…some employers feel entitled to exert ‘ownership’ over a domestic worker” and that the “sense of ownership ... creates slavery-like conditions”. This system is adhered to and respected in two very rich nations which enjoy good diplomatic and economic relations with Western

democratic governments, so the notion that such things only happen in some remote backwards country with a gun-toting human trafficker for a dictator is far from the truth to say the very least. There are also significant concerns about the use and practices of migrant labour used to construct the sports facilities for and in preparation of the 2022 World Cup, the first ever to be held in the Arab world, with the Wall Street Journal reporting 1,200 worker deaths on sites related to the upcoming World Cup10. Not only do some countries turn a blind-eye or give their tacit blessing, some even end up diverting money straight into the pockets of the conductors of human trafficking. In 2015, Indonesian police alleged that Australian officials bribed a group of human traffickers to return to Indonesia with their 65 asylum seekers on board rather than continue to New Zealand as originally planned. Instead of fulfilling its moral, legal and international responsibility to offer help and aid, to hear and respect due process to each and every one of those 65 persons, Australia allegedly paid their traffickers off and sent them packing back to their port of departure11. Governments also indirectly contribute to spikes in human trafficking when instability is created. In the ongoing war in Donbass, Eastern Ukraine, fighting between Ukraine and pro-Russian separatists funded and supported by the Russian state have levelled the region’s already 10

ITUC, “3. Worker Fatalities Are Increasing” [2014] The Case Against Qatar 15 accessed November 30 2018 11 Stout D, “Indonesia Officials Charge Australia With Bribing Human Traffickers” (Time June 16, 2015) <http://time.com/3922433/indonesia-australia-human-trafficking/> accessed November 17, 2018

weak economy. Stories of daughters sold to Turkish brothels by mothers, mothers sold to begging schemes in Russia by their own sons are not unheard of. Two women were among many who went to Russia believing that they would have a job in sales, only to be taken to a remote factory surrounded with barbed wire and with gun-wielding security guards to work 18-hour days bottling vodka in an illegal distillery, and ended up not being paid at all after the authorities raided their workplace12. Due to its economic prowess, the United States is a sought after destination for human traffickers given the available demand and spending power. Several cases of humans trafficked into the U.S. via both land borders and through ports on both sides of the coast have been reported. Among the many, Susana Remerata’s case is symbolic of the abuses committed. Her futurehusband found her in a magazine showcasing Asian women as prospective brides, and he picked Susana out of the many women advertised. She was brought over to the States and married Timothy C. Blackwell three days after arriving, only for their marriage to last two weeks, resulting in divorce proceedings just a year later because of his alleged physical and mental abuse. Heavily pregnant Remerata and her two friends were all shot dead at point blank in a courthouse in Seattle, by Blackwell13. This case embodies the terror 12

Tucker M, “Sex, Lies and Psychological Scars: inside Ukraine’s Human Trafficking Crisis | Maxim Tucker” (The Guardian February 4, 2016) <https://www.theguardian.com/global-development/2016/feb/04/sex-lies-psychological-scars-ukraine-human-trafficking-crisis> accessed November 17, 2018 13 Sampang MN, “Barriers to Fighting Against Human Trafficking Through Non-Profit Organizations and Programs” (thesis 2018) 7

of foreigners who wish to find a better life and fulfil their American dream, yet fall prey to abusive and coercive “owners” who use their privileged position to preserve the status quo if not even to make the situation worse for their “property”. In April 2011, the Equal Employment Opportunity Commission sued a Californian contractor and its farms in Washington State and Hawaii for their discriminating against 200 Thai workers and called it the largest case of human trafficking in the agriculture industry, and also sued a Mississippi marine services company alleging the mistreatment and substandard living conditions of 500 Indian workers in Mississippi and Texas14. Both are crystal clear indicators of how food chains and the products we buy and consume are tainted with the scourge of human trafficking, and we in turn as customers, are unknowingly contributing to the seemingly never-ending cycle of abuse suffered by fellow humans, most of who bore no fault for their predicament, the same predicament which was thrust upon them due to the political and economic situation of their country of birth combined with their racial and ethnic characteristics, not to mention their sex. As seen in most of the highlighted cases, the authorities and the governments of countries all around the world are either unable to pursue and serve justice upon the perpetrators or unwilling to act because of their complicity in these acts and the profit reaped from such ventures are just far too great. It an also be argued 14

U.S. Equal Employment Opportunity Commission “EEOC Files Its Largest Farm Worker Human Trafficking Suit Against Global Horizons, Farms”, 20 April 2011 accessed November 28, 2018

that the act of taking a stand against countries such as Saudi Arabia may negatively affect the economy of the country speaking out, while taking a stand against countries such as North Korea has bore no fruit so far, due to the support and propping up by its only ally, and fellow human-trafficking offender, China15.

15 “China” Trafficking in Persons Report 2017. U.S. Department of State <https:// www.state.gov/j/tip/rls/tiprpt/2017/index.htm> accessed November 25, 2018

Sex Trafficking

t is important to note that women and girls are disproportionately affected, amounting to around 71% of all victims16, and the industry with the highest female concentration is undoubtedly sex trafficking, with female victims numbering about 99.4% of all victims, and is worth $100 billion globally. As Rudyard Kipling aptly put it by describing it as the worldâ&#x20AC;&#x2122;s oldest profession, the world is no stranger to the concept of forced prostitution. North Korean women transported to neighbouring China for a forced marriage or to work as a prostitutes, and their nationality makes them all the more vulnerable to human trafficking given that they may be deported back to North Korea if caught. The North Korean regime, apart from subjecting some 150,000 of its own citizens to extremely harsh and deadly forced labour camps, has also made an enterprise of sending its own citizens abroad to countries such as China, Russia, Kuwait and the United Arab Emirates to become indentured slaves. The large part of the salaries of these workers are deposited into government-controlled accounts and are a 16 ILO, â&#x20AC;&#x153;Forced Labour and Forced Marriageâ&#x20AC;? Global Estimates of Modern Slavery 23 accessed November 26 2018

critical stream of revenue for North Korea, possibly providing around $2 billion in foreign currency which bypass the stringent international sanctions imposed on the hermit kingdom due to its aggressive pursuit of nuclear weapons17. In South East Asia, the unrest in Rakhine State in Myanmar has resulted in more than half a million of the Rohingya Muslim minority flooding refugee camps in what the UN’s High Commissioner for Human Rights Zeid Ra‘ad al-Hussein has described as a “textbook example of ethnic cleansing”18. This crisis has not only led Amnesty International to strip Myanmar’s civil leader and human rights and political freedom fighter icon Aung San Suu Kyi from the ambassador of conscience award bestowed upon her in 2009, but also left ample space for human traffickers to get a foothold and take advantage of the hundreds of thousands of Rohingya Muslims desperate to flee Myanmar’s military approved and supported ethnic cleansing in search of a safer home, namely neighbouring Thailand. This turmoil and exodus of these stateless refugees has resulted in a prostitution boom in neighbouring Bangladesh, and even in Nepal and India. While the concept of child prostitution was far from alien to these countries, the vulnerable and young refugees propelled the industry, increasing 17 “North Korea”. Trafficking in Persons Report 2010. U.S. Department of State (June 14, 2010) <https://www.state.gov/j/tip/rls/tiprpt/2010/142760.htm> accessed November 18, 2018 18 “UN Human Rights Chief Points to ‘Textbook Example of Ethnic Cleansing’ in Myanmar | UN News” (United Nations) <https://news.un.org/en/story/2017/09/564622-un-human-rights-chief-points-textbook-example-ethnic-cleansing-myanmar> accessed November 18, 2018

the supply of prostitutes and decreasing the price making such a venture more affordable, against an already strong demand19. Thailand proceeded with a trial against 92 alleged human traffickers, some of which were high government officials, even including a former senior army general, Manas Kongpan, who was accused of being the mastermind behind the transnational human-trafficking network, and Malaysia found at least 140 graves on its side of the Thai-Malay border connected to the human trafficking network20. In this network of camps along both sides of the border, “described as a tropical gulag” most of the victims were killed after their relatives were not able to meet the extortionate amount of ransom money asked by their captors, who had previously told them that their passage would cost a fraction of what it really turned out to be, according to survivors who experienced these same camps. These camps were operating with the knowledge and complicity of Thai officials.

19 “The Rohingya Children Trafficked for Sex” (BBC News March 20, 2018) <https://www.bbc.com/news/world-asia-43469043> accessed November 18, 2018 20 Noor MSM and others, “The Clandestine Multiple Graves in Malaysia: The First Mass Identification Operation of Human Skeletal Remains” (2017) 278 Forensic Science International

Ransom Kidnapping

imilarly, the Eritrean military and government officials engage in both modern-day slavery and human trafficking. They are accused of crimes against humanity, torture and rape and murder and mass enslavement in the atrocity that is their indefinite military national service program, with around 400,000 of their kin forced to serve against their will, in a practice that has been ongoing since 199121. Through this program, Eritrean youths are required to complete their final year of high school by serving in Sawa Military Camp in the desolate east of the the subsaharan country in Western-Africa. The parents of the children who are unfortunate enough to be trafficked are notified of the abduction and that they have to pay a ransom within a limited time frame otherwise they would never get to see them again and they are handed over to other human traffickers. The teenagers are abducted by senior military officials from the camp itself, put in a car and driven to neighbouring Sudan and forced to inform their relatives themselves to make it seem all the more real. 21

â&#x20AC;&#x153;As Many as 400,000 Enslaved in Eritrea, UN Estimates | CBC Newsâ&#x20AC;? (CBC News June 8, 2016) <https://www.cbc.ca/news/world/un-eritrea-slavery-human-rights-1.3621631> accessed November 18, 2018

This practice nets in around $600 million for the ring leaders, according to a report published by Meron Estefanos, a Swedish human rights activist, and Professor Mirjam van Reisen and Dr Conny Rijken of Tilburg University in the Netherlands; between 25,000 and 30,000 Eritreans fell victim to it over just a 5 year period, 2007-2012. Some are lucky enough to have their captors keep their word and are freed in the Sudanese capital of Khartoum, contrary to others whose ransom was paid, yet were instead trafficked to another place and their relatives asked an even larger amount of money for their safe return. It is estimated that between 5,000 and 10,000 of the hostages taken were killed in captivity, with children as young as two and three among the victims22.

van Reisen M, Estefanos M and Rijken C, â&#x20AC;&#x153;Chapter 4. Routes to the Sinai and Recruitment of Trafficking Victimsâ&#x20AC;? [2013] The Human Trafficking Cycle: Sinai and Beyond 49 accessed November 27 2018

The Path Forward

he responsibility to combat human trafficking therefore falls on the ordinary citizen, and more importantly, survivors of human trafficking who after coping with their ordeal, strive to lead the fight to stop such abuses from ever happening again. An example of such altruism is the National Guestworker Alliance based in New Orleans which was founded by the same 500 Indian workers in Mississippi who faced threats of deportation, surveillance and retaliation from immigration authorities by the company they worked for23. The organisation is committed to helping change workplaces from exploitative to dignified and giving more power, rights and protections to migrant labourers. On the other side of the globe, Sunitha Krishnan who was gang-raped when she was 15 -years old, became a social activist and founded Prajwala, what is now the world’s largest civil society organisation devoted to eradicating sex trafficking and sex crimes24. Despite 23 “About Guestworkers” (National Guestworker Alliance October 25, 2013) <http://www.guestworkeralliance.org/about-guestworkers/> accessed November 18, 2018 24 Weisert KA, “Predicting Social Change: Transforming Victims of Child Sex Trafficking in India and the United States” (thesis 2014) 18

the regular death threats she receives, and having been physically assaulted 14 times so far, Krishnan continues to persist in her tireless work as an antitrafficking crusader. It is critical to restate the fact that the cases mentioned barely touch the the tip of the iceberg, and it is quite impossible to have a comprehensive and complete overview and assessment of the multifaceted cases and victims of human trafficking all around the world. The Global Report on Trafficking in Persons by the UNODC in February 200925 did not contain any cases of human trafficking specific to the following countries: Libya, China, Papua New Guinea, Iran, Saudi Arabia, Somalia, Madagascar, Uruguay, Central African Republic, Cameroon, Republic of Congo, Kuwait, Taiwan, Tunisia, Jordan, Lebanon, Equatorial Guinea-Bissau, North Korea, Belize and Jamaica. This is not to say that human trafficking is an alien concept to these countries, as the connotations and stereotypes which immediately come to mind prove. The cases in these countries are either not reported or are not recorded by the authorities, hampering the awareness, education and fight against the perpetrators on both a national and international level. Furthermore, the UNODC Case Law Database on Human Trafficking26 misses out on a significant 90 countries, including Malta. The database also classifies 25

UNODC, â&#x20AC;&#x153;Global Report on Trafficking In Personsâ&#x20AC;?, February 2009 accessed November 30 2018 26 https://sherloc.unodc.org/cld/v3/htms/cldb/index.html?lng=en#/country

42% of all cases prosecuted involved recruitment, 69% involved sexual exploitation and 55% were transnational. Once again, this is in no way representative of the actual situation on the ground, and consequently, highlights the elusiveness and prevalence of the issue at hand.

Statistics

CHAPTER TWO A COMPARATIVE LAW ANALYSIS OF HUMAN TRAFFICKING

INTRODUCTION

iven that the issue of human trafficking is a prevalent one, even in this modern world, it is crucial for agreements and treaties to be drawn up with the aim of tackling this problem. Such treaties would enable the countries in agreement to cooperate easily with each other with the aim of reducing the occurrences of human trafficking as much as possible, whilst also providing a legal framework which would put into place numerous obstacles for potential perpetrators. The troubles brought about by humanitarian conundrums, or even through warfare, pose an obstacle in the reduction of human trafficking, as such issues would naturally encourage migration and great fluctuations in population movements. This matter is not only of concern to our own continent, and as such, intercontinental cooperation is key to ensuring the reduction of human trafficking. In fact, the UNODC (United Nations Office on Drugs and Crime) Global Report on Trafficking in Persons (2016) points out that occurrences of human trafficking run parallel to the migratory trends. Moreover, close

to 60% of trafficking victims found by member States of the United Nations would be foreign to the country in which they are found, with the majority of them being migrants. The report goes on to state that there has been a worrying increase in human trafficking in war-torn countries, namely Syria, Somalia and Iraq, with victims being trafficked to European, Middle Eastern and Asian countries alike. Furthermore, child trafficking trends move along the same wavelength as human trafficking in general, with the aforementioned conditions contributing towards the increase of such act. Typically, such children would be abandoned or travelling without parental supervision in such areas, making them especially vulnerable to traffickers.27 This data provides further incentive as far as adherence to existing treaties is concerned. Even in a society where such issues ought not to be so troubling or prevalent, given technological advancements and general improvements to standards of living, it is shocking to realise just how present such problems are in what ought to be a developed society. Nevertheless, it remains the duty of any nation involved to ensure that human trafficking tendencies are reduced as significantly as possible.

UN News Centre, â&#x20AC;&#x153;Treaties against human trafficking key to fighting scourge, supporting victimsâ&#x20AC;? (UNODC, 29 September 2016)

Treaties

he United Nations attempts to present the idea of bilateral or multilateral treaties or similar arrangements to its member States in an effort to put its law enforcement into effect. Furthermore, it aims to fulfil its judicial obligations by investigating any suspicious activity in relation to human trafficking, whilst proceeding to prosecute any such traffickers. Such treaties and agreements enable the effective control of transnational crimes, including human trafficking, through the collaboration of the aforementioned judicial personnel and law enforcement. This encouragement is fulfilled through the Organised Crime Convention.28 Apart from this, INTERPOL has also presented a police cooperation agreement, which aims to increase cooperation in this department between its member States. Albeit drafted to serve as a bilateral agreement, the model could also be regarded from a regional perspective, should the appropriate changes be made to its format. 28

Toolkit to Combat Trafficking in Persons, Tool 4.9: Bilateral and multilateral cooperation agreements or arrangements

This model agreement provides several methods of cooperation. Although wide cooperation is the most recommended, some States may choose to limit their involvement, and therefore, this model includes a general framework which may be adopted by such member States.29 Furthermore, a project entitled Childoscope has been put forward by Child Focus, the Institute for International Research on Criminal Policy and the European Centre for Missing and Sexually Exploited Children. This collaboration supports the combination of European reactions and policies to cases of sexual exploitation of children. Positively, this project inspired the drafting of model protocols which aimed at enabling civil society organisations and law enforcement agencies to cooperate in their efforts to establish relationships between similar organisations throughout the European continent. Such protocols facilitate the generalisation of European principles, both in civic and legal perspectives.30

29 30

Ibid Ibid

Conventions

oing further back in time, the United Nations had previously approved the Convention for the Suppression of the Traffic of Persons and of the Exploitation of the Prostitution of Others in 1949, with the Treaty coming into force two years later. As made clear in the preamble, the Convention’s aim was to prevent the prostitution and traffic of persons for the same purpose, seeing as they run counter to basic human worth and dignity, whilst also placing an individual’s life in jeopardy, as well as being detrimental to one’s family and community.31 With regards to sections pertaining the trafficking of women and children, this Convention also took into consideration other pre-existing agreements, namely: • The International Agreement for the Suppression of the White Slave Traffic (1904); • The International Convention for the Suppression of White Slave Traffic (1910); • Both of the above were amended by the Protocol given approval by the General Assembly of the

Convention for the Suppression of the Traffic of Persons and of the Exploitation of the Prostitution of Others 1949

United Nations in 1948. • The International Convention for the Suppression of the Traffic in Women and Children (1921); • The International Convention for the Suppression of the Traffic in Women of Full Age (1933). • Both of the above were amended by the Protocol given approval by the General Assembly of the United Nations in 1947. Referring to an above-mentioned convention, the International Convention for the Suppression of the Traffic of Women and Children of 1921 is a multilateral treaty which aims to protect such women and children from sexual exploitation and trafficking on an international scale. This Convention resulted in the anti-trafficking movement gaining more recognition, which further led to research essentials being provided to tackle the issue. Other than this, signatory countries were also obliged to present annual progress reports, with numerous offices being set up in each respective country dedicated to this procedure. 32 One must also mention the Council of Europe Convention on Action against Trafficking in Human Beings, which is an International Human Rights Law treaty enacted by the Council of Europe on a regional scale, having entered into force in 2008. This treaty conforms to several goals, including the prevention of any kind of human trafficking. It also aims to provide assistance and protection to witnesses and 32

Nitzka Berkovitch, From Motherhood to Citizenship: Women’s Rights and International Organisations (first published 1999), JHU Press

victims of such trafficking alike, ensuring proper and effective investigation and subsequent prosecution of perpetrators, and the enlisting of other States in the battle against trafficking. What is particularly important in this Convention is the raising of awareness, the establishment of national coordination measures, and methods of supporting victims, with a â&#x20AC;&#x153;recovery and reflection periodâ&#x20AC;? being used to ensure that such victims will not leave the receiving State. This Convention also establishes GRETA (the Group of Experts on Action against Trafficking in Human Beings), a monitoring organisation consisting of a maximum of 15 members, all of which are to be elected by the signatory States.33

33 2005

Council of Europe Convention on Action against Trafficking in Human Beings,

Palermo Protocols

he Palermo Protocols were adopted by the United Nations in supplementation to the Convention against Transnational Organised Crime of 2000 (also known as the Palermo Convention) There are three such protocols: 1) The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (also known as the Trafficking Protocol) was adopted in 2000 and subsequently entered into force three years later. At the time of writing, 173 parties have ratified it.34 UNODC (The United Nations Office on Drugs and Crime) claims responsibility for the protocol’s implementation, offering States assistance in the drafting of laws and in the creation of national anti-trafficking plans, whilst providing resources to accomplish this. It aims to prevent and resist human trafficking, providing help and protection to victims, and cooperation between States in the achievement of these goals.35 34 35

“UNODC – Signatories to the CTOC Trafficking Protocol” www.treaties.un.org Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United States Convention against Transna-

2) The Protocol against the Smuggling of Migrants by Land, Sea and Air (otherwise known as the Smuggling Protocol) was also adopted in 2000 by the United Nations General Assembly. It entered into force in 2004 and, at the time of writing, had been ratified by a total of 146 parties.36 This protocol specifically aims to protect migrant rights, and reduce the power of underground criminal organisations which abuse them. On the contrary, it places emphasis on the need to respect such migrants, whilst also addressing the primary causes of migration through careful examination and the use of socio-economic measures. As such, this protocol clearly establishes the need for the criminalisation of migrant smuggling. Whilst it does not provide a specific regime towards the combatting of migrant smuggling, it exists as a vast combination of Human Rights Law, Refugee Law, and the law of the sea. Also, one ought to also note the difference between smuggling and human trafficking, in that the former assumes a consensual relationship between the smuggler and the â&#x20AC;&#x153;victimâ&#x20AC;?. Such relationship typically ends at the time of the subjectâ&#x20AC;&#x2122;s arrival in the desired destination. However, smuggling may still result in the major abuse of human rights, with the eventualities varying as far as exploitation, threats and even death.37 tional Organised Crime, 2000 36 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United States Convention against Transnational Organised Crime, 2000 37 Gallagher and David, International Law of Migrant Smuggling (first published 2004), Cambridge

3) The Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition (also referred to as the Firearms Protocol) was adopted in 2001 and is the final Palermo Protocol. Entering into force in 2005, it includes 115 parties, one of which is the European Union itself. The main aims of this protocol are the control of arms and their trafficking, the prevention of their entry into illegal underground markets, and the facilitation of the investigation and eventual prosecution of any related offences. Parties to this protocol are obliged to cooperate at regional, bilateral and international levels to achieve its objectives, including offering technical assistance and training to any other State that may need it. Furthermore, case-specific information is traded between any parties involved to ensure more effective cooperation.38

Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition, 2005

DOMESTIC LAW ANALYSIS IN SEVERAL COUNTRIES Malta

he sad reality is that the Maltese Islands have been known to house European women who have been subjected to human trafficking, particularly for prostitution purposes. However, not only females are victims of this in our country. One case in particular, dating back to 2009, involved three Pakistani males being forced into working in a Pakistani-themed restaurant in Malta. Apart from this, the numerous irregular migrants and their children who have come from African countries may find themselves more exposed to the dangers of trafficking due to Malta’s “grey” informal labour market.39 The Trafficking in Persons (TIP) report further enhances the statement above, emphasising the “ideal” status of Malta as a destination labour and sex trafficking, with women being notable victims of the latter. Victims of human trafficking in Malta typically originate from: • China, with the aim of being exploited as massage 39

“Malta”, Trafficking in Persons Report 2010, US Department of State

parlour employees; • Central and Eastern Europe, with male victims being exploited as football players or being employed in nightclubs; • Southeast Asia, mostly as domestic workers.40 Furthermore, it is a disappointing fact that since 2012, our country still has not ensured proper precautions against human trafficking. In fact, 2018 was the seventh consecutive year in which the annual Trafficking in Persons Report by the US State Department concluded that Malta failed to meet even the minimum requirements for the elimination of human trafficking. Nevertheless, Malta’s efforts at improving this situation were still commended after the government made more training available to law enforcement agencies, allocated more funding towards the prevention of trafficking and also increased the capacities of shelters.41 According to Grace Attard, the vice president of the National Council of Women (NCW), victims of human trafficking are comparable to slaves, as they begin to lose even the most basic freedoms, such as that of mobility. Apart from this, they are not even allowed to enjoy the majority of their earnings. She also questions whether the lack of perpetrators 40

Sarah Carabott, “Malta again fails to take action to fight human trafficking – US State Department”, Times of Malta (July 6 2018) 41 Ibid

charged of human trafficking offences is due to lack of evidence against them or due to a lack of adequate legislation regarding the matter, going on to encourage a change in mentality and attitude in the Police Force with the aim of improving this matter going forward.42 As was stated above, law enforcement authorities ought to be encouraged to not hold back in administering heavy penalties to perpetrators of human trafficking. Leniency only serves for any underground involvement to continue to grow, with the number of victims seemingly only increasing as time elapses. Moreover, any civil society organisations and NGOs involved in this area should be provided with sufficient funding to continue tackling this problem just as, if not more effectively than they have already been doing. Finally, as has been suggested by the National Council of Women (NCW), the government must also ensure the enactment of the appropriate legal measures, as well as the appropriate law enforcement measures needed to ensure the lessening of this grievance.43

â&#x20AC;&#x153;Trafficking of women for sexual exploitation fast increasing â&#x20AC;&#x201C; NCWâ&#x20AC;?, Malta Independent, 23 July 2017 43 Ibid

Domestic Legislation

uman trafficking offences fall under the purview of the Criminal Code (Chapter 9 of the Laws of Malta), underneath the heading “Of the traffic of persons”. If one were to successfully plead a case of human trafficking in the case of a person of age (18 years or over), the following would have to have taken place: • The trafficking would have subsisted through the use of threats or violence, with abduction included in such a category; • Fraud or deceit must have been employed on the victim; • The perpetrator would have misused his influence or taken advantage of a position of authority they would find themselves in, or even pressured the victim into submission; • The reception or provision of benefits or gifts in order to achieve the consent of the trafficker over the victim. If the trafficking takes place with regards to a minor, the above conditions need not have subsisted. This

means that if a minor is trafficked to Malta for sex trafficking purposes, the trafficker would still be classified as such, even if the above conditions have not been met.44 Article 248(A-G) of the Maltese Criminal Code, composing Sub-title VIII BIS (Of the traffic of persons) denotes all variations of trafficking as being illegal. Following is a brief summary of the composition of this sub-title.45 Article 248A begins by focusing on the specific offence of trafficking an adult person with the intention of exploiting them “in the production of goods or provision of services” in the first subarticle. This is extended to include aspects such as slavery, forced labour, begging or any like activity not specified as such. Any person found guilty of such an offence may be sentenced to a maximum of 12 years imprisonment, and a minimum of 6. Moreover, it is specified that the word “exploitation” in this scenario shall be interpreted to mean that a person would be performing the aforementioned actions in “circumstances which infringe labour standards governing working conditions, salaries and health and safety”.46 The second sub-article proceeds to specify the means with which the above offence can be committed. These are rather varied and may take 44 tional 45 46

Trafficking in Human Beings, Ministry for Home Affairs and NaSecurity Criminal Code (Chapter 9 of the Laws of Malta) Ibid

the form of actual or threatened violence, fraudulent behaviour or deception, the misuse of one’s position of authority, the payment or reception of funds to obtain the consent of the trafficker, or the abuse of power. Moreover, should a victim have consented to such exploitation, regardless of whether or not such consent was intentional, the crime shall not be vitiated should any of the aforementioned means have been put to use.47 Furthermore, Article 248B goes on to consider the trafficking of persons for purposes of exploitation with regards to sexual acts, and the same punishment in Article 248A(1) is applicable.48 Articles 248C and 248CA seem to move in conjunction with each other. The former speaks of the trafficking of adult persons for the purpose of the removal of their organs. Again, the same punishment mentioned in Article 248A shall be applied. In continuance, Article 248CA proceeds to discuss the actual trafficking of human organs, rather than the humans themselves. Again, the punishment from 6 to 12 years is specified, whilst the terms “human organ” and “financial gain or comparable advantage” are further defined and elaborated upon for the purposes of this article.49 The purpose of Article 248D is to consider the occurrence of any of the crimes mentioned from Article 248A up to 248CA being committed upon a minor victim. Should none of the means mentioned in 47 48 49

Ibid Ibid Ibid

Article 248A(2) have been used, the punishment is to remain the same as though the victim were an adult person (6 to 12 years imprisonment). However, should any of these means have been used, the punishment allotted to the perpetrator shall be increased by one degree.50 Furthermore, Article 248DA discusses the possibility of the perpetrator improperly inducing one whose consent is required for an adoption to be carried out to complete the process of adoption which shall eventually lead to the child being exploited. The punishment for such crime shall be aggravated to one degree from that of the norm (6 to 12 years imprisonment). The same punishment shall apply in relation to Article 248DB, which deals with child labour. This is to be defined as the unlawful convincing of a minor to participate in mandatory or forced labour for any kind of reason or purpose.51 Article 248E is rather long and deals with several “general provisions” applicable to the trafficking of persons: • (1) deals with the definitions of the trafficking of adult persons or minors, as the case may be. • (2) tackles situations in which any of the offences mentioned from Article 248A to 248D may be aggravated by one degree. • (3) validates the application of Article 121D of the 50 51

Ibid Ibid

same Criminal Code (dealing with the corruption of other persons) in these situations, where a fine of not more than two million euros and not less than twenty thousand euros shall be allotted. • (4) regards the possibility of the perpetrator carrying out the trafficking for the benefit of a body corporate. In this case, a fine of not less than ten thousand euros and not more than two million euros shall be applicable. • (4A) considers the possibility of such action being done to benefit a body corporate by someone with the authority to take decisions and represent such body corporate, and the consequences of such circumstances. • (5) pertains to scenarios in which Maltese courts shall enjoy jurisdiction over the aforementioned offences. • (6) stipulates that one may be exempted from liability in any of the aforementioned offences should they have been under the influence of another’s compulsion. • (7) states that Article 14 of the Immigration Act (Chapter 217) shall not be applicable prior to the lapse of thirty days from the date on which the Principal Immigration Officer obtains reasonable proof that a presumed victim is indeed labouring under the effects of any of the aforementioned offences.

• (8), on the contrary, lays down that Articles 13 and 14 of the White Slave Traffic (Suppression) Ordinance shall be applicable in all circumstances. • (9) verifies that the day on which the victim reaches the age of majority shall be the same day that the period of prescription begins to elapse. • (10) provides a definition to the term “permanent resident”.52 In continuance, Article 248F stipulates that anyone found guilty of aiding or abetting another to commit the aforementioned offences shall be liable to the same punishments given to perpetrators of the offences aided, abetted or instigated. Furthermore, anyone knowingly engaging the services made reference to from Article 248A to 248D shall be liable to imprisonment from eighteen months to five years.53 It may also be noted that Article 248G, the final article in this sub-title, stipulates that the provisions of the Probation Act (Chapter 446), together with Articles 21 and 28A of the Criminal Code, shall not be applicable in regard to perpetrators found guilty of committing any of the aforementioned offences.54 The first Maltese National Plan on Combatting Trafficking in Persons was implemented from the 4th quarter of 2011 to the 4th quarter of 2012, with the Human Trafficking Monitoring Committee subsequently also adopting the second National Plan, covering the years 52 53 54

Ibid Ibid Ibid

2013 and 2014.55 In order to combat the threat of human trafficking in Malta, the efforts of the Human Trafficking Monitoring Committee are crucial. This committee is chaired by the Permanent Secretary for the Ministry for Home Affairs and National Security, and is composed of four members: 1. The Commissioner of Police; 2. The Attorney General; 3. The Permanent Secretary for the Ministry for the Family and Social Solidarity; 4. Mr. Leonid McKay, Master of Arts in Social Policy (University of Malta), BA Hons in Sociology (University of Malta). The committee also employs the services of a secretary, who is a representative from the Office of the Prime Minister.56 One may find brief mention of human trafficking in the Victims of Crime Act (Chapter 539 of the Laws of Malta). Article 12 of such Act speaks of the ability of the Minister responsible for the welfare of victims of crime, along with any other agency or entity, to ensure that the victims of such crimes are timely and individually assessed and taken care of, with human trafficking being one of such listed crimes.57 55 Malta, 2018 Trafficking in Persons Report, US Department of State 56 Human Trafficking Monitoring Committee, gov.mt 57 Victim of Crimes Act (Chapter 539 of the Laws of Malta)

One may note that 2018 saw more than twice the investigations being carried out by the police vice squad in comparison to the amount in 2016 (3), with 7 investigations taking place with regards to occurrences of human trafficking. The government began prosecution proceedings with regards to two individuals, one being a Maltese and the other a Chinese national, both in relation to cases of forced prostitution. However, three cases regarding labour trafficking initiated in 2014, along with another case involving a police officer’s collusion with a trafficker opened in 2004, remained pending until the end of the reporting period. On a positive note, there were no prosecutions or even investigations of government officials being involved in human trafficking scandals, with the last such conviction arriving as far back as 2012.58 Apart from the above, the White Slave Traffic (Suppression) Ordinance (Chapter 63 of the Laws of Malta), which dates back to 1930. This piece of legislation conveniently overlaps with the Criminal Code’s own provisions relating to sex trafficking, albeit not directly defining or even mentioning human trafficking. In practice, it is mostly used as a detrimental instrument to potential traffickers, which has led to the conviction of many perpetrators. The most notable articles in such Act are: • Article 5 – Tackles the unlawful detention of a person for prostitution purposes; 58 Malta, 2018 Trafficking in Persons Report, US Department of State

• Article 7 – Living on the earnings another person has made through prostitution services; • Articles 8-10 – Managing, letting or keeping property for the exercise of prostitution.59 Also of relevance is the fact that Council Directive 2004/81/EC has been subjected to transposition into Maltese legislation. This directive relates to victims of trafficking who cooperate with national authorities, in exchange for being granted a six-month “reflection period” as well as a residential permit, with this possibly being renewed in the future. One may also find reference to human trafficking provisions in the following pieces of legislation: • Police Act (Chapter 164 of the Laws of Malta); • Permission to Reside for Victims of Trafficking or Illegal Migration, S.L 217.07, L.N 174/2007 (2007); • Criminal Injuries Compensation Regulations, S.L 9.12, L.N 186/2012 (2012).60 Of notable interest is the case of “Il-Pulizija vs. Raymond Mifsud”, decided on the 23rd of February 2017.61 As far as the facts of the case are concerned, it was revealed in June 2004 that a farmhouse in Luqa was being used for the purpose of keeping 59 United Nations Office on Drugs and Crime (UNODC), Human Trafficking and Migrant Smuggling, “Assistance in the Identification of Victims of Trafficking: Counter-Trafficking Training Modules”, 2016 60 Ibid 61 Il-Pulizija vs. Raymond Mifsud, Appell Nru. 128/2012, Qorti tal-Appell Kriminali, 23 Frar 2017

Russian women, trafficked to Malta and forced into prostitution, locked inside it. The two female victims had arrived in Malta under the impression that they were to be employed in the restaurant business. However, they were instead approached with the idea of being employed as nightclub dancers, which they swiftly refused. One of the women even claimed that she was physically abused by the accused, whilst even claiming that she was once held at knifepoint by another Russian woman assisting him.62 On appeal, the Court considered that the accused had restrained himself from deviating further from the law after the occurrence of this crime, a long time after which had elapsed. This and a combination of other factors, such as the fact that the farmhouse itself could not be confiscated due to it belonging to the government, led the Court of Appeal to sentence Mifsud to four years imprisonment, overruling the First Court’s judgement which had sentenced him to the maximum sentence possible under the circumstances.63 However, the subsequent case of “Raymond Mifsud vs. Avukat Generali” sought to completely overrule the aforementioned judgement. Mifsud also appealed for the Court to reach the conclusion that he had previously suffered due to an alleged violation of Article 6(1) and (2) of the European Convention, meaning that the principles of presumption of innocence and the right 62 “Man has prison sentence reduced by 7 years on trafficking of women and prostitution case”, TVM, 27 February 2017 63 Il-Pulizija vs. Raymond Mifsud, Appell Nru. 128/2012, Qorti tal-Appell Kriminali, 23 Frar 2017

to a fair hearing were not adhered to. Furthermore, he argued lesions as far as Articles 8 and 14 of the European Convention are concerned. Moreover, he argued that the reasonable time requirement discussed in Article 6(1) of the European Convention had been violated due to proceedings taking a lengthy amount of time, and that Article 6(3) of the same convention had also been violated due to his lack of access to a lawyer during his arrest as well as throughout his investigation. Along with all this, he also demanded compensation for his trouble, but all of the above was subsequently rejected by the Court.64

64 Raymond Mifsud vs. Avukat Generali, Rikors Nru. 29/2017, Qorti Civili Primâ&#x20AC;&#x2122;Awla (Gurisdizzjoni Kostituzzjonali), 27 Gunju 2018

European Union Legislation Council of Europe

he Council of Europe (CoE) aims to promote the respect and protection of human rights, along with the prevalence of the rule of law and respect to democracy in European Law. Malta became a signatory State to the Council of Europe Convention on Action against Trafficking in Human Beings in 2005, with its ratification and coming into force both being in 2008. This Convention was mainly inspired by the fact that human trafficking is an obvious violation of human rights and basic human integrity and dignity. Pertaining the definition of human trafficking as provided in Article 4 of this Convention, the legislator followed the example set by the Palermo Protocol.65 An independent monitoring mechanism controls the implementation of this Convention, aimed towards securing compliance from all signatory States. GRETA (the Group of Experts on Action against Trafficking in Human Beings) controls this mechanism, undertaking country visits and publishing progress reports made by each respective State, whilst also providing 65

Ibid

recommendations as to how to counter instances of trafficking for each particular State.66 Although not explicitly mentioned in such, according to the interpretation of the European Convention on Human Rights, human trafficking falls under the purview of Article 4 of such Convention, which prohibits “slavery and the slave trade in all their forms”. Therefore, it is implied that human trafficking should be regarded as a form of modern-day slavery.67 Malta signed the Convention in 1966, proceeding to ratify it a year later in 1967, and this is still fully legally binding upon the nation.68

European Union

hrough Act XVIII of 2013, Malta implemented Directive 2011/36/EU on preventing and combatting trafficking in human beings and protecting its victims. One may say that this piece of legislation was the endresult of long-standing actions by the EU to tackle the issue of human trafficking. In effect, this directive took the place of earlier Council Framework Decision of 2002 on combatting trafficking in human beings (2002/629/JHA), whilst giving a broader meaning to 66

CoE, “Convention on Action against Trafficking in Human Beings” (Warsaw,

2005)

United Nations Office on Drugs and Crime (UNODC), Human Trafficking and Migrant Smuggling, “Assistance in the Identification of Victims of Trafficking: Counter-Trafficking Training Modules), 2016 68 Council of Europe, Chart of signatures and ratifications of Treaty 005, “Convention for the Protection of Human Rights and Fundamental Freedoms”

the concept of trafficking as far as the EU is concerned, presenting a gendered point-of-view as well as an approach centralised on victims. Some of the aims behind this directive include: • Adding trafficking for forced begging, for organ removal, for illegal adoption, for exploitation of criminal activities and for forced marriages, along with the already-included purpose of sexual exploitation; • Toughening the perpetrators;

consequences

place

for

• Ensuring that more efficient protection and assistance is provided to victims; • Legally binding EU Member States to prevent trafficking, protect victims and prosecute traffickers.69 Malta has also ratified Directive 2012/29/EU on rights, support and protection of victims of crime in 2015 through the assistance of the Victims of Crime Act (Chapter 539 of the Laws of Malta).70 This directive establishes the minimum rights for foreigners and EU citizens who have found themselves subjected to human trafficking within the borders of the EU. It strengthens victim rights by a considerable amount, particularly pertaining their access to justice, as well as 69

European Parliament and Council of the EU, “Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (15 April, 2011) 70 Victims of Crime Act (Chapter 539 of the Laws of Malta)

seeks the protection and assistance of such victims.71 Also, Directive 2004/81/EU on residence permits issued to victims of trafficking in human beings was transposed into Maltese legislation through Article 1(2) of the Immigration Act (Chapter 217 of the Laws of Malta).72 Through such directive, the concept of a “reflection period” was introduced, enabling victims who are not EU nationals finding themselves in irregular scenarios to be granted a residence permit throughout this “reflection period”, in exchange for cooperation with the relevant authorities in any criminal proceedings being undertaken. Also worth mentioning is Directive 2004/80/EC relating to compensation to crime victims. This was ratified in Malta through Subsidiary Legislation 9.12, also known as the Criminal Injuries Compensation Scheme Regulations in 2012. This piece of legislation covers how one may be entitled to compensation in such matters, as well as the procedure as to how such compensation would be provided.73

International Legislation

he Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 71

United Nations Office on Drugs and Crime (UNODC), Human Trafficking and Migrant Smuggling, “Assistance in the Identification of Victims of Trafficking: Counter-Trafficking Training Modules), 2016 72 Immigration Act (Chapter 217 of the Laws of Malta) 73 Criminal Injuries Compensation Scheme, Subsidiary Legislation 9.12

(2000), otherwise known as the Trafficking Protocol and part of the Palermo Protocol, was signed by Malta in 2000 and ratified in 2003. It provides a detailed definition of what is considered to be human trafficking in Article 3(a), whilst also specifying each party State’s obligation to adapt its individual criminal justice systems to accommodate the provisions set out by the Protocol in Article 5.74 Another initiative worth mentioning is the United Nations Global Initiative to Fight Trafficking in Persons (UN.GIFT) of 2007, which was launched by the following: • The Office of the United Nations High Commissioner for Human Rights (OHCHR); • The Organisation for Security and Cooperation in Europe (OSCE); • The International Organisation for Migration (IOM); • The International Labour Organisation (ILO) ; • The United Nations Office on Drugs and Crime (UNODC). The main aim behind this initiative is to aid in the international battle against human trafficking whilst conforming to agreements such as the aforementioned Trafficking Protocol. It uses a reduction in the demand for exploitation to do away with all forms of human trafficking, whilst also reducing victim vulnerability by 74

United Nations (UN) General Assembly, “Protocol to prevent, suppress & punish trafficking in persons, especially women and children, supplementing the United Nations Convention Against Transnational Organised Crime (2000)

effectively prosecuting all perpetrators and providing efficient support for anyone subjected to trafficking.75 Taking place in February 2008, the Vienna Forum to Fight Trafficking in Persons is also worthy of mention. It brought together participants from all around the globe, gathering representatives from NGOs, international organisations, the entertainment industry, academia, governments and even the private sector. The aim behind this forum was to raise more awareness on the general problem of human trafficking, as well as to increase efforts to implement more effective measures in the fight against this phenomenon. Apart from this, The UNODC Model Law against Trafficking in Persons was also developed with the aim of supplementing the Trafficking Protocol. It is specifically designed to be adaptable according to the relevant Stateâ&#x20AC;&#x2122;s needs, traditions and conditions.76 As with every other prevalent issue, campaigns have been held in an effort to raise more awareness about human trafficking, and one relevant campaign in this regard is the Blue Heart Campaign, launched in 2009, which was raised by the UNODC with the goal of boosting the fight against trafficking and increasing awareness of the problem in the regular man on the street. In an effort to show solidarity towards victims of such a predicament, this campaign encouraged supporters 75 76

Ibid Ibid

to endorse the Blue Heart symbol on their person.77 July 2010 saw the adoption of the United Nations Global Plan of Action against Trafficking in Persons, which aimed at encouraging foreign governments to cooperate and coordinate their respective policies and to take effective measures in combatting human trafficking. Importantly, this Plan cemented into place the United Nations Voluntary Trust Fund for Victims of Trafficking, Especially Women and Children.78 Also established in 2010 was the UNODC Voluntary Trust Fund for Victims of Trafficking in Persons, in accordance with Article 38 of the General Assembly – United Nations Global Plan of Action to Combat Trafficking in Persons. This trust fund provides both financial and legal assistance to victims of human trafficking, via civil society, governmental and intergovernmental organisations.79 The United Nations has also dedicated a day in which special awareness is raised towards the issue of human trafficking, with the World Day against Trafficking in Persons first being established on 30th July 2013. This came right after the General Assembly Resolution A/RES/68/192. The resolution itself stated that this day was intended to increase awareness as to the needs of such victims, as well as being crucial 77 78

United Nations Office on Drugs and Crime, “The Blue Heart Campaign” United Nations (UN) General Assembly, “Protocol to prevent, suppress & punish trafficking in persons, especially women and children, supplementing the United Nations Convention Against Transnational Organised Crime (2000) 79 United Nations Office on Drugs and Crime, “The United Nations Voluntary Trust Fund: An integral component of a global effort to address trafficking in persons”

for the â&#x20AC;&#x153;promotion and protection of their rightsâ&#x20AC;?.80

United Nations, World Day against Trafficking in Persons 30 July

Sweden

nlike the aforementioned Maltese situation, the Swedish government is compliant with the minimum standards required in the fight against human trafficking. As of July 2007, any foreign trafficking victims were allotted a 30-day “reflection period”, in which they were allowed temporary residence permits and time to decide whether or not they wished to cooperate with law enforcement authorities. Five months later, the Swedish government made efforts to improve awareness on human trafficking and related issues, enacted a national action plan regarding the sexual exploitation of children, and even increased cooperation efforts to combat child sex trafficking, both nationally and internationally.81 In 2017, in testament to their continuous efforts to prevent this issue from deteriorating, the US State Department’s Office to Monitor and Combat Trafficking in Persons ranked Sweden in “Tier 1”.82 However, this does not mean that Sweden has a perfect record with regards to human trafficking. On the contrary, the country has seen a recent increase 81 82

“Sweden”, Trafficking in Persons Report 2008, US Department of State “Sweden”, Trafficking in Persons Report 2017, Tier Placements

in the phenomenon, even reaching a record high after a 30% increase in 2017. In fact, Sweden’s Migration Board received 444 reports of occurrences of human trafficking that year, marking an increase of 103 cases from the year prior. Interestingly, 213 of these cases entailed victims being trafficking for sexual purposes.83 Due to the fact that Sweden is no stranger to sex trafficking instances, this has led to the developing of the well-renowned “Swedish Model”, which is often referred to by other parties in the fight against prostitution. One may say that one of the main reasons behind the success of the model is its effort to criminalise the purchase of sex in the first place. The government reasoned that rather than criminalising the seller, making prostitution illegal to begin with would serve as an incentive to potential buyers not to invest in the act, lest they risk criminal prosecution. At the same time, education was provided to police officers, judges and prosecutors alike as to how best to tackle situations of prostitution.84 However, human trafficking in Sweden does not only take place for sex purposes. As recently as 2017, two men were given a sentence exceeding four years in prison after luring ten people to the country, promising them employment, only to force them to live in inhumane conditions. Trafficked by two Bulgarian men, the victims lived in a broken-down building with broken windows and barely any heating. They were 83

Europe, “Human Trafficking to Sweden Reaches High Despite Record Naturalization Rate”, Sputnik International, 17 January 2018 84 Paul Strand, “Sweden’s Secret Weapon in the Fight against Sex Trafficking, and Why It’s so Effective”, CBN News, 2 March 2018

also forced to beg for money to pay for the traffickers’ journey to Sweden, not being allowed to keep any of the profits for themselves.85 It was interestingly noted by Hans Swärd, a professor of social work, that a notable factor which prolonged the victims’ begging for so long was the fact that foreigners tend to seem vulnerable to a country’s natives. Indeed, he added that crimes such as these tend to happen through a “blind spot” in legislation, meaning that such victims would require assistance to get out of such situations. In addition, one must not take this solitary judgement to mean that cases of human trafficking are easily dealt with in Sweden, On the contrary, the presiding judge commented that such a crime is rarely ever tried in a Court of Law, requiring several forces of authority to cooperate in investigations. This is something which must be improved if foreign victims are to be saved from such exploitation in future scenarios.86

“Two men sentenced in Sweden for human trafficking”, The Local, 22 November 2017 86 Ibid

Domestic Legislation

hroughout 2018, it was noted by the US Department of State that the Swedish government intensified its law enforcement efforts with regards to human trafficking. Due to the amendments made to the country’s 2002 anti-trafficking law, labour and sex trafficking were both criminalised, and sufficiently stringent penalties to such offences of 2 to 10 years imprisonment were allotted. In particular, the punishment for sex trafficking now falls in line with that prescribed to other serious offences, including that of rape. New legislation was proposed by the government, widening the spectrum of trafficking offences so as to include the exploitation of victims through forced labour and begging.87 Over the course of 2017, a total of 212 trafficking cases were investigated, which may be further broken down into the following: • 82 sex trafficking cases; • 23 of these cases involved children. • 130 labour trafficking cases; 87

Sweden, 2018 Trafficking in Persons Report, US Department of State

• 40 of such cases involved forced begging. Five out of six traffickers were convicted by the authorities, with sentences varying from a minimum of eight months to a maximum of four years and two months imprisonment. Three traffickers were accused of forced begging, with two of these being handed prison time of four years and two months and even expulsion from the country. However, no government officials were accused of being complicit in any human trafficking activities throughout. The Swedish government was also cooperative insofar as transnational efforts to tackle the issue were concerned.88 GRETA (the Group of Experts on Action against Trafficking in Human Beings) published its second evaluation report on Sweden in June 2018, assessing the country’s developments on human trafficking since the first report in 2014. The report recognised the efforts Sweden has made over the years in combatting the matter, with particular note being made on legal framework being developed specifically for the prevention of trafficking in persons, the establishment of anti-trafficking police units, as well as the initiation of a National Support Programme intended to provide assistance of victims via the Platform Swedish Society against Human Trafficking. Another positive development was the adopting of two new National Action Plans, which are respectively aimed at: • 88

Ibid

Combatting

prostitution

and

human

trafficking; • Protecting trafficking.89

children

against

human

However, it must also be noted that not forms of human trafficking are properly addressed, even though such developments have been made. Therefore, it has been recommended to the Swedish authorities to coordinate the new Gender Equality Agency in such a way so as to properly face such matters, both in terms of preventing trafficking and protecting victims. This is especially importance since the Agency has been in charge of any action being taken against human trafficking since early 2018.90 GRETA has also recommended that better efforts be made by the authorities in preventing trafficking in children through raising more awareness about the risks such children face. Moreover, more care should be taken so as to ensure that asylum-seeking and separated migrant children do not go missing from care. As such, guardianship systems should be adequately sustained vis-à-vis resources, and any restrictions on family reunifications are to be carefully examined.91 Furthermore, it was reported that although improvements have been made in this regard, the number of convictions and prosecutions in cases of trafficking in persons remains low. For this reason, 89

Council of Europe, “Publication of GRETA’s second report on Sweden”, 8 June 2018 90 Ibid 91 Ibid

GRETA has also urged the Swedish government to oversee proper investigation and prosecution in such matters. On this note, the appropriate authorities should be more proactive in their work to identify potential trafficking victims. It should not be conditional on a personâ&#x20AC;&#x2122;s cooperation for assistance to be provided and for a formal process of victim identification to be undertaken, or even for criminal proceedings to be initiated.92

Ibid

Russia

t is unfortunate to note that efforts to reduce human trafficking in Russia are lax enough for the US State Department’s Office to monitor and combat trafficking in Persons ranked the country in Tier 3.93 Russia has been a renowned haven for traffickers for years, with thousands of victims arriving to and leaving the country. Several human rights workers have made it their mission to try and alleviate the country of this situation and reduce the number of sex and labour slaves in suffering.94

Human trafficking was declared illegal in Russia in 2003, with the Criminal Code being amended to accommodate this declaration. However, more work had to be carried out after this, and no additional laws have been provided to supplement this. In an effort to encourage States such as Russia to meet the standard required, the United Nations’ Protocol to Prevent, Suppress and Punish Trafficking in Persons establishes targets for its signatories, with the United Nations themselves constantly monitoring Russia’s 93 94

Trafficking in Persons Report 2017: Tier Placements Julia McCartney, “The War Against Human Trafficking in Russia”, Borgen Magazine, 30 January 2018

progress in the meantime.95 The Trafficking in Persons report of 2018 stated that apart from the fact that Russia does not even meet the minimum standards required, it is not making any significant effort to improve the situation.96 Furthermore, it emphasised the lax security system of Russian authorities, in that they hardly ever checked potential victims for signs of exploitation prior to deporting them, whilst also prosecuting victims of sex trafficking for prostitution purposes when this was not even carried out willingly.97 There are several Russian-based organisations working towards combating this issue, such as the Independent Charity Centre of Assistance to Victims of Sexual Violence, based in the Russian capital city of Moscow. This organisation aims to provide assistance to any victims of sexual violence, with victims of human trafficking included. There is also the Centre for Assistance to Victims of Violence and Human Trafficking, which places its focus on providing rehabilitation to those previously trafficked. Russia also has several non-governmental organisations dedicated to discouraging human trafficking, such as the Youth Human Rights Movement, IREX, the Eurasia Foundation, and several others.98 95 96

Ibid “Russian Efforts to Fight Human Trafficking Among Global Worst, Report Says”, The Moscow Times, 27 September 2018 97 “’Worst Human Traffickers’ Include Russia, Belarus, Iran, Turkmenistan”, RFE/ RL, 29 June 2018 98 Julia McCartney, “The War Against Human Trafficking in Russia”, Borgen Magazine, 30 January 2018

Concerns of the reach of the human trafficking phenomenon in Russia date as recently as the latest edition of the FIFA World Cup. It was noted that this instalment was the only one in the last twenty years that did not include an anti-trafficking campaign, with previous hosts such as South Africa, Germany and Brazil all making an effort to increase awareness of this issue. Moreover, there were reports of labourers constructing the football stadiums themselves having been trafficked into the country to fulfil this purpose, whilst Nigerian officials revealed plans for Nigerian women and children to be trafficked to Russia for different uses during the World Cup. It was also suggested that this renowned event would cause a “mini-boom” in sex trafficking and prostitution in the country. This leads one to ask why this Russian administration could not replicate its predecessors from the late 1990s and early 2000s, in which several efforts were made in drafting a new human trafficking law.99 Another obstacle is the political tension between the Russian and US governments, with a humanitarian issue such as human trafficking also being subject to politicisation due to Western pressure to adopt antitrafficking policies. In 2012, the United States Agency for International Development, which was the main source for anti-trafficking activities in Russia funded by the US, was expelled by the Russians as they claimed that it undermined their sovereign powers.100 99

Laura Dean, “A Stage for Human Trafficking: The World Cup in Russia”, Wilson Center, 18 June 2018 100 Madeline Roache, “Putin Doesn’t Care about Sex Trafficking”, FP, 13 July 2018

In conclusion, although the â&#x20AC;&#x153;baby stepsâ&#x20AC;? have been made by Russia, this is far from satisfactory in itself. The fight against human trafficking is a continuous one, and the government must further contribute towards organisations dedicated to combatting this phenomenon, providing them with funding and other incentives. Should the country leave itself uninformed and unprotected against this issue, the country runs the risk of becoming even more of a haven for traffickers than it already is.

Domestic Legislation It is worth noting that in 2006, an asset forfeiture legislation was passed by the government of Russia, enabling a convicted personâ&#x20AC;&#x2122;s assets to be forfeited by prosecutors, meaning that traffickers could also be subjected to this law. A number of authorities were given anti-human trafficking training, but this was only limited to a few officers, prosecutors and investigators, and its efficiency was lacking due to the fact that this training was also provided sparingly.101 It is prohibited for trafficking for the purposes of forced labour or commercialised sexual exploitation to take place by means of Article 127 of the Russian Criminal Code, which allots punishments of up to 5 years imprisonment for such crimes (aggravations may even extend the penalty for up to 15 years).102 Article 152 of the same Code also states that both the purchase and sale of minors are punishable by a maximum of 5 years imprisonment.103 However, the most common offences that perpetrators are charged with fall under Articles 240 and 241, involving affiliation 101 102 103

Russia, Trafficking in Persons Report 2010, US Department of State Article 127 of the Criminal Code of the Russian Federation Article 152 of the Criminal Code of the Russian Federation

with prostitution activities104 and brothels105, due to the ease one would typically have in proving their case in such matters. Having said this, efforts undertaken by Russian authorities to improve this predicament may only be described as minimal. No conclusive data on criminal trafficking cases was presented, making it difficult to evaluate the efficiency of law enforcement officials’ work. This remained so even though certain media reports provided some information on particular trafficking cases. Such limited information pointed out that perpetrators were prosecuted under different sections of the aforementioned Article 127 throughout the past year, which specifically included: • Maximums of 5 years of forced labour or 6 years imprisonment in cases of “trade in people”; • A maximum of 5 years imprisonment for the “use of slave labour”. Although such punishments were consistent with punishments prescribed for other crimes of a serious nature, they were also inconsistent with the manner in which trafficking is defined under International Law. This is due to the fact that, rather than describing the most important elements of this crime, the articles focus on the use of coercion, fraud or force.106 2017 saw 16 investigations carried out for “trade in people” and 3 for the “use of slave labour, without 104 105 106

Article 240 of the Criminal Code of the Russian Federation Article 241 of the Criminal Code of the Russian Federation Russia, Trafficking in Persons Report 2018, US Department of State

a specification in the actual number of prosecutions initiated being given by the government, nor any conviction statistics being released by the Supreme Court.107 Courses on human trafficking were carried out by law enforcement training centres for prosecutors, but NGOs could not conduct such training due to a lack of sufficient funding. Russia also provided partial cooperation in international investigations involving the trafficking of Russian nationals to foreign countries. Also, in spite of certain media reports stating that forced labour was employed throughout construction works on the new Russian embassy in Panama in 2017, there were no investigations or prosecutions carried out by the government relating to officials or contractors being involved in human trafficking offences.108

107 108

Ibid Ibid

China

hina is famous for being one of the worst destinations for human trafficking, having also been placed in Tier 3 by the US State Department’s Office to Monitor and Combat Trafficking in Persons109 One may note a horizontal pattern of trafficking in China’s case, with an intercontinental variety of countries being involved in trafficking people in and out of China. Victims trafficked away from the country have typically been used for forced labour and sexual purposes, with countries such as Japan, Malaysia and others joining whole continents such as Africa, Europe and the Americas exploiting their services. On the other hand, several victims are trafficked to China for the same purposes, with most of these coming from countries such as Vietnam, North Korea, Ghana, Romania and several others.110

Presenting the report which classified China as a Tier 3 nation alongside White House aide Ivanka Trump, the Secretary of State, Rex Tillerson, denounced China’s questionable efforts to improve the human trafficking situation, stating that it had clearly not done enough 109 110

Trafficking in Persons Report 2017: Tier Placements Martin Patt, “Human Trafficking & Modern-day Slavery – China”, Gvnet.com

to halt its own complicity in trafficking occurring in foreign countries.111 As a result of this report, Chris Smith, a Republic Representative in the US, called for sanctions to be imposed upon China due to its lack of compliance and careless attitude towards the matter.112 Pertaining forced labour, even though Chinese legislation specifically prohibits this, no one can deny that this practice is commonplace. Shockingly, only women and children may legally be recognised as victims of trafficking. It has been estimated that 2.9 million victims of trafficking for the purposes of forced labour may be found in China, with many of them being found in factories and brick kilns. Ironically, although the Chinese government is aware of the magnitude of this issue, forced labour of trafficked persons has been known to happen in at least 320 State-run institutions.113 Sex trade in China is a prevalent issue, with the sale of young girls or women for marriage being the main purpose behind this. The nation’s previous one-child policy, coupled with Chinese preference for male children, led to a disproportionally large amount of men in the country. This subsequent lack of women native to China had two main results: 1. An increase in arranged and forced marriages. 111

Mythili Sampathkumar, “US says China is among worst offenders of human trafficking in new report”, The Independent US, 27 June 2017 112 Yeganeh Torbati, “US brands China as among worst human trafficking offenders”, Reuters, 27 June 2017 113 Michelle Lillie, “Human Trafficking in China”, Human Trafficking Search, 2014

Men have been known to pay thousands of dollars to â&#x20AC;&#x153;purchaseâ&#x20AC;? a foreign wife, with the predominant kidnapping of woman from Myanmar for this purpose; 2. The continuous growth of brothel use. Roughly 4 to 6 million sex workers may be found in China. The typical scenario involves Mongolian, Filipino or North Korean women arriving in the country to find work, but ending up being forced into the world of prostitution.114 Another major problem in China, as previously referred to, involves the trafficking of children. Not much specific data has been made available on this issue, but a rough estimate shows that around 200,000 children are sold to couples living abroad every year, either through the black market itself, or otherwise through adoption scams. On a positive note, the Chinese government has been known to interfere in the matter and prevent several instances of child trafficking from taking place. However, the government is still faced with the worrying problem posed by a vast amount of unofficial adoption agencies all around the country. Even though it has taken steps to ensure harsh prison sentences to perpetrators of child trafficking, this still remains a huge concern for China.115 It is interesting to note that in the past, Chinese efforts in tackling the issue of human trafficking have been somewhat inconsistent. For instance, 2012 saw 114 115

100

Ibid Ibid

only 194 potential traffickers being arrested, whilst the following year saw a wild increase in number to 1932 arrests. The US State Department has claimed that this may be due to the overall fusion of problems in the country, namely child abduction, fraudulent abductions and human trafficking in general, along with its lack of clear-cut methods on how to handle the matter judicially. On this note, the lack of clarity and the non-cementing of proper punishments and penalties only serve to show the Chinese government’s lack of seriousness on clamping down on the issue, with some even going so far as to claim that the government is merely sweeping the problem “under the rug”.116 The following are just some of the ideas that have been put forward which may aid the Chinese in amending their approach to the problem of human trafficking: • The termination of forced labour by government officials and in government-run facilities; • The rigorous investigation and criminal prosecution of perpetrators of sex trafficking and forced labour; • Increased governmental transparency as to the efforts being put forward in the fight against human trafficking, along with the publishing of data on investigations and subsequent prosecutions; • Amending the current legal layout so as to 116

Eugene K. Chow, “China’s Trafficked Brides”, The Diplomat, July 19 2017

101

make clear the criminalisation of all kinds of trafficking; â&#x20AC;˘ The end of penalisation of trafficking victims who had been forced to commit some kind of illegality due to such trafficking117

117

102

China, Trafficking in Persons Report 2018, US Department of State

Domestic Legislation

he United Nations Trafficking in Persons Protocol was ratified by China in 2009, obliging the nation to prohibit any kind of trafficking and bring national legislation in line to conform with international standards.118 Numerous laws have been passed by the Chinese government to combat trafficking. In fact, according to the US Department of State in 2001, Chinese laws against female trafficking are almost as severe as their legislation against rape. However, this is not reflected in practice, due to the fact that high levels of corruption and weak law enforcement efforts, coupled with police tendency to collaborate with traffickers, has left women in a particularly vulnerable state in China.119 Throughout the past year, the government’s efforts at controlling human trafficking have been insufficient. Whilst it did provide crime statistics, these did not fall within the strict definition of human trafficking, making it difficult for one to assess the country’s 118

Country Narratives: Countries A Through F: Trafficking in Persons Report 2010: China (Tier 2 Watch List), US Department of State 119 Cindy Yik-Yi Chu, “Human Trafficking and Smuggling in China”, Journal of Contemporary China, Volume 20, 2011 – Issue 68, 9 December 2010

103

proper progress on the matter. This is coupled with the fact that not all statistics were reported by the central government.120 Article 240 of the Chinese Criminal Code criminalises the “abducting and trafficking of women or children”, providing a series of examples in which such act may take place.121 However, contrary to what is required under International Law, such acts were not linked to a purpose of exploitation. In 2016, the Supreme People’s Court (SPC) interpreted such article, establishing that trafficking was a prohibited offence “for any reason… for whatever purpose according to the law”. The offence under this article is punishable by a minimum of 10 years imprisonment.122 The subsequent article in the same Code, Article 241, concerns the purchase of women or children,123 and like Article 240, does not require that the purchase of exploitation precede the actual purpose. Furthermore, Article 358 criminalises the act of forced prostitution, prescribing a punishment of a maximum of 5 years imprisonment, accompanied with a fine.124 Another relevant provision is Article 359, which criminalises the harbouring of prostitution as well as the seduction of girls younger than 14 into this act, with a sentence of 5 years imprisonment along with a fine being prescribed for the latter infringement.125 120 121 122 123 124 125

104

China, Trafficking in Persons Report 2018, US Department of State Article 240 of the Criminal Law of the People’s Republic of China China, Trafficking in Persons Report 2018, US Department of China Article 241 of the Criminal Law of the People’s Republic of China Article 358 of the Criminal Law of the People’s Republic of China Article 359 of the Criminal Law of the People’s Republic of China

Also worth mentioning is Article 244 of the Chinese Criminal Code, which criminalises the use of violence, threats, or restrictions on personal freedom with the aim of coercing a person into forced labour, and also criminalised the assistance in any form in submitting a person into forced labour. Such crime is met with 3 to 10 years imprisonment, along with a fine.126 The exact number of investigations, prosecutions and convictions carried out by China over the past year is unclear due to the nation’s unclear definition on human trafficking. Unlike the previous year, The Ministry of Public Security (MPS) did not publish the number of possible trafficking cases being investigated, but stated that 1556 convictions had taken place, including: • 1097 cases involving the trafficking of women and children; • 420 cases of circumstances;

prostitution

under

forced

• 39 cases of forced labour. The vast majority of these cases were prosecuted under Article 358 of the Criminal Code, especially in cases of sexual exploitation. No sentencing data was provided, but the media reported that penalty ranged extensively, with the minimum sentence being that of 5 months imprisonment in accompaniment of a fine, and the maximum contrasting wildly to that of the life sentence. Also, although no official data was provided, 126

Article 244 of the Criminal Law of the People’s Republic of China

105

the media did report that there were at least 24 cases in which disabled children were abducted or transported for sexual or labour exploitation purposes.127 The Ministry of Human Resources and Social Services was the typical medium used in the handling of most cases, and rarely instituted prosecutions itself in matters falling under anti-trafficking provisions. The country cooperated with foreign nations in cases relating to Chinese citizens being trafficked outside its borders, but it is unclear as to how many of these investigations ultimately led to prosecutions. In fact, in some of these cases, Chinese authorities attempted to extradite victims of trafficking under the pretence of them being criminals themselves. 128 Throughout the reporting period, the Chinese government collaborated with Vietnamese and Lao law enforcement officials in addressing trafficking taking place through the fraudulent and forced marriages of the latterâ&#x20AC;&#x2122;s nationals to Chinese citizens. However, law enforcement officials in neighbouring nations stated that China was silent in matters requiring bilateral cooperation on trafficking cases taking place across their respective borders.129 The SPC, along Procuratorate (SPP), judicial officials with but no details were training was carried 127 128 129

106

with the Supreme Peopleâ&#x20AC;&#x2122;s provided law enforcement and anti-human trafficking training, provided regarding how such out, including whether or not

China, Trafficking in Persons Report 2018, US Department of State Ibid Ibid

international organisations collaborated with them on this matter.130 August 2017 saw the sentencing to life imprisonment of a former member of the National Peopleâ&#x20AC;&#x2122;s Congress and the vice mayor of Dongguan for being involved in â&#x20AC;&#x153;organising prostitutionâ&#x20AC;? in 2014. However, whether such act involved trafficking remains unclear. Other than this, no additional reports of investigations of government officials being complicit in trafficking activities were provided by the Chinese government, despite the presence of reports claiming that police officers themselves had been accepting bribes from sex traffickers.131

130 131

Ibid Ibid

107

United States of America

uman trafficking in the United States has a tendency to take place around travel-hubs which are vastly populated by immigrants, with notable examples being California, Georgia and Texas. Nevertheless, the country finds itself held in a generally good light in the latest Trafficking in Persons Report, being ranked in Tier 1 regardless.132 The United States has endorsed much legislation over the years in an effort to face the ever-present problem of human trafficking. The first of these was the Trafficking Victims Protection Act (TVPA) of 2000, which provides a threefold approach towards combatting the issue, including prevention, protection and prosecution. It was rehabilitated via the Trafficking Victims Protection Reauthorisation Act (TVPRA) of 2003, 2005, 2008 and 2013 respectively.133 Measures have also been taken to ensure the safety of the victims involved, which is primary aim behind the Justice for Victims of Trafficking Act (JVTA) of 2015. What was most noticeable in this Act was the creation 132 133

Trafficking in Persons Report 2017: Tier Placements National Human Trafficking Hotline, Human Trafficking, <https://humantraffickinghotline.org/what-human-trafficking/federal-law>

108

of a US Advisory Council on Human Trafficking, which is lead by survivors of this situation, along with new directives towards the implementation of a nationwide strategy against human trafficking and amendments to criminal charges for solicitors of sex trafficking. Furthermore, this Act stipulates the necessity of a fund to aid victims of domestic trafficking in finding help through support programmes. It is worth mentioning that the JVTA also amended the Runaway and Homeless Youth Act (RHYA) by declaring young victims of serious cases of human trafficking as eligible to receive help through this Act. Additionally, it also amended the Child Abuse Prevention and Treatment Act (CAPTA), as human trafficking was classified as a form of child abuse through such amendments.134 The foster care system has also been known to be the subject of human trafficking issues. As such, the Preventing Sex Trafficking and Strengthening Families Act of 2014 aims to encourage child welfare systems to better their reactions to sex trafficking, and this would happen through screening and identifying sex trafficked youths, or those most at risk of this, prior to providing them with appropriate help and services, and report already-missing children to the National Center for Missing and Exploited Children. Apart from this, this Act encourages the development of protocols for locating escaped or missing children and discover what circumstances they faced whilst not in care.135 A vital piece of legislation in the US is the Human 134 135

Ibid Ibid

109

Trafficking Prevention Act, which was passed by the House on the 23rd of July 2014, three months after its introduction. The aim of this Act is to amend the prior Trafficking Victims Protection Act of 2000 pertaining the training given to federal government personnel, including a minimum of the following: 1. A distance learning course on human trafficking scenarios, along with the duties the Department of State (as listed in the Act itself), and would be aimed at officers reporting at national embassies, human trafficking coordinators at regional bureaus as well as their superiors; 2. Briefings focusing on human trafficking for all deputy chiefs and ambassadors prior to their departure to their new posts; 3. Reminders to all personnel listed above as well as other federal personnel at any consular or diplomatic posts of the Department of State located beyond the United States, on at least a yearly basis, of any threats, warning signs or key problems related to human trafficking pertaining to persons specific to the jurisdiction or country where each specific post is situated, coupled with appropriate measures to report information gained about any possible cases of trafficking.136 This Act received much support, with the Chairman of the House Foreign Affairs Committee, Ed Royce, going so far as to state that it provided the US personnel 136

110

HR 4449 â&#x20AC;&#x201C; Summary, United States Congress

outside the country with the proper equipment to combat human trafficking.137 One may also refer to the Customs and Facilitations and Trade Enforcement Reauthorisation Act of 2009, in which Sections 307 and 308 amend the original Tariff Act of 1930 with the aim of prohibiting the importation of items to the United States which were made through efforts deriving from Human Trafficking. Another section of importance is Section 7202 of the Intelligence Reform and Terrorism Protection Act, which established the Human Smuggling and Trafficking Center to enable the government’s enforcement and other response efforts to achieve better integration and efficiency. It also facilitated the government’s efforts to work with foreign governments on the matter and other related issues.138 The PROTECT Act of 2003 (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) is another relevant law in the United States, aiming to provide protection to children who are victims of sexual exploitation and abuse, which is a common element in child trafficking. Also, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) is intended to provide property owners with a notice when their properties have been discovered as havens to facilitate smuggling in some way. Another applicable piece of legislation is the Mann Act of 1910, along with subsequent amendments, which makes 137

Women’s Congressional Policy Institute, “Human Trafficking Prevention Act Passes House Foreign Affairs Committee” 138 Homeland Security, Human Trafficking Laws & Regulations, April 19 2017

111

the persuasion, inducement, enticement or coercion of an individual to travel across states in the country to engage or attempt to engage in acts of prostitution a felony.139 With regards to proposed legislation, September 2017 saw two anti-human trafficking bills being proposed in a congress session. These were the Allow States and Victims to Fight Online Sex Trafficking Act (HR. 1865) and the Stop Enabling Sex Traffickers Act (S. 1693) (SESTA). Although the latter was endorsed by senators such as Richard Blumenthal, Rob Portman and Claire McCaskill, this bill received a majority of negative reactions, with a primary concern being that free online speech and social media would be endangered through gutting Section 230, which is relied upon by many platforms used by many internet users. However, this Act was signed by the current US President Donald Trump in April 2018.140

139 140

Ibid Aaron Mackey, “Stop SESTA: Congress Doesn’t Understand How Section 230 works”, Electronic Frontier Foundation, 19 September 2017

112

Austria

ike the United States, Austria is held in high regard when it comes to handling matters of human trafficking, also being ranked in Tier 1. In fact, the Austrian government is highly cooperative and meets the minimum standards of compliance for the elimination of trafficking.141 Austria has also transposed Directive 2011/36/EU, adopted by the EU in 2011, which aims to prevent and fight human trafficking whilst also protecting its victims.142 In testament to the country’s efficiency and dedication to dealing with human trafficking, Austria is a signatory to all current globally relevant legal instruments intended to combat human trafficking, including the following: • The Council of Europe Convention on Action against Trafficking in Human Beings (2005); • The UN Convention on the Elimination of All Forms of Discrimination against Women; • The Protocol to Prevent, Suppress and Punish 141 142

Trafficking in Persons Report 2017: Tier Placements Federal Ministry Republic of Austria: Europe, Integration and Foreign Affairs, “Combatting Trafficking in Human Beings”

113

Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime (2000); • The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2000); • The UN Convention on the Rights of the Child (1989).143 In an effort to better coordinate and heavily clamp on human trafficking occurrences in Austria, the Task Force on Combatting Human Trafficking was set up in 2004 under the purview of the Foreign Ministry, and is in control of monitoring the implementation of any proposed National Action Plans on Combatting Human Trafficking. The first of these was adopted in 2007, with the second and third following in 2009 and 2012 respectively. These Plans reflect a clear-cut approach to handling human trafficking and include several measures for victim protection, prevention, prosecution, international cooperation and national coordination. Such Task Force also prepares regular reports (published after a span of three years) on Austria’s progress in the implementation of measures combatting human trafficking.144 Apart from this, the Austrian Government has even dedicated a day to organise public events and raise awareness on human trafficking, this being the 18th 143 144

114

Ibid Austrian Embassy: Washington, “Combatting Human Trafficking”

of October. The aforementioned Task Force has also developed a scholastic exhibition entitled “Human Trafficking- Slavery of the 21st Century”, which has been presented at such public events.145 In addition, Austria was one of the first States to have an expert group from the Council of Europe, GRETA, analyse its anti-trafficking measures twice. The second report was published in 2015, in which GRETA hailed the progress made by the country pertaining the fight against human trafficking, whilst still pointing out certain instances where improvements could be made.146Austria also supports several organisations in any involvement they might undertake in the issue of human trafficking, including the following: • The United Nations Office on Drugs and Crime (UNODC) (coincidentally, this office is based in the Austrian capital of Vienna); • The International Centre of Migration Policy Development (ICMPD); • The Organisation for Security and Cooperation in Europe (OSCE); • The International Organisation for Migration (IOM); • The Council of Europe; • The European Union.147 145 146

Ibid Federal Ministry Republic of Austria: Europe, Integration and Foreign Affairs, “Combatting Trafficking in Human Beings” 147 Ibid

115

Pertaining instances of prosecution in relation to matters of human trafficking, Article 104a of the Austrian Criminal Code criminalised the act of slavery, with penalties varying up to 20 years imprisonment, whilst also criminalising sex and labour trafficking, with penalties reaching up to a maximum of 10 years imprisonment. Article 217 also criminalised the bringing people into the country for purposes of prostitution, with stronger penalties coming into play in instances where such instances occurred through force, deception or coercion. Penalties for this offence range from 6 months to 10 years.148

148

116

Austria, 2018 Trafficking in Persons Report, US Department of State

117

CHAPTER THREE CONSEQUENCES OF HUMAN TRAFFICKING

INTRODUCTION

he impacts of trafficking are felt both in the countries from which people are trafficked, and the countries to which they are trafficked. In both sets of countries there are implications for: • Society: including the impacts of family and communities left behind, and gender relations in receiving countries in which women are often sold into sexual slavery. • Economy: particularly in contexts where people seeking migration opportunities for employment end up being trafficked, resulting in significant remittance losses. • Health: women and children trafficked for the purpose of sexual exploitation are at risk of HIV/ AIDS and other sexually transmitted infections, and of spreading the diseases among wider society; people are trafficked in dangerous conditions and often held, even after they reach their destinations, in circumstances that can have long-term detrimental effects on their mental and physical well-being.

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â&#x20AC;˘ Rule of law: in both sets of countries, the operations of organised criminal groups, whose illicit activities often extend beyond trafficking, can have serious implications for national security.149 Trafficking consists of three core elements. The first is the action of trafficking which means the recruitment, transportation, transfer, harbouring or receipt of persons. The second is the means of trafficking which includes threat of or use of force, deception, coercion, abuse of power or position of vulnerability. The third is the purpose of trafficking which is always exploitation which shall include the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.150 Victims of trafficking can be any age and any gender. However, a disproportionate number of women are involved in human trafficking both as victims and as culprits. Female offenders have a prominent role in human trafficking, particularly where former victims become perpetrators as a means of escaping their victimisation. Most trafficking is carried out by people whose nationality is the same as that of their victim. Given the underground nature of trafficking, the consequences of trafficking are hidden and difficult to see. Trafficked persons often do not have access to basic necessities such as safety, food, sleep, 149

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hygiene, and medical care. The effects of trafficking vary depending on the type of trafficking and the specific situation. Given that trafficking is based on the exploitation of individuals, all victims of trafficking may be subject to physical, psychological, and social impacts.

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Physical and Psychological Effect

ictims of trafficking often experience harsh physical impacts due to excessive work or the use of force by traffickers. In addition, victims may be exposed to serious health risks, such as HIV/AIDS, as well as serious mental health risks. Anxiety, insecurity, fear, and trauma are all products of trafficking. Several studies indicate high levels of Post-Traumatic Stress Disorder (PTSD) in former trafficked persons. Trafficking can also lead to cognitive impairment, memory loss, depression, and even suicide. Sex trafficking is a complex problem because the victims experience physical and psychological harm. The traffickers use physical violence to dominate and control their victims. Some of the tactics include starvation, beatings, rape, and gang rape. Victims also experience violence and harm from some of the people who are purchasing the sex acts. Common injuries include broken bones, concussions, burns, and brain trauma. Victims can also experience gynaecologic health problems that stem from forced commercial sex acts. They might suffer from sexually transmitted diseases,

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menstrual pain and irregularities, miscarriages, and forced abortions, among other problems. Sexual abuse results in changes to the somatosensory cortex, the area of the brain that processes input from the body to create sensations and perceptions. Women who were sexually abused had thinning in the area where the genitalia were located,” according to Jens Pruessner, associate professor of psychiatry at McGill University in Montreal. Many sexual-abuse survivors report sexual problems in adulthood, including reductions in desire and sensation; sometimes they suffer from chronic genital pain. The psychological impact of victimization may be more severe than the physical violence (WHO 2012). Victims who have been rescued from sexual slavery, typically present various psychological symptoms and mental illnesses, including the following: • Post-Traumatic Stress Disorder (PTSD): Post traumatic stress disorder is an anxiety disorder that develops following frightening, stressful, or distressing life events. Characterized by intense fear, helplessness, and stress, PTSD affects normal life and functioning of the patient. • Depression: Depression is a mood disorder that causes a persistent feeling of sadness and loss of interest. • Anxiety: People with anxiety disorders frequently

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have intense, excessive and persistent worry and fear about everyday situations. Often, anxiety disorders involve repeated episodes of sudden feelings of intense anxiety and fear or terror that reach a peak within minutes (panic attacks). • Panic disorder: Panic disorder is where you have recurring and regular panic attacks, often for no apparent reason. • Suicidal ideation: Suicidal ideation, also known as suicidal thoughts, is thinking about or having an unusual preoccupation with suicide. The range of suicidal ideation varies greatly from fleeting thoughts, to extensive thoughts, to detailed planning, role playing, and incomplete attempts, which may be deliberately constructed to not complete or to be discovered, or may be fully intended to result in death, but the individual survives. • Stockholm Syndrome: Feelings of trust or affection felt in many cases of kidnapping or hostage-taking by a victim toward a captor. • Substance abuse: Over-indulgence in or dependence on an addictive substance, especially alcohol or drugs. Many victims of human trafficking often do not selfidentify as a victim initially. Some commonly blame themselves for what has happened. In these instances, seeking help may not be immediate. Additionally, sex traffickers often intentionally misidentify women and

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girls as “willing” participants in the sex trade, who make a free choice to be there. Finally, victims may not know their physical location and or may not speak or understand the local language. When victims seek help, they may encounter many challenges. Their traffickers typically exert tight physical and emotional control by doing the following: - Confiscating their identification, cell phones, and money - Forbidding communication with family or friends - Monitoring and restricting movement.151 Trafficked minors are all the more vulnerable due to their age. Trafficking may greatly impact children’s emotional, physical, and overall psychological development. Children may be trafficked for three purposes which are child prostitution, child beggars and migrant children in the extreme forms of child labour. Children in the sex industry generally have to service their customers on an average of 3 - 7 customers per day. Some girls on high demand have to sometimes service even more than 10 customers per day. Sex practices engaged in were likely unprotected sex. Studies show that the higher the number of unprotected sexual intercourse acts, the more risk 151

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of HIV infection and reproductive health morbidity. Trafficked victims are no exception. There were immeasurable consequences in prostitute girls. The vivid one is collapse of their physical and mental health from STD and HIV infections. Children who are sexually abused may stay away from certain people or might avoid being alone with people, such as family members or friends. They could seem frightened of a person or reluctant to socialise with them. They might also show sexual behaviour thatâ&#x20AC;&#x2122;s inappropriate for their age. A child exposed to human trafficking might become sexually active at a young age, they might be promiscuous or they could use sexual language or know information that you wouldnâ&#x20AC;&#x2122;t expect them to. The physical symptoms of sexual abuse may include anal or vaginal soreness, an unusual discharge, sexually transmitted infection (STI) and pregnancy. Beggar children are found to be aggressive. This could be the result of being forced by their superiors to beg for money and being beaten when daily quotas were not met. Such an environment led the children to learn aggressive survival skills to protect themselves. As a result, the children were treated with no respect, were not welcomed, and were considered sociopaths. Because of their behaviour, the children were often placed into worse environments and not given a chance to be accepted in a society. The beggar children are also easily to be arrested as they have to beg for money or solicitate things on the street or

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in the public areas. Many of them experience being detained many times. Detention for a long period or many times also disempowers the children. Businesses which use child labour, especially trafficked child labour, have to perform their businesses underground and uninspected by authorities. These businesses usually offer no welfare facilities to the migrant children. They are found to be subjects of verbal, physical and mental abuses instead. Furthermore, the work conditions are usually notorious for the childrenâ&#x20AC;&#x2122;s dire health and safety hazards which have certainly affected their physical and mental development. The conditions which have gradually contributed harmful effects on the childrenâ&#x20AC;&#x2122;s health include the work which is generally monotonous and repetitive in nature, the work in stifling heat, in restricted space and bad body positions, in noisy and badly ventilated places, in damp and unhygienic surroundings, and in an atmosphere contaminated with dust or gases or dangerous chemicals. Frequently, it is the longterm effects from continuously working beyond their strength and having improper food that damages their physical development. Children at work are usually not treated with respect, are punished, abused, and humiliated. Itâ&#x20AC;&#x2122;s often difficult to tell if domestic abuse is happening, because it usually takes place in the family home and abusers can act very differently when other people are around. Children who witness domestic abuse may become aggressive. display

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anti-social behaviour and suffer from depression or anxiety. Domestic abuse may also result in children not doing as well at school due to difficulties at home or disruption of moving to and from refuges. Neglect can have serious and long-lasting effects. It can be anything from leaving a child home alone to the very worst cases where a child dies from malnutrition or being denied the care they need. In some cases, it can cause permanent disabilities. Children who are neglected may have poor appearance and hygiene. They may be smelly or dirty, have unwashed clothes, have inadequate clothing, for example not having a winter coat, seem hungry or turn up to school without having breakfast or any lunch money or have frequent and untreated nappy rash in the case of infants. They may have health and development problems such as untreated injuries, medical and dental issues, repeated accidental injuries caused by lack of supervision and recurring illnesses or infections. They may not have been given appropriate medicines or may have missed medical appointments such as vaccinations. Other physical symptoms may include poor muscle tone or prominent joints, skin sores, rashes, flea bites, scabies or ringworm, thin or swollen tummy, anaemia, tiredness and faltering weight or growth. Social symptoms may include not reaching developmental milestones (known as failure to thrive) and poor language, communication or social skills. Trafficked persons may also experience social ostracism (social rejection). Social rejection occurs

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when an individual is deliberately excluded from a social relationship or social interaction. The topic includes interpersonal rejection (or peer rejection), romantic rejection and familial estrangement. Trafficked persons are often isolated from their social circles, leaving individuals unable to engage socially or reach out for help. Victims may also be trafficked internationally, and therefore may not be able to engage due to a lack of linguistic capability or geographic and cultural familiarity. Individuals specifically trafficked for sex have described facing stigma and other negative responses during and after their trafficking experience, especially from friends and family members. The psychological and physical trauma associated with trafficking and performing sexual acts under duress can be devastating. Understanding the physical and psychological harm that sex trafficking inflicts will help in providing care and support. If the trauma is left unaddressed, it can undermine victimsâ&#x20AC;&#x2122; recovery and potentially contribute to vulnerability of re-victimization. Mental health professionals working with sexually exploited women and girls emphasize that trauma recovery is critical to a victimâ&#x20AC;&#x2122;s ability to repair and regain her life. Building long-term, trusting relationships is at the heart of this therapeutic work, which requires time and flexible models of engagement and treatment, including group therapy with peers. In addition to group and individual trauma-specific counselling, a

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range of alternative therapies offer promise in helping victims build self-esteem, empowerment, and reconnection with themselves and society. Mental health professionals and NGO workers must offer culturally sensitive outreach to victims. This includes informing them of â&#x20AC;&#x153;safe housesâ&#x20AC;? and improving access to mental health services. Moreover, they must be trained to treat victimsâ&#x20AC;&#x2122; symptoms of trauma and mental illness within a cultural, linguistic, and religious context. The mental health needs of survivors of sex trafficking are among the most complex of crime victims. They often benefit from a multidisciplinary approach to address severe trauma, medical needs, immigration and legal issues, financial problems, safety concerns, shelter, and other basic needs, and re-integration with their families of origin or acculturate to the host country.

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Effect on Society

uman Trafficking can cause housing and family issues which may be living in an unsuitable home environment for example dog mess being left or not having any heating and being left alone for a long time. Sometimes a person may have to take on the role of carer for other family members. The social impacts of human trafficking are rather universal. This does not denote them as being not a serious matter, nonetheless. Those who have truly experienced human trafficking are the ones who must cope with the majority of the social impacts. Although, HIV and AIDS can be spread because of human trafficking, which can affect any and all of the population. Despite there being shared impacts of human trafficking, the specific incidents tend to differ from country to country. If a person has had to experience human trafficking, they have known a life worse than death itself. The conditions those are forced to live in the brothels are thoroughly atrocious. Victims of human trafficking have absolutely no freedoms, and experience horrors such as abuse, violence, deprivation, and torture.

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These kinds of conditions often lead to trauma. With that in mind, it can be understandable how these people would feel the urge to escape. Unfortunately, this misdeed will never go without punishment, which are never minor. One person once had to submerge their body in a barrel filled with water contaminated with scorpion and other vermin, and sit there for one week. As if that wasnâ&#x20AC;&#x2122;t enough, they also had to sit in the darkness all lonesome. Another way to make the victims more cooperative would be to inject them with drugs, leading to addiction, which meant the brothel was eventually their lifeline. Many people who have been trafficked fought it at first, but eventually accepted they lost that battle from the beginning. They have even been seen smiling and flirting, but it is only an act. On the inside, they are broken and crying. Since human trafficking involves selling a person for sex, pregnancies would be expected. No matter, human traffickers have even found a way to make that seem dark and twisted. They force those who are pregnant to have abortions, with unclean instruments by noncertified practitioners. This lack of sanitation is one of the many factors in the ever-spreading HIV in the human trafficking world. The relationship between human trafficking and HIV isnâ&#x20AC;&#x2122;t always completely obvious. Really, the fact that there was any relationship at all between these two problems is a recent realization. Currently, there is not much research to show the connection, but more studies are being conducted in

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order to have that sufficient information necessary for ending the social issue of human trafficking. What is known thus far is that many are not properly educated in the area of sexually transmitted diseases, meaning they are typically unaware of what they are and most definitely whether or not one would have them. This means people all over the world, especially in the world of human trafficking, people are spreading life threatening diseases, such as HIV and AIDS. In addition to the foregone benefits in terms of remittances and human capital, there are other human and social costs to development attributable to trafficking. The direct impact on the family and community left behind cannot be easily quantified but nevertheless should not be ignored. Trafficking undermines extended family ties, and in many cases, the forced absence of women leads to the breakdown of families and neglect of children and the aged. Victims who return to communities often find themselves stigmatised and shunned, and are more likely to become involved in substance abuse and criminal activity. 152 Children trafficked into forced labour or sexual exploitation have their development as a person â&#x20AC;&#x2DC;irreparably damagedâ&#x20AC;&#x2122;. Survivors often suffer multiple traumas and psychological problems. The impacts of human trafficking fall disproportionately on women and children, who are the main victims, largely trafficked for commercial 152

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sexual exploitation. That this is a billion-dollar industry, worldwide, and growing, is a continued expression of unequal power relations that reinforce womenâ&#x20AC;&#x2122;s secondary status in society. It goes without saying that trafficked victims are stripped of their human rights. Trafficked people are subject to all manner of human rights violations, not least of all the rights to life, liberty and freedom from slavery. Trafficked children are deprived of the right to grow up in a protective environment, and to be free from sexual exploitation and abuse. Less considered are the rights to adequate healthcare, education, a decent work environment, and freedom from discrimination, to name a few.

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Economic Effects

uman trafficking is a cycle. With a global economic crisis on the horizon, the demand for cheap labour is on the rise. People looking for jobs far from home are often deceived and tricked into forced labour or sexual exploitation. Many others are unemployed and living their lives in poverty. This places the poor at a higher risk of being trafficked, as victims of human trafficking are often poor, illiterate, and living under very serious health violations. Trafficking represents lost opportunities domestically, including an irretrievable loss of human resources and future productivity. According to the 2008 Trafficking in Persons (TIP) report trafficking also results in a huge loss of remittances to developing countries, because trafficked persons often have to pay off the â&#x20AC;&#x2DC;debtâ&#x20AC;&#x2122; they incur for being trafficked (which they may never do). Given that developing countries reach a certain average of remittances annually, the lack of such remittances from trafficked victims could imply a loss to development. Additionally, the costs of coercion and exploitation cannot be measured but it is clear that the worst forms

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of child labour (and by extension trafficking), for instance, represents a loss in productive capacity of a generation of individuals who would have otherwise gained from increased education and improved health. Further, if the fight against trafficking is successful, funds currently used to fight trafficking crimes may be channelled towards alternative development initiatives.153 The profits to be made from human trafficking, a process that often requires the control of the entire migration cycle, attracts large crime syndicates, unlike smuggling, which can be run by small enterprises. Human trafficking is estimated to be the third largest international criminal enterprise, generating billions annually. Organised criminal groups often combine human trafficking with other types of criminal activities, and its profits fuel other criminal activities, which present huge security threats to countries, such as the drug trade, particularly as some of the trade routes, which they control, are the same. Human trafficking operations undermine government efforts to exert authority over its territory, threatening the security of vulnerable populations. Many governments are unable to protect women and children who are kidnapped from their homes and schools or from refugee camps. Moreover, the bribes paid by traffickers impede a governmentâ&#x20AC;&#x2122;s ability to battle corruption among law enforcement, immigration, and judicial officials. 153

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These push-and-pull factors present a compelling case to consider trafficking as a complex development issue, with many different dimensions. The human development approach recognises that poverty is multi-dimensional and dynamic, with both monetary and non-monetary aspects, including social constraints and personal circumstances. It is about creating an environment in which people can develop their full potential and lead productive, creative lives in accord with their needs and interests. Poverty is often regarded as the â&#x20AC;&#x2DC;root causeâ&#x20AC;&#x2122; of trafficking; however, the links between poverty, a lack of development and trafficking are complex. At the country level, poor economic, political and social infrastructure, which leads to poverty, conflict and bad governance provide fertile soil for criminal activity and forces some people with limited access to resources to leave and look for opportunities elsewhere. The vast majority of men and women seeking to escape poverty are lured into trafficking by the false promise of economic gain. However, the link between poverty and trafficking must be made with caution. Danailova-Trainor and Laczko (2010) compare UNDP human development measures for the set of countries identified by UNODC as key origin countries for trafficking victims (Albania, Belarus, Bulgaria, China, Lithuania, Nigeria, Republic of Moldova, Romania, Russian Federation, Thailand and Ukraine). They found no simple correlation between the UNODC ranking of a country and the countryâ&#x20AC;&#x2122;s

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human development index score, the rate of poverty, or the measures of income or gender inequality of that country. In fact, Nigeria is the only lower income country of origin of trafficking victims with low human development indicator values. The other nine countries are lower to upper middle-income countries, with medium to high level of human development, adjusted slightly for gender discrimination and inequality. In sum, there is no clear correlation between trafficking and poverty at the country level. What may perhaps be more significant is that eight of these countries have been transition economies, for which the turmoil of transition, the freedom to move and seek opportunities abroad, and higher aspirations after several decades of isolation may have been key push and pull factors for trafficking. However, it is also clear that economic crises among countries in the Commonwealth of Independent States (CIS), and regional conflicts in the Balkans and sub-Saharan Africa have contributed to a significant rise in poverty, which have contributed to a rise in trafficking. A significant issue that cannot be separated from development and trafficking is that of gender and gender relations. Human trafficking is the only trans-national crime where women are significantly represented (importantly, not only as victims but also as perpetrators and activists). Gender discrimination and violence, forced marriage, and bonded labour are among the many practices that make people vulnerable and potential targets of both transnational and internal

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trafficking. It is therefore particularly common in areas of low social status and low investment in girls and in countries where it is common to use girls to advance familiesâ&#x20AC;&#x2122; economic situation. Conflict, particularly regional conflict, is another source of trafficking. This has included the capture of children to fight and of women to serve as sex slaves, both within or across borders. For instance, children have been captured by the Lordâ&#x20AC;&#x2122;s Resistance Army to fight in Uganda, including from the Democratic Republic of Congo, South Sudan and the Central African Republic. In addition, an unfortunate by-product of peace agreements and the presence of peacekeepers in post-conflict countries has been the accompanied rise in trafficking and sexual exploitation to satisfy peacekeeping and humanitarian personnel.

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CONCLUSION

rafficking, smuggling and forced labour in all forms are contrary to both human dignity and human rights. All persons trafficked, smuggled and in forced labour must have their human rights restored and protected. Just immigration reform and adequate response to trafficked, undocumented and forced labour is a nation priority.

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CHAPTER FOUR PROPOSALS

WHAT NEXT?

s we have seen, the negative effects of the trafficking of persons is far-reaching. These range from the physical and psychological effects which are borne by the victims of the practice, such as post traumatic stress disorder (PTSD), depression, anxiety, panic disorders, Stockholm syndrome, and suicidal ideation. However, we have also seen that the practice of human trafficking also has adverse effects on society, even from an economic perspective, since human trafficking operations undermine government efforts to exert authority over its territory, threatening the security of vulnerable populations. Therefore, the efforts to be made by States such as Malta to mitigate human trafficking, should not be solely prompted by the criminal nature of such practice, but also because of the adverse effects on individuals and society as a single unit. It must also be noted that Malta has made significant efforts in recent years, mostly by making specialised training available to law enforcement agencies, allocating more funds to the prevention of human trafficking, and increasing the capacity of shelters.

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However, these efforts are not enough. This is evidenced by the fact that although Malta is not classified as a Tier 3 country, it still has not reached the threshold required to become a Tier 1 country. This is, for example, demonstrated through a lack of efficient and timely prosecution with regards to human trafficking cases. Therefore, Malta’s efforts need to be increased substantially if it is ever to be deemed to be in line with its international obligations. The question that needs to be asked is, ‘How?’

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PROPOSAL ONE RECOGNISING THAT A PERFECT ANTIHUMAN TRAFFICKING SYSTEM IS DIFFICULT TO ACHIEVE

efore forging ahead, it must be highlighted that even Tier 1 countries such as Sweden do not have a perfect anti-human trafficking system. On the contrary, the country has experienced a recent increase in the phenomenon, even reaching a record high after a 30% increase in 2017. Indeed, Sweden’s Migration Board received 444 reports of occurrences of human trafficking that year, marking an increase of 103 cases from the year prior. Interestingly, 213 of these cases entailed victims being trafficking for sexual purposes.154

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Europe, “Human Trafficking to Sweden Reaches High Despite Record Naturalization Rate”, Sputnik International, 17 January 2018

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PROPOSAL TWO SETTING UP SPECIFICALLY TRAFFICKING

TASK FORCE TO COMBAT HUMAN

s with all other crimes, having the appropriate legislative framework in place will be effective to the extent to which it is enforced. Although it must be conceded that a perfect system is nearly impossible, it is still useful to find inspiration in the conduct of other countries. For instance, Austria (Tier 1), set up a task force on combatting human trafficking back in 2004. It ensures a clear-cut approach when dealing with cases of human trafficking including measures for victim protection, prevention, prosecution, international cooperation, and national coordination.

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PROPOSAL THREE TRAINING TO PERSONS IN HIGH-RISK ZONES

n Malta, at present, anti-human trafficking training is given to law enforcement agencies. This is evidence of Maltaâ&#x20AC;&#x2122;s significant efforts in mitigating human trafficking. However, training can also be provided to persons who work in particular high-risk places, such as in airports (and airlines) and ports

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PROPOSAL FOUR RAISING AWARENESS

hroughout the course of the paper, we have seen that Malta is no stranger to human trafficking cases. Raising awareness and educating the general public about the phenomenon of human trafficking itself, as well as on the statistics related to the prevalence of the practice, can have positive effects in the mitigation of the practice. Once again looking at the behaviour of a Tier 1 country, Austria has dedicated an entire day to a day to organise public events and raise awareness on human trafficking â&#x20AC;&#x201D; 18th of October.

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● Malta, Trafficking in Persons Report, US State Department (2010) ● Carabott S, ‘Malta Again Fails To Take Action To Fight Human Trafficking - US State Department’ (Times of Malta, 2018) <https://www. timesofmalta.com/articles/view/20180706/ local/malta-again-fails-to-take-necessaryaction-to-fight-human-trafficking.683689> ● ‘Trafficking Of Women For Sexual Exploitation Fast Increasing - NCW - The Malta Independent’ (Independent.com.mt, 2017) <http://www. independent.com.mt/articles/2017-07-23/ l o c a l - n ew s / Tra f f i c k i n g - o f - wo m e n - f o r sexual-exploitation-fast-increasingNCW-6736176923> ● Trafficking in Human Beings, Ministry for Home Affairs and National Security ● Criminal Code (Chapter 9 of the Laws of Malta) ● Malta, Trafficking in Persons Report, US State Department (2018) ● Human Trafficking Monitoring Committee, gov. mt ● Victims of Crime Act (Chapter 539 of the Laws of Malta)

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● GOUNOD, Human Trafficking and Migrant Smuggling, Assistance in the Identification of Victims of Trafficking: Counter-Trafficking Training Modules) (2016) ● CoE, Convention on Action against Trafficking in Human Beings (Warsaw, 2005) ● Council of Europe, Chart of signatures and ratifications of Treaty 005, Convention for the Protection of Human Rights and Fundamental Freedoms ● European Parliament and Council of the EU, Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (15 April, 2011) ● Immigration Act (Chapter 217 of the Laws of Malta) ● Criminal Injuries Compensation Subsidiary Legislation 9.12

Scheme,

● UNODC, The Blue Heart Campaign ● UNODC, The United Nations Voluntary Trust Fund: An integral component of a global effort to address trafficking in persons ● United Nations, World Day against Trafficking in Persons (30 July)

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