Asia Regional Trafficking

1. What is trafficking in persons?
2. For what purposes are people trafficked?
3. How many people are trafficked?
4. What are the differences between people trafficking and people smuggling?
5. What is gender?
6. What are the gender dimensions of trafficking?
7. What is the connection between trafficking and human rights?
8. How important is the criminal justice system in combating people trafficking?
9. How can Governments be supported in implementing their human rights obligations with respect to criminal justice responses to trafficking?
10. How can the criminal justice system and agencies that provide services and support to victims best work together?
11. Why is cross-border and regional cooperation so important in the fight against trafficking?
12. How can regional cooperation against trafficking be promoted and supported?

Trafficking in persons contains three main elements:
1: An action – Consisting of: recruitment, transportation, transfer, harbouring or receipt of persons.
PLUS
2. By means of - Threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability giving or receiving payments or benefits to achieve consent of a person having control over another.
FOR
3. For the purpose of exploitation - Including, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or serves, slavery or practices similar to slavery, servitude or removal of organs.
Where children are concerned, only elements #1 and #3 are required to constitute an act of trafficking.

Trafficking is fundamentally about exploiting other people and their labour for profit through deceit, coercion, or abuse of power or another's vulnerability; victims are deployed for a wide range of uses, including prostitution; domestic servitude; begging and street selling; exploitation in factories, construction, agriculture, and fisheries; exploitation as camel jockeys; and for removal and sale of internal organs.

There have been many estimates given for numbers of people trafficked worldwide, ranging from 750,000 – 4,000,000, though none of these figures are reliable. As trafficking is an underground, dynamic, and opportunistic type of crime, it will always be difficult to secure full and complete information on numbers, routes and trends, though the difficulty of the task should not preclude attempts to ascertain correct figures. There remains a need for long-term, in-depth and specialist research on trafficking in order to improve our knowledge of the magnitude and characteristics of trafficking and thus improve counter-trafficking efforts. Recognition of this is strong amongst those in the counter-trafficking sector. Research and attempts to establish credible statistics is improving accordingly.

“• Legal definitions:
- Trafficking:“[T]he 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 purposes of exploitation.”
- Smuggling:“[T]he procurement, in order to obtain, directly or indirectly a financial or other material benefit, of the illegal entry of a person into a State party of which the person is not a national or permanent resident.”
• Purpose of the movement:
- Trafficking: Exploitation of the individual’s sexuality/labour for profit
- Smuggling: Movement for profit
• Nature and quality of consent:
- Trafficking: Consent for movement may be present but true consent nullified by force, coercion, deception, abuse of power or of another’s vulnerability, etc.
- Smuggling: Consent for movement clearly present
• Nature of the relationship between the individual and the facilitator:
- Trafficking: Victim-Exploiter. Long-term relationship extending beyond the movement phase (although initial facilitator may be a link in the chain, there is a continuity in the individual’s relationship with the trafficker/s).
- Smuggling: Buyer/Supplier. Short-term relationship. Terminates upon completion of movement.
• The profit element:
- Trafficking: Major profit source is the exploitation
- Smuggling: Sole profit source is the movement
• Violence and intimidation:
- Trafficking: Characteristic of trafficking and generally necessary to maintain victim in exploitative situation.
- Smuggling: Incidental to movement.
• Autonomy and freedom:
- Trafficking: Severely compromised
- Smuggling: Generally not severely compromised except to extent require for successful movement.”
© Anne Gallagher, 2004.

5. What is gender?

Gender is the social construction of the behaviours and roles deemed appropriate for different persons relating to the different biological characteristics of humans in the reproductive arena. 'Gender' is culturally defined, while 'sex' is biologically defined. Two sexes – male/female – do not necessarily equate to two genders – man/woman. Genders are much more pliable than sex, which one can only change through a medical operation. While a distinction between two genders is considered normal in some cultures, in other cultures, gender is a much more fluid and diverse construction with more than just two possible genders.

6. What are the gender dimensions of trafficking?

A gendered analysis of trafficking vulnerability begins with an examination of underlying causes and contributing factors and how they differently affect women and men, girls and boys. In order to properly understand trafficking, one must analyse trafficking through the lens of gender, in addition to the other factors commonly taken as the starting point for analysing trafficking – if we only analyse how factors such as poverty create vulnerability to trafficking, then we will miss a huge part of the problem and our proposed solutions will be, at best, incomplete.

Information on trafficking patterns is presently inadequate, but it appears that the majority of contemporary victims are women and children, especially girl children. This changes throughout the world – for example, in Europe, women and girl children probably constitute the majority of trafficking victims, as sexual exploitation appears to be the major end purpose of trafficking in that region. Women and girl children may constitute a smaller majority of trafficking victims in South-East Asia where trafficking for other purposes, such as forced labour in construction, factories, and fisheries, is more widespread than in Europe.

Whilst ensuring that the plight of trafficked men is not minimised, it is important to acknowledge that gender-based violations of women’s human rights, including those implicated in the feminisation of poverty, are part of the root causes of trafficking and a key feature of the trafficking process. Discrimination on the basis of gender, racist and sexist ideas (such as the idea that Asian women are docile and easy to manage and thus desirable for prostitution, or that women are more suited to domestic service), and gender-based violence further aggravate vulnerabilities.

A clear analysis of the implications of gender issues should also play a role in the solution and response to trafficking. For example, in many cases women police, court officials, and staff of victim support agencies may be more effective than men at assisting women or child victims, due to issues of trust and feelings of intimidation or embarrassment on the part of victims. If there are too few women officials, or they have received too little training and only low rank, the criminal justice response to trafficking will be inadequate.

7. What is the connection between trafficking and human rights?

Trafficking is a violation of the most basic rights to which all persons, irrespective of the ethnicity, sex, language, religion, occupation or any other difference, are entitled. Human rights violations are also implicated in any analysis of the causes of trafficking. Many of the vulnerabilities identified above can be traced back to a failure to uphold and protect certain basic rights including: the right to life, dignity and security; the right to a nationality, the right to own and inherit property; the right to an adequate standard of living; the right to education and the prohibition of discrimination. Of particular relevance to the work of ARTIP is the issue of human rights violations in the response to trafficking. As victims of crime, trafficked persons have certain fundamental rights including protection from threats to their personal security, assistance with legal proceedings and access to effective remedies.

While trafficking does not generally directly implicate the State as responsible for the actual trafficking of a person, governments are nevertheless responsible, as a matter of international law, for ensuring that the rights of those within their jurisdiction are respected and protected. In the present context, this means that States must act with ‘due diligence’ in preventing, prosecuting and punishing the crime of trafficking as well as providing assistance and redress to victims.

See the UN Recommended Principles and Guidelines on Human Rights and Human Trafficking.

8. How important is the criminal justice system in combating people trafficking?

Trafficking is a serious crime, and it is essential that the police and courts address it effectively. The police and courts are the institutions entrusted by society and the state to stop perpetrators, to ensure that perpetrators do not enjoy impunity, and to ensure that victims receive justice and compensation.

Strengthening law enforcement and protecting human rights are sometimes seen as contradictory aims. This is incorrect in both principle and practice. It is the state which is ultimately responsible for the protection of human rights, and it is criminal justice agencies which represent the first line of defence for those whose rights have been threatened or violated. And, just as respect for and protection of fundamental human rights requires ethical and professional law enforcement, the reverse is also true. Victims who volunteer to give evidence and testify are one of the best resources for police and courts working against trafficking. Investigative experience repeatedly shows that strict adherence to the spirit and letter of internationally accepted human rights standards not only consistently delivers justice for the victims, but also provides the framework for efficient, professional and cost-effective investigation and prosecution.

9. How can Governments be supported in implementing their human rights obligations with respect to criminal justice responses to trafficking?

While most countries have implicitly accepted their human rights obligations with respect to trafficking, there is a clear need to support their transition from statements of principle into operational reality. From the criminal justice perspective, special attention must be given to ensuring an understanding of why victims should not be forced, coerced or pressured into participation in proceedings against their traffickers; the psychological and physical safety of victims of trafficking should be considered of paramount importance and assured during criminal prosecutions of traffickers; positive steps should be taken to ensure that the investigations of trafficking are conducted in a sensitive and respectful manner; and the possibility that other offences have been committed against the victim in addition to trafficking, for example rape, torture or debt bondage, should be explored and all relevant offences prosecuted.

Governments of the region also require guidance and assistance to ensure that measures to protect vulnerable people from being trafficked do not in themselves limit the rights of those people. For example, as noted above, restrictions on the freedom of movement of adult women are not an appropriate protective response to the risk of trafficking. The prosecution or penalisation (e.g. by any form of detention) of trafficked persons for offences, which directly arise out of their situation, would also be inappropriate. For example, it would not be acceptable to prosecute a trafficked victim for immigration offences when it is clear that such offences were committed in the actual course of the trafficking process. Similarly, the coerced involvement of trafficked victims in unlawful work (e.g. the sex industry) should not give rise to criminal prosecution or any other form of penalty. Any irregular migration status of victims of trafficking should not be used to justify failure to respect the rights owed to them. Victims of trafficking should not be deported as a matter of course. From a human rights perspective, voluntary repatriation should be the goal and any repatriation should only take place after appropriate steps have been taken to ensure that the victim will be able to return home safely, and without the added risk of the victim being re-trafficked. These considerations are at the heart of an effective, victim-supportive criminal justice response to trafficking.

10. How can the criminal justice system and agencies that provide services and support to victims best work together?

In order to address the crime of human trafficking in any meaningful way, a special and unique relationship must develop between criminal justice system (CJS) agencies - the police, prosecution, and the courts - and victim support agencies (VSAs), that is, those agencies, government and non-government, that provide support services to the victims of this crime. The key characteristic of this relationship is one of mutually beneficial partnership, within which each of the component parts fulfils its responsibilities and carries out its role in close co-ordination with the other.

The prosecution of perpetrators and access to justice for the victims of trafficking are both only likely to be fully secured in those cases in which the victim feels able to participate as a witness in the criminal proceedings. Experience from many regions clearly shows that victim testimony results in convictions for more wide-ranging and more serious crimes which, in turn, produces longer prison sentences for the perpetrators. This also means that the traffickers are out of circulation for a longer period and permits the criminal justice system to send out a clear signal that the days of impunity for traffickers are over.

Currently, however, the vast majority of trafficked victims have a negative view of police investigators. They do not trust them and are often unwilling to co-operate with them. It is of course important for law enforcement officials to consider this perception when evaluating their own working methods and behaviour. However, it is also important to accept that the solution to the gap between investigators and victims of trafficking will lie, at least in part, in closer co-operation with victim support agencies. Victims do trust and co-operate with VSA personnel and it is through the development of close partnership between the victim, the VSA staff and the investigator that current low levels of prosecution and lack of access to justice can be redressed.

11. Why is cross-border and regional cooperation so important in the fight against trafficking?

While internal trafficking is an issue in some countries of South East Asia, much trafficking takes place across national borders. The hallmarks of trafficking including coercion, deception, deceit and exploitation inevitably require that a considerable distance be created between the victim and their home and family. The ease with which trafficked persons can be detained, coerced and exploited is tied closely to the unfamiliarity of their surroundings, the lack of any supporting structures and the fear of prosecution or abandonment.

Given its essentially cross-border nature, the importance of cooperation between countries becomes self-evident. The crime of trafficking is in fact a series of defining acts and circumstances. In most cases, these various acts (which, by themselves may constitute separate crimes but not necessarily the crime of trafficking) take place in more than one location and in more than one country. In order to gain a full picture of what has happened in a particular case, law enforcement agencies and other components of the criminal justice system must cooperate across borders. Cross-border or regional cooperation is therefore not a luxury but an absolute necessity.

12. How can regional cooperation against trafficking be promoted and supported?

Effective regional responses to trafficking will ultimately depend upon strong national capacities. Without such capacities, any regional-level anti-trafficking activities are likely to be weak, ineffective and ultimately unsustainable. In this regard, it is relevant to note that despite the trans-national nature of the crime, traffickers must necessarily be apprehended and prosecuted within one national jurisdiction. The ultimate purpose of regional cooperation in this sector must therefore be to strengthen national capacities to apprehend and successfully prosecute traffickers.

Regional cooperation will not occur in a vacuum. Experience from the Americas and Europe in particular demonstrates that the existence of strong political, economic and social institutions at the regional level can provide a solid framework within which regional anti-trafficking cooperation can be developed and nurtured. Such institutions also provide the basis from which regional policy on trafficking can be discussed, adopted and its implementation monitored. In South-East Asia, ASEAN has been an important vehicle for the development of basic policy on trafficking for the region and support to ASEAN must be an essential component of any strategy to strengthen regional action and policy development on trafficking.

The lack of a tradition of cooperation between countries of the region is a significant obstacle to the development of meaningful, effective regional or cross-border cooperation on the trafficking issue. Cultural, linguistic and political differences have generally prevented the development of a habit of cooperation. While contacts at the highest levels of government may be both frequent and substantive, operational links between governmental agencies (e.g. between national police forces or other parts of the national criminal justice process) are very fragile. The development of specific agreements between countries experiencing different aspects of the same phenomenon is one way of overcoming habits of non-cooperation and promoting closer working relations. Some important examples include the MOU between the Governments of Cambodia and Thailand on Bilateral Cooperation for Eliminating Trafficking in Children and Women and Assisting Victims of Trafficking, (2003) (click here for the MOU in English); the MOU on Cooperation Against Trafficking in Persons in the Greater Mekong Sub-Region between the Governments of Cambodia, China, Lao PDR, Myanmar, Thailand and Vietnam (from the Coordinated Mekong Ministerial Initiative against Trafficking - COMMIT), (2004) (click here for the MOU in English and here for Thai); and the MOU between Lao PDR and Thailand on Cooperation to Combat Trafficking in Persons, Especially Women and Children, (2005), (click here for English, here for Lao, and here for Thai). These MOUs seeks to strengthen operational links between government agencies dealing with apprehension and prosecution of traffickers as well as protection of, and assistance to, victims.

Other means of promoting regional and cross-border cooperation include facilitating contacts between specialist police units; organising joint training activities which bring officials from different countries to exchange information and experiences; assisting in the development of practices and procedures for transmission of information on specific cases; and supporting cross-border investigations. ARTIP is working closely with its counterparts in the four Project countries in each of these areas.

You can e-mail ARTIP with other questions.