Trafficking and Other Transnational Forms
of Violence Against Women and Children [1]

Vivienne Chin

International Centre for Criminal Law Reform

and Criminal Justice Policy

Yvon Dandurand

Department of Criminology

University College of the Fraser Valley

Abbotsford, B.C.

and

International Centre for Criminal Law Reform

and Criminal Justice Policy

November 10, 2001

Global media coverage and increased travel have resulted in a greater public awareness of opportunities elsewhere and an increased movement of both legal and illegal migrants. Over the last few decades, smuggling and trafficking of humans has become a determining factor in migration trends. An unabated demand for migration, in the face of stricter entry controls and requirements, has provided criminal entrepreneurs with new opportunities for profits. The profits to be made are reportedly enormous. Today, organized trafficking in persons is reaching every region of the world and is recognized internationally as a major law enforcement, human security, and human rights issue. Criminal organizations exploit the phenomenon of illegal migration and supply a variety of services to illegal migrants, such as smuggling, the provision of fraudulent travel documents, transportation, accommodation, job brokering, and even training in how to claim asylum or deceive border officials. The same criminal organizations are also quick to use deception and coercion to exploit illegal migrants themselves. [2] Current international discussions speak openly of slavery-like conditions of which the indentured status of trafficked persons is a prime example. [3]

      Of particular concern is what has been termed the “feminization of migration”.  Historically labour migration was predominately male and the typical migrant was male. This is changing. For example, Soviet women are everywhere: Beirut bars, hotels in Hammamet, cabarets in Cairo and escort services across the globe [4] . It is estimated that eighty percent of those people who lost their jobs in the former Soviet Union were women. Likewise it has been acknowledged that the Asian financial crisis had and continues to have a disproportionate impact on women. Women were the first to be let go when companies were forced to cut down their staff, and in general terms more women live in poverty than men. Poverty, desperation and displacement are having a direct impact on the movement of these women. However, while financial situations may be exacerbating the position of women, their marginalized status and powerlessness in some of the societies remain a critical issue. 

These factors - the increasing amounts of migration, the gender element, the involvement of organized crime, the brutality inherent in some of the indentured arrangements -all speak of the need for a global response to human trafficking. Combating trafficking in human beings requires a two-fold approach: a criminal justice response (to prevent the crime and deter the offenders) and a human rights response to protect the trafficked persons and their rights. However, even if law enforcement was considered to be the answer, experience indicates that law enforcement “alone” will not seal the borders or restrict the trafficking. Moving beyond the “war on illegal migrants” rhetoric, the international community is emphasizing the need to understand the context:  political, economic and social environments; the motivations of the illegal migrating populations and other non-illegal migrant groups; the identity of those who exploit and/or are serviced by the migrants [5] .

According to the United Nations Special Rapporteur on violence against women, its causes and consequences, Ms Rhadika Coomarasamy:

“Each year, thousands of women throughout the world are trafficked; they are tricked, coerced, abducted, sold and, in many cases, forced to live and work under slavery-like conditions as prostitutes, domestic workers, sweatshops labourers or wives.  The exploitation of female labour and of the female body has led to an international industry of trafficking in women.  Such trafficking occurs for diverse purposes but the movement of women within countries and across frontiers is usually a result of their unequal bargaining power and vulnerability to exploitation.” [6]

Because these crimes are committed across borders and transcend the individual legal jurisdiction of each member state, they call for a response and for prevention strategies that are based on mutual cooperation between Member States. The growing threat posed by transnational organized crime is forcing governments to consider how they can more effectively protect women and children against various forms of exploitation and violence by transnational criminal organization.

Combating trafficking in women and children requires a two-fold approach: a criminal justice response, to prevent the crime and deter the offenders, and a human rights response to protect the trafficked persons and their rights. The Beijing Platform for Action [7] formulated a strategic objective (D. 3) aimed at eliminating trafficking in women and assisting victims of violence due to prostitution and trafficking. Governments of countries of origin, transit and destination, regional and international organizations, it was recognized, should:

 “take appropriate measures to address the root factors, including external factors, that encourage trafficking in women and girls for prostitution and other forms of commercialized sex, forced marriages and forced labor in order to eliminate trafficking in women, including by strengthening existing legislation with a view to providing better protection of the rights of women and girls and to punishing the perpetrators, through both criminal and civil measures” {Actions to be taken no. 130(b)}.

On the other hand, the United Nations High Commissioner for Human Rights also noted the troubling fact that national anti-trafficking measures have been used in some situations to discriminate against women and other groups in a manner that amounts to a denial of their basic right to leave a country and to migrate legally. [8] All States are under an obligation to ensure respect for and protection of the rights of illegal migrants, including victims of trafficking, which are owed to them under applicable international law. [9] The Office of the High Commissioner for Human Rights has often stated that the two fundamental principles must be reaffirmed in relation to the fight against trafficking in women and children. They are that: (1) human rights must be at the core of any credible anti-trafficking strategy; and, (2) such strategies must be developed and implemented from the perspective of those who most need their human rights protected and promoted.

In 1999, a number of specific recommendations were also put forward as a result of the NGO Consultation with the United Nations and Intergovernmental Organizations on Trafficking in Persons, Prostitution and the Global Sex industry [10] . In fact, Member States have repeatedly been called upon to review their criminal law and the criminal justice system in order to make them as effective as possible in preventing crime against women.  They are also asked to consider how criminal justice systems can become more relevant to women’s experience and aspirations and more effective in protecting their rights. However, the required legal and systemic reforms are both delicate and complex. The question of how these changes can be effected raises a number of issues concerning the relative effectiveness of various strategies to address systemic biases, cultural and sub-cultural opposition to change, the system’s own inertia, or the lack of necessary human and financial resources.

Punishment, prevention and protection (including human rights protection) must all be remain the main pillars of an effective strategy to combat trafficking in human beings [11] . In their zeal to punish traffickers and protect the integrity of their borders, states must take care not to inadvertently violate the principle of “doing no harm” to trafficked persons, for example, by increasing the risk of exposure to abuse by third parties [12] . There is a clear need to ensure that the individuals falling victim to such criminal practices are protected [13] .

The United Nations Special Rapporteur on violence against women, its causes and consequences observed that:

“Although trafficking has been of international concern since the beginning of this century, little has been accomplished to effectively combat the flourishing trade in women.  Admittedly trafficking in women presents complex enforcement issues due to its international character and the numerous actors involved.  With few exceptions, countries of origin, transit countries and countries of destination, refuse to accept responsibility to protecting trafficked women.  The primary concern of most States is the “illegal” status of the victim who, if discovered, is quickly targeted for deportation.” [14]

International Initiatives

The Beijing Platform for Action advocated stepped up “cooperation and concerted action by all relevant law enforcement authorities and institutions with a view to dismantling national, regional and international networks in trafficking” {action no. 130 (c)}. It also urged countries to ratify and enforce existing international conventions on trafficking in persons and slavery {action no. 130(a)}.

Many countries, particularly source countries, do not currently have a legal framework for cooperation between law enforcement and justice officials in other countries. Many of them without extradition agreements are effectively powerless to prosecute all the perpetrators of trafficking in the criminal network.

Transnational organized crime, by nature, calls for distinct and somewhat different responses from criminal justice systems. Among other things, it calls for a level of international cooperation that is not usually necessary in the control and prevention of other forms of crime. The same is true, needless to say, of transnational crimes that specifically target women and children.

     During the year 2000, several international instruments have become open to ratification by Member States that serious about wanting to address the problem of organized crime and, in particular, the problem of trafficking in women and children. First, there was the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography which has yet to come into force. In addition, in December, the United Nations Convention against Transnational Organized Crime (UNTOC) became open for signature by Member States. The Convention is accompanied by two optional protocols: Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (PTP), the Protocol Against the Smuggling of Migrants by Land, Sea and Air (PSM).

The significance of the proposed new protocols [15] comes in part from the fact that there did not exist until then a universal instrument to address all aspects of trafficking in persons. In fact, as the High Commissioner for Human Rights observed in an informal note, “trafficking” has never been precisely defined in international law and the most recent international instrument dealing with trafficking and related issues is now more than a half a century old” [16] A final definition of trafficking has yet to emerge from the current process. The definition which has emerged is one which includes not only trafficking for the purpose of sexual exploitation and forced prostitution, but also all forms of servitude generally included under the concept of “contemporary forms of slavery”. 

The protocols offer the following definitions and establish the duty of states parties to criminalize the behaviour in question. According to article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime:

(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article; (...)”.

According to article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime:

“(a) “Smuggling of migrants” shall mean the 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 a permanent resident; (...)”.

And according to article 2 of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography:

“(a) Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration;

 (b) Child prostitution means the use of a child in sexual activities for remuneration or any other form of consideration;

 (c) Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.” (CRCPSC, art. 2)

     States Parties to the new protocols will undertake to offer better protection and support for trafficked persons, especially women and children, and to enact domestic laws that will make trafficking in persons a criminal offence. The protocols call for the provision of “appropriate housing, economic assistance, psychological, medical and legal support” to victims of trafficking as well as for education for children victims. Prevention efforts foreseen under that international instrument include the provision of information and education to victims, potential victims, officials, and the public. The protocols require the training of officials not only in how to detect and investigate incidents of trafficking, but also in how to protect the rights of victims, including protecting victims from the traffickers. Finally, the protocols contain far-reaching provisions concerning the status of victims of trafficking in receiving States and the process of their repatriation.  States Parties will be expected to consider the adoption of legislative or other measures that would permit victims of trafficking in persons to remain in their territories, either permanently or temporarily. The provisions are also meant to ensure that repatriation of victims of trafficking is carried out in a way that takes into account their safety and the status of any legal proceedings related to the fact that they were victims of trafficking.

Some relevant regional instruments and initiatives can also play an important role in promoting international cooperation to eliminate violence against women and combating trafficking in human beings. Within the Organization of American States, for example, two international instruments have been adopted which are directly relevant to the issue of trafficking. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women  (Convention of Belém do Parà) (1994) (ratified by 30 of the 34 Member States of the OAS, but not by Canada nor the United States) and the Inter-American Convention on International Traffic in Minors [17] which came into force in August 1997 and was ratified by only seven Member-States (Argentina, Belize, Brazil, Colombia, Panama, Paraguay, and Uruguay).

The Council of Europe formulated a Plan of Action for Combating Violence Against Women [18] as well as a Plan of Action against Traffic in Women and Forced Prostitution [19] . The Ministerial Conference of the European Union to prepare the European Code to Prevent and Combat Trafficking in Women adopted The Hague Ministerial Declaration on European Guidelines to Prevent and Combat Trafficking in Women for the Purpose of Sexual Exploitation.

Harmonized Definition of the Criminal Activities Involved

The Beijing Platform for Action urged governments to consider enacting “legislation aimed at preventing sex tourism and trafficking, giving special emphasis to the protection of young women and children” {action no. 130 (e)}. [20]   Since then, a number of countries have enacted such legislation, each reflecting a different way of dealing with the problem of extra-territorial criminalization raised by this type of offense. The impact of these new laws has not yet been evaluated systematically.

A 1999 resolution of the Commission on Human Rights (1999/40) [21] urged governments to take appropriate measures to address the root factors, including external factors, that encourage trafficking in women and girls for prostitution and other forms of commercialized sex, forced marriages and forced labour so as to eliminate trafficking in women, including by strengthening existing legislation with a view to providing better protection of the rights of women and girls and to punishing perpetrators, through both criminal and civil measures”. [22] The resolution also urged Governments to “criminalize trafficking in women and girls in all its forms, to condemn and penalize all the offenders involved, including intermediaries, whether their offence was committed in their own country or in a foreign country, while ensuring that the victims of those practices are not penalized” [23] .

According to a 1999 Report of the U.N. Secretary General on the Elimination of Violence Against Women [24] , a number of countries had undertaken special initiatives to address the problem of trafficking in women and children. In Austria, for example, a new law was introduced concerning sex offences, trafficking in human beings and pornographic presentations involving minors in electronic media. A new aliens law, which entered into force in 1998, offers protection to victims and witnesses of trafficking in human beings. In Germany, a working group on trafficking in women was established in 1998. An Inter-ministerial Committee for Action to Combat Trafficking in Women and Children was established in Colombia. In Ukraine, 1997 amendments to the Criminal Code and the Code of Criminal Procedure established trafficking in persons as a criminal offence. [25]

In the United States, the Victims of Trafficking and Violence Prevention Act of 2000 created new criminal offences for the most severe forms of worker exploitation. The legislation provides assistance to victims of trafficking, including aliens, and financial restitution to them. The President’s Interagency Council on Women coordinates the U.S. Government’s response on trafficking in women and girls. Furthermore, the new legislation instituted an international assistance program to encourage other countries to take steps against trafficking in persons and to meet minimum standards for the elimination of that international crime.

A recent review of current efforts to combat trafficking among participating States of the Organization for Security and Cooperation in Europe (OSCE) concluded that there is currently is no unified approach to combating trafficking among OSCE destination countries. Most participating OSCE States lack an adequate legal framework to combat trafficking in human beings. Most of them rely on existing criminal law statutes usually dealing with prostitution. Few States have specific anti-trafficking laws. The few laws that exist tend to define the offence in terms of “trafficking for prostitution or sexual exploitation” and may, therefore, be inadequate to address trafficking for other forms of forced labour or contemporary forms of slavery. [26]

The same review of current efforts in OSCE countries noted that “while opinions differ as to whether it is necessary (or even beneficial to have a specific “anti-trafficking” provision in the criminal code, few States have taken adequate steps to address the limitations or gaps in existing laws” [27] . A persistent problem, according to the same report, is that the narrow reach and low penalties usually associated with “prostitution” crimes. “A typical “indictment to prostitute” or “procuring” statute, for example, will not reach many of the actors involved in trafficking and does not carry penalties reflecting the serious and often brutal nature of trafficking crimes” [28] .

The laws and policies (as well as the level of co-ordination and implementation” vary considerably between major destination countries, even within the EU. “In some participating States, such as Germany, laws and policies are further decentralized, and vary even within the country itself”. [29] According to the same review, coordination is also lacking at the national level. Very few OSCE destination countries have established a national point person, agency, or task force to coordinate anti-trafficking strategies nationally and internationally. [30]

Many “slavery” or “servitude”, or “forced prostitution” statutes tend to be defined or interpreted too narrowly to cover all frequent trafficking situations. Existing criminal code provisions concerning rape, assault, extortion, deceit, and unlawful confinement, as well as laws prohibiting labour exploitation and servitude are apparently rarely used in trafficking cases.

In some of the existing legislation, the crime of trafficking must involve an element of coercion, and that element is often too narrowly defined to include several trafficking situations where the threats are directed against the victim’s family (in another country). The crime is also often defined in a way which takes into account the transnational nature of that form of exploitation and does not cover the behaviour of certain members of the transnational criminal network who aided, abetted or conspired to commit the crime of trafficking.

Prosecution

It seems that, in practice, trafficking offences are rarely effectively prosecuted due to the total lack of protection offered to victims and potential witnesses; they are often left to fend for themselves against organized criminal elements in either or both the country of origin or of destination. According to the recent review of the situation in participating OSCE States, in most destination countries,

“trafficked persons caught residing or working in the country illegally are immediately deported pursuant to the State’s alien or immigration law. In most cases, the police or immigration authorities do not make any attempt to determine whether the persons are victims of trafficking or other slavery-like abuses, and therefore fail to alert interested parties (even in their own government), provide assistance or protection to the victims, or conduct any further investigation” [31] .

The vulnerability of illegal migrants often leads to the violation of their most basic human rights. Migrants who are or have been the victims of criminal exploitation in the source, transit or destination countries are even more vulnerable to further exploitation, victimization and violation of their rights. All States are under an obligation to ensure respect for and protection of the rights of illegal migrants, including victims of trafficking, which are owed to them under applicable international law. [32]

The High Commissioner for Human Rights has even noted that the fact that national anti-trafficking measures have been used in some situations to discriminate against women and other groups in a manner that amounts to a denial of their basic right to leave a country and to migrate legally. [33]

Immigration Policies and Procedures

Immigration laws, policies, and procedures clearly require urgent attention to ensure that the victimization of trafficked persons is not compounded by the intervention of the destination, transit or source state. The vulnerability of migrants, in particular irregular migrants, as a result of their precarious situation in society often leads to violations of their most basic human rights [34] . In many cases, it is clear that strict immigration laws and procedures relating to the deportation of illegal migrants or workers work at cross-purposes with efforts to prosecute trafficking crimes and to protect the human rights of victims. For instance,

9     the threat of immediate deportation prevents victims from seeking help from the police or other authorities;

9     victims who are arrested or otherwise escape their traffickers do not receive the assistance or protection they need and are entitled to under international human rights norms. In fact, most cases are further victimized by the State’s criminal and immigration policies;

9     NGOs attempting to assist victims of trafficking are reluctant to co-operate with law enforcement; and,

9     effective law enforcement is severely undermined because victims are unwilling or unable to testify against traffickers [35] .

In the case of the country of origin to which the victim is often returned, there is usually  no ability to provide the victim with the necessary medical and psychological help, legal assistance or effective protection against reprisals or intimidation. For instance, it does not appear that any OSCE participating States have programs to protect trafficked persons from retribution by traffickers upon return to the country of origin. There are frequent cases of “re-trafficking” of the same victim upon her return to the country of origin and not infrequent reports of the presence of collusion between immigration officials and organized criminal elements to take advantage of returning victims. There are also many situations where the deportation of the trafficked person as illegal immigrants has serious and long- lasting implications for the trafficked persons (e.g., victims may be prosecuted for leaving the country illegally, using false documents or engaging in prostitution, and they may be fined, jailed or charged for the costs of her repatriation, etc.).

Law enforcement agencies have often argued that it is very difficult for them to prosecute trafficking offences under the current system in their countries. It is very difficult to convict a trafficker if the key witness has already been deported.

Law Enforcement

According to the recent report on OSCE countries and trafficking in human beings, it would seem that “even when reasonably good laws exist, trafficking in human beings remains a relatively low law enforcement priority in most destination countries” [36] . Among the main law enforcement problems noted in the report are the following:

#                    trafficking in human beings tends to be seen as a far less serious problem than trafficking in drugs or firearms;

#                    few law enforcement agencies seem to fully recognize the brutality of the crime or address the involvement of organized criminal groups;

#                    unspoken biases, confusion and disbelief over the issue contribute to a lack of determination to combat the phenomenon;

#                    trafficking is often characterized as nothing more than “foreign prostitution” or black-market labour rather than a form of slavery;

#                    the consent of the trafficked person is presumed;

#                    the problem is dismissed as an abuse by private individuals for which States have no responsibility;

#                    the laws that are enforced are far more likely to be enforced against the trafficked persons than the perpetrator of the trafficking crimes. [37]

Corruption and Obstruction of Justice

It is generally assumed that organized crime in general, and trafficking in women and children in particular, cannot occur on the scale that it currently does without the collusion of corrupt officials. Specific measures to combat corruption and obstruction of justice are therefore required.

Detention and Corrections

Many victims of trafficking in human beings are detained by the receiving state, either for violation of immigration laws, for prostitution or even as recalcitrant witnesses. The irregular or illegal migrants who are detained by the receiving State have a recognized right under international law to be treated with humanity and dignity, both before and after the determination of the lawfulness of their detention. [38] The 1999 resolution of the Commission on Human Rights concerning the traffic in Women and Girls called upon governments to penalize persons in authority found guilty of sexually assaulting victims of trafficking in their custody. [39]

Victim Support and Assistance

The Beijing Platform for Action advocated the allocation of resources by governments of countries of origin, transit and destination, regional and international organizations  “to provide comprehensive programmes designed to heal and rehabilitate into society victims of trafficking, including through job training, legal assistance and confidential health care, and take measures to cooperate with non governmental organizations to provide for the social, medical and psychological care of the victims of trafficking”  {action no. 130 (d)}.

Victims of trafficking offences are all too often treated as offenders. The recent report of the Working Group on Contemporary Forms of Slavery on its twenty-fourth session, recommended that States enact or revise national policies, laws and strategies and other administrative measures in order to ensure that victims of sex trafficking and other practices of sexual exploitation are not the subject of criminal proceedings or other legal or administrative sanctions. [40]

Victims who are arrested do not receive the assistance they need even though they are entitled to be treated in accordance with international human rights norms.  Their almost automatic deportation as illegal migrants also compounds the problem. Many victims are deported without having even been identified as such. A few countries have specific legislation permitting a temporary stay for victims of trafficking. These provisions are meant to allow the victim of a trafficking crime to temporarily reside and receive assistance while she is cooperating with law enforcement. A few countries (e.g. United States, Belgium, Italy, and the Netherlands) have institutionalized policies for assisting victims of trafficking offences and offer a temporary stay of deportation while the victim decides whether to participate as a witness in criminal proceedings. Not surprisingly, these countries report significant increases in witness testimony and successful prosecution of traffickers. The High Commissioner for Human Rights has expressed the view that, at a very minimum, the identification of an individual as a trafficked person should be sufficient to ensure that immediate expulsion that goes against the will of the victim does not occur and that protection and assistance be offered. [41]

Whereas the laws of many countries now recognize the rights of crime victims to redress or compensation, it would appear that that right is effectively denied in most cases to victims of trafficking. In the few countries where material assistance is offered to victims, that assistance is terminated as soon as they are returned to their original country.

The current prevailing situation of forced deportation and repatriation of victims of trafficking is intolerable. It represents an unacceptable safety risk for the victims. This is why the High Commissioner for Human Rights has expressed the view that “safe and, as far as possible, voluntary return must be at the core of any credible protection strategy for trafficked persons.” [42]

The 1999 resolution of the Commission on Human Rights concerning Traffic in Women and Girls calls upon concerned “Governments to allocate resources to provide comprehensive programmes designed to heal and rehabilitate into society victims of trafficking, including through job training, legal assistance and health care and by taking measures to cooperate with non-governmental organizations to provide for the social, medical and psychological care to victims”. [43]

Health and Social Services

The victims of trafficking, however, may be in need of special forms of assistance which may not be readily available and may not even be covered under the services generally offered to victims of crime.

Training

The 1999 resolution of the Commission on Human Rights concerning the Traffic in Women and Girls invited “Governments, with the support of the United Nations, to formulate manuals for the training of personnel who receive and/or hold in temporary custody victims of gender-based violence, including trafficking, taking into account current research and data on traumatic stress and gender-sensitive counseling techniques, with a view to sensitizing them to the special needs of the victims”. [44]

Research and Evaluation

There are obviously several areas of research and evaluation which are of particular relevant to the development of effective policies and measures to combat transnational criminal victimization of women and children.  In particular there is a need for a global approach to collecting systematic data collection and comprehensive studies, including on the modus operandi of trafficking syndicates. [45] The Centre for International Crime Prevention and the United Nations Interregional Crime and Justice Research Institute have prepared a Global Programme against Trafficking in Human Beings, in order to enable the international community to better respond to the problem. The Global Programme will involve assessing regional and interregional trends, taking stock of promising practices worldwide, carrying out demonstration projects in selected countries or regions and evaluating the projects based on standardized criteria. [46]

Crime Prevention Measures

Specific measures are certainly also required to raise public awareness of the seriousness of the impact of certain forms of organized transnational crime, in particular trafficking in women and children, on the lives of women and their families. Specific measures are also required in source countries to inform potential victims of trafficking of the risk they face. In many source countries, young women and children still believe that there is a high demand for local girls to work abroad and are unaware of the suspect nature of advertised jobs or of other deceitful tactics.  The Working Group on Contemporary Forms of Slavery recently urged States to “initiate community-based prevention programmes, especially in high-risk areas, to educate people on the tactics of recruiters and traffickers and on the risks of sexual exploitation” [47] .

According to the recent review of the situation in OSCE countries, it would appear that state-sponsored programmes are virtually non-existent in most countries of origin, and public awareness about trafficking remains very low. Few states have been able or willing to devote resources for that purpose. Education officials have apparently also been slow to incorporate any trafficking awareness programmes into school curricula. Some examples of successful programs exist, but much greater efforts are needed. [48] The recent resolution of the Commission on Human Rights concerning the Traffic in Women and Girls specifically encourages “Governments, in cooperation with non-governmental organizations, to undertake campaigns aimed at clarifying opportunities, limitations and rights in the event of migration so as to enable women to make informed decisions and to prevent them from becoming victims of trafficking” [49] .

Furthermore, it should be noted, as it was by the High Commissioner for Human Rights, that some forms of actions aimed at preventing trafficking may have very detrimental effects on the victims of the crime. Responsible crime prevention strategies must be such that they do not have discriminatory effects or infringe upon the right of an individual to leave her country or legally migrate to another. [50]

Finally, the growing role played by the internet in facilitating the trafficking of human beings cannot be denied. Specific prevention measures are required “to encourage service providers to adopt or strengthen self-regulatory measures to promote the responsible use of the internet with a view to assisting in the elimination of trafficking in women and girls” [51] .

New Tools

Transnational organized crime, by nature, calls for distinct and somewhat different responses from criminal justice systems. Among other things, it calls for a level of international cooperation that is not usually necessary in the control and prevention of other forms of crime. The same is true, needless to say, of certain forms of transnational crime which specifically targets women and children.

As was seen above, the list of problems encountered by various jurisdictions while attempting to work together to fight transnational crime in general, and trafficking in human beings in particular, is a very long one. It includes:

q       The lack of harmonized criminal definitions

q       The fact that the means do not always exist of holding legal persons liable

q       Unresolved issues of jurisdiction of extraterritorial enforcement

q       Ineffective and incomplete global extradition regime

q       Insufficient provisions for mutual legal assistance between jurisdictions

q       Insufficient provisions for effective law enforcement cooperation

q       Obstacles to close cooperation during major case investigations

q       Insufficient legal provisions to facilitate offender cooperation with law enforcement

q       Imperfect international regime to combat money laundering

q       Unresolved inter-jurisdictional cooperation issues regarding the confiscation of assets and proceeds of crime

q       Lack of effective measures to prevent and deter corruption of public officials

q       Insufficient national measures to prevent obstruction of justice

q       Insufficient protection of witnesses

q       Insufficient intelligence about patterns of transnational crime

as well as issues that are more immediately related to the prevention and control of smuggling of migrants and the trafficking in human beings:

q       Weak border protection

q       Weaknesses in the internal regime of travel and identity document control

q       Lack of training of justice, customs, and immigration officials

q       Insufficient technical assistance available to struggling jurisdictions

q       Weak information exchange mechanisms between jurisdictions

q       Lack of emphasis on broad transnational crime prevention measures

q       Insufficient efforts to reduce the vulnerability of certain groups of potential victims

q       Insufficient protection and assistance to victims

q       Unresolved issues concerning the citizenship/ immigration status of victims

q       Unresolved difficulties relating to the repatriation of victims

These and several other difficulties are being addressed by the new conventions and protocols (See: Table on recent Conventions and Protocols and Efforts to implement them in Canada). The question at this point is whether and when are member states going to demonstrate their resolve to fight these problems by ratifying the legal instruments and implementing them nationally.