ECRE BACKGROUND PAPER – March 2001
An overview of
proposals addressing
migrant smuggling and trafficking in persons
As
a premise to this paper, it must be pointed out that developments in this area
are part of an ongoing process, thus subject to further changes.
Since the beginning of the 1980s a
number of States have given increasing attention to the issue of irregular
migration, and many have introduced or re-enforced measures such as visa
requirements, border controls and carrier sanctions. Throughout the 1990s they have begun to address more
specifically the problem of human trafficking, especially of women and girls,
which may involve extreme cases of abuse and exploitation for the trafficked
individual. The US government
estimates that 1-2 million women and children are trafficked annually[1].
1) Definitions
In general a distinction has been
made between ‘trafficking’ and ‘smuggling’, although
the understanding of these terms is by no means universal. The term ‘trafficking’ tends
to describe movements of individuals against their will, whereas
‘smuggling’ refers to voluntary movement on the part of the
migrant.
According to the UN Protocol on
trafficking[2], trafficking is defined as
‘…the
recruitment, transportation, transfer, harbouring or receipt of persons, by the
threat or use of abduction, fraud, deception, coercion, or the abuse of power
or by 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…’
and in the smuggling protocol[3], smuggling is defined as
‘…the
procurement of the illegal entry into or illegal residence of a person in a
State Party of which the person is not a national or a permanent resident in
order to obtain, directly or indirectly, a financial or other material
benefit’.
Therefore, the main elements differentiating between trafficking and smuggling are the exploitation and abuse of power which characterise trafficking in persons. The increased emphasis given to distinguishing between smuggling and trafficking has been recognised by States participating in various regional and global agreements and action plans as well as in the UN Protocols on trafficking and smuggling (see below), all of them calling for measures to protect the trafficked victim. A problem in making this distinction, however, is that little thought has gone into how trafficked individuals versus smuggled ones are to be recognised in practice. In addition, certain measures, such as the authorisation to intercept vessels on the high seas, the obligation to strengthen border controls and adopt sanctions for commercial carriers or the commitment to return smuggled migrants in the UN Protocol against Smuggling, may have a negative impact on smuggled asylum-seekers. A number of comparable provisions in the Protocol against Trafficking may have a similar effect. Although both Protocols contain savings clauses, it still remains to be seen how effective they will be in practice. There is therefore a need to emphasise that all measures to combat trafficking need to be in compliance with the obligations of States under international refugee and human rights law, in particular with the principle of non-refoulement.
Many of the proposed measures, such as visa requirements or carrier sanctions, focus on border controls as a way of suppressing both trafficking and smuggling. However, persons who are in need of protection will often risk any means in order to cross a border. As a result increasingly restrictive border control may not successfully prevent trafficking or smuggling occurring. In addition, border controls may limit the freedom of movement of individuals, contrary to international law. For these reasons, NGOs are urging for a focus on the social, economic and political root causes of trafficking and smuggling rather than an emphasis on border control.
3) Implications for asylum seekers
Proposals to address trafficking and smuggling at the intergovernmental level include those made by the UN, EU, IOM[4], OSCE[5] and the Council of Europe[6]. NGOs with solid expertise on the issue of trafficking in persons have also formed a Human Rights Caucus[7], and offered recommendations during the drafting of the UN protocols.
1) United Nations
a) Smuggling Protocol:
Following is an overview of the Protocol’s main points:
· Purpose: to criminalize migrant smuggling and promote cooperation among States in actions against people smuggling (Art 3)
· Criminalization: States will adopt legislation criminalizing people smuggling (but not those being smuggled) (Art 4)
· Measures against smuggling of migrants by sea: inter alia actions to inspect, board, exchange information about ships suspected of people smuggling (Art 7)
· Information: States will provide public information and will exchange information among themselves (Art 10)
· Refugee Convention: provisions are without prejudice to State obligations under the Refugee Convention ( Art 15 bis)
During the process of drafting the Protocols, NGOs and other organisations[9] welcomed the objective of addressing the crime of migrant smuggling, but they also stressed the need to ensure protection of victims. There seemed to be a number of common points:
- The Preamble states that ‘smuggling of migrants may lead to the misuse of asylum procedures’. NGO comments affirm that there is no necessary connection between using people smugglers and the misuse of asylum procedures, and that many refugees are forced to use people smugglers to save their lives.
- Preamble (j) speaks of the need ‘to provide humane treatment and protect the full human rights of migrants’, but what these rights are is not spelled out.
- Provisions in the Protocol do not explicitly ensure that such persons have the opportunity to file asylum claims without being penalized for entering States illegally, as laid out in Article 31 of the 1951 Refugee Convention (Art 3 bis of the Protocol on Smuggling states that migrants shall not become liable to criminal prosecution under this Protocol for the fact of having been smuggled).
- Article 9 of the Protocol suggests that States should impose carrier sanctions to control smuggling. However, as well as affecting smugglers, this discriminates against individuals who are not involved in criminally organised crime and should have been removed from the Protocol[10].
- Article 11 urges for the implementation of increased border controls. However, NGOs stress that these should not be implemented in a manner that will undermine the right of individuals to seek asylum or in a way that will lead to asylum seekers being refouled.
- Article 15 bis is a savings clause articulating obligations under the Refugee Convention. However, it does not cater for countries that sign the Protocol but have not signed the Convention. It also does not articulate ‘non-refoulement’ as a principle of international law.
b)
Trafficking protocol:
Following is an overview of the protocol’s main points:
· Purpose: to prevent and combat trafficking in persons, paying particular attention to the protection of women and children and to promote and facilitate cooperation among state parties in order to achieve this (Art 1).
· Criminalisation: States will criminalise human trafficking (Art 3).
· Protection of trafficked persons: States will provide various measures of protection for trafficked victims against their traffickers who are being prosecuted and opportunities of seeking damages from traffickers; States must also consider giving victims temporary or permanent residence permits, and consider their status from a humanitarian/compassionate point of view (Art 4-5)
· Repatriation of victims: States will accept nationals back without delay, and repatriations will be with due regard to the safety of those persons (Art 6).
· Law enforcement, border controls, travel documents: States will cooperate with each other, control their borders and ensure quality of documents (Art 7, 8, 9).
· Savings clause: Nothing in the Protocol will affect rights and obligations under international law, especially the Refugee Convention, and measures must be non-discriminatory (Art 13).
NGO general criticisms made during the drafting process11 were as follows:
- The Protocol includes measures aimed to ‘prevent, suppress and punish trafficking in persons’ but these are only minimally covered. Article 10 lays out prevention measures only very generally and briefly, while Article 3 details the obligation of States to criminalise trafficking by focussing on borders. Article 4 provides that States shall protect privacy and identity of individuals ‘in appropriate cases’. The scope of ‘appropriate cases’ is not defined.
- There is no mention in the protection section of the right of the victim to make a claim for refugee status. This should have been explicitly acknowledged.
- Article 5 (Status of the victim in the receiving state) permits victims of trafficking to remain in the receiving state ‘in appropriate cases’, which again should have been defined.
- Article 6 addresses repatriation of victims and states that return should be ‘[as far as possible] voluntary’. There are no clear measures to prevent revictimization of victims, and in this way it is not clear how proposals should differ from ‘deportation of victims’.
- Article 8: Border measures could restrain the liberty of movement of people who are subject to protection under the Protocol. The measures should not limit the rights of individuals to asylum in other countries or undermine the principle of refoulement. States have a legitimate interest in strengthening border controls but these should not impinge on the human rights of victims as set out in the International Covenant on Civil and Political Rights, the Refugee Convention and the Convention on the Rights of the Child. The emphasis of these measures should have been on identifying and protecting victims as well as intercepting traffickers. Adequate training of officials to recognise protection claims must be provided.
There is currently a UN Global Programme against Trafficking in Human Beings (GPTHB) being carried out by the UN Centre for International Crime Prevention together with the UN Interregional Crime and Justice Research Institute. The programme aims at enabling countries of origin, transit and destination to develop strategies against trafficking, focussing on crime prevention. Suggested measures include situation assessments, establishment of best practice databases, provision of technical assistance and formulation of international anti-trafficking standards.
Following the 1999 Tampere European
Council, the following French Presidency proposals were presented to the
Council on 28 July 2000: the ‘Draft
Council Framework Decision on the strengthening of the penal framework to
prevent the facilitation of unauthorised entry and residence’[11] and the ‘Draft Council Directive defining the
facilitation of unauthorised entry,
movement and residence’[12]. The Framework Decision
is aimed at harmonising the penalties for smuggling. These may include ‘confiscation
of means of transport used to commit an offence’, ‘prohibition on
practising directly or through an intermediary the occupational activity in the
exercise of which the offence was committed’, or ‘a deportation
order if the convicted person is not a national of a Member State’. Increased criminal penalties are called
for if ‘the offence has been committed by a person belonging to a
criminal organisation’. The
purpose of the Directive is to render the implementation of the framework
Decision more effective by precisely defining the offences which are the
subject of the penalties of the Framework Decision.
ECRE has produced a comments paper
regarding both French Presidency initiatives[13]..
Its main points are that they fail to mention refugee protection and the
obligations of States under refugee law, and that, unlike the UN Protocols,
they do not require that facilitation of illegal entry be for personal gain,
thus could potentially criminalize lawyers, NGOs etc. who may assist refugees.
In December 2000 the European Commission produced a communication on Combating trafficking in human beings and combating the sexual exploitation of children and child pornography’, which includes a proposal for a Council Framework Decision on each topic[14].
In the introduction to these proposals it is stated that they should be seen as complementary to ‘the important initiatives presented by the French Presidency on facilitation of illegal entry, stay and residence’. In part two of the ‘explanatory memorandum’ the fact that these proposals and the French Presidency initiatives complement each other is stressed once again. Thus, ECRE’s comments paper on the French Presidency proposals maintains its purpose also in regard to these proposals.
More specific comments on the Proposal for a Council Framework Decision on Combating Trafficking in Human Beings have been made by Anti-Slavery and Human Rights Watch jointly[15]. These comments include pointing out that a distinction should be made between child and adult victims of trafficking; and that particular attention should be given to complicity by state officials, law enforcement officials, and customs agents. The comments also point out that ‘States should make assets confiscated from traffickers available to settle financial claims of trafficking victims’. It is also affirmed that ‘the Framework Decision lacks a specific section on prevention’.
The proposals are being discussed and the one on combating trafficking in human beings is likely to be adopted by June 2001. It would be binding on Member States, as it would require them to modify their own legislation and penal codes by December 2002 in order to comply with its provisions.
Trafficking was also one of the main issues at the informal meeting of ministers of Justice and Home Affairs in Stockholm on 8/9 February and candidate countries were invited to a special ministerial meeting on 15 March. At this meeting the ministers for Justice and Home Affairs of the EU and candidate countries emphasised that it is primarily the cooperation between authorities that fight crime that has to be developed, thus bringing the candidate countries into closer contact with the EU bodies for police and prosecution cooperation, Europol and Eurojust. The EU will also investigate the possibility of involving candidate countries in the EU STOP programme (see below). The European ministers backed a UK plan to send a taskforce to Bosnia and Croatia as part of ‘efforts to stop human trafficking’, which involves training local officials and staff in how to spot forged passports and visas. However, during the talks EU Justice and Home Affairs Ministers could not reconcile differences over penalties for those who bring in persons for financial gain. Disagreements also remained over what constitutes humanitarian grounds for smuggling of asylum seekers. The next meeting in which agreement on these issues could be reached is scheduled for May 2001.
The Conference on the Fight against the Channels of Illegal Immigration, Paris, 20 July, 2000 outlined the need for a ‘coherent approach to fight illegal immigration in the context of overall immigration policy’ among member states. Different stages identified for attention were:
· Action of the police and intelligence in order to build a complete picture of the nature of trafficking operations
· Action at the point of entry into the territory, including preparatory measures such as visa policies
· Legislative action to ensure the incrimination and sanctioning of trafficking offences
· Action to secure the cooperation of victims
· Action to ensure their human repatriation and acceptance by countries of origin
· Guarantees that all these actions take place against the background of obligations under the Geneva Convention[16]
A five-year anti-trafficking programme (STOP (1996-2000)) came to a close last year. Continuation is planned for further two years with a budget of 4 million Euros[17].
Other projects focus on cooperation with candidate countries, exchange of information on criminal networks; training for relevant personnel (see the FALCONE project); transfer of the technology necessary for border reinforcement (the PHARE project for Eastern Europe); the DAPHNE project focussing on the needs of women and children, the OISIN project which aims at stimulating webs of legal cooperation and law enforcement among member states, and the TACIS project, also focussing on Eastern Europe, and an increased use of EUROPOL.
3) OSCE
A Stability Pact Task Force on
Trafficking in Human Beings was established by the Office for Democratic
Institutions and Human Rights (ODIHR), Vienna, 18 September 2000. An Action Plan for initial activities
was proposed, including a data collection programme and joint ODIHR-Council of
Europe legislative review programme.
The plan underlines the need for enhanced regional cooperation and
concrete action on the issue of trafficking (see national measures below), and
the importance of involving governments of South Eastern Europe. The plan also incorporates training for
judiciary, police, civil servants and NGOs.
EU frameworks, UN Protocols and other measures all recommend action for implementation at the national level (e.g. border controls, carrier sanctions etc.).
OSCE suggestions[18] for State action are as follows:
· Adoption, implementation and periodical review and analysis of legislation relating to trafficking ensuring its conformity with international provisions regarding human rights and victim protection
· Criminalisation of trafficking with appropriate penalties
· Harmonisation of legislation for increased international cooperation
· Information campaigns aimed at prevention of trafficking, in countries of origin, and about rights for trafficked persons, in countries of destination
· Provision of protection for trafficked individuals in state houses and to compensate victims of trafficking, potentially by confiscating traffickers earnings
· An increase in awareness among judiciary and public officials and creation of a specialised police force.
· Creation of interagency bodies to combat trafficking, monitoring and tackling root causes through bilateral/multilateral agreements
· Examination of immigration laws and their effect on trafficking.
In recent years, measures to criminalise trafficking have been introduced or strengthened in some States, and are underway in others. These include[19]:
· Criminalization of exploitative trafficking (Austria)
· New legislation to create an offence of trafficking (Ireland)
· Strengthening control measures (Norway, Portugal, Spain)
· Proposal to change criminal law to make prosecution of traffickers possible (Spain)
· Large scale arrests in areas where trafficking/prostitution/criminality are widespread (Greece)
· Extension of carriers liability (UK)
· Extending criminal offences for entering the country using deception (UK)
· The legal framework against trafficking is still weak in a number of countries (e.g. Finland, France, Denmark)
· German law only covers trafficking in connection with prostitution; other forms of trafficking are not explicitly stated and defined in the criminal code
· Many asylum seekers (children, in the case of this report) are seeking asylum via trafficking routes as a result of restrictive border control measures
· As victims may lack the right to reside in the receiving country, many do not contact the police for protection for fear of being expelled. Some attempts at addressing this issue have been made in Austria (Austrian Aliens Act of 1998) and in the Netherlands where victims are offered special protection and assistance.
The UK government has recently announced its proposals to clamp down on trafficking in a joint agreement with Italy (Blair-Amato agreement)[21]. The UK and France also reached an agreement on tighter controls on the Eurostar to ‘stem illegal immigration’. Following on from this on 14 March 2001 the French cabinet approved a bill to classify the Paris-to–London Eurostar rail service as an international transport link, and thus make it easier to detect illegal immigrants using the train to enter Britain. Under the new bill travellers will have to carry documents permitting them to cross international borders from the moment they get on the train at Paris Gare du Nord. The French government also agreed to allow British immigration officials to be posted at the Gare du Nord[22].
5) Additional
recommended papers:
·
Amy
O’Neill Richard, International Trafficking in Women to the United
States: a contemporary manifestation of slavery and organized crime, Centre for the Study of Intelligence,
April 2000
·
November
1999; UK Home Office. Stopping Traffic: exploring the extent of, and
responses to, trafficking in women for sexual exploitation in the UK, Briefing Note, Police Research Series
Paper 125, May 2000
·
Rojana
Chuenchijit, Trafficking in women and children: ‘a contemporary
manifestation of slavery’, USCR, March 2000.
[1] US government website on trafficking: http://secretary.state.gov/www/picw/trafficking/about.html
[2] Revised draft Protocol to prevent, suppress and punish trafficking in persons, especially women and children, supplementing the UN Convention against Transnational Organised Crime’ (available at http://www.uncjin.org/Documents/documents.html)
[3] Revised draft Protocol against smuggling of migrants by land, air and sea, available from the Internet address in footnote 2.
[4] See ‘Trafficking in migrants: IOM policy and responses’
[5] See Final Report, Supplementary Human Dimensions Meeting on Trafficking in Human Beings, Vienna, 19 June 2000 (available at http://www.osce.org/odihr/docs/m00-3-final.htm)
[6] See, for example, Recommendation no. R (2000) 11 of the Committee of Ministers to Member States on action against trafficking in human beings for the purpose of sexual exploitation, adopted by the Committee of Ministers on 19 May 2000. Available at http://www.dhdirhr.coe.fr/equality/Eng/rectse.htm.
[7] The Human Rights Caucus consists of the International Human Rights Law Group, the Foundation Against Trafficking in Women, the Global Alliance Against Traffic in Women, the Asian Women’s Human Rights Council, La Strada Ban-Ying Fundacion Esperanza, the Foundation for Women KOK-NGO Network Against Trafficking in Women, the Solomon Foundation Women’s Consortium of Nigeria, Law and Development in Africa (Nigeria).
[8] Information is available at http://www.uncjin.org/Documents/documents.html
[9] For example, see ‘Recommendations regarding the Protocols on Trafficking in Persons and Smuggling of Migrants’ submitted by Women’s Rights Division, Human Rights Watch, June 5, 2000; ‘Note by the HCHR, IOM, UNHCR, and UNICEF on the Protocols concerning migrant smuggling and trafficking in persons’ by the Ad-Hoc Committee on the Elaboration of a Convention Against Transnational Organised Crime, Vienna Feb 21-March 3, 2000; ‘Migrant smuggling and trafficking in persons’ by the Canadian Council for Refugees, February 20, 2000.
[10] See comments from the Canadian Council for Refugees, footnote 9.
[11] Decision: 10676/00 DROIPEN 32 MIGR 60 COMIX 591.
[12]Directive: 10675/00 DROIPEN 31 MIGR 59 COMIX 590.
[13] ECRE’s comments on the French Presidency proposals for a Council Directive defining, and a Framework Decision on preventing, the facilitation of unauthorised entry, movement and residence.
[14] Brussels, 21/12/2000, available at http://europa.eu.int/eur-lex/en/com/pdf/2000/en_500PC0854_01.pdf
[15] “Summary of recommendations regarding the proposed Framework Decision on Combating Trafficking in Human Beings”.
15See speech by Antonio Vitorino, Conference on the Fight against the Channels of Illegal Immigration, Paris, 20 July 2000.
[17] See http://europa.eu.int/comm/justice_home/project/stop_en.htm.
18 See Action Plan for Europe Paper – interim findings for the European Commission carried out by Save the Children’, p10.
[21] See British and Italian press articles of 5 February (and around then) and also the Home Affairs Select Committee report on Border Controls produced by the Home Office
[22] See Articles from
Guardian on 10.02.2001 and around then and articles by Agence Presse France on
25.03.2001