ADVOCACY LEAFLET ON SAARC CONVENTION ON PREVENTING
AND COMBATING TRAFFICKING IN WOMEN AND CHILDREN FOR PROSTITUTION
The
Prevalence of the Problem
Trafficking is responsible for
the flagrant human rights abuses of the tens of thousands of women and children of South Asia who are trafficked
for various purposes each year. Despite the presence of national and
international laws prohibiting trafficking, the practice has flourished
throughout Asia. Traffickers rely on deception, fraud, intimidation, drugs, threats,
and violence to take people across borders for sale as prostitutes, forced
laborers, camel jockeying, domestic servants, non-consensual organ donors, and
for other nefarious purposes. Traffickers work in small, independent groups or
as part of an organized crime network that operates across national boundaries.
Among
the South Asian countries, Nepal, Bangladesh and Sri Lanka serve mainly as
countries of origin while India and Pakistan serve mainly as countries of
destination. India also serves as a country of transit. Trafficking is an
international, trans-border criminal activity that requires international,
trans-border law enforcement to combat. Highly-organized trafficking are able
to evade the present network of laws and polices arrayed against them and
commit trafficking offenses with impunity due to the lack of extra-territorial
laws and swift extradition procedures. This failure of law enforcement and
criminal prosecution underscores the need to develop a set of uniform regional
standards and rights available to all victims of trafficking so as to protect
their human rights and prosecute traffickers.
The The SAARC Convention
on Preventing and Combating Trafficking in Women n and Children for Prostitution,
2002 represents significant and substantial progress
How the Convention Benefit Women and Children ?
â Catalyzing changes in the national laws
creating effective measures to ensure
that trafficking in any form is an offence
} Defines
trafficking as the moving, selling or buying of women and children for
prostitution within and outside a country for monetary or other considerations
with or without the consent of the person subjected to trafficking, thereby
making these acts criminal offenses.
} States that all
persons who manage, maintain, provide, or finance any facility used in
trafficking shall be punished.
} Criminalizes all
attempts of trafficking as well as assisting an act of trafficking.
} Ensures
appropriate penalties for trafficking with taking into account its grave
nature.
â Making offences punishable by penalties
commensurate with the severe nature of the offence
} Mandates courts that have jurisdiction over
trafficking offenses to take into account factual circumstances which make the
commission of such offenses particularly grave, such as: the involvement in the
offences of an organized criminal group to which the offender belongs; the
involvement of the offender in other international organized criminal
activities; the use of violence or arms by the offender; the fact that the
offender holds a public office and that the offence is committed in misuse of
that office; the victimization or trafficking in children; the fact that the
offence is committed in a custodial institution or in an educational
institution or social facility or in their immediate vicinity or in other
places to which children and students visit for educational, sports, social,
and cultural activities; or in the case of previous convictions, particularly
for similar offences, in a territory of Member States or any other country.
â Requires that all judicial authorities of
Member States create measures to ensure the proper treatment of trafficking
victims
} Assures victims confidentiality to protect
them during the pendency of the prosecution and to ensure that they do not
suffer further victimization when they return home.
} Recommends giving victims
access to translators, legal asistance, counseling and support.
â Creating trafficking as an extraditable offences
} Treats trafficking as a extraditable offence in any extradition treaty concluded or to be concluded between Member States.
} The States where extradition is not permitted under their law, offenders to be prosecute and punished by the national court.
â Building the capacity of the law
enforcement mechanism
} Provide training and assistance to the officials to ensure the effective inquiry, investigation and prosecution of offense.
} Sensitization of law enforcement agencies and the judiciary.
â Granting mutual legal assistance with
respect to investigation, inquiries, trials and proceedings
} Share evidences and statement of witnesses, documents and records, statements and records of suspects, location and identification of person or objects, delivery of property including lending of exhibits and information regarding search and seizures.
} Execute requests for assistance promptly in the manner requested by the requesting State.
} Inform the requesting State in case of an inability to execute whole or part of the request for assistance and explain reasons for such failure.
â Providing mechanism for the repatriation
} Develop modalities for repatriation through mutual understanding of the State parties.
} Provide suitable care and maintenance during the repatriation of the victim.
} Ensuring legal advice and health care facilties.
â Providing care, treatment and
rehabilitation
} Establish
protective homes or shelter for the rehabilitation of the victim.
} Guarantee legal advice, counseling, job training and health care facilities for the victim.
} Authorize NGOs to establish protective home or shelters with a minimum standard for suitable care and maintenance.
} Encourage NGOs to work on areas aimed at prevention, intervention and rehabilitation.
} Assist victims in getting justice.
â Creating regional cooperation
} Set-up bilateral agreements for cooperation to interdict trafficking of women and children.
} Exchange information regarding the agencies , institution and individuals involved in trafficking.
} Exchange information to identify methods and routes used by traffickers.
} Exchange information of the offender, finger prints, photographs, methods of operation, police records and records of conviction.
â Establishing regional task force
} Facilitate the implementation of the Convention.
} Review of the implementation periodically.
â Addressing the root-cause of trafficking
} Create economic development efforts in trafficking-prone areas
} Build awareness against trafficking through the use of media
} Prohibit the projection of negative image of women
Limitations of the
Convention
â The
definition does not capture many forms of pernitious trafficking
} Trafficking occurs for purposes equally vile and reprehensible as prostitution such as forced labor, camel jockeying and domestic servitude.
} As currently named and defined, the Convention does not explicitly recognize that trafficking could be for purposes other than prostitution.
â The
Convention does not adequately distinguish between voluntary migration and trafficking
} As presently drafted the Convention may create difficulty in distinguishing between movements and migrations that are legitimate and consensual and those that are coerced.
} The definition of the trafficking includes women who have moved within or outside her country of origin, with her consent.
â The
Convention fails to absolve coerced individuals from any criminal liability
that might attach to acts they were forced to do
} The Convention assumes that trafficked persons can be charged
with crimes and arrested. It imperils not only the right of voluntary migration,
but the rights in general of trafficked victims, who as a consequence of being
trafficked have been forcibly deprived of their rights, freedom and dignity.
â The
Covention fails to make adequate distinctions between women and children
} The Convention has not been able to make clear that women have
full autonomy and decision-making capacity.
} The Convention does not give
adequate consideration to the special vulnerability and needs of children.
â The
Convention does not adequately address the persistent problem of government
attorney’s failure to prosecute trafficking cases
} The Convention places no limits on the discretion of government attorneys in their decision to prosecute.
â The
Convention does not address the needs of women who choose not to repatriate
} Victims often do not wish to
return to their country of origin for fear of the social stigma attached to
having been trafficked or for the same reasons that induced them to leave the
first place.
â The
Convention has no provision for victim compensation
} Compensation is vital to
succesful reintegration into society. Without compensation for the victim and
their families, they may suffer severe physical, psychological and economic
damages as a consequence of being trafficked. Criminal prosecutions and
penalties do not compensate victims and their families for such sufferings.
â The
Convention does not require that traffickers be charged for all crimes
committed
} Traffickers often commit many crimes beyond the trafficking. Ensuring effective prosecutions that result in significant penalties will send a strong message that trafficking will not be tolerated.
â The
Convention has an inadequate monitoring body
} The Convention provides for an inadequate mechanism to ensure that Member States meet the requirements imposed by the Convention. One of the chief benefits of the Convention, that of regional coordination, is defeated if there is no body with the power to monitor and report on efforts of the individual States. Without strong and permanent monitoring mechanism, the Convention will be merely a piece of paper.
How
the Convention be Improved
â Rename the Convention
} The Convention should be
renamed as “SAARC Convention on Preventing and Combating Trafficking in Person,
Especially Women and Children” to expand the area of the Convention.
â Expand the definition of trafficking
} Make the definition of trafficking inclusive of all forms of trafficking.
} The definition of trafficking should be broadened to include an element of coerced transportation or recruitment and an element of forced labor or other slavery-like practices for which the person is forcibly transported or recruited.
To effectively stop trafficking, the definition should include recruitment, transportation, transfer, harboring 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.
â Ensure that trafficking is distinguished
from voluntary migration
} The Convention’s definition of
trafficking should include clarification that trafficking occurs when there has
been coercion. It does not depend on
which profession that individual is engaged, but instead depends on whether
that individual has consented to move.
â Ensure
that victims are immune from criminal liability for any Acts that arise out of
the trafficking
UN Special Rapporteur on Violence Against Women Ms. Radhika Kumarswami states, “.. rather than criminalizing prostitution, only the exploitation of the prostitution should criminalized. Criminalization of prostitution results in the double victimization of women because she, and not the traffickers, becomes the main target of police action.”
â Ensure that victims’ rights are vindicated
} Due to consistent failures to prosecute trafficking offences, government attorneys should be required to report in writing the good faith basis for their decision to not go forward on a trafficking prosecution. Such reports should be filed with the treaty monitoring body and a copy to be provided to the victim as well.
} If a government attorney chooses not to prosecute a trafficking case, the victim should be empowered to proceed to the court to institute a trafficking prosecution.
} For purposes of receipt of services such as repatriation, reintegration and
rehabilitation, the status of “victim of trafficking” should not be dependent
upon the prosecution of a trafficking case.
â Ensure voluntary repatriation
} The Convention should require Member States to repatriate victims only with the victims’ informed consent.
â Ensure that services
are available
} Victims who choose to return home face numerous obstacles to their reintegration into society. The lack of appropriate support and access to resources places them at high risk of suffering, further abuse and exploitation and may prevent a successful transition from being a trafficking victim to being a normal member of society.
â Encourage State Parties to enact laws that provide compensation to
the victims
} States should allow victims to initiate administrative and legal proceedings against traffickers to obtain redress for all the harms they have suffered.
}
} The Convention should require the
Member States to investigate intensely and bring all possible charges for
crimes committed in addition to trafficking, which many times include rape,
sexual and other forms of assault, abduction, torture, cruel, inhuman, or
degrading treatment, slavery, or slavery-like practices, forced
or compulsory labor, servitude, debt bondage and forced marriage.
A trA Treaty body should
be created to ensure that
effective. Such a monitoring
mechanism should be independent. The
treaty body should include a Regional Rapporteur against trafficking and
members who are experts in the fields covered by the Convention. This treaty body should be free to act in an
independent capacity and free from interference from Member States’
governments. Member States should periodically report their progress to the
committee on the legislative, judicial, administrative and other measures that
have been taken to give effect to the provisions of the Convention. The body
should have the power to make recommendations and comments on the progress of
implementation.
Why Should the Convention be
Ratified ?
Eliminating
Trafficking Requires a Unfied Effort
ð Eliminating trafficking in any country of the region is not possible unless it is eliminated in every country in the region, thus making cooperation and coordination among governments imperative. Indeed, the Convention will not enter into force unless every country ratifies it.
ð Signing the
SAARC Convention on Preventing and Combating
Trafficking in Women and Children for Prostitution on January 5, 2002,
governments of the SAARC region has demonstrate their political commitment to
recognise the problem of trafficking. However, there is a need to ratify the
Convention to reflect their commitment in practical realization.
Ratification
Would Send a Strong Signal of the Region’s Commitment to Combat Trafficking
ð
The Convention has the
potential to create a forum for international cooperation among the countries
of South Asia to fight against trafficking. Citizens of every country suffer as
victims of trafficking, irrespective of whether that country is a country of
origin, transit, or destination. Therefore, every government has an obligation
to its citizens and neighbors to eradicate trafficking.
Regional
Convention Would Permit the Development of Standards that Will Unify the Fight
Against Trafficking
ð If vested with the proper protections and guarantees of
victims’ human rights, the Convention would stand as a framework of standards
around which the appropriate law enforcement mechanisms may be built and
applied.