Examining Transnational and National Responses to Trafficking
in Persons:
A Comparative Study
Thesis Submitted By: Ishar Kaur Ahluwalia Student Number: 12208388
E-mail: ahluish@hotmail.com
Mastertrack: International and Transnational Criminal Law Supervisor: Jill Coster van Voorhout
i
ABSTRACT
The aim of this dissertation was to examine the transnational and national responses to the crime of trafficking in persons by studying and comparing the national trafficking laws in place in India with transnational and international trafficking laws and protocols. By doing so, the main research question which I strived to answer was, whether the current legal framework, has had any impact on the protections offered to the victims of trafficking, with specific references being made to sex trafficking. Some sub-questions that this study also addressed were: the differences between national trafficking laws and transnational ones; the existing gap between reporting and convicting trafficking cases; and challenges that victims face pre- and post-rescue under the current legal framework
This study was conducted by first establishing the legal background, by looking at human and sex trafficking laws in India under the Indian Penal Code and the Immoral Traffic Prevention Act and comparing them with the transnational laws in place under the United Nations Conventions against Transnational Organized Crime and its Protocols 2000. A brief reference was also made to the response of international laws on the crime of trafficking by reviewing Article 7 of the Rome Statute and some case law.
After the legal background was established, the shortcomings of both national and transnational responses were examined through what is referred to as a ‘justice gap’, that exists both nationally and transnationally. This justice gap pertains to the fact that both legal responses are focused primarily on the criminalization of the offence itself and the punishment of traffickers rather than drawing attention to the victim. Thus, establishing a gap between justice sought and justice given. To further delve into the matter, data findings in the form of conviction rates and reported trafficking in person cases, were also used to highlight the trends that currently exist in this area of law.
After examining the legal responses to trafficking, focus was drawn to the victim of trafficking in person, in terms of the challenges that they face and what provisions are currently in place for them after they have been rescued i.e. remedies and protections.
This thesis concluded that with the adoption of the 2000 Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, transnational law has provided increased protections and assistance to victims of trafficking, whereas the national laws of India have failed to do so.
ii
Abbreviations
CLAA 2013 Criminal Law (Amendment) Act 2013 IOM International Organization for Migration IPC 1860 Indian Penal Code 1860
ITPA 1956 Immoral Traffic Prevention Act 1956
ICC Statute 1998 Rome Statute of the International Criminal Court 1998
UNODC United Nations Office on Drugs and Crime UNTOC 2000 United Nations Convention on Transnational Organized Crime
UN TIP Protocol 2000 United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children 2000
iii TABLE OF CONTENTS ABSTRACT ……… i ABBREVIATIONS ……….……… ii 1. INTRODUCTION ………..………...1
2. TRAFFICKING AS A CRIME IN INDIA …..………..3
2.1. Introduction ………3
2.2. Definition of Trafficking in Person ..……….……….3
2.2.1. The Indian Penal Code 1860 ….………...3
2.3. Commercial Sexual Exploitation .………..5
2.3.1. The Immoral Traffic Prevention Act 1956 ..……….6
2.4. Conclusion ..………...7
3. TRAFFICKING AS A TRANSNATIONAL CRIME ………...8
3.1. Introduction .………...8
3.2. Definition of Trafficking in Person ..………..8
3.2.1. UNTOC 2000 ….………..8
3.2.1.1. United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children 2000………...………...8
3.3. Conclusion ……….…...11
4. TRAFFICKING AS AN INTERNATIONAL CRIME ..……….12
4.1. Introduction .……….12
4.2. The ICC Statute ...……….12
4.2.1. Crimes Against Humanity ………..12
4.2.1.1. Article 7(1)(c): Enslavement .……….13
4.2.1.2. Article 7(1)(g): Enforced Prostitution …...……….14
4.3. Kunarac et al ..………..14
4.4. Conclusion ….………...15
5. THE ‘JUSTICE GAP’.………..16
5.1. Introduction ………..16
5.2. The ‘Justice Gap’ in India ………...16
iv
5.2.1.1. Trafficker………16
5.2.1.2. Trafficked Persons ………...17
5.3. Data Findings ………...18
5.3.1. Reporting Human Trafficking ………...18
5.3.2. Convicting Human Trafficking ………...19
5.4. The ‘Justice Gap’ under Transnational Law .………...19
5.4.1. Trafficker and Trafficked Persons ……….20
5.4.1.1. Trafficker ………..……….20
5.4.1.2. Trafficked Persons …………...21
5.5. Data Findings ………...22
5.5.1. Reporting and Convicting Human Trafficking ………..22
5.6. Conclusion ………....23
6. VICTIMS OF TRAFFICKING ………24
6.1. Introduction ………..24
6.2. Challenges ………24
6.2.1. Identification of Victims of Trafficking in Persons ………...24
6.2.2. Stereotyping the Victims of Trafficking in Persons ………..26
6.3. Victims of Sex Trafficking ………..27
6.4. Remedies for the Victims of Trafficking in Persons ………...28
6.4.1. India ………...28
6.4.1.1. IPC and ITPA ………28
6.4.1.2. The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018 ………...29
6.4.2. Transnational Law ……….30
6.4.2.1. UN TIP Protocol 2000 ………...30
6.4.2.2. United Nations Voluntary Trust Fund ………...31
6.5. Conclusion ...31
7. CONCLUSION ………...32
1 CHAPTER 1
INTRODUCTION
‘Human trafficking affects us all, whether we live in countries of origin, transit or destination. Preventing and combating it requires a comprehensive international approach. We must act
together to stopthis crime in our midst that deprives countless victims of their liberty, dignity
and human rights.’1
Trafficking in persons is among the most serious organized crimes plaguing our society. It is an offence, which has a devastating effect on the victim in the form of physical and mental suffering and humiliation, in conjunction with depression and fear.
Human Trafficking as a general term is understood by people as a process in which individuals are put into exploitative positions for commercial gain. It can take place both internally, within a States’ borders or it may involve crossing an international border.
Every year many thousands of women, men and children are trafficked for an array of purposes, including forced labour, forced marriages, organ removal to name a few. However, trafficking for sexual exploitation is the most prevalent form of trafficking worldwide. According to the
2018 UNODC Global Report on Trafficking2, 59 per cent of the recorded trafficking victims in
2016, were for the purposes of sexual exploitation.
Trafficking as well as other exploitative crimes have long been a bane of society and there is a long history of efforts being made to address these. However, it was only the past decade that the gravity of human trafficking has come into the forefront and has demanded to be addressed. Hence it comes as no surprise that the legal framework in place for this offence has developed fairly recently.
This thesis aims to study the legal framework that has developed around the crime of human trafficking under both national and transnational laws and to determine whether the current legal framework, has had any impact on the protections offered to the victims of trafficking, with specific references being made to sex trafficking.
1 Speech delivered by UN Deputy Secretary-General Asha-Rose Migiro to the International Conference on
Trafficking in Women and Girls, United Nations Headquarters, New York, 5 March 2007, https://www.unodc.org/newyork/womengirlsconfstate.html > accessed on 15 May 2019
2 2018 UNODC Global Report on Trafficking in Persons,
2
This study will be carried out by examining the national criminal laws in India on human, and more specifically, sex trafficking, while comparative references will be made to international and transnational trafficking laws and protocols (Chapters 2 through 4).
Chapter 5 examines the so-called ‘justice gap’ in both transnational and national laws by drawing a comparison between the emphasis given to criminalizing the offence of trafficking in persons itself and punishing the trafficker over the support offered to the victim. Statistics for reporting trafficking in persons and conviction rates will also be presented here to further emphasize the justice gap.
Chapter 6 will draw attention to the trafficked persons and identify some of the challenges faced by the victims before being rescued and some of the consequences met by sex trafficking victims. This chapter will also delve into the remedies made available to the victims of trafficking in persons, both in the national and transnational context.
And finally, chapter 7 will conclude by answering the research question, whether the current legal framework, has had a positive impact on the protections offered to the victim of trafficking in persons.
The research methodology undertaken for this work was heavily based upon exploring and gathering information from a variety of sources. The research started with a search for relevant statutes and protocols on human trafficking to understand the legal background.
The research on India was done extensively using the legal database Bailii, which had IPC
1860, CLAA 2013 as well as the 84th and the 172nd Indian Law Commission Reports. The
Indian legal database, Indiankanoon, and a selection of books and journal articles were used to find information on significant cases and to better comprehend the subject matter in the Indian context.
For international law and cases, the Rome Statute was used as well as a selection of books and legal websites. For transnational laws and protocols, the UNODC website was used extensively as well as a selection of books and journal articles on human trafficking. To find more sources,
the bibliographies from the journals and books were also screened. When this research concluded, the focus of the final area of study for this thesis became clear
3 CHAPTER 2
TRAFFICKING AS A CRIME IN INDIA
2.1. Introduction
Human trafficking is a growing crime in most Asian countries, with India being one of the
largest marketplaces for labour and sex trafficking.3 To tackle this growing trend there are
various instruments in the Indian legal system, establishing anti-trafficking laws. These range from the Indian Penal Code to Article 23 of the Indian Constitution to the Immoral Traffic Prevention Act.
This chapter will focus on the law of trafficking as it stands today in India by looking at the relevant sections of the IPC 1860 and the ITPA 1956.
2.2.
Definition of Trafficking in Persons 2.2.1. The Indian Penal Code 1860The most fundamental criminal code of India is the IPC, which was drafted by the first law commission of India, chaired by Thomas Babington Macaulay, to include all substantive aspects of the criminal law.
The legal definition of human trafficking in India is contained in section 370 of the IPC. Prior to the amendments introduced by CLAA 2013, section 370 dealt only with slave trafficking and provided that ‘whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, received or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall
also be liable to fine’4. This section underwent a major change in 2013 when CLAA 2013 was
implemented.
After the infamous 2012 Delhi gang rape case5 in India, the Justice Verma Committee6 was set
up to strengthen rape, sexual exploitation and trafficking laws in India, which resulted in the
3 Crawford, M. ‘International Sex Trafficking´, Women & Therapy (2017), Volume 40, Issue: 1-2,
https://doi.org/10.1080/02703149.2016.1206784 > accessed 15 May 2019
4 https://indiankanoon.org/doc/1153041/ - old section 370 > first accessed on 12 January 2019
5
https://www.livemint.com/Politics/YHN4JTTd86SyhfNh2nZhlO/2012-Delhi-gangrape-case-A-timeline-of-events.html - The time line of the 2012 Delhi gang rape case > first accessed on 31 November 2018
6 Das, P.K. Handbook on New Anti-Rape Law (1st edn Universal Law Publishing Co. Pvt. Ltd., New Delhi 2013)
4
CLAA 2013 and caused a drastic change to section 370 of the IPC. The entire section was amended to enlarge the scope of the offence to include other forms of trafficking besides slavery including forced labour, sexual exploitation, organ transplant, and child marriages.
The new section 370 now provides that ‘(1) whoever, for the purpose of exploitation, (a)
recruits, (b) transports, ( c) harbours, (d) transfers, or (e) receives, a person or persons, by (i) using threats, or (ii) using force, or any other form of coercion, or (iii) by abduction, or (iv) by practising fraud, or deception, or (v) by abuse of power, or (vi) by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking’7. A further explanatory note states, that exploitation ‘shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. The consent of the victim is immaterial in determination of the offence of trafficking’8.
Punishments for the contravention of this section are laid out in subsections (2) – (7) of 370 and cover all aspects of trafficking; 370(2) provides for rigorous imprisonment of seven to ten years, in addition to a fine to whomever commits the offence of human trafficking; 370(3) provides for rigorous imprisonment of ten years to life, in addition to a fine to whomever is involved in trafficking more than one person; 370(4) provides for rigorous imprisonment of ten years to life, in addition to a fine to whomever is involved in trafficking a minor; 370(5) provides for rigorous imprisonment of fourteen years to life, in addition to a fine to whomever is involved in trafficking more than one minor; 370(6) provides for imprisonment for the remainder of the person’s natural life, in addition to a fine, to whomever convicted of the offence of trafficking of a minor on more than one occasion and 370(7) provides a similar punishment to an offender who is a public servant or a police officer and who has been involved in trafficking.9
In addition to this, a new section - 370A, has also been inserted into the IPC, which addresses and punishes for sexual exploitation of a trafficked person. This is the first time that the IPC recognizes sexual exploitation as a separate category. Section 370A is applicable to both minors
7 https://indiacode.nic.in/handle/123456789/2263?view_type=browse&sam_handle=123456789/1362 - The
Indian Penal Code 1860, section 370 > accessed on 12 January 2019
8 Ibid.
9 https://indiacode.nic.in/handle/123456789/2263?view_type=browse&sam_handle=123456789/1362 - The
5
and adults and calls for a punishment of five to seven years and three to five years respectively for the offenders.10
Hence, while the previous section 370 only dealt with slave trafficking, the new amended section widens its scope to include other forms of exploitation that occur within the crime of trafficking. Since the purpose of exploitation is at the core of trafficking, broadening the term has provided for such aspects of trafficking to come under its ambit, that would previously not have been dealt with under IPC. The scope of exploitation in section 370(1) has also been expanded by recent case law to include prostitution, as seen in the case of Bhagubhai Patel v
State of Gujarat.11In this case the question presented before the court was whether section 370 is applicable to a customer at a brothel. The judge in this case ruled, with a note of caution, that section 370 may be applicable to such customer. The judge expanded the term exploitation to include prostitution. He further clarified that this would be the case only ‘wherein the sex workers engaged in prostitution were subjected to inducement, force or coercion’. Although consent is immaterial in determining the offence of trafficking, the judge in this case stated that when the matter is of prostitution, the applicability of section 370 is subject to an investigation to determine whether the prostitutes acted out on their own volition or whether they were victims of sexual exploitation.
This case has widened the scope of section 370, but by including prostitution under its ambit instead of a specific crime of say coercive prostitution, there is a lot of ambiguity in this matter and it may be safe to assume that matters related to prostitution in the context of trafficking under IPC may be decided on a case by case basis.
However, anti-trafficking laws linking prostitution with commercial sexual exploitation are found under ITPA 1956.
2.3.
Commercial Sexual ExploitationAlthough the recent case of Bhagubhai Patel v State of Gujarat may have caused a slight
blurring of the lines between trafficking and prostitution, ITPA manages to delink trafficking from prostitution and states that prostitution shall only be treated as trafficking if it amounts to
10 Ibid, section 370A.
11 Bhagubhai v State of Gujarat [2017], R/CR.MA/8156/2017, https://indiankanoon.org/doc/132594236/
6
the commercial sexual exploitation of a person.12 If a person, an adult or a minor, is sexually exploited, from which a third person gains profit13 this amounts to an offence under ITPA for which all exploiters will be punished as traffickers.
2.3.1. The Immoral Traffic Prevention Act 1956
In 1950 India ratified the International Convention for the Suppression of Immoral Traffic in
Persons and the Exploitation of the Prostitution of others.14 Following this, India passed its own
law on the matter, resulting in the Immoral Traffic Prevention Act.15 ITPA solely focuses on
trafficking in relation to prostitution in the context of commercial sexual exploitation and not in relation to other purposes of trafficking.
The definition of trafficking is contained in section 5 of ITPA which prohibits ‘procuring, contracting, taking or inducing a person for the purposes of prostitution’. Furthermore, an
attempt to commit one of these actions is also considered to constitute the crime of trafficking.16
This thus allows ITPA to become operational even before a person is physically trafficked, allowing the law to take preventative action. In addition, similar to section 370 of the IPC, consent is irrelevant in this regard and shall not exclude liability of an offender. A person who has been trafficked for the purposes of commercial sexual exploitation shall be treated as a victim of trafficking.
Punishments for violating section 5 are also contained within the same section and provide that a person who procures, contracts, takes or induces an adult or a minor for the purposes of prostitution shall be given rigorous imprisonment of three to five years and seven years to life respectively, in addition to a fine. Moreover, with the new amended section 370 of the IPC, punishments under ITPA are also meted out to any person involved in the recruiting, transporting, transferring, harbouring, or receiving of persons for the purposes of prostitution. In 2006, the Ministry of Women and Child Development proposed an amendment to the existing ITPA 1956 concerning the rights of sex workers. This was proposed to ensure that only those involved in coercive prostitution for commercial sexual exploitation purposes are
12 https://indiacode.nic.in/handle/123456789/1661?view_type=search&sam_handle=123456789/1362, The
Immoral Traffic Prevention Act 1956, section 2 > accessed on 14 April 2019
13 The form of profit is irrelevant. The profit can be pecuniary or non-pecuniary.
14 https://www.ohchr.org/EN/ProfessionalInterest/Pages/TrafficInPersons.aspx > accessed on 14 April 2019 15 https://indiacode.nic.in/handle/123456789/1661?view_type=search&sam_handle=123456789/1362 >
accessed on 14 April 2019
7
punished for trafficking and not those who are acting of their own volition.17 This amendment
hasn’t passed yet and is still under consideration.
2.4.
ConclusionThe primary motive of this chapter was to lay out the legal background for trafficking in India and to see where the law stands today. The following two chapters will similarly explore the definitions and scope of the crime of trafficking within Transnational and International law, in order to shed light on the differences in approach within all three systems.
17 http://vikaspedia.in/social-welfare/social-awareness/human-trafficking-1/itpa-ammendment-2006 >
8 CHAPTER 3
TRAFFICKING AS A TRANSNATIONAL CRIME
3.1. Introduction
A transnational crime as defined by the UN Crime Prevention and Criminal Justice Branch refers to ‘certain criminal phenomena transcending international borders, transgressing the laws
of several States or having an impact on another country’18. With trafficking being a crime that
has a transboundary effect, as it can occur in the victim’s country of origin, country of transit or the destination country where the victim is being trafficked to, it is no wonder that the leading authority on human trafficking is the United Nations Convention on Transnational Organized Crime’s (UNTOC) additional protocol on Trafficking in Persons (UN TIP Protocol).
This chapter will focus on the position of Transnational Law on trafficking and will contrast it with the Indian provisions established above.
3.1.
Definition of Trafficking in Persons 3.1.1. UNTOC 20003.1.1.1. United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children (UN TIP Protocol) 2000
This protocol was an additional element to UNTOC and came into force on 25 December 2003. It has been widely ratified by States and is the first comprehensively legally binding instrument that contains a definition on trafficking in persons.
Article 3(a) of the UN TIP Protocol defines trafficking in persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other
18 Boister, Neil, ‘Transnational Criminal Law?’, EJIL 14 (2003), p.954, http://www.ejil.org/pdfs/14/5/453.pdf
9
forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs.”19
It further states that “(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. “20
As can be seen from this definition, trafficking in persons at its core is divided into three distinct elements; the actual act of recruiting, transporting, transferring, harbouring or receiving persons; the means by which the act is carried out namely, with use of threats or force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim; and lastly the purpose of trafficking being exploitation.
In addition, the UN TIP Protocol also criminalizes attempts to commit trafficking in persons21;
participation as an accomplice in such offences22; and the organizing or directing to commit
trafficking23.
If this definition is compared with India’s domestic legislation in section 370 of IPC the definitions are very similar. Although India signed the UN TIP Protocol in 2002 it was not ratified until 2011 and even then, the existing section 370 was not amended until 2013 with the establishment of the Justice Verma Committee. While drafting CLAA 2013, the Justice Verma Committee took into consideration the UN TIP Protocol and converged it with their domestic
legislation.24 It must be noted that this is in fact the original purpose of the UN TIP Protocol –
to facilitate the merging of national approaches for the crime of trafficking in persons with international cooperation in investigating and prosecuting such cases – thus, it made sense for them to proceed ahead with this. However, India had failed to adhere to this duty until the passing of CLAA 2013.
Unlike section 370 of the IPC, the UN TIP Protocol does not contain an exhaustive list of punishments for traffickers. This is due to the fact that each state is given the responsibility to apply the UN TIP Protocol with their domestic legislation and thus each state will determine
19 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, Article 3(a) https://www.refworld.org/docid/4720706c0.html > accessed on 25 May 2019
20 Ibid.
21 Ibid, Article 5(2)(a). 22 Ibid, Article 5(2)(b). 23 Ibid, Article 5(2)(c).
24 Das, P.K. Handbook on New Anti-Rape Law (1st edn Universal Law Publishing Co. Pvt. Ltd., New Delhi
10
the punishment for the trafficker on their own. Additionally, while the UN TIP Protocol suggests States to take active steps for the prevention of trafficking in persons in section III, by means of carrier checks or border controls, no such suggestion is made in the IPC or ITPA. The only ‘preventative’ action that is mentioned there is to make attempts at trafficking punishable. Thus, the domestic legislation of India has failed to take into consideration preventative measures and needs to rely on UN TIP Protocol in this regard.
Furthermore, it must be noted that unlike ITPA in India, there is no separate sexual exploitation act or protocol under transnational law. Sexual exploitation and prostitution are among other forms of exploitations enumerated in the definition in article 3(a). While UNODC has stated in their 2018 global report on trafficking in persons, that sexual trafficking is by far the largest
form of trafficking in persons25, no sperate definitions have been established for it in
transnational law. However, it can be argued that since the purpose of the UN TIP Protocol is to be considered alongside domestic legislation, that a separate act or protocol on the matter is not required and the domestic definition is the one to be relied upon in the matter. Nonetheless, an argument can be made that for the sake of consistency and consensus, if there were a separate act or protocol on sexual exploitation in transnational law, there would be a lesser chance of ambiguity on the matter when proceeding in domestic courts and victims would be offered a
better umbrella of protection.26
Another key difference that comes to light while comparing the IPC and ITPA with UN TIP Protocol is the presence of section II in UN TIP Protocol which stipulates the protections offered to the victims of trafficking in persons. While IPC and ITPA are entirely focused on establishing definitions for trafficking and identifying the perpetrators and punishing them, UN
TIP Protocol focuses on supporting the victims27. There is no mention of victims or remedies
in the IPC and a minimalist approach towards victims is also taken in ITPA.28 This will be
further delved in chapters 4 and 6.
25 https://www.unodc.org/documents/data-and-analysis/glotip/2018/GLOTiP_2018_BOOK_web_small.pdf >
accessed on 31 May 2019
26 On the other hand, this could be risky to do as prostitution (the leading form of sexual exploitation) is legal in
certain countries e.g. the Netherlands, while it is illegal in others e.g. most African countries. Thus, an act or protocol under the UN TIP Protocol specifically on sexual exploitation would not be inclusive of all domestic policies in the matter and thus risk that most States would not sign / ratify it, even if it were drafted.
27 This will be dealt with in depth in Chapter 6. 28 Ibid.
11
3.2.
ConclusionThis chapter laid out the key elements for trafficking in persons in transnational law and drew comparisons with the domestic laws of India. Although the legal definition of the crime of trafficking in persons is similar, there are a vast number of differences between the other provisions. It must however be borne in mind, that UN TIP Protocols purpose is to assist States by converging their national legislations with it and therefore any limitations encountered by one can be balanced by the other. Nonetheless, as pointed out above, the fact that there is a lack of authority in transnational law on sexual trafficking weakens the international stance on the subject matter, as victims are subjected to domestic interpretation entirely, which may lead to a disparity on how these matters are investigated and prosecuted.
12 CHAPTER 4
TRAFFICKING AS AN INTERNATIONAL CRIME
4.1.
IntroductionAfter having looked at a national response and the transnational response to trafficking, it is worth considering whether trafficking in persons could qualify as an international crime. The leading authority in international criminal law is the ICC Statute. In accordance with the ICC statute only the most serious crimes of international concern are dealt with in it. These are genocide, war crimes, crimes against humanity and crime of aggression. Thus, in order for a crime to be considered to be within the ICC’s jurisdiction, it would need to be conducted at a
large scale and be of a nature that ‘threatens the peace security and well-being of the world’.29
This would mean that the ‘regular’ trafficking incidents that take place globally each year would normally be dealt with under national jurisdiction. However, certain exploitative elements of trafficking have found their place under crimes against humanity and have thus been considered to be of grave international concern. These are enslavement and enforced prostitution.
In this chapter, trafficking will be considered as an international crime under crimes against humanity and the specific requirements that would need to be fulfilled for this, will also be considered. Reference will be made to Article 7 of the ICC Statute and relevant case law.
4.2.
The ICC Statute4.2.1. Crimes Against Humanity
Under article 7(1) of the ICC statute30 it is stated that for a crime to be a crime against humanity
it must be committed as part of a ‘widespread or systematic attack directed against any civilian
population, with knowledge of the attack’.31 Furthermore, this attack must be commissioned
against any civilian population ‘pursuant to or in furtherance of a State or organizational policy
29The Rome Statute of the International Criminal Court 1998, Preamable, para 3,
https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf > accessed 13 February 2019
30 Ibid, Article 7.
31 The ‘widespread or systematic’ test is disjunctive, so only either or needs to be established. ‘Widespread’ has
been commonly accepted to mean the large-scale nature of an attack and the number of victims. ‘Systematic’ has been commonly interpreted to mean a high degree of organization, and which would feature patterns, continuous commission, planning and use of resources. It must also be noted that in this definition attack does not require there to be a nexus with the use of armed force and can encompass mistreatment of the civilian population.
13
to commit such attack’32,33. This is the general criteria that must be fulfilled before being able
to move onto to qualify a crime as a specific offence under crimes against humanity. In considering trafficking in persons, the most applicable prohibited act under which it would qualify is that of enslavement.
4.2.1.1. Article 7(1)(c): Enslavement
Under Article 7(1)(c) and (2)(c), enslavement has been noted as a specific crime against humanity and is defined as the ‘exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children’’. Furthermore, it must be established that ‘the perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or
by imposing on them a similar deprivation of liberty’34.35
This specific offence captures the exploitative nature of trafficking in persons and is coherent with the UN TIP Protocol, as it similarly takes into account the victim of trafficking being
subjected to ‘slavery or practices similar to slavery, servitude’36. Trafficking in persons could
thus be considered under enslavement for it to qualify as an international crime.
In addition to this, there is also a specific offence in crimes against humanity for sex trafficking
to be qualified as an international crime, provided that the general criteria is fulfilled.37 This
would be under enforced prostitution.
4.2.1.2. Article 7(1)(g): Enforced Prostitution
32 If it is for the furtherance of an organizational policy of a non-state actor, then that organization needs to have
a ‘state-like’ nature.
33 The Rome Statute of the International Criminal Court 1998, Article 7(2)(a),
https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf > accessed 13 February 2019
34 ICC Elements of Crimes, Article 7(1)(c),
https://www.icc-cpi.int/nr/rdonlyres/336923d8-a6ad-40ec-ad7b-45bf9de73d56/0/elementsofcrimeseng.pdf > accessed 13 February 2019
35 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or
otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.
ICC Elements of Crimes, footnote 11, https://www.icc-cpi.int/nr/rdonlyres/336923d8-a6ad-40ec-ad7b-45bf9de73d56/0/elementsofcrimeseng.pdf > accessed 13 February 2019
36 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, Article 3(a) https://www.refworld.org/docid/4720706c0.html > accessed on 25 May 2019
37 Must be committed as part of a widespread or systematic attack directed against any civilian population, with
14
Under Article 7(1)(g), enforced prostitution is listed as a crime against humanity. The ICC Elements of Crimes require that for there to be a crime of enforced prostitution “the perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to
give genuine consent.” 38 In addition, “the perpetrator or another person obtained or expected
to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual
nature.”39
This offence bears significant resemblance to section 5 of ITPA in India. Similar to ITPA the victim here is subjected to commercial sexual exploitation regardless of whether the perpetrator obtains a pecuniary or non-pecuniary advantage. Thus unlike, UN TIP Protocol, which doesn’t address sexual exploitation separately, sexual exploitation in the context of enforced prostitution is addressed in the ICC Statute.
4.3.
Kunarac et al.A final element to consider when linking trafficking in persons to crimes against humanity is
the case of Kunarac et al.: Prosecutor v. Kunarac, Kovać and Vuković.40
In this case the victims were kept in an abandoned house for a period of six months while being subjected to rape and sexual assault by soldiers and being forced to do household chores. Both the trial and the appeals chamber in this case agreed that this amounted to slavery and they specified that relevant factors to determine enslavement include “elements of control and ownership; control of someone’s movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality, forced
labour and, often, the accruing of some gain to the perpetrator”.41
The trial chamber further stated that the presence of consent is rendered irrelevant by, for example, “the threat or use of force or other forms of coercion; the fear of violence, deception
38 ICC Elements of Crimes, Article 7(1)(g)-3,
https://www.icc-cpi.int/nr/rdonlyres/336923d8-a6ad-40ec-ad7b-45bf9de73d56/0/elementsofcrimeseng.pdf > accessed 13 February 2019
39 Ibid.
40 Kunarac et al. ICTY T. Ch. II, 22 February 2001, IT-96-23-T and IT-96-23/1 paras. 542 and 543.
41 The Trial chamber however dismissed the notion that the mere ability to buy, sell, trade or inherit a person or
15
or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions.”
The trial chamber also held that further indications of enslavement include exploitation such as
prostitution and human trafficking.42
Majority of the elements listed by the trial chamber in Kunarac in the context of enslavement are included in the UN TIP Protocol and section 370 of IPC such as the means used to traffic a
person43, the perpetrator receiving/accruing some gain/benefit from it and that enslavement
includes exploitation. Moreover, the trial chamber included human trafficking as an example of exploitation in the context of enslavement, further establishing that trafficking in person as an international crime can be classified as enslavement.
4.4.
ConclusionThis chapter delved into considering trafficking as an international crime and the scope and elements of it. Although in order for trafficking to be considered an international crime it must occur at a larger scale as part of a widespread or a systematic attack, it can however be seen that the ICC Statute does have provisions for trafficking to be classified as enslavement under crimes against humanity. Furthermore, it is worth noting that unlike the UN TIP Protocol which does not consider sexual exploitation separately/in-depth, the ICC Statute, similar to ITPA, does
have provisions for sex trafficking to be considered under enforced prostitution.44
Now that we have established national, transnational and international legal background for trafficking, we will now move onto consider the ‘justice gap’ that exists in both transnational and national context by establishing that greater emphasis is given to criminalizing the offence and punishing the trafficker as opposed to offering support to the trafficked person. Once this has been set out, chapter 6 will move onto consider the victim’s perspective in this regard and the remedies made available to them.
42 Other exploitative examples include; forced or compulsory labour or service, often without remuneration and
often, though not necessarily, involving physical hardship; sex.
43 Use of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, victim’s
position of vulnerability
44 However, as noted above, a separate act or protocol under the UN TIP Protocol for criminalizing prostitution
as a form of sexual exploitation may contradict domestic laws on criminalization of prostitution or the lack thereof and thus the UN TIP Protocol reached a compromise with its current definition. The key difference in there being a separate crime of enforced prostitution in the ICC statute is that it gives the victim a provision to lean on directly while prosecuting the offender and seeking reparations, while the UN TIP Protocol is dependent on domestic provisions.
16 CHAPTER 5
THE ‘JUSTICE GAP’
5.1.
IntroductionIn the chapters above, the legal framework for the crime of trafficking has been laid out by examining the relevant laws and articles that have been established in this regard over time. While doing so, what has become apparent is that these legal responses are primarily focused on the criminalization of the offence itself and the punishment of traffickers. The laws are first targeted at recognizing the crime of trafficking and its elements and then moves onto identifying and punishing the trafficker, while the trafficked person is largely side-lined. While this difference in treatment can be seen to aim at targeting the crime and the criminal to help eradicate or lessen the scope of trafficking, it may end up overlooking the plight of the victims
and failing to provide them with adequate remedies.45 This phenomenon can be termed as the
‘justice gap’46, as although the enhanced focus on traffickers may lead to more trafficking
convictions, it does not provide the trafficked person with substantial reparations. Thus, justice sought is not complemented by the justice provided.
This chapter will examine this justice gap in the context of national (India) and transnational/international responses to trafficking by means of recognising their
trafficker-centred approach and by looking into statistical data47 to identify the current reporting and
conviction trends.
5.2.
The ‘Justice Gap’ in India5.2.1. Traffickers and Trafficked persons 5.2.1.1. Trafficker
Human trafficking is one of India’s largest crime epidemics, of which sex trafficking is one the most prominent. It was reported by the Ministry of External Affairs that currently there are
45 Please note, that the lack of a victim-centred approach highlighted in this study is only in reference to criminal
law referred to here. It does not pertain to the fact that other bodies of law, i.e. human rights, civil law and/or constitutional law may have better provisions for victims of trafficking. Those are not dealt with in this study.
46 Liz Kelly, Jo Lovett and Linda Regan, ‘A Gap or a Chasm? Attrition in Reported Rape Cases’ [2005] Home
Office Research Study 293 <http://paladinservice.co.uk/wp-content/uploads/2013/07/gap-or-chasm-rape-report.pdf> accessed 26 April 2019
47 Data sourced from National Crime Records Bureau for India and The UNODC Global Report on Trafficking
17
roughly 3 million sex-workers in India, of which more than half are trafficked.48 Due to the
poor socio-economic49 situation in most Indian states, it is recognised that most “girls are sold
into prostitution by poor parents, tricked into fraudulent marriages, or promised employment in
towns only to find themselves in brothels.”50 In India these are considered to be the main modes
of sex trafficking, with promise of employment being the most common.51 Keeping this in
mind and the general patriarchal nature of the Indian society, the Justice Verma Committee while drafting CLAA 2013 identified traffickers in India to be ‘mostly men who are operating as part of a criminal network […] although individual abusers should not be excluded from this
description entirely’.52 Although, traffickers are mostly identified as men, the new amended
section 370 of the IPC has been kept gender neutral to make it inclusive.
In the context of the IPC and ITPA (as described above), it can be seen that both these legal
instruments lay out the elements for the offence of human53 and sex trafficking54 and the
punishments to be meted out to the trafficker once it is established that they fulfil the elements. The punishments under section 370 and 370A in IPC range from five years to life and under ITPA range from three to fourteen years. Detailed punishments are listed in these sections to ensure that any illegal involvement is punishable.
As can be seen from this approach, there is a heavy emphasis in these legal instruments to criminalize the offence and to punish the trafficker. Section 370 of the IPC especially has a very punishment-oriented approach and focuses strictly on the trafficker.
5.2.1.2. Trafficked Persons
While there is an extensive focus on listing the elements of human and sex trafficking and the punishments to be bestowed upon the trafficker under IPC and ITPA, very limited attention has been given to the trafficked person and their rights in these legal instruments.
48 Ministry of External Affairs, Human Trafficking, https://www.mea.gov.in/human-trafficking.htm > accessed
29 May 2019
49 Low income, low level of education, family background i.e. lower caste, poor economic standing etc. 50 Wadhwa, S. ‘For Sale: Childhood’, Outlook India, 23 February 1998.
https://www.outlookindia.com/magazine/story/for-sale-childhood/205123 > accessed 12 June 2019.
51 Das, P.K.. Handbook on New Anti-Rape Law (1st edn Universal Law Publishing Co. Pvt. Ltd., New Delhi
2013) p.147.
52 Ibid, p.163.
53 Section 370 ‘(1) whoever, for the purpose of exploitation, (a) recruits, (b) transports, ( c) harbours, (d)
transfers, or (e) receives, a person or persons, by (i) using threats, or (ii) using force, or any other form of coercion, or (iii) by abduction, or (iv) by practising fraud, or deception, or (v) by abuse of power, or (vi) by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking’.
18
Although the rights and remedies provided to trafficked persons is discussed in greater detail in the next chapter, the limited provisions offered to them in the IPC and ITPA are worth mentioning here as well to illustrate the existence of the justice gap.
The complete definition of human trafficking is encompassed in section 370 and 370A of the IPC. This is the leading authority in the matter in India, so it is surprising that these sections make no reference to the victims of trafficking at all. They are in their entirety limited to defining human trafficking and listing punishment for traffickers. Victims’ rights to seek protection, an effective system for their recovery and return to safety, or the provision of any
remedies e.g. compensation, are completely overlooked.55
ITPA contains only one section which refers to the victims’ rights, section 19.56 This section
provides for the rehabilitation of the victims of commercial sexual exploitation by means of protective homes and protection by court. However, there is a lack of clarity in regards to the specific rights conferred to the victim under this, such as the nature of protection, the process to apply for such protection and the time frame within which victims will be provided this protection and protective homes. Furthermore, pecuniary compensation is not part of ITPA nor is there any provision on how to help the victims reintegrate into the society. The protections offered to the victim are severely limited and lack clarity.
All these shortcomings in IPC and ITPA towards providing adequate rights and reparations to the trafficked persons, emphasizes the existence of a justice gap in the Indian legal system.
5.3.
Data Findings5.3.1. Reporting Human Trafficking
In India, there has been a consistent increase in the number of human trafficking cases reported to the police. According to the National Crime Records Bureau (NCRB), in 2013, 3,940 human
trafficking cases were reported to the police from all over India57. In 201658 this number
55 As noted above (footnote 45), this is only in the context of criminal law referred to in this study and not to
other bodies of law.
56 https://indiacode.nic.in/handle/123456789/1661?view_type=search&sam_handle=123456789/1362, The
Immoral Traffic Prevention Act 1956, section 19 > accessed on 14 April 2019
57 National Crime Records Bureau 2013 Report,
http://ncrb.gov.in/StatPublications/CII/CII2013/Chapters/6A-Human%20Trafficking_NEW.pdf > accessed 20 May 2019
58 This is the most recent law enforcement data available for Human Trafficking in India by the national crime
19
increased to 8,132.59 This increase can be construed to the amendment of the IPC in 2013 after
which, cases which would previously not have been categorized under human trafficking are now part of it. However, not all cases that are recorded by the police lead to the making of a
charge-sheet.60
In 2016, of the 8,132 cases reported 2,403 were charge-sheeted and sent to the magistrates’
court for trial, of which 587 were tried.61 Of all the cases reported to the police, the second most
common purpose for human trafficking was identified as sexual exploitation for the purposes
of prostitution.62
5.3.2. Convicting Human Trafficking
Of the 587 cases that were sent for trial, 163 cases resulted in conviction for traffickers and 424
cases were disposed of by the court, acquitting the charged individuals.63 The acquittal rate has
been on the rise over the past few years for trafficking cases. In 2015, 65 percent of the cases
led to an acquittal compared to 72 percent in 2016.64
Whether this increase in acquittals is due to a decrease in trafficking activity or as a result of inadequate measures taken to detect this crime, is however unclear.
5.4.
The ‘Justice Gap’ under Transnational LawAs established in chapter 3, the UN TIP Protocol is the leading authority in combatting global trafficking in persons. The UN TIP Protocol encompasses within itself the definitional elements of trafficking in persons, criminalization of the offence, prevention measures and victim assistance programs. While the UN TIP Protocol has led to positive developments in this sector, it can be seen that similar to the national response of India, the emphasis in the UN TIP Protocol
59 National Crime Records Bureau 2016 Report,
http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Crime%20Statistics%20-%202016.pdf > accessed 20 May 2019
60 In India, the police are the primary investigative unit in any crime. If sufficient evidence is found during the
investigation, a final report called the charge-sheet is submitted by the police to the magistrates’ court, to bring the accused to face trial. If, however no cogent evidence is found, then a closure report is filed in court to close the case. Even if a charge sheet is prepared it is not definite that a trial will ensue.
61 National Crime Records Bureau 2016 Report,
http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Crime%20Statistics%20-%202016.pdf > accessed 20 May 2019
62 Ibid. 63 Ibid.
64 United States Department of State, 2018 Trafficking in Persons Report - India, 28 June 2018,
20
is also on criminalization and prosecution of traffickers rather than on the trafficked persons. This will now be considered in detail below.
5.4.1. Traffickers and Trafficked persons 5.4.1.1. Trafficker
In accordance with the 2014 and 2018 UNODC Global Report on Trafficking in Persons, it has been established based on the data gathered globally that the most common traits found in
traffickers’ profiles are; more likely male than female65, more likely to be part of a criminal
network, but can include individual abusers66 and are more likely to be the same nationality as
the victim.67 However, the UN TIP Protocol has been kept gender neutral and does not include
an exhaustive list to identify a trafficker.
It has also been recognized that the primary means used by traffickers to carry out trafficking in persons is the promise of employment. This is also the prime method used in sex trafficking
globally where the targets are women seeking employment outside their home country. 68
After having considered who the common trafficker is and what means they use to carry out their activity, focus shall now be drawn back to the provisions in the UN TIP Protocol in relation to this.
Articles 4 and 5 of the UN TIP Protocol are key in identifying that its primary focus is on the criminalization of trafficking in persons and prosecuting traffickers. Article 4, states that the ‘Protocol shall apply, except as otherwise stated herein, to the prevention, investigation and prosecution of the offences established in accordance with article 5 of this Protocol, where those
offences are transnational in nature and involve an organized criminal group69, as well as to the
65 ‘In 2016 just over 35 percent of those prosecuted for trafficking in persons were females.’ 2018 UNODC
Global Report on Trafficking in Persons, p.35, https://www.unodc.org/documents/data-and-analysis/glotip/2018/GLOTiP_2018_BOOK_web_small.pdf > accessed on 31 May 2019
66 2014 UNODC Global Report on Trafficking in Persons, p.8 - 14,
https://www.unodc.org/res/cld/bibliography/global-report-on-trafficking-in-persons_html/GLOTIP_2014_full_report.pdf > accessed on 29 May 2019
67 There is a striking resemblance between the trafficker profile identified by the Justice Verma Committee in
India and the one mentioned in UNODC Global Report on Trafficking in Persons. This may be attributable to the basic patterns of human trafficking being similar globally.
68 Crawford, M. ‘International Sex Trafficking´, Women & Therapy (2017), Volume 40, Issue: 1-2, p.107-108,
https://doi.org/10.1080/02703149.2016.1206784 > accessed 15 May 2019
69 UNTOC 2000, Article 2(a) defines organized criminal group as: “a group of three or more persons that was not
randomly formed; existing for a period of time; acting in concert with the aim of committing at least one crime punishable by at least four years' incarceration; in order to obtain, directly or indirectly, a financial or other material benefit.”
21
protection of victims of such offences’.70 Article 5 criminalizes committing the offences in
article 3 of the UN TIP Protocol (discussed in chapter 3) and criminalizes attempts to commit; participation as an accomplice in; and organising or directing other people to commit those
offences.71 Both these articles prioritize criminalizing the offence and prosecuting those held
liable partaking in them. Unlike the laws in India, the UN TIP Protocol does mention protecting the victims as one of its priorities in article 4, but it is nonetheless evident from the phrasing of article 4 that greater emphasis is on criminalizing the offence and prosecuting the trafficker.
5.4.1.2. Trafficked Persons
Similar to establishing common traits in trafficker profiles, the 2014 and 2018 UNODC Global Report on Trafficking in Persons, have compiled a similar list for victims as well. It has been found that the most common traits in victims are that; they are often within their country of
citizenship72, more often women and girls73 and mostly for sexual exploitation.74
Protection of victims of trafficking of persons is contained in articles 6 and 7 of the UN TIP Protocol. Article 6 provides for procedural safeguards for victims during court cases by protecting their privacy and identity; consideration for physical, psychological and social support must be given to victims by means of for example counselling, providing housing, medical care, employment; and the possibility to obtain compensation for the damage suffered. Article 7 has the provision to permit the victims to remain in the country they have been
trafficked to if they choose to do so.75 Furthermore article 8 has the provision to repatriate the
victim as well.
Although these protections and rights offered to the victim in UN TIP Protocol are far more extensive than in IPC and ITPA, they are still very limited. In addition, the UN TIP Protocol does not make it mandatory under any of its articles for States to protect the victims as each
70 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, Article 4, https://www.refworld.org/docid/4720706c0.html > accessed on 25 May 2019
71 Ibid, Article 5.
72 2014 UNODC Global Report on Trafficking in Persons, p.8,
https://www.unodc.org/res/cld/bibliography/global-report-on-trafficking-in-persons_html/GLOTIP_2014_full_report.pdf > accessed on 29 May 2019
73 2018 UNODC Global Report on Trafficking in Persons, p.8 and 29,
https://www.unodc.org/documents/data-and-analysis/glotip/2018/GLOTiP_2018_BOOK_web_small.pdf > accessed on 31 May 2019
74 Ibid.
75 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, Articles 6 and 7, https://www.refworld.org/docid/4720706c0.html > accessed on 25 May 2019
22
provision under article 6 and 7 contains a qualifier,76 giving States discretion on the extent to
which they would facilitate victim protection.
Only article 5(1) in the UN TIP Protocol is without a qualifier, mandating States to criminalize the offence of trafficking in persons. This thus accentuates the UN TIP Protocol’s priority and emphasizes the existence of a justice gap within transnational law.
5.5.
Data Findings5.5.1. Reporting and Convicting Trafficking
Since the introduction of the UN TIP Protocol, it has been recorded that national responses to trafficking have greatly improved. All data findings in relation to this are carried out by the United Nations Office of Drugs and Crime (UNODC) and are compiled in annual Global Report on Trafficking in Persons.
In the 2018 report, it was found that currently 168 countries of the 181 that are assessed, have laws in place that criminalize trafficking in most of its forms. This is an increase of 74 percent
compared to the 33 countries in 2003.77 There has also been a growing trend in the number of
reported cases and victims especially in the Americas and Asia, partially attributable to their
increased national responses to the crime.78 The increase in the number of reported cases has
led to a general increase in the convictions recorded in the past years as well.79 Some countries
which recorded no convictions at all between 2012 – 2014 have now reported one to ten
convictions per year80, and there is also an increasing trend of European and Central Asian
countries reporting eleven to fifty convictions per year.
However, comparing the data compiled in the 2018 Global Report on Trafficking in Persons with the ones from previous years, namely 2003, 2014 and 2016, it is apparent that the current conviction trends have remained comparatively stable in the past years. This indicates that national responses to trafficking in all forms has largely remained unchanged while there is
76 Article 6 and 7 contain the following qualifiers: ‘to the extent possible under its domestic law’, ‘in appropriate
cases’, ‘shall consider implementing’ and ‘shall endeavour to provide’.
77 2018 UNODC Global Report on Trafficking in Persons, p.45,
https://www.unodc.org/documents/data-and-analysis/glotip/2018/GLOTiP_2018_BOOK_web_small.pdf > accessed on 31 May 2019
78 Ibid, p.7.
79 “Over the past ten years, the share of countries recording no convictions declined from fifteen per cent to nine
per cent”, Ibid, p.45.
23
evidence that the number of reported victims of trafficking have increased.81 The fact that
reporting has increased but convictions are steady, may indicate that that while more care is being taken to report this crime, national jurisdictions are still facing difficulties in managing trafficking in persons within their criminal justice system, as was seen with the reporting and conviction data from India.
5.6.
ConclusionAs seen in this chapter, a justice gap exists in both national and transnational responses to trafficking in persons, with more emphasis being given to criminalizing the offence and prosecuting the trafficker rather than protecting and supporting the trafficked person.
Furthermore, the data findings further indicated that there is a discrepancy between reported and convicted trafficking in person cases. This further establishes the justice gap, in that most trafficked persons do not receive justice they seek, by having their offender being punished for their deeds, because the national criminal justice system in some countries is not equipped to
manage such cases. 82
81 2018 UNODC Global Report on Trafficking in Persons, p.8 – 9 and 13,
https://www.unodc.org/documents/data-and-analysis/glotip/2018/GLOTiP_2018_BOOK_web_small.pdf > accessed on 31 May 2019
82 However, the data to establish this justice gap must be taken with a pinch of salt, as it must also be borne in
mind that although the UNODC annual reports strive to provide accurate data to observe global trends on trafficking in persons, human trafficking is by its nature largely a clandestine crime and thus detected data findings must be looked upon with caution. Hence, while the available data does prove the existence of a justice gap, whether this data is conclusive depends entirely on the accuracy of the data made available. > Goodey, J. ‘Human trafficking: Sketchy data and policy responses’, Criminology & Criminal Justice, 8(4), (2008) pp. 421– 442. https://doi.org/10.1177/1748895808096471 > accessed 16 May 2019
24 CHAPTER 6
VICTIMS OF TRAFFICKING
6.1.
IntroductionAfter having established the legal background of trafficking in persons and having considered the limited involvement of the trafficked person in both the national and transnational context, this chapter will now move onto consider some of the challenges that victims of trafficking in persons may face as well as considering some of the consequences faced by victims of sex trafficking. This chapter will then move onto consider antitrafficking provisions and protocols in terms of remedies for victims, both in India and globally, and whether these are sufficient in meeting the needs of the victims.
6.2.
ChallengesWhile rescuing a victim of trafficking, it is essential to understand the impact such a devastating experience has had on that person. This is not only necessary to better understand the victims’ plight, but also to enable the provision of the right kind of support, reparations and rehabilitation to them.
Some of the most commonly discussed consequences and challenges that victim’s face post
rescuing are related to their health, both physical83 and psychological, and social reintegration84.
These are even contained in the UN TIP Protocol.85 However, there are some lesser known
challenges that occur early on in the rescue process – namely the procedure of identifying a victim and stereotyping them.
6.2.1. Identification of Victims of Trafficking in Persons
Before any rescue operations can be carried out to help trafficked persons, a process of victim identification must be carried out. An early identification of the victim of trafficking allows for
a prompt response in terms of protection, support and assistance offered to them.86 However,
83 Most common type of physical health repercussions are due to; sexual abuse, beatings, forced substance abuse,
limited access to food, limited mobility etc.
84 Social reintegration may be related to; finding housing, employment, getting training or education etc.
Basically any means that allows for the victim to become self-reliant.
85 Article 6 and 7.
86 It is also noteworthy, that early identification and assistance has been linked to “promote recovery and may in
turn have a positive future impact on the reduction of trafficking, by preventing re-trafficking”. Dixon, J. The impact of trafficking in persons, in UNODC 2008b, ‘An Introduction to Human Trafficking: Vulnerability,
