Preventing, suppressing and punishing Trafficking in Persons

Implementing the Protocol on Trafficking in Persons through legislation, policy and partnerships

Adv Johan Kruger Regional Project Coordinator & Legal Advisor (SADC): Trafficking in Persons & Violence against Women UNODC Southern Africa

Scope of presentation

Scope
Introduction to UNODC United Nations Convention against Transnational Organized Crime Protocol on Trafficking in Persons Key obligations of States Parties Implementing the Protocol A strategy framework focusing on national coordination UNODC activities

UNODC mandate UN Secretariat UNODC Mandates from GA and ECOSOC (CCPCJ and CND)
Organized crime and trafficking Corruption Criminal justice reform Health and livelihoods Terrorism prevention

Guardian of UNTOC and Protocols Trafficking, Smuggling and Firearms

Promotes ratification and global adherence

Assists States in implementation

Normative services through development of legislation, policy and strategies Technical and legal advice and criminal justice capacity building and other assistance Research and analysis

Programmes and projects

The Convention

United Nations Convention against Transnational Organized Crime

Adopted on 15 November 2000 and entered into force p on 29 September 2003 (147 signatories and 162 States Parties) Promote international cooperation to prevent and combat transnational organised crime more effectively

The Convention

United Nations Convention against Transnational Organized Crime

Supplemented by three additional Protocols pp y
Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children Protocol against the Smuggling of Migrants by Land, Sea and Air Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition
All four instruments open for signature until 12 December 2002 (thereafter by accession)

The Convention

United Nations Convention against Transnational Organized Crime

Defines and standardises terminology and definitions Requires criminalisation of specific offences Requires introduction of specific control measures (protection of victims and witnesses) Provides for forfeiture of proceeds of crime Promotes iinternationall cooperation ( t diti mutuall P t t ti ti (extradition, t legal assistance and joint investigations) Provides for training, research and information-sharing measures Encourages preventive policies and measures

The Convention

United Nations Convention against Transnational Organized Crime

States Parties required to criminalise specific offences q p
Participation in an organised criminal group (Art 5) Laundering of proceeds of crime (Art 6) Public sector corruption (Art 8) Obstruction of justice (Art 23)

Conventional offence or "serious" offence with serious transnational aspect involving organised criminal group

The Convention

United Nations Convention against Transnational Organized Crime

Measures against proceeds of crime money laundering crime, and corruption
Measures to combat money-laundering (Art 7) Measures against corruption (Art 9) Liability of legal persons (Art 10) Confiscation and seizure (Art 12 13) ( ) Disposal of confiscated proceeds of crime and property (Art 14)

Determination and establishment of jurisdiction (Art 15)

The Convention

United Nations Convention against Transnational Organized Crime

International cooperation
Extradition (Art 16) Transfer of sentenced persons (Art 17) Mutual legal assistance (Art 18) Joint investigations (Art 19) Special investigative techniques (Art 20) Transfer of criminal proceedings (Art 21) Measures to enhance cooperation with law enforcement authorities (Art 26)

The Convention

United Nations Convention against Transnational Organized Crime

International cooperation /2
Law enforcement cooperation (Art 27) Collection, exchange and analysis of information on the nature of organized crime (Art 28) Training and technical assistance (Art 29)

Establishment of criminal records (Art 22) s ab s e o c a eco ds ( ) Protection and support of victims and witnesses
Protection of witnesses (Art 24) Assistance and protection of victims (Art 25)

The Convention

United Nations Convention against Transnational Organized Crime

Economic and technical assistance (Art 30) Prevention (Art 31) Administrative provisions
Conference of the Parties to the Convention (Art 32) Secretariat (Art 33) Implementation of the Convention (Art 34) Settlement of disputes (Art 35) Signature, ratification, acceptance, approval and accession (Art 36)

The Convention and Protocols

Relation between Convention and Protocols

States must be party to Convention to be party to Protocols (UNTOC Art 37(2)) Protocols shall be interpreted together with Convention taking into account purpose of Protocol (UNTOC Art 37(4)) Provisions of Convention shall apply mutatis mutandis to Protocols (TIPP and SOMP Art 1 )
Prosecution, Prosecution adjudication and sanctions Confiscation and seizure International cooperation Extradition Mutual legal assistance

The Convention and Protocols

Relation between Convention and Protocols

Offences established in accordance with Protocols shall be regarded as offences established in accordance with Convention (TIPP Art 1(3)) Convention and Protocol requirements are a minimum standards domestic measures may be broader in scope or more severe as long as all obligations specified in Convention and Protocols have been fulfilled (UNTOC Art 34(3))

Protocol on Trafficking in Persons

Protocol to Prevent, Suppress and Punish Trafficking in Persons

Adopted on 15 November 2000 and entered into force on 25 December 2003 (117 signatories, 146 States Parties) Interpreted and applied in a way that is not discriminatory to persons on the ground that they are victims of trafficking in persons (TIPP Art 14) Does not narrow or diminish rights, obligations or responsibilities in terms of other international instruments only supplements (TIPP Art 14)

Protocol on Trafficking in Persons

STRUCTURE OF THE PROTOCOL
GENERAL PROVISIONS PROTECTION OF VICTIMS OF TRAFFICKING IN PERSON Article 6 Assistence to and protection of victims of trafficking in persons Article 7 Status of victims of trafficking in persons in receiving States Article 8 Repatriation of victims of trafficking in persons PREVENTION COOPERATION AND OTHER MEASURES Article 9 Prevention of trafficking in persons FINAL PROVISIONS

Article 5(2)(a) Criminalization

Article 10 Information exchange and training

Article 11 Border measures

Article 12 Security and control of documents Article 13 Legitimacy and validity of documents

Protocol on Trafficking in Persons

Protocol to Prevent, Suppress and Punish Trafficking in Persons

Purpose of Protocol (Art 2)
Prevent and combat human trafficking Protect and assist victims of trafficking with full respect to human rights Promote cooperation between State Parties

Protocol on Trafficking in Persons

Definition of trafficking (Art 3 (a))

Trafficking in persons shall mean
[action (what is done):] the recruitment, transportation, transfer, harbouring, or receipt of persons [means (how it is done):] by means of the threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim [purpose (why it is done):] for the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices, and the removal of organs.

Protocol on Trafficking in Persons

Definition of trafficking (Art 3 (a))

Protocol on Trafficking in Persons

Definition of trafficking /2 (Art 3(b) and(c))

Exploitation shall at minimum include exploitation th l it ti through prostitution or h tit ti other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or removal of organs Consent of victim irrelevant where illicit means are established t bli h d Consent of a child irrelevant (under age of 18) Means not required as element in trafficking of children

Trafficking or Smuggling?

Definition Matrix Trafficking or Smuggling

Trafficking in Persons (adults) Victim's age Mental element 18 years and above Intent Trafficking in persons (children) Below 18 years Intent Act Exploitative purpose Smuggling of Migrants Irrelevant Intent Act (procurement of illegal entry) Purpose (financial or other material benefit) Smuggled persons S l d consent to be smuggled Required Not required

Material element Act Means Exploitative purpose Consent of C f victim Transnationality Involvement of organised crime

Irrelevant once means I l I l Irrelevant are established No need to establish means Not required Not required Not required Not required

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Trafficking or Smuggling?

Differences between trafficking and smuggling

Consent
Migrants consent to being smuggled, although often in dangerous or degrading conditions Trafficking victims never consent or consent is rendered meaningless by the coercive, deceptive or abusive actions of the traffickers

Exploitation
Smuggling usually ends with arrival of migrants at cross-border destination smuggling in principle a crime against the state Trafficking involves ongoing exploitation of victims to generate illicit profits for traffickers trafficking in principle a crime against the person

Trafficking or Smuggling?

Differences between trafficking and smuggling

Transnationality
Smuggling always transnational Trafficking can be domestic or transnational

Subject of criminal activity

Trafficking in principle and primarily crime against the individual Smuggling in principle and primarily crime against the state

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Protocol on Trafficking in Persons

Criminalisation (Art 5)
Criminalise Trafficking in persons as defined in article 3 when committed intentionally (Art 5(1)) Criminalise attempt, participation, organizing or directing others to commit the offence (Art 5(2))

Protocol on Trafficking in Persons

Scope of application (Art 4)

The Convention limit application of Protocol to cases where at least one of offences has some element of "transnationality" and some degree of involvement of an "organized criminal group" These elements should not be incorporated into national legislation (UNTOC Article 32 (2))

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Purpose and scope of the Protocol

Assistance, Protection and Repatriation (Art 6, 7 and 8)

State Parties shall in terms of domestic laws Consider measures to protect safety, privacy and identity of victims Inform the victims about court proceedings Ensure legal measures to allow victims to seek compensation Endeavour to provide for physical, psychological and social recovery of victims Consider measures to grant temporary or permanent residence Verify nationality and status Facilitate and accept return of own nationals and permanent residents Facilitate repatriation subject to safeguards

Purpose and scope of the Protocol

Prevention (Art 9, 10, 11, 12 and 13)

Implement social and economic measures to address the root causes of trafficking and smuggling such as poverty and lack of economic opportunities Undertake public information campaigns Ensure that commercial carriers check travel documents of passengers Enhance the effectiveness of border controls Improve the security of travel documents Speed up bilateral cooperation in verifying validity of travel documents Train law enforcement, immigration and other relevant officials

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Purpose and scope of the Protocol

Information Exchange and Cooperation (Art 10 and 14)

Cooperate and exchange information with other States
Informal cooperation and information exchange Information exchange on means and methods Cooperation between border control agencies Verification of travel and identity documents Facilitate confiscation of proceeds of crime, property, equipment or other instrumentalities of crime

Cooperate with international organizations and NGOs

Obligations of States Parties

Key obligations of States Parties

Criminalization
UNTOC Art 5, 6, 8, 23 and 34; TIPP Art 5; SOMP Art 6

Victim protection
UNTOC Art 25; TIPP Art 6; SOMP Art 16)

Investigation Prosecution, adjudication and sanctions

UNTOC Art 11

International cooperation

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Implementing the Protocol

Implementing the Protocol - a policy framework

Legal basis

Criminal justice-driven
Criminal activity Proactive / reactive investigations Prosecution

Victimcentred approach
Human rights Re-victimisation Witnesses

National coordination and cooperation

Inter-sectoral approach Multi-facetted approach

International cooperation and coordination

Harmonisation MLA, extradition, joint operations and asset forfeiture

Resources

Criminalisation Mandates International obligations

Personnel Budget Structures Training

Main cross-cutting challenges

Main cross-cutting challenges

Knowledge and research Capacity-building and development Monitoring and evaluation Allocation of sufficient financial and other resources a consistent challenge in practical implementation of antitrafficking in persons activities. g p

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Guiding principles for addressing the challenges

Guiding policy principles for addressing the challenges

Human rights-based approach rights based Principle of non-discrimination Gender-sensitive approach Child-rights approach and child participation International legal framework including UN Trafficking Protocol Comprehensive international approach Interdisciplinary, coordinated, integrated approach Evidence-based approach Sustainability

Strategy framework

Strategy framework
Prevention

International cooperation and coordination

Protection

National coordination and cooperation

Prosecution

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Key questions

National coordination and cooperation

Key questions
Does a mechanism exist for coordinating, monitoring and evaluating overall anti-human trafficking strategy at national level? Is mechanism based on the participation of all relevant stakeholders, including civil society, private sector, employers and trade unions?

Specific questions

National coordination and cooperation

Specific questions
Is multidisciplinary coordinating group functioning effectively, including regarding decision-making processes? Has a national plan of action been adopted? Is coordination mechanism based on multidisciplinary and cross-sectoral approach? Which entities are involved in national response to trafficking in persons? Are views of trafficked persons represented in group? Are anti-trafficking strategy and national action plan monitored and evaluated on a regular basis?

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Specific questions

National coordination and cooperation

Specific questions /2
What are designated tasks of coordination mechanism? Does coordination mechanism identify needs for training and capacity building? In the absence of coordination mechanism, does another organisation or mechanism such as national human rights institution monitor national anti-human trafficking actions? Does government provide funding for a coordination mechanism?

Specific objectives

National coordination and cooperation

Specific objectives
Coordinate responses Respond effectively and appropriately Ensure formulation of coherent and comprehensive public policies Promote cooperation among relevant governmental institutions, NGOs and civil society

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Minimum standards

National coordination and cooperation

Minimum standards
Coordination of stakeholders involved Comprehensive and coherent national policies addressing prevention, protection, and prosecution Harmonisation of public policies related to trafficking in persons (crime prevention, migration, employment, health, security, non-discrimination, economic development and human rights and refugee protection etc.) Cooperation agreements or framework between relevant government institutions, NGOs and civil society in place

Implementation measures

National coordination and cooperation

Implementation measures
Identify and assess all existing policies or measures Conduct impact assessment of existing policies, strategies actions and measures Adopt comprehensive strategy and/or plan of action to prevent, suppress and prosecute trafficking in persons Establish multidisciplinary coordination mechanism in charge of implementing coordinated national response

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Implementation measures

National coordination and cooperation

Implementation measures
Establish system or mechanism of cooperation to exchange information between law enforcement, immigration and other relevant authorities (article 10(1) TIP Protocol) Conduct impact assessment of actions and measures, monitoring and follow-up of the implementation of integrated strategy/plan of action to respond to changes in the trafficking situation Ongoing and regular review of strategy/plan of action

Implementation measures

National coordination and cooperation

Implementation measures
Ensure effective cooperation through formal agreements and informal arrangements on prevention and victim assistance
Appropriate housing Counselling and information, in particular regarding legal rights Medical, psychological and material assistance Refugee protection Employment, educational and training opportunities

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Implementation measures

National coordination and cooperation

Implementation measures
Promote effective cooperation through the development of formal cooperation agreements
Identifying partners Clearly defined purpose of cooperation Principles of cooperation Target group Detailed definition of distribution of responsibilities Details of cooperation procedure between the partners Procedure of mutual communication of information Entry into force and amendment Funding of NGO cooperation partners

Operational indicators

National coordination and cooperation

Operational indicators
Adoption of legal or administrative measures to establish a coordination body or structure Existence of dedicated or assigned budgets to implement strategy or plan of action and coordinated activities Evidence of clear and effective division of labour among government entities dealing with trafficking in persons Coordination mechanism meets regularly Centralized system for data collection and/or coordination on trafficking in persons in place

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Operational indicators

National coordination and cooperation

Operational indicators /2
Regular monitoring and evaluation of national trafficking in persons response (prevention, protection, prosecution national coordination and international cooperation) Production of annual reports or thematic reports Updates of the strategy/plan of action on the basis of regular assessments Evidence that the coordination mechanism adapts to national, regional and international circumstances

Operational indicators

National coordination and cooperation

Operational indicators /3
NGOs and/or other relevant organisations included in coordination body or structure Existence of national anti-trafficking initiative involving NGOs and other relevant organisation in their development and execution Communication network in place Victim identification mechanism in place Referral mechanism in place

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Prosecuting Trafficking in Persons cases

Examples of alternative prosecution options

Action Document forgery Kidnapping Means Document forgery Immigration violations Corruption Illegal confiscation of documents Exploitation Other crimes Extortion Money laundering Illegal confinement Tax violations

Abduction Fraud

Child rights Prostituting of persons Labour violations

Corruption Organised crime activities Extortion

Illegal confinement Sexual crimes

Assault

Assault Coercion

Sexual crimes Assault or murder

Racketeering Drug-related crimes

UNODC interventions

UNODC interventions in Southern Africa (UNTOC Article 30)

Capacity building for SADC Member States in ratification and implementation of the Convention and its Protocol Continuous technical and legal advice to SADC Member States

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UNODC interventions

UNODC activities
Normative guidance and technical assistance in strengthening criminal justice responses
Prevention and awareness-raising Data collection and research Legislative assistance Strategic p g planning and p y g policy development Criminal justice system responses Victim protection and support International cooperation

UN.GIFT (www.ungift.org)

Thank you
Adv Johan Kruger UNODC Regional Office for Southern Africa Office: +27 (0)12 342 2424 Mobile: 27 M bil +27 (0)83 215 8528 Email: johan.kruger@unodc.org

www.unodc.org

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