South African Interim Counter-trafficking provisions

3.1 Interim counter trafficking
3.1.1 Children’s Act 38 of 2005
Interim provisions on trafficking in children are included in the Children’s Act 38 of 2005 (‘the Children’s Act’) in partial compliance with the Palermo Protocol. Given that the Children’s Act applies to children only, it does not fully comply with standard 1, namely the definition of ‘trafficking in persons’. The Children’s Act contains a definition of ‘trafficking in relation to a child’ only. The Act provides that:
‘“trafficking”, in relation to a child –
(a) means the recruitment, sale, supply, transportation, transfer, harbouring or receipt of children, within or across the borders of the Republic –
(i) by any means, including the use of threat, force or other forms of coercion, abduction, fraud, deception, abuse of power or the giving or receiving of payments or benefits to achieve the consent of a person having control of a child; or
(ii) due to a position of vulnerability, for the purpose of exploitation; and
(b) includes the adoption of a child facilitated or secured through illegal means.’
This definition is to a large extent similar to the provision in the Palermo Protocol pertaining to the trafficking of a child. However, apart from the similar action and purpose components of the definition, there are a number of differences between the definitional formulations. First, the definition in the Children’s Act is somewhat broader than that of the protocol, in that the terms ‘sale’ and ‘supply’ are added as prohibited actions.
Secondly, adoption secured through illegal means is also included in the action component of the definition of trafficking in children.The unqualified inclusion of illegal adoption in the Act may cause confusion. In agreement with Kassan,it must be pointed out that an ‘illegal adoption’ means the ‘exploitation of the adoptive system and laws and not necessarily the exploitation of the adopted child’. For an illegal adoption to qualify as trafficking, an interpretation should be followed in line with that in the Palermo Protocol, namely that the primary intention of the illegal adoption must be to exploit the child.

Thirdly, the definition of trafficking in the Children’s Act also differs from the provision in the Palermo Protocol regarding the so-called ‘means’ element. The ‘means’ element in the Palermo Protocol requires that the perpetrator must use at least one of the listed improper means, such as force, threat, fraud or deception, in committing the prohibited action. In the case of the trafficking of adults, the Palermo Protocol requires the presence of the means element to constitute human trafficking, but not for the trafficking of a child under the age of eighteen years. In providing special protection for children, the Palermo Protocol lays down that the prescribed action element, namely the recruitment, transportation, transfer, harbouring or receiving of a child for the purpose of exploitation, constitutes trafficking in persons, even if none of the means set out in the definition were used. Unlike the protocol, the Children’s Act provides that trafficking in children requires the prohibited action to be committed by ‘any means, including the use of threat, force or other forms of coercion, abduction, fraud, [and] deception’, for the purpose of exploitation. One interpretation of ‘any means’ is that no means are required for child trafficking, and that the definition in the Children’s Act thus corresponds with the definition in the Palermo Protocol. Then again, Kassan points out that a different interpretation of ‘any means’ is that the Children’s Act does require one of the specified means to be present to constitute trafficking in children.The latter interpretation is problematic, in that, if the means element is required for trafficking in children, it is not in line with the Palermo Protocol, which waives the means element in regard to child trafficking. The formulation of the ‘means’ element in the definition of ‘trafficking’ in the Children’s Act has therefore been ‘criticised for creating a greater evidentiary burden’ than is required by the Palermo Protocol.
The third standard requires the criminalisation of human trafficking. The Children’s Act criminalises the trafficking of children by natural or juristic persons for an exploitative purpose. Unlike the international standard, this provision only applies to children who are trafficked and not to adult victims. It is to be welcomed that the Children’s Act regards child trafficking as a serious offence, for which imprisonment of up to twenty years may be imposed.Additional protection for children is provided, in that it is no defence for the perpetrator that the child, or the person having control over the child, has consented to the exploitation or illegal adoption or that the intended exploitation or adoption did not occur.
As was pointed out in relation to standard four above, states parties are not only obligated to criminalise the main crime of human trafficking, but also any conduct constituting attempts to commit the crime, participation as accomplices, and organising or directing others to commit human trafficking.The Children’s Act does not include the criminalisation of attempts to commit human trafficking, because this is already covered in existing South African law. The attempt to commit any crime is recognised as a substantive crime in the South African legal system.

Participation as an accomplice by unlawfully and intentionally furthering a crime committed by someone else is also punishable in our existing law. Furthermore, the Riotous Assemblies Act 17 of 1956 (‘Riotous Assemblies Act’) criminalises conspiracy and incitement to commit a crime.However, the Riotous Assemblies Act does not include the protocol’s specific term ‘organising’ others to commit human trafficking.
Apart from criminalising the crime of trafficking, the Children’s Act also criminalises certain behaviour ‘facilitating trafficking in children’ in order to cast the net wide enough so as to include the various role players that usually profit from this crime. On conviction of this crime of facilitating trafficking in children, a maximum of ten years’ imprisonment may be imposed. In short, the prohibited behaviour entails leasing any property for the purpose of harbouring a trafficked child or distributing information alluding to trafficking. Further, internet service providers are required to report any site on their servers that contains such prohibited information.
Apart from creating trafficking offences, chapter 18 of the Children’s Act also regulates other matters in regard to trafficking in children, such as the provision of international cooperation, as well as extraterritorial jurisdiction. Underpinning the best-interests-of-the-child principle, the Act further provides for the safety of the trafficked child and specific assistance in returning the child to the Republic,as well as for referral and repatriation procedures. However, Kassan maintains that the provisions for assisting trafficked children in the Children’s Act do not fully comply with all the types of assistance that states parties are obliged to render or consider in terms of the Palermo Protocol.

Finally, the counter-trafficking provisions in the Children’s Act make it possible to prosecute offenders for any type of trafficking where a child is the victim. However, full compliance with the Palermo Protocol is lacking, because this Act applies to child victims only and therefore offers no remedy for trafficked adults.

Manhunt on for Bangladesh Human Trafficking Kingpin (13 July 2015)

bangladesh westbengal

KOLKATA: The kingpin of South-East Asia’s largest network trafficking women has fled Bangladesh to seek shelter in West Bengal, according to a report sent by the Dhaka unit of the Indo-Bangla joint task force against human trafficking.

Shaheen Khondakar gave the slip to Bangladesh’s Rapid Action Battalion which raided his apartment in a highrise building at Turag in Dhaka last week, from where he ran a placement agency for women. Though the kingpin could flee, his aide Seema Akhtar alias Mousumi and five persons were arrested. The police rescued nine women, out of which six were supposed to be trafficked to Central Asia while three were to be sent to Chennai.

The state CID has launched a manhunt for Shaheen and issued an alert for him all over the country after the report reached the Secretariat,”Nabanna”.

According to sources in the Home Department, under the guise of the placement agency, Shaheen and Seema had over the last few years trafficked thousands of Bangladeshi young women to different parts of India, where they were forced into prostitution or sold to rich Arabs.

“In India their favourite destinations were Mumbai, Pune, New Delhi, Bangalore and Chennai. They would assure these women, many of whom could speak English, of lucrative jobs as receptionists in big hotels or medium-sized corporate houses. But once in India, they would be sold by Shaheen’s agents to pimps who forced them into prostitution in big cities,” a CID official told Express.

The CID is the nodal agency for West Bengal’s anti-human trafficking unit and its representatives regularly attend the meetings of the joint task force of the two countries. At a meeting held in Mumbai, names of 556 Bangladeshi human traffickers and 514 agents were handed over to the neighbouring country.

Dhaka was also given a list of Shaheen’s “dens” in Bangladesh — Khulna, Rajshahi, Borishal, Chittagong — other than the country’s capital.

New Delhi has also expressed concern about Dhaka’s not being able to nab Shaheen and his associates, who have links with arms and gold smugglers from both the countries as well.

In West Bengal, Shaheen’s network operates in almost all districts which share a border with Bangladesh. Its agents have connections in the police administration and political parties.

Article from:

Trafficking Victims Protection Act of 2000, Div. A of Pub. L. No. 106-386, § 108, as amended.

Trafficking Victims Protection Act of 2000, Div. A of Pub. L. No. 106-386, § 108, as amended.

(1) The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking.

(2) For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault.

(3) For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense.

(4) The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons.

Indicia of “Serious and Sustained Efforts”

(1) Whether the government of the country vigorously investigates and prosecutes acts of severe forms of trafficking in persons, and convicts and sentences persons responsible for such acts, that take place wholly or partly within the territory of the country, including, as appropriate, requiring incarceration of individuals convicted of such acts. For purposes of the preceding sentence, suspended or significantly reduced sentences for convictions of principal actors in cases of severe forms of trafficking in persons shall be considered, on a case-by-case basis, whether to be considered as an indicator of serious and sustained efforts to eliminate severe forms of trafficking in persons. After reasonable requests from the Department of State for data regarding investigations, prosecutions, convictions, and sentences, a government which does not provide such data, consistent with the capacity of such government to obtain such data, shall be presumed not to have vigorously investigated, prosecuted, convicted or sentenced such acts. During the periods prior to the annual report submitted on June 1, 2004, and on June 1, 2005, and the periods afterwards until September 30 of each such year, the Secretary of State may disregard the presumption contained in the preceding sentence if the government has provided some data to the Department of State regarding such acts and the Secretary has determined that the government is making a good faith effort to collect such data.

(2) Whether the government of the country protects victims of severe forms of trafficking in persons and encourages their assistance in the investigation and prosecution of such trafficking, including provisions for legal alternatives to their removal to countries in which they would face retribution or hardship, and ensures that victims are not inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts as a direct result of being trafficked, including by providing training to law enforcement and immigration officials regarding the identification and treatment of trafficking victims using approaches that focus on the needs of the victims.

(3) Whether the government of the country has adopted measures to prevent severe forms of trafficking in persons, such as measures to inform and educate the public, including potential victims, about the causes and consequences of severe forms of trafficking in persons, measures to establish the identity of local populations, including birth registration, citizenship, and nationality, measures to ensure that its nationals who are deployed abroad as part of a diplomatic, peacekeeping, or other similar mission do not engage in or facilitate severe forms of trafficking in persons or exploit victims of such trafficking, a transparent system for remediating or punishing such public officials as a deterrent, measures to prevent the use of forced labor or child labor in violation of international standards, effective bilateral, multilateral, or regional information sharing and cooperation arrangements with other countries, and effective policies or laws regulating foreign labor recruiters and holding them civilly and criminally liable for fraudulent recruiting.

(4) Whether the government of the country cooperates with other governments in the investigation and prosecution of severe forms of trafficking in persons and has entered into bilateral, multilateral, or regional law enforcement cooperation and coordination arrangements with other countries.

(5) Whether the government of the country extradites persons charged with acts of severe forms of trafficking in persons on substantially the same terms and to substantially the same extent as persons charged with other serious crimes (or, to the extent such extradition would be inconsistent with the laws of such country or with international agreements to which the country is a party, whether the government is taking all appropriate measures to modify or replace such laws and treaties so as to permit such extradition).

(6) Whether the government of the country monitors immigration and emigration patterns for evidence of severe forms of trafficking in persons and whether law enforcement agencies of the country respond to any such evidence in a manner that is consistent with the vigorous investigation and prosecution of acts of such trafficking, as well as with the protection of human rights of victims and the internationally recognized human right to leave any country, including one’s own, and to return to one’s own country.

(7) Whether the government of the country vigorously investigates, prosecutes, convicts, and sentences public officials, including diplomats and soldiers, who participate in or facilitate severe forms of trafficking in persons, including nationals of the country who are deployed abroad as part of a diplomatic, peacekeeping, or other similar mission who engage in or facilitate severe forms of trafficking in persons or exploit victims of such trafficking, and takes all appropriate measures against officials who condone such trafficking. A government’s failure to appropriately address public allegations against such public officials, especially once such officials have returned to their home countries, shall be considered inaction under these criteria. After reasonable requests from the Department of State for data regarding such investigations, prosecutions, convictions, and sentences, a government which does not provide such data consistent with its resources shall be presumed not to have vigorously investigated, prosecuted, convicted, or sentenced such acts. During the periods prior to the annual report submitted on June 1, 2004, and on June 1, 2005, and the periods afterwards until September 30 of each such year, the Secretary of State may disregard the presumption contained in the preceding sentence if the government has provided some data to the Department of State regarding such acts and the Secretary has determined that the government is making a good faith effort to collect such data.

(8) Whether the percentage of victims of severe forms of trafficking in the country that are non-citizens of such countries is insignificant.

(9) Whether the government has entered into effective, transparent partnerships, cooperative arrangements, or agreements that have resulted in concrete and measurable outcomes with

(A) domestic civil society organizations, private sector entities, or international nongovernmental organizations, or into multilateral or regional arrangements or agreements, to assist the government’s efforts to prevent trafficking, protect victims, and punish traffickers; or

(B) the United States toward agreed goals and objectives in the collective fight against trafficking.

(10) Whether the government of the country, consistent with the capacity of such government, systematically monitors its efforts to satisfy the criteria described in paragraphs (1) through (8) and makes available publicly a periodic assessment of such efforts.

(11) Whether the government of the country achieves appreciable progress in eliminating severe forms of trafficking when compared to the assessment in the previous year.

(12) Whether the government of the country has made serious and sustained efforts to reduce the demand for

(A) commercial sex acts; and

(B) participation in international sex tourism by nationals of the country.

The Intersection between Environmental Degradation and Human Trafficking

The Intersection between Environmental Degradation and Human Trafficking

Certain industries face particularly high environmental risks, including agriculture, fishing and aquaculture, logging, and mining. Workers in these sectors also face risks; the use of forced labor has been documented along the supply chains of many commercial sectors. Exploitation of both people and natural resources appears even more likely when the yield is obtained or produced in illegal, unregulated, or environmentally harmful ways and in areas where monitoring and legal enforcement are weak.

Agriculture (Crops and Livestock)

Unsustainable agricultural practices around the world are a major cause of environmental degradation. The manner in which land is used can either protect or destroy biodiversity, water resources, and soil. Some governments and corporations are working to ensure that the agricultural sector becomes increasingly more productive, and also that this productivity is achieved in an environmentally sustainable way. Alongside the movement to protect the environment from harm, governments must also protect agricultural workers from exploitation.

Agriculture is considered by the ILO to be one of the most hazardous employment sectors. Particular risks to workers include exposure to harsh chemicals and diseases, work in extreme weather conditions, and operation of dangerous machinery without proper training. Moreover, many agricultural workers are vulnerable to human trafficking due to their exclusion from coverage by local labor laws, pressure on growers to reduce costs, insufficient internal monitoring and audits of labor policies, and lack of government oversight.

As documented in this Report over the years, adults and children are compelled to work in various agricultural sectors around the globe.

For example:

  • Throughout Africa, children and adults are forced to work on farms and plantations harvesting cotton, tea, coffee, cocoa, fruits, vegetables, rubber, rice, tobacco, and sugar. There are documented examples of children forced to herd cattle in Lesotho, Mozambique, and Namibia, and camels in Chad.
  • In Europe, men from Brazil, Bulgaria, China, and India are subjected to forced labor on horticulture sites and fruit farms in Belgium. Men and women are exploited in the agricultural sectors in Croatia, Georgia, the Netherlands, Spain, and the United Kingdom.
  • In Latin America, adults and children are forced to harvest tomatoes in Mexico, gather fruits and grains in Argentina, and herd livestock in Brazil.
  • In the Middle East, traffickers exploit foreign migrant men in the agricultural sectors of Israel and Jordan. Traffickers reportedly force Syrian refugees, including children, to harvest fruits and vegetables on farms in Lebanon.
  • In the United States, victims of labor trafficking have been found among the nation’s migrant and seasonal farmworkers, including adults and children who harvest crops and raise animals.

Fishing and Aquaculture

The 2012 Trafficking in Persons Report highlighted forced labor on fishing vessels occurring concurrently with illegal, unreported, and unregulated fishing, which threatens food security and the preservation of marine resources. Vessels involved in other environmental crimes, such as poaching, may also trap their crews in forced labor. Testimonies from survivors of forced labor on fishing vessels have revealed that many of the vessels on which they suffered exploitation used banned fishing gear, fished in prohibited areas, failed to report or misreported catches, operated with fake licenses, and docked in unauthorized ports—all illegal fishing practices that contribute to resource depletion and species endangerment. Without proper regulation, monitoring, and enforcement of laws governing both fishing practices and working conditions, criminals will continue to threaten the environmental sustainability of oceans and exploit workers with impunity.

In recent years, a growing body of evidence has documented forced labor on inland, coastal, and deep sea fishing vessels, as well as in shrimp farming and seafood processing. This evidence has prompted the international advocacy community to increase pressure on governments and private sector stakeholders to address the exploitation of men, women, and children who work in the commercial fishing and aquaculture sector.

Reports of maritime forced labor include:

  • In Europe, Belize-flagged fishing vessels operating in the Barents Sea north of Norway have used forced labor, as have vessels employing Ukrainian men in the Sea of Okhotsk.
  • In the Caribbean, foreign-flagged fishing vessels have used forced labor in the waters of Jamaica and Trinidad and Tobago.
  • Along the coastline of sub-Saharan Africa, forced labor has become more apparent on European and Asian fishing vessels seeking to catch fish in poorly regulated waters. Traffickers have exploited victims in the territorial waters of Mauritius, South Africa, and Senegal, as well as aboard small lake-based boats in Ghana and Kenya.
  • In Asia, men from Cambodia, Burma, the Philippines, Indonesia, Vietnam, China, India, and Bangladesh are subjected to forced labor on foreign-flagged (largely Taiwanese, Korean, and Hong Kong) vessels operating in territorial waters of countries in Southeast Asia, the Pacific region, and New Zealand.


One out of five people in the world relies directly upon forests for food, income, building materials, and medicine. Yet laws to protect forests are often weak and poorly monitored. Illegal logging has led to forest degradation, deforestation, corruption at the highest levels in governments, and human rights abuses against entire communities, including indigenous populations. Human trafficking is included in this list of abuses. While some governments and civil society organizations have voiced strong opposition to illegal logging and made pledges to protect this valuable resource, the international community has given comparably little attention to the workers cutting down the trees, transporting the logs, or working in the intermediate processing centers. At the same time, the serious problem of workers in logging camps sexually exploiting trafficking victims has garnered insufficient attention.

There is a dearth of documented information on working conditions of loggers and the way the logging industry increases the risk of human trafficking in nearby communities.

Recent reports of trafficking in this sector include:

  • In Asia, victims have been subjected to labor trafficking in the logging industry. For example, Solomon Islands authorities reported a Malaysian logging company subjected Malaysians to trafficking-related abuse in 2012. Burmese military-linked logging operations have used villagers for forced labor. North Koreans are forced to work in the Russian logging industry under bilateral agreements. Migrant workers in logging camps in Pacific Island nations have forced children into marriage and the sex trade.
  • In Brazil, privately owned logging companies have subjected Brazilian men to forced labor.
  • The Government of Belarus has imposed forced labor on Belarusian nationals in its logging industry.


Mining—particularly artisanal and small-scale mining—often has a negative impact on the environment, including through deforestation and pollution due to widespread use of mercury. The United Nations Environment Programme estimates that the mining sector is responsible for 37 percent of global mercury emissions, which harm ecosystems and have serious health impacts on humans and animals. In addition to degrading the environment, mining often occurs in remote or rural areas with limited government presence, leaving individuals in mining communities in Latin America, Africa, and Asia more vulnerable to forced labor and sex trafficking.

Examples of human trafficking related to the mining industry include:

  • In the eastern Democratic Republic of the Congo, a significant number of Congolese men and boys working as artisanal miners are exploited in debt bondage by businesspeople and supply dealers from whom they acquire cash advances, tools, food, and other provisions at inflated prices and to whom they must sell mined minerals at prices below the market value. The miners are forced to continue working to pay off constantly accumulating debts that are virtually impossible to repay.
  • In Angola, some Congolese migrants seeking employment in diamond-mining districts are exploited in forced labor in the mines or forced prostitution in mining communities.
  • A gold rush in southeastern Senegal has created serious health and environmental challenges for affected communities due to the use of mercury and cyanide in mining operations. The rapid influx of workers has also contributed to the forced labor and sex trafficking of children and women in mining areas.
  • In Guyana, traffickers are attracted to the country’s interior gold mining communities where there is limited government presence. Here, they exploit Guyanese girls in the sex trade in mining camps.
  • In Peru, forced labor in the gold mining industry remains a particular problem. In 2013, a report titled, Risk Analysis of Indicators of Forced Labor and Human Trafficking in Illegal Gold Mining in Peru, catalogued the result of interviews with nearly 100 mine workers and individuals involved in related industries (such as cooks, mechanics, and people in prostitution). It traces how gold tainted by human trafficking ends up in products available in the global marketplace, from watches to smart phones.

Next Steps

Governments, private industry, and civil society have an opportunity to push for greater environmental protections in tandem with greater protections for workers, including those victimized by human trafficking. Additional research is needed to further study the relationship between environmental degradation and human trafficking in these and other industries. It is also essential to strengthen partnerships to better understand this intersection and tackle both forms of exploitation, individually and together.

Child Soldiers

Child Soldiers

The Child Soldiers Prevention Act of 2008 (CSPA) was signed into law on December 23, 2008 (Title IV of Pub. L. 110-457), and took effect on June 21, 2009. The CSPA requires publication in the annual TIP Report of a list of foreign governments identified during the previous year as having governmental armed forces or government-supported armed groups that recruit and use child soldiers, as defined in the Act. These determinations cover the reporting period beginning April 1, 2013 and ending March 31, 2014.

For the purpose of the CSPA, and generally consistent with the provisions of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the term “child soldier” means:

  1. any person under 18 years of age who takes a direct part in hostilities as a member of governmental armed forces;
  2. any person under 18 years of age who has been compulsorily recruited into governmental armed forces;
  3. any person under 15 years of age who has been voluntarily recruited into governmental armed forces; or
  4. any person under 18 years of age who has been recruited or used in hostilities by armed forces distinct from the armed forces of a state.

The term “child soldier” includes any person described in clauses (ii), (iii), or (iv) who is serving in any capacity, including in a support role such as a “cook, porter, messenger, medic, guard, or sex slave.”

Governments identified on the list are subject to restrictions, in the following fiscal year, on certain security assistance and commercial licensing of military equipment. The CSPA, as amended, prohibits assistance to governments that are identified in the list under the following authorities: International Military Education and Training, Foreign Military Financing, Excess Defense Articles, and Peacekeeping Operations, with exceptions for some programs undertaken pursuant to the Peacekeeping Operations authority. The CSPA also prohibits the issuance of licenses for direct commercial sales of military equipment to such governments. Beginning October 1, 2014 and effective throughout Fiscal Year 2015, these restrictions will apply to the listed countries, absent a presidential national interest waiver, applicable exception, or reinstatement of assistance pursuant to the terms of the CSPA. The determination to include a government in the CSPA list is informed by a range of sources, including first-hand observation by U.S. government personnel and research and credible reporting from various United Nations entities, international organizations, local and international NGOs, and international media outlets.

The 2014 CSPA List includes governments in the following countries:

1. Burma
2. Central African Republic
3. Democratic Republic of the Congo
4. Rwanda
5. Somalia
6. South Sudan
7. Sudan
8. Syria
9. Yemen

Special Court of Sierra Leone: Accountability at the Highest Level for Child Soldiering Offenses

The Special Court for Sierra Leone (SCSL) was established in 2002 by agreement between the Government of the Republic of Sierra Leone and the United Nations to try those most responsible for crimes against humanity, war crimes, and other serious violations of international humanitarian law, including conscripting or recruiting children under the age of 15 years, committed in the civil war. Since its inception, the Special Court has handed down several important decisions in cases involving allegations related to the conscripting or enlisting of children under the age of 15 years into armed forces or armed groups. During Sierra Leone’s civil war, all parties to the conflict recruited and used child soldiers. Children were forced to fight, commit atrocities, and were often sexually abused. Former Liberian President Charles Taylor was convicted by the SCSL on 11 counts of crimes against humanity and war crimes for his role in supporting armed groups, including the Revolutionary United Front, in the planning and commission of crimes committed during the conflict. In a landmark 2004 decision, the Court held that individual criminal responsibility for the crime of recruiting children under the age of 15 years had crystallized as customary international law prior to November 1996. In June 2007, the Court delivered the first judgment of an international or mixed tribunal convicting persons of conscripting or enlisting children under the age of 15 years into armed forces or using them to participate actively in hostilities.

In 2013, the Special Court reached another milestone by upholding the conviction of former Liberian President Charles Taylor. The judgment marked the first time a former head of state had been convicted in an international or hybrid court of violations of international law. Taylor was convicted, among other charges, of aiding and abetting sexual slavery and conscription of child soldiers. After more than a decade of working toward accountability for crimes against humanity and war crimes committed in Sierra Leone, the SCSL transitioned on December 31, 2013, to a successor mechanism, the Residual Special Court for Sierra Leone, which will continue to provide a variety of ongoing functions, including witness protection services and management of convicted detainees. Its work stands for the proposition that the international community can achieve justice and accountability for crimes committed, even by proxy, against the most vulnerable—children in armed conflict.

Vulnerability of Indigenous Persons to Human Trafficking

Vulnerability of Indigenous Persons to Human Trafficking

The United Nations estimates there are more than 370 million indigenous people worldwide. At times, they are described as aboriginal: members of a tribe, or members of a specific group. While there is no internationally accepted definition of “indigenous,” the United Nations Permanent Forum on Indigenous Issues identifies several key factors to facilitate international understanding of the term:

  • Self-identification of indigenous peoples at an individual and community level;
  • Historical continuity with pre-colonial and/or pre-settler societies;
  • Strong link to territories and surrounding natural resources;
  • Distinct social, economic, or political systems;
  • Distinct language, culture, and beliefs;
  • Membership in non-dominant groups of society; and/or
  • Resolve to maintain and reproduce their ancestral environments and system as distinctive peoples and communities.

Worldwide, indigenous persons are often economically and politically marginalized and are disproportionately affected by environmental degradation and armed conflict. They may lack citizenship and access to basic services, sometimes including education. These factors make indigenous peoples particularly vulnerable to both sex trafficking and forced labor. For example, children from hill tribes in northern Thailand seeking employment opportunities have been found in commercial sexual exploitation, including sex trafficking, in bars in major cities within the country. In North America, government officials and NGOs alike have identified aboriginal Canadian and American Indian women and girls as particularly vulnerable to sex trafficking. In Latin America, members of indigenous communities are often more vulnerable to both sex and labor trafficking than other segments of local society; in both Peru and Colombia, they have been forcibly recruited by illegal armed groups. In remote areas of the Democratic Republic of the Congo, members of Batwa, or pygmy groups, are subjected to conditions of forced labor in agriculture, mining, mechanics, and domestic service. San women and boys in Namibia are exploited in domestic servitude and forced cattle herding, while San girls are vulnerable to sex trafficking.

Combating the trafficking of indigenous persons requires prosecution, protection, and prevention efforts that are culturally-sensitive and collaborative—efforts that also empower indigenous groups to identify and respond to forced labor and sex trafficking within their communities. For example, the government of the Canadian province of British Columbia and NGOs have partnered with aboriginal communities to strengthen their collective capacity to effectively work with trafficking victims by incorporating community traditions and rituals into victim protection efforts, such as use of the medicine wheel—a diverse indigenous tradition with spiritual and healing purposes.

Victim´s consent

Victims’ Consent

A common perception of a trafficking victim is of a woman kidnapped, made to cross a border, forced into sexual slavery, and physically beaten. The reality of human trafficking is frequently much more subtle. Vulnerable individuals may be aware of, and initially agree to, poor working conditions or the basic duties of the job that underlies their exploitation. Victims may sign contracts and thereby initially agree to work for a certain employer, but later find that they were deceived and cannot leave the job because of threats against their families or overwhelming debts owed to the recruitment agency that arranged the employment.

On the issue of victims’ consent to exploitation, the Palermo Protocol is clear: if any coercive means have been used, a victim’s consent “shall be irrelevant.” This means that a man who has signed a contract to work in a factory, but who is later forced to work through threats or physical abuse, is a trafficking victim regardless of his agreement to work in that factory. Similarly, a woman who has voluntarily traveled to a country knowing that she would engage in prostitution is also a trafficking victim if, subsequently, her exploiters use any form of coercion to require her to engage in prostitution for their benefit. If a state’s laws conform to the Palermo Protocol requirements, a trafficker would not be able to successfully defend a trafficking charge by presenting evidence that a victim previously engaged in prostitution, knew the purpose of travel, or in any other way consented or agreed to work for someone who subsequently used coercion to exploit the victim.

With regard to children, the Palermo Protocol provides that proof of coercive means is not relevant. Thus, a child is considered to be a victim of human trafficking simply if she or he is subjected to forced labor or prostitution by a third party, regardless of whether any form of coercion was used at any stage in the process.

Even if the legal concept of consent is clear, its application is more complex in practice, especially when the victim is an adult. Many countries struggle with uniform application of this provision. In some countries, courts have thrown out trafficking cases when prosecutors have been unable to prove that the victims were coerced at the outset of recruitment. For example, in one European country, a judge rejected trafficking charges in a case where a mentally disabled man was forced to pick berries. Despite clear use of force to compel labor—the victim was dragged back to the labor camp with a noose around his neck—the court held that lack of proof of coercion from the very beginning of recruitment nullified the trafficking. In other countries, defense attorneys have made arguments that victims’ prior prostitution proves that they had not been forced to engage in prostitution. More subtly, consent may influence whether prosecutors bring trafficking cases at all. Cases without the “paradigmatic victim” may prove more difficult to win because there is a risk that the judge or jury will view the victim as a criminal rather than a victim. To be successful, these cases require both strong legal presentations and compelling evidence in addition to victim testimony. Efforts to further address the challenging issue of consent would not only help ensure that victims’ rights are protected, but would also align prosecutions with the Palermo Protocol requirements. Such efforts might include the explicit incorporation of the Palermo Protocol provision on consent into domestic criminal law and the training of investigators and prosecutors. It is helpful to clarify for fact finders—whether they are judges or juries—that consent cannot be a valid defense to the charge of trafficking and to educate them on the various forms that apparent consent may take (e.g., contracts, failure to leave a situation of exploitation, or victims who do not self-identify as victims). Similarly, investigators can learn that investigations do not need to stop just because a victim had expressed a form of consent.

Human Trafficking and the Demand for Organs

Human Trafficking and the Demand for Organs

More than 114,000 organ transplants are reportedly performed every year around the world. These operations satisfy less than an estimated 10 percent of the global need for organs such as kidneys, livers, hearts, lungs, and pancreases. One third of these operations include kidneys and livers from living donors. The shortage of human organs, coupled with the desperation experienced by patients in need of transplants, has created an illicit market for organs.

Governments, the medical community, and international organizations, such as the World Health Organization, are addressing the illicit sale and purchase of organs through the adoption of regulations, laws, codes of conduct, awareness campaigns, and mechanisms to improve traceability of organs, as well as to protect the health and safety of all participants. Many countries have also criminalized the buying and selling of human organs. Unscrupulous individuals seeking to profit from this shortage, however, prey on disadvantaged persons, frequently adult male laborers from less-developed countries. These living donors are often paid a fraction of what they were promised, are not able to return to work due to poor health outcomes resulting from their surgeries, and have little hope of being compensated for their damages. This practice is exploitative and unethical, and often illegal under local law. Sometimes it also involves trafficking in persons for the purpose of organ removal.

But what makes an illegal organ trade also a human trafficking crime?

The sale and purchase of organs themselves, while a crime in many countries, does not per se constitute human trafficking. The crime of trafficking in persons requires the recruitment, transport, or harboring of a person for organ removal through coercive means, including the “abuse of a position of vulnerability.” Cases in which organs are donated from deceased donors who have died of natural causes do not involve human trafficking.

Some advocates have taken the position that when economically disadvantaged donors enter into agreements for organ removal in exchange for money, they invariably become trafficking victims because there is “an abuse of a position of vulnerability.” Abuse of a position of vulnerability is one of the “means” under the Palermo Protocol definition of trafficking in persons. Thus, if a person who is in a position of vulnerability is recruited by another who abuses that position by falsely promising payment and health care benefits in exchange for a kidney, the recruiter may well have engaged in trafficking in persons for the purpose of organ removal. The UN’s Office on Drugs and Crime (UNODC) states in its Guidance Note on “abuse of a position of vulnerability” as a means of trafficking in persons that the abuse of vulnerability occurs when “an individual’s personal, situational, or circumstantial vulnerability is intentionally used or otherwise taken advantage of such that the person believes that submitting to the will of the abuser is the only real and acceptable option available to him or her, and that belief is reasonable in light of the victim’s situation.” Thus, poverty alone—without abuse of that vulnerability in a manner to make a victim’s submission to exploitation the “only real and acceptable option”—is not enough to support a trafficking case, whether the exploitation is sexual exploitation, forced labor, or the removal of organs.

Media Best Practices

Media Best Practices

Ask most people where their information about human trafficking comes from, and the answer is often “I heard about it on the news.” Unsurprisingly, the media play an enormous role shaping perceptions and guiding the public conversation about this crime. How the media reports on human trafficking is just as important as what is being reported, and the overall impact of these stories is reflected in the way the public, politicians, law enforcement, and even other media outlets understand the issue.

In recent years, a number of reports about trafficking have relied on misinformation and outdated statistics, blamed or exploited victims, and conflated terminology. Instead of shining a brighter light on this problem, such reports add confusion to a crime that is already underreported and often misunderstood by the public. As the issue of human trafficking begins to enter the public consciousness, members of the media have a responsibility to report thoroughly and responsibly, and to protect those who have already been victimized.

A few promising practices can keep journalists on the right track:

Language matters. Is there a difference between survivor and victim? Prostitution and sex trafficking? Human smuggling and human trafficking? The conflation of terms, as well as the failure to use the correct definition to describe human trafficking, can confuse and mislead audiences. Human trafficking is a complex crime that many communities are still trying to understand, and using outdated terms or incorrect definitions only weakens understanding of the issue.Become familiar with the trafficking definitions of international law, found in the Palermo Protocol to the United Nations Transnational Organized Crime Convention, as well as other related terms that are commonly used.

Dangers of re-victimization. Photos or names of human trafficking victims should not be published without their consent, and journalists should not speak with a minor without a victim specialist, parent, or guardian present. Human trafficking cases often involve complex safety concerns that could be exacerbated by a published story, or if a victim or survivor has not fully healed, a published story may reactivate trauma or shame years later. Ensure that, before a victim of human trafficking agrees to share his or her story, he or she understands that once the story is published, it will be available to the public at large.

Survivor stories. Although interviewing survivors may be the key to understanding human trafficking, there are optimal ways to approach survivors and learn about their experiences. Reporters should invest time engaging service providers and NGOs that work with survivors to learn and understand the best possible approaches. Be flexible, do not make demands, and do not expect the survivor to tell you his or her story in one sitting. Spend time with survivors, get to know them as people, and follow up even after the story is complete.

Half the story. When media report on only one type of human trafficking, the public is left with only part of the story. Human trafficking includes sex trafficking, child sex trafficking, forced labor, bonded labor, involuntary domestic servitude, and debt bondage. Strengthen the public’s understanding of human trafficking and the full scope of the crime.

Numbers game. Reporters often lead with numbers, but reliable statistics related to human trafficking are difficult to find. Human trafficking is a clandestine crime and few victims and survivors come forward for fear of retaliation, shame, or lack of understanding of what is happening to them. Numbers are not always the story. Pursue individual stories of survival, new government initiatives, or innovative research efforts until better data are available.

Human trafficking happens. Simply reporting that human trafficking occurs is not a story. Human trafficking happens in every country in the world. Go deeper and find out who are the most vulnerable to victimization, what kind of help is offered for survivors, and what your community is doing to eradicate this problem.

Advocacy journalism. Human trafficking is a popular topic for journalists hoping to make a social impact. Journalists may befriend survivors, earn their trust, and in some cases help remove them from a harmful situation. This is typically not appropriate. Everyone should do their part to help eradicate this crime, but victim assistance should be handled by accredited organizations. “Rescuing” a victim is not a means to a story. Instead, connect a victim to a reputable service provider to ensure they are safe and their needs are met.

Reactivating Trauma in Sex Trafficking Testimony

Reactivating Trauma in Sex Trafficking Testimony

Sex trafficking victims face a long road to recovery, and testifying against their exploiters can often hinder that process. While witness testimony can be an effective and necessary form of evidence for a criminal trial, the primary trauma experienced by a victim during the trafficking situation may be reactivated when recounting the exploitation or confronting the exploiter face-to-face. In many cases, the victim-witness has been threatened by the trafficker directly warning against reporting to law enforcement, or the witness’s family members have been threatened or intimidated as a way to prevent cooperation in an investigation or prosecution. In addition, a victim may fear possible prosecution for unlawful activities committed as part of the victimization such as prostitution, drug use, and illegal immigration. This fear is compounded in some cases in which victims experienced previous instances of being treated as criminals, whether arrested, detained, charged, or even prosecuted. The defense may also cite the victim’s engagement in criminal activity or criminal record as evidence of his or her lack of credibility. In fact, sometimes victims are not ideal witnesses. If the victim had a close relationship with the trafficker (also known as trauma bonding), has a deep-rooted distrust of law enforcement, or fears retaliation, a victim may be a reluctant or ineffective witness.

The need for resources for victims throughout, and even after, the investigation and prosecution is critical, especially because some human trafficking trials last several years. During this time, victims often face financial difficulties—including lack of housing and employment—and continued emotional and psychological stress, including Post-Traumatic Stress Disorder in many cases, resulting from the trafficking situation, that require long-term medical and mental health care.

To prevent or reduce the chance of reactivating primary trauma, experts encourage government officials to incorporate a victim-centered approach and provide support to victim-witnesses when investigating and prosecuting trafficking offenses. Specialized courts to hear human trafficking cases and the designation of specific prosecutors who have significant experience in handling these cases have led to a greater number of prosecutions while minimizing victim re-traumatization. Collaboration between law enforcement officials and NGOs that provide comprehensive victim assistance, including legal and case management services, has also proven to be a necessary component in successful prosecutions. The Government of Canada, for example, has fostered partnerships with NGOs through the Victims Fund, resulting in additional support for victims, such as projects that raise awareness and provide services and assistance. Law enforcement officials in many countries would benefit from sharing best practices to ensure that victims are not re-traumatized and traffickers are prosecuted in accordance with due process. Best practices include:

  • Interviewing victims in a comfortable, non-group setting with a legal advocate present where possible.
  • Providing the option, where legally possible, to pre-record statements for use as evidence to avoid the need for repeated accounts of abuse.
  • Adopting evidentiary rules to preclude introduction of prior sexual history.
  • Providing support—such as victim advocates, free legal counsel, and change in immigration status—that is not conditional on live trial testimony.