By Gunilla S. Ekberg
This Protocol is the first international instrument that mentions the men who create the demand for prostituted women. The most controversial aspect of the Protocol is the definition of trafficking.
This event in Palermo in the end of 2000 concluded a long and difficult series of negotiations, which started in Vienna in January of 1999. The Coalition Against Trafficking in Women took part in these negociations and was joined by over 140 NGOs including the European Women’s Lobby and many other organizations from around the world in the International Human Rights Network.
This NGO coalition worked to ensure that the Convention and its Protocols were consistent with the human rights principles expressed in numerous international agreements and instruments, such as the 1949 Convention for the Suppression of the Traffic in Person and of the Exploitation of the Prostitution of Others which states that trafficking and prostitution are incompatible with the dignity and worth of the human person. It should also reflect the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) which in Article 6 declares that States Parties must take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.
The Convention against Transnational Organized Crime sets out the parameters for international judiciary co-operation against transnational organized crime, and creates an international judicial regime under which traffickers can be held accountable for their crimes. To be criminally liable under the Convention the trafficker must belong to an organized criminal group of three or more people, which has been in existence for a period of time, and has acted in concert with the aim to commit serious crimes in order to obtain financial or other material benefit.
The Trafficking Protocol, recognizes the need for a combined approach that integrates effective prevention of trafficking, with the prosecution of traffickers and the protection of human rights and assistance to victims of trafficking.
Article 3 - Definition of Trafficking
The most controversial aspect of the Protocol is the definition of trafficking found in Article 3. During the negotiations, countries such as the Netherlands, Australia, Germany and the United States, joined by Canada and some pro-prostitution NGOs, argued for a definition that would limit protection only to those victims who were trafficked under duress or by force, and who did not consent to be trafficked. They also wanted to omit any mention of trafficking for prostitution or sexual exploitation, and to delete the term "victims" from the text.
If this definition had been accepted, which it was not, the focus would have been on the victim and her state of mind and character, rather than on the actions of the perpetrators. It would also require the victim to prove that she did not consent to be trafficked This is an almost impossible task for women who are vulnerable and in a situation of extreme dependency and subordination. Instead, the definition takes into consideration the actual reality of women who are trafficked for prostitution. Trafficking can take place by means of e.g. force, deception and abduction, but traffickers who abuse power or a victim’s vulnerability, will also be criminally liable. The definition specifically mentions that the consent of a victim is irrelevant to the prosecution of traffickers. Although today some trafficked women are aware that they may be prostituted in the country of destination, this false "consent" is a reflection of the deeply desperate situation many women live in and should certainly not exempt traffickers from legal responsibility.
The Protocol acknowledges that most trafficking is for the purpose of the exploitation of prostitution and for other forms of sexual exploitation, but also extends protection to people who are trafficked for other reasons, such as for forced labour, slavery and servitude, as well as to children under 18.
The definition, which protects all victims of trafficking, was supported by the majority of countries during the negotiations. Most significantly, many of these countries are the less wealthy, and are often "sending countries" for trafficked women and children.
Article 9 - Prevention of Trafficking in Persons
Article 9 requires states to implement comprehensive measures to prevent trafficking. They must endeavour to organize e.g. mass media campaigns and take social and economic initiatives. When implementing these measure they must, when appropriate, collaborate with NGOs and other organizations that have competence in the area. Countries must also strengthen measures to alleviate the factors that make women and children vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.
This Protocol is the first international instrument that mentions the men who create the demand for prostituted women. All state parties must adopt or strengthen legislative or other measures… to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking."
Other Articles
There are also articles in the Protocol that require countries to assist women and children who have been trafficked by providing e.g. counselling and medical and psychological assistance. They must also provide for the physical safety of the victims, and must ensure that they are permitted to stay, temporarily or permanently, in the receiving country, "if appropriate."
Importance of the Protocol
The Convention and the supplementary Protocol on trafficking in persons have to be ratified by 40 countries before they come into force. Countries that have signed and later will ratify the Convention and the Protocol have agreed to implement national legislation that reflects these instruments. However, the Convention and the Protocol set out minimum standards for prevention, prosecution and protection. There is nothing that prevents states from implementing more stringent measures. For example, they could make traffickers who are not connected to organized crime groups criminally liable, and they could strengthen the protection of the victims of trafficking.
It is very important that NGOs follow this process closely and monitor how the Protocol is interpreted nationally and regionally. Countries where prostitution is legal or regulated have a financial investment in their local prostitution markets. They need a constant flow of new women for prostitution purposes, and are, therefore, interpreting the Protocol with a focus only on forced prostitution.
While it is vital to support the implementation of the Protocol, it is also necessary to ensure that countries do not improperly use the Protocol as an excuse to treat trafficked women as migration criminals, who automatically should be deported. In many countries, including in Canada, immigration laws have been made more restrictive to keep out the flow of legitimate migrants and refugees. When borders are closed, traffickers and organized crime syndicates are the only ones who are able to facilitate migration for women and children. In many cases these traffickers channel women and children into the global trafficking networks that supply local prostitution markets. Instead we should use this Protocol to hold governments responsible for implementing measures to prevent trafficking for prostitution, and make sure that the women and children who are the victims of trafficking are accorded the protection and assistance that is their right.
