Ruchi Sinha
Trafficking persons is an abominable trade and a harsh reality for many. Trafficking is multi-dimensional and complex. It involves trafficking for sex and prostitution, for labor including: sending young boys to the Middle East to race camels; recruiting children to beg or sell flowers on the streets of most South East Asian cities; recruiting young men to work on dangerous building sites or fishing boats; or recruiting young women as brides or household laborers.

Trafficking may be carried out by international, well organised transnational crime rings. More usually, trafficking is limited in scope, involving a handful of women -although of course, it is no less a major crime for that. Often it is something like a family business or cottage industry - recruitment is by people known to a person and her family, by "aunties" or village members. It may be a one-off or regular recruitment drive.

Trafficking often involves vulnerable - that is poor, unskilled and uneducated, men and boys; but more often it involves vulnerable and marginalised women and girls. People are vulnerable to being trafficked because often they lack education; they more often have limited job opportunities; they are, and consider their lives to be, subject to the direction of their families; they often lack self-esteem; and because they are able to be viewed as commodities - by themselves, their communities and those along the trafficking chain, and throughout the world, who would exploit them.

India is a source, destination as well as a demand country. Thus our proximity to the issue therefore lies on all three dimensions of the exploitation with the victims of trafficking. By recognising that trafficking of women for prostitution is a national problem we have more parties working towards a solution and therefore more resources to draw upon thereby recognising it as one of today’s most urgent human rights issues we are more likely to see the issue being addressed now.

These complex dynamics of trafficking have in common the three elements of trafficking: the recruitment for an illegal or exploitative end purpose, the transfer and the end use. What all trafficking has in common is that it is enabled by the power imbalances that allow people to dehumanise their fellows and to deal with them as commodities. For example sex tourism will continue to, have trafficked, tricked and exploited women to service that industry so long as rich men think it is ok to continue exploiting young women. Trafficking is an expression of power imbalances whose genesis lies in class, race and gender disparities. Though economic inequality or disadvantage is the driving cause of trafficking, i.e. poverty is inextricably linked to trafficking, it needs t be recognised as the cause of trafficking. As those who are economically deprived - poor - are more vulnerable to trafficking. However, not all equally poor people are equally vulnerable to trafficking. Some studies in South East Asia show that the 'pull' factors for young women are greater in one village than in its neighbor. But even if we addressed the worst of these economic inequalities it might see the problem of trafficking recede, but one would see sexual slavery, servitude and trafficking in women, so long as we failed to address the gender inequalities that lie at its heart.

Trafficking may involve actual kidnapping or coercion; it may involve trickery, as where women are told they will be working in a bar and are in fact prostituted; it may involve women entering into an arrangement with their eyes open as to the nature of the work, but unaware that they will be in debt bondage or servitude; or it may involve women entering into arrangements knowingly but believing themselves to be under an obligation to the family who sold them to remain in the situation. Yet trafficking is distinct from people smuggling. Although smuggling people often raises human rights issues, it is not in itself a violation of human rights. Smuggling lacks those elements of coercion, deception, lack of consent and ongoing exploitation inherent to trafficking.

Human Rights Background
Internationally, there is a growing awareness of the seriousness and complexity of issues regarding trafficking especially of women and children and an understanding that the problem needs co-coordinated international responses. While there has been a Convention in place since 1949 (The Convention on Trafficking in Persons) and relevant provisions in the Convention on the Elimination of all forms of Discrimination against Women (Article 6), the issue has been receiving attention for less than a decade. Below are mentioned a few of the most relevant international developments on the issue.
Transnational Organised Crime Convention
The Transnational Organised Crime Convention emerged from the 2000 Conference on Transnational Organised Crime hosted by the United Nations Office for Drug Control and Crime Prevention. It spells out how countries can improve cooperation on such matters as extradition, mutual legal assistance, transfer of proceedings and joint investigations. The Convention arose from growing recognition on behalf of the international community that previously unknown forms of transnational co-operation between organised criminal groups emerged in the closing decades of the 20th Century. It is the first legally binding UN instrument in the field of crime.

The Optional Protocol to the Transnational Organised Crime Convention
Of particular relevance and use to those battling trafficking in women is the Optional Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. This Protocol makes it an explicit crime to traffic in people, giving the Convention a pointed human rights focus, and its existence must be attributed to the tireless efforts of NGO's to ensure its focus. Essentially, the Protocol is intended to "prevent and combat" trafficking in persons and facilitate international co-operation against such trafficking. It provides for criminal offences, control and co-operation measures against traffickers. It also provides some measures to protect and assist the victims. It is interesting to note that trafficking is defined as the "...recruitment, transportation, transfer, harboring or receipt of persons..." if this uses improper means, such as force, abduction, fraud, or coercion, for an improper purpose, such as forced or coerced labor, servitude, slavery or sexual exploitation. These are three elements of the definition, transfer, improper recruitment means, and illegal or exploitative end use. In using this definition, the protocol takes a different approach to trafficking from that contained in the 1949 Convention, which focused only on prostitution and considered all prostitution, voluntary and forced, to be trafficking. India has signed the Optional Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. At this stage, it remains an aspirational document, one that can be referred to as a benchmark, rather than a binding document.

Convention on the Rights of the Child
Article 34 of the Convention on the Rights of the Child (CROC) states:
States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials."
Article 35 states:
"States Parties shall take all appropriate national, bilateral and multilateral measures to prevent the abduction of, the sale of or traffic in children for any purpose or in any form."
An Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography supplements CROC.

This Optional Protocol gives special emphasis to the criminalization of serious violations of children's rights - namely sale of children, illegal adoption, child prostitution and pornography. Similarly, the text stresses the value of international cooperation as a means of combating these transnational activities, and of public awareness, information and education campaigns to enhance the protection of children from these serious violations of their rights. This Optional Protocol has received enough international support to enter into force on January 18 2002.

The Second World Congress Against Commercial Sexual Exploitation of Children was held in Yokohama, Japan, aimed to draw attention to the plight of children in the world sex trade, to review progress made since the first World Congress Against Commercial Sexual Exploitation of Children and devise further methods to protect children from sexual exploitation. The text of the Yokohama Global Commitment 2001 was adopted in consensus. A positive development visible in the second World Congress was that it was recognised that much more was needed to be done to protect children, and made recommendations to that end, including that the root causes that put children at risk of exploitation be addressed. These included poverty, inequality, discrimination, persecution, violence, armed conflicts, HIV/AIDS, dysfunctional families, the demand factor, criminality, and violations of the rights of the child.

The ASEAN has identified the fight against trafficking in women and children as a priority area for action which is commonly known as the Hanoi Plan of Action. The 1998 Hanoi Plan of Action, adopted by ASEAN leaders in 1998, commits ASEAN countries to actively pursue efforts "to implement policies and initiatives both at national and regional level to fight growing trends in trafficking of women and children" A draft statement on trafficking was developed by Thailand and considered by the ASEAN Sub-Committee on Women in November 2000.The Hanoi Plan of Action indicates a growing awareness that trafficking is not a national problem, and that regional social, political and social co-ordination is necessary.

Though there is, at an international level, a significant body of work undertaken on trafficking, much of the regional/local initiative yet has to imbibe the rights perspective. A human rights perspective proceeds from an awareness of the complex dynamics of trafficking. It aims to ensure rights of victims of trafficking - to avoid brutalizing or further traumatizing the victims or survivors. It ensures that responses to trafficking should do no further harm. It seeks to ensure the rights of victims or survivors to non-discrimination, access to justice -including involvement in decision making to the extent of being informed and able to comment, and the right to be dealt with on the individual circumstances or merits of their case. Above all, it proceeds from a recognition of the right to be treated with dignity as a holder of rights. One of the sad realities of trafficking is that it depends for its perpetration on the greed and corruption of those who encounter it - obviously on the part of the traffickers, but also, more tragically, on the part of too many public officials.

In this regard, trafficking is like any other issue with which the government must deal with. The attitude of the government till date has rendered the problem invisible because of a lack of a co-coordinated approach both at the macro and micro level. This should also include a perspective where we ensure that the system deals with the whole person without adding to the problem.

A rights-based approach to trafficking involves not only prosecution of traffickers but protection of its victims. As victims of trafficking have come from and remain in a particular position of vulnerability dealing with them requires a sensitive approach, aimed at assisting their recovery. Unfortunately there is no response to trafficking that can nullify the abuses experienced by its victims or reclaim the years they have spent in servitude.

However it is also true that too often rights are breached not because of any malice or ill will on the part of the State or its officials, but because of carelessness, lack of training of those dealing with a person or because jurisdictional and bureaucratic arrangements mean that the person's range of concerns are unable to be addressed. It is mundane and all too usual a problem, particularly for something as complex and multi-faceted as trafficking, that a person is dealt with variously as a law enforcement head ache or a welfare cost to the state, even sometimes as merely a victim of violence, coercion or breach of contract, rather than a person with complex needs and problems enmeshed in circumstances too broad for any one agency to deal with. Part of the challenge of human rights is to ensure that each person, whatever their issues, is dealt with by the State as a whole person, not as a sliver of a law enforcement problem here, a piece of a victim of violence there, a person with particular welfare or housing needs somewhere else. It is not up to the system to divide the victim into separate neat boxes for the convenience of government agencies.

Anti-trafficking measures need to ensure that support is given to victims to recover from their experiences. The support visualized/given should not further adversely affect the rights of those who have been trafficked. For this all agencies responsible/working in the area of trafficking have to follow two fundamental principles:
• Human rights must be at the core of any credible anti-trafficking strategy; and
• The strategies must be developed and implemented from the perspective of those who most need their human rights protected and promoted.

A sensitive yet sensible approach: The Government needs an interagency approach to the issue. A number of departments have the responsibility for the problem –thus no one agency is able to address the problem of trafficking alone or without working in co-operation with each other relevant agency. The government needs to understand the nuances, trends of the causes and take appropriate steps to address the attitudes towards the targeted vulnerable groups that drive demand and allow trafficking to prosper. Most importantly, it needs to take a victim-centered approach which is consistent with and protects the human rights of those who have been trafficked.

It needs to fund those projects which operationalise the intent of curbing this menace and implement the concrete steps to prevent trafficking, protect trafficked persons and prosecute traffickers. Human rights should be central at every stage of this process – not as an esoteric or rhetorical concept but as a very pragmatic framework within which problems are addressed and solutions implemented. Traffickers violate the basic human rights of victims to be free from sexual abuse, exploitation and slavery. The servitude experienced by those trafficked intrudes into and violates a persons privacy and integrity. Victims of trafficking often face physical abuse of a particularly violent nature, physical and sexual abuse (and rape) that causes not only physical but psychological and emotional trauma for the victim. The sustained violations of human rights that victims experience means that trafficking must be seen as a grave breach of human rights. Trafficking in people is a major human rights issue facing the international community and each nation. The recognition of trafficking as a national and international concern is necessary due to the global nature of trafficking in persons. For this same reason any strategy adopted to address the issue needs to adopt a comprehensive interagency approach, which would be ideal as the way in which the issue is dealt with and is not limited to only the way in which the problem manifests itself but the opens options to all in addressing the problem is a dynamic yet effective way.

References:

1. Adenwalla, Maharukh. 2000. Child sexual abuse and the law. Mumbai: Indian Centre for Human Rights and Law.
2. Asian Development Bank. 2002a. Combating Trafficking of Women and Children in South Asia: Regional Synthesis Paper for Bangladesh, India and Nepal. Manila.
3. Bajpai, Asha. 2003. Child rights in India, law, policy and practice. Delhi: Oxford Publications.
4. Barse, Sheela. Child sexual abuse, assault, exploitation and slavery – A user’s handbook. Mumbai: Neelgaurav Foundation.
5. Child trafficking in India. New Delhi: Haq Centre for Child Rights.
6. Commonwealth Human Rights Initiatives. 2001. Prevention of trafficking from an Indian perspective and CHRI’s initiative.
7. CWDS. 2002. Crimes against women: Bondage and beyond—Revelation of data. New Delhi: Center for Women’s Development Studies.
8. Dealing with Trafficking in Persons: Another Dimension of US-India Transformation, Robert D. Blackwill, Ambassador to India, Y.B. Chavan Hall, Mumbai, India February 18, 2003.
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11. Desai, M. December 2001. Child protection—Current status and recommendations of strategies for the India country programme for 2003-2007. A consultancy report, Tata Institute of Social Sciences. New Delhi: UNICEF India Country Office.
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13. ESCAP. 2003. Combating human trafficking in Asia: A resource guide to international and regional legal instruments, political commitments and recommended practices. New York: United Nations.
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17. Hindustan Times, The 2006. ‘Prostitutes held after Rohini raids’, 25 June.
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19. Human Rights Watch – Asia. 1995. ‘Rape for profit—Trafficking of Nepali girls and women to India’s brothels’. Human Rights Watch, Vol. 12, No, 5 (A).
20. ICRW, 2004, Violence against women: A review of trends, patterns and responses, UNFPA.
21. IDS. 2003. ‘Review of literature for ARTWAC: Rajasthan’ by Institute of Development Studies, Jaipur. Rajasthan.
22. ISS. 2002. ‘National baseline study of trafficking in women and children: Trends, dimensions, factors and responses’. New Delhi: Institute of Social Sciences.
23. Jeremy Seabrook, Travels in the Skin Trade: tourism in the sex industry, Sterling VA, Pluto Press.
24. Karat, B, 2005, Survival and Emancipation: Notes from Indian Women’s Struggles, Three Essays Delhi.
25. MNCWA & UN-IAP 2002 “Handbook of Trafficking in Persons: Myanmar Initiatives, Yangon, 2002
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31. Phinney, Alison. 2001. Trafficking of Women and Children for Sexual Exploitation in the Americas. Washington D.C: Inter American Commission of Women (Organisation of American States).
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Legislation/Conventions and Protocols

• Bombay Police Act 1951
• Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949
• Convention on the Elimination of all forms of Discrimination Against Women (1979)
• Convention on the Prostitution and Immediate Action for the Elimination of the Worst Forms of Child Labor, 1998.
• Convention on the Rights of Child, 1989.
• Criminal Procedure Code
• Immoral Trafficking Prevention Act, 1956. (and as amended in 1986)
• Indian Evidence Act 1872 especially Sections 114A, 151, 152
• Indian Penal Code 1860
• International Convention on Economic, Social and Cultural Rights (ICESCR) 1966
• International Covenant on Civil and Political Rights, 1966
• Juvenile Justice (care and protection of children) Act, 2000.
• Maharashtra Control of Organised Crime Act,
• National Charter for Children, 2003.
• National Commission for Children Act, 2006.
• Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography
• Protection of Human Rights Act, 1993.
• Recommended Principles and Guidelines on Human Rights and Human Trafficking:
• South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002).
• Supplementary Convention on the Abolition of Slavery, Slave Trade and Institutions and Practices of Slavery, 1956 (Slavery Convention)
• The Bonded Labor System (Abolition) Act 1976 and Rules 1976.
• The Child Labor (Prohibition and Regulation) Act, 1986 and Rules 1988.
• The ILO Convention 182 on the Worst Forms of Child Labour (1998)
• The National Commission for Minorities Act, 1990.
• The National Commission for Women Act, 1990.
• The Transplantation of Human Organs Act, 1994.
• UN Convention against Transnational Organized Crime, 2000.
• UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949 (Entered into force in 1951). (Trafficking Convention)
• UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children 2000.
• United Nations Convention against Transnational Organised Crime, 2000.
• Universal Declaration of Human Rights, (UDHR) 1948.
Website Resources
• Prostitution: Fact sheet on Human Rights Violations, by Melissa Farley PhD, http://www.prostitutionresearch.com
• Sex Tourism in South Asia, ECAPT report, February 2004,www.solidaritycenter.org
• Singh, “Transnational Organized Crime: The Indian Perspective,” Annual Report for 2000 and Resource Material Series No. 59 Tokyo: UNAFEI, 2002, www.unafei.or.jo/pdf/no59/ch.29/pdf accessed Jan. 31, 2004.
• www.asem.org/documents/unitedkingdom/bbc_news_internet_blamed.htm
• csf.colorando.edu/mail/ppn/99/msg00034.html
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• www.unifem.undp.org/public/freeofviolence/pdfchapter_4pdf.
• www.unicefusa.org/ct.
• www.unicef.org/newsline/02pr01.htm
• www.us.ilo.org/news/pkits/worstform/trafficking.pdf
• www.unicef.org/programme/eprotection/focus/trafficking/measures.htm.
• www.unifem-eseasia.org/gendiss/gendiss2htm
• www.uccjin.org/documents/conventions/dcatoc/4session/16e.pc
• http://www.wcd.nic.in
• http://www.who.int/gender/documents/en/final%20recommendations%2023%20oct.pdf
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