1 Bureau of Intelligence and Research, United States Department of State, "Global Trafficking in Women and Children: Assessing the Magnitude", March 1998.
2 A detailed or country-specific analysis of trafficking trends or approaches is beyond the scope of this background paper. For further information, please consult the resources listed in the Annex.
3 Informal Note by the United Nations High Commissioner for Human Rights, presented to the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime, 1 June 1999, A/AC.254/16 ("Informal Note").
4 See, e.g., Human Rights Caucus, Recommendations and Commentary on the Draft Protocol to Prevent, Suppress, and Punish Trafficking in Persons (A/AC.254/4/Add.3/Rev.2), July 1999, p. 4; Testimony of Steven R. Galster, Director, Global Survival Network, before the Commission on Security and Co-operation in Europe (CSCE), 28 June 1999; Commission of the European Communities, Communication from the Commission to the Council and the European Parliament on Trafficking in Women for the Purpose of Sexual Exploitation, COM(96) 567, November 1996, p. 4. According to this view, for example, an adult woman who agrees to migrate for sex work and retains her freedom of movement and substantial control over her earnings would not generally be considered a "trafficked person". Note, however, that the definition of trafficking in women used by the International Organization for Migration (IOM) does not require deception or coercion, but includes "any illicit transporting of migrant women and/or trade in them for economic or other personal gain". In addition, some NGOs argue that "trafficking" should not be defined in terms of coercion or lack of consent, particularly in the context of the sex industry. Their basic argument is that sex work is inherently exploitative and therefore the consent or control of the woman over her situation is irrelevant.
5 This definition is based roughly on the definition used or recommended by the UN Special Rapporteur on Violence Against Women, the Human Rights Caucus, and the President's Inter-Agency Council on Women (United States). It is used in this report to provide a framework for discussing the problem of trafficking and is not necessarily recommended as a legal definition.
6 In connection with the UN draft Protocol to Prevent, Suppress, and Punish Trafficking in Women and Children ("Trafficking Protocol"), the UN High Commissioner for Human Rights, the Special Rapporteur on Violence Against Women, and the International Labour Organization have recommended using the gender-neutral term "trafficking in persons" and a broad and inclusive definition of trafficking that would include all forms of forced and/or bonded labour and servitude. They have also recommended against using the term "trafficking for purposes of sexual exploitation" as it relates to adults, in part because the term "exploitation" is subject to many divergent interpretations. See, e.g., Informal Note, supra at footnote 1; Position paper on the draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, submitted by the Special Rapporteur on Violence against Women, A/AC.254/CRP.13 ("Special Rapporteur Position Paper"). See also Human Rights Caucus, Human Rights Standards for the Treatment of Trafficked Persons ("Human Rights Standards"), January 1999.
7 A small percentage of young men and boys are also trafficked each year in the OSCE region for use in the sex industry. The CIA estimates this percentage as approximately two per cent. The term "girl" is used to refer to a female person under the age of 18.
8 Criminal groups of all levels of sophistication are involved in trafficking of human beings. These range from small, informal networks to well-organized international trafficking rings. In some cases, the same criminal organizations engaged in trafficking women appear to be involved in other illicit activities, including drug and automobile smuggling, with the profits all interrelated. See, e.g., United States Department of State, Bureau of Intelligence and Research (INR), "International Trafficking in Women from Central Europe and the NIS", November 1997, pp. 4-5. According to the United Nations Centre for International Crime Prevention (CICP), increasing networks among organized crime groups provide for "economies of scale and full control of the smuggling-trafficking sequence; from smuggling to the control of sex markets." For a discussion of the "mafiya" connection to trafficking in Russia, see, e.g., Global Survival Network (GSN), "Crime & Servitude: An Expose of the Traffic in Women for Prostitution from the Newly Independent States" ("Crime & Servitude"), October 1997, pp. 33-40.
9 As one analyst has noted: "In societies with a tradition of fixing deals informally, this form of recruitment does not necessarily arouse suspicion..." Moreover, in many of the origin countries, especially in rural areas, the young women and their families may not be accustomed to questioning the legitimacy of advertisements or agencies. This is particularly true in countries where advertisements for legitimate "female" jobs commonly list "young" and "attractive" as qualifications. Traffickers may also go to great lengths to give the appearance of legitimacy, including by using bogus written contracts. See United States Department of State, Bureau of Intelligence and Research (INR), "International Trafficking in Women from Central Europe and the NIS," November 1997, p. 4. See also GSN, "Crime & Servitude," supra note 8.
10 See, e.g., European Commission, Communication from the Commission to the Council and the European Parliament on trafficking in women for the purpose of sexual exploitation (1996) , COM (96)567: "Trafficking for the purpose of sexual exploitation covers women who have suffered intimidation and/or violence through the trafficking. Initial consent may not be relevant, as some enter the trafficking chain knowing they will work as prostitutes, but who are then deprived of their basic human rights, in conditions which are akin to slavery."
11 GSN, "Crime & Servitude," supra note 8, p. 9.
12 Debt bondage typically works as follows: The trafficked person incurs a "debt" to her traffickers, with or without her consent. This may &include the cost of travel documents, bribes, transport, "recruitment" or agency fees, and in some cases, the victim's "selling price." The woman is told, usually under threat of &violence, that she cannot leave or return home until she pays off the debt. However, after each of the traffickers along the chain take his or her "cut" of the woman's earnings, she is left with little or no money to put toward the debt. The debt compounds as the trafficker adds on interest, living expenses, and arbitrary "fines" for misbehaviour, or sells the debt (along with the victim) to another trafficker at a large profit. As a result, the woman becomes trapped in a never-ending cycle in which it becomes virtually impossible, in most cases, to ever pay the debt. The irony of debt bondage is that, although the victim rarely earns any significant earnings from her labour, the hope of paying off the debt and escaping her bondage may resign the victim to staying in the exploitative situation. In truth, she is more likely to be arrested in a police or immigration raid, deported with little or no money in her pocket, and still owing a debt to traffickers for which she is likely to be "re-trafficked".
13 NGOs working with trafficking victims in the Netherlands, Germany, and Poland report that a significant percentage of their clients are between 15 and 21 years old. Karo, an NGO project working along the German-Czech border, recently reported to IOM that the majority of those it works with are girls and young women between the age of 12 and 18 years. Polish and Slovak police estimated to Interpol that about one in six of the women trafficked to and from their countries are underage.
14 In Vienna and Washington numerous cases have recently been reported in the media and to NGOs in which foreign women were "imported" by their diplomat employers under special privileges and then trapped in slave-like situations. Domestic workers are also frequently recruited through international employment agencies and then exploited or abused by unscrupulous employers who have lied to them about the nature or conditions of their work. See, e.g., IOM, Migration in Central and Eastern Europe, 1999 Review, p.75; Quaker Council for European Affairs, "Free and Equal in Dignity and Rights? The Trafficking of Women to Europe," August 1992. Although not technically "trafficking", as defined in this paper, there are also numerous accounts in the OSCE region involving employers heavily exploiting illegal migrants already in the country - sometimes in conditions verging on slavery. A recent example came from France, where a couple was prosecuted after using an illegal migrant from Africa as a housekeeper for five years in slave-like conditions without pay.
15 See, e.g., Position Paper on the draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, submitted by the Special R apporteur on Violence Against Women.
16 In some OSCE participating States, laws encourage fictitious marriage by permitting foreign-born wives to work as prostitutes. See, e.g., GSN, "Crime & Servitude", p. 30.
17 Brokered marriages arranged by overseas marriage brokers are flourishing in the OSCE region. Although some brokered marriages are genuine, most "mail-order brides" from Asia, Latin America, and now CEE and the NIS, are, to varying degrees, exploited and/or abused by their "husbands" . See, e.g., IOM, Migration in Central and Eastern Europe, pp. 74-75; GSN, quot;Crime & Servitude", pp. 29-32. False &marriages and adoptions are also used as fronts to traffic women and children into commercial sex work.
18 See, e.g., Special Rapporteur on violence against women, Position Paper, supra note 5; Narcisa Escaler, Deputy Director General, IOM, Statement to the Commission on the Status of Women, 42nd Session, 2 March 1998; Testimony of Steven R. Galster, Director of Global Survival Network, before the CSCE, 28 June 1999.
19 See, e.g., Testimony of Steven R. Galster, supra note 18.
20 See, e.g., proposed Senate bill S. 600, section 4. In the United States, sweatshop and other forced labour cases involving migrants have been increasingly identified and prosecuted as trafficking cases. According to the Department of Justice, the majority of trafficking cases in the United States involve forms of labour exploitation other than forced prostitution.
21 The UN Special Rapporteur on violence against women has found violence to include the phenomenon of trafficking as it affects women and girl-children. This position reflects the position taken by the General Assembly in Article 2 of its Declaration on the Elimination of Violence against Women. See also the Beijing Declaration of the 4th UN World Conference on Women, Platform for Action (discussing trafficking as a form of violence against women); Address by Mary Robinson, UN High Commissioner for Human Rights, Consultation on Trafficking and the Sex Industry, 21 June 1999 (describing trafficking and related practices as violations "of the basic human rights to which all persons are entitled"); Council of Europe Parliamentary Assembly Recommendation 1325 (1997) (describing trafficking as a phenomenon bordering on slavery).
22 See, e.g., Human Rights Caucus, Human Rights Standards for the Treatment of Trafficked Persons (January 1999).
23 See, e.g., Address by Mary Robinson, UN High Commissioner for Human Rights, Consultation on Trafficking and the Sex Industry, 21 June 1999.
24 See, e.g., The Hague Ministerial Declaration on European Guidelines for Effective Measures to Prevent and Combat Trafficking in Women for the Purpose of Sexual Exploitation (April 1997) ("Hague Declaration"); Recommendation 1325 (1997) on traffic in women and forced prostitution in Council of Europe member States. OSCE participating States such as Belgium, the Netherlands, and Italy have integrated a number of human rights considerations into their national laws and policies, including, to varying degrees, assistance and protections for trafficked persons.
25 See, e.g., Human Rights Caucus, Human Rights Standards for the Treatment of Trafficked Persons (January 1999), p. 5; Declaration on the Elimination of Violence against Women, General Assembly, A/RES/48/104 (2/23/94).
26 Although trafficking in the OSCE region most commonly involves movement across international borders, it is important to note that trafficking and its related abuses may also occur within States - usually from rural areas to urban centres.
27 See also, Informal Note, supranote 3, p. 6, in which the High Commissioner draws attention to the fact that national anti-trafficking measures may discriminate against women and other groups in a manner that infringes on their right to leave their country or to migrate legally.
28 See, e.g., GSN, "Crime and Servitude", p. 47.
29 Several studies show that women have been disproportionately disadvantaged by the economic and social transformation in the former communist countries. As a rule, women have experienced higher levels of unemployment (as much as 80 per cent in some countries and regions), marginalization in low wage sectors, and discrimination in recruitment, employment, promotion, dismissal, and earnings.
30 In addition to job creation, many experts recommend credit and training programmes to promote women's self-employment. Greater legal protection against employment discrimination is also needed. Among other things, OSCE participating States should introduce specific anti-discrimination legislation and effective mechanisms to enforce laws and policies in practice.
31 See, e.g., Human Rights Caucus, Human Rights Standards for the Treatment of Trafficked Persons (January 1999), p.4.
32 See, e.g., Address by Mary Robinson, United Nations High Commissioner for Human Rights, Consultation on Trafficking and the Sex Industry (June 1999).
33 Trafficking and debt bondage have both been recognized as "slavery-like practices". See, e.g., UN Working Group on Contemporary Forms of Slavery, UN Doc. E/CN.4/Sub.2/AC.2/1991/1/Add.1; 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Article 1).
34 The ILO conventions define forced labour as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily". Convention 29, Articles 2(1), 4(1).
35 This section is based on information from various sources, including discussions with experts from several non-governmental organizations and participating States. Some country-specific information was also obtained through the contributions of participants at seminars sponsored by La Strada, Poland, the US Department of Justice (Child Exploitation and Obscenity Section), and the Frankfurter Institut für Frauenforschung e.V. Several research institutions are currently engaged in comparative legal studies to research and analyse the implementation of specific laws and policies in various OSCE participating States relating to trafficking, including the Boltzmann Institute for Human Rights, and the Frankfurter Institut für Frauenforschung e.V. Regrettably, the final results of these studies were not yet available in time to incorporate into this background report.
36 Very good co-operation has been reported between Polish and German police as well as between Austrian and Czech police on trafficking cases. In general, however, this co-operation tends to rely on personal relationships that have developed between members of police units in particular regions. Institutionalized or national co-operation is generally lacking.
37 Significant steps have been taken in the United States to address trafficking on a national and international level, in part due to the work of the Inter-Agency Council and its related task forces on trafficking and worker exploitation. Among these are increased prosecution of trafficking cases, new legislation, and numerous projects to incorporate trafficking issues into national and international training and development programmes. Despite these efforts, experts admit that significant work remains to be done. In particular, experts admit that awareness and concern about trafficking at the national level has not reached the state and local police, prosecutors, judges, and immigration authorities who are most likely to come in contact with trafficking situations. In addition, the US has no programme in place to assist victims of trafficking - indeed several US laws prohibit the use of any public funds for illegal aliens. While NGOs have stepped in to provide assistance in certain cases, current resources and capacity to deal with trafficking victims in the US are extremely limited.
38 Certain German Bundesländer, such as Lower Saxony, have also implemented co-ordinated anti-trafficking strategies that have worked well on the local level. However, there appears to be no unified national approach.
39 See, e.g., Interpol, Minutes/Working Documents, International Conference on Trafficking in Women (October 1998).
40 Several prosecutors have noted, for example, the difficulty of proving the purpose behind the trafficking (in transit situations) or the presence of deception, coercion, or lack of consent. As one US prosecutor explained, "the more elements we have to prove, the more likely it is that the [trafficker] will get off."
41 The Belgian law punishes any person who "contributes, in any way, directly or through an intermediary, to allowing the entry or residence of a foreigner [in Belgium], and in so doing: 1) makes use vis-à-vis the foreigner, directly or indirectly, of deception, violence, threats or any other form of constraint; or 2) takes advantage of the particularly vulnerable position which the foreigner is in because of his or her illegal or precarious administrative situation, pregnancy, illness, or physical or mental infirmity or defect..." A similar provision was added to the penal code on exploiting the vice or prostitution of others. Higher penalties are available if the offence is committed as part of an organized ring or is a repeat or habitual offence.
42 The United States Interagency Working Group on Worker Exploitation has recently proposed new legislation and sentencing guidelines relating to situations not adequately covered by existing federal law. Among the proposals developed by the task force is legislation that would make it a crime to recruit or transport any person, knowing or having reason to know that the person will be subjected to unlawfully exploitative labour conditions. It would also punish those who directly or indirectly profit from the fruits of involuntary servitude or debt bondage. Proposed sentencing guidelines would increase penalties for trafficking offences, including peonage and involuntary servitude.
43 See, e.g., UN Office for Drug Control and Crime Prevention, "Global Programme against Trafficking in Human Beings", February 1999, pp. 3-4.
44 With respect to confiscation of assets or other actions against the property of traffickers, only a few countries seem to apply existing laws in trafficking cases. In Italy, prosecutors regularly confiscate the valuables of traffickers and use them to compensate victims. Belgium reports that it can legally obtain injunctions to close properties used for trafficking and confiscate valuables, but that such measures are rarely applied. A US prosecutor has noted the value of seizure/forfeiture laws in providing an incentive for law enforcement to undertake lengthy and complicated international investigations, particularly if part of the proceeds or assets go to law enforcement programmes.
45 Testimony of Dr. Laura Lederer before CSCE Commission, 28 June 1999. In a study of laws aimed at protecting women and children from sexual exploitation, Dr. Lederer found that "prostitution laws, which are aimed at women and children, are enforced, while the procuration laws, aimed at the traffickers are almost never invoked". Enforcement of laws against traffickers appears to be more aggressive and effective, however, in countries with specialized police and prosecutor units with special expertise in trafficking.
46 Even in countries with laws permitting foreign witnesses to return to the country to testify in court proceedings, in practice, this rarely happens. Once a victim is deported, States generally make no attempt to monitor her situation or whereabouts, and the potential witness disappears. Other policies also hinder return for court proceedings. For example, one German prosecutor related an incident in which his witness was refused entry at the border by immigration officials even though she had been subpoenaed by the State to testify. She returned to her country and the case against the trafficker was dismissed.
47 In most cases, deportation is applied indiscriminately without regard to the trauma the trafficked person has endured or the danger she faces upon return. As discussed in Section 5.2, few countries of origin are able to provide the trafficked person with any medical, psychological, or legal services, or protect her from reprisals or "re-trafficking" by the crime groups linked to the traffickers in her home country.
48 In many cases, victims of trafficking - particularly minors - want to return to their home countries. However, deportation as illegal immigrants can have significant and long-lasting implications for trafficked people. In some countries, for example, deportees are prosecuted and jailed upon return for prostitution or for leaving their country illegally. For others, deportation as "undesirables" effectively precludes them from travel or legal migration for many years after the trafficking ordeal has ended. In some cases, the trafficked persons or their families are required to pay back their repatriation costs, further adding to their dependence and debt.
49 A recent media report from the United Kingdom illustrates this point: In that case, police raided a massage parlour (having organized crime ties) following a media expose. According to the report, the authorities knew or had reason to know that the eight Thai women working in the massage parlour had been trafficked and were being forced to prostitute against their will. After the raid, however, the women were immediately deported and therefore not available to give evidence against the traffickers. This scenario has been repeated countless times in destination countries throughout the OSCE region.
50 In the United States, federal legislation is now pending that would provide a temporary residence permit and assistance to trafficked persons who co-operate with law enforcement. At present, however, the vast majority of trafficked persons are detained and deported, as in other OSCE States, often without having been identified as such. Special "S" visas have been provided to witnesses in a few high-profile trafficking cases, but experts note that the number of visas available for this purpose is extremely limited. See also, discussion at supra note 37.
51 In Italy and the United States, trafficked persons have been able to receive legal remedies and extend their temporary stay in some cases. In Italy, suits for civil damages are integrated into criminal proceedings, and damages - often substantial - have been awarded to victims from the value of property confiscated from traffickers during police investigations. A new proposed law would establish a fund from confiscated valuables of traffickers to support shelters and programmes for trafficking victims. (Other countries, such as Germany, allow confiscation of as-sets, but profits flow to the government, not to victims.) In the United States, prosecutors were successful in obtaining a substantial restitution award for victims of trafficking in a criminal case involving forced prostitution of several young Mexican women and girls. NGOs have also obtained civil remedies for trafficked workers in a few high-profile cases. In both Italy and the US, the longer-term immigration status of the trafficked persons is uncertain. However, eligible victims can apply for amnesty, and legislation has been proposed that would permit victims to extend their stays or convert to permanent residency status in some cases.
52 Crimes of violence against women, in general, are seldom enforced in many countries of origin. The lack of attention paid to trafficking may be only part of this broader problem.
53 Police and official corruption is an important contributing factor in many countries of origin, and occurs with impunity. See, e.g., Transnational Crime & Corruption Center at American University (TraCCC), Organized Crime Watch-NIS, Vol. 1, No. 3 (March/April 1999); Global Survival Network, "Crime and Servitude", pp. 41-44.
54 An initial review of the new trafficking legislation reveals some potential limitations. For example, the Polish law does not define trafficking and therefore may be too vague to be enforceable. The stricter penalties for trafficking a person for prostitution abroad also applies only to persons trafficked out of Poland. The Lithuanian law is limited to trafficking for sexual exploitation.
55 See, e.g., Center for the Study of Transnational Crime & Corruption at American University, Organized Crime Watch - Russia, Vol. 1, No. 2 (February 1999), p. 5.
56 See, e.g., Global Survival Network, "Crime and Servitude", pp. 33-39.
57 People in many regions still widely believe that there is a high demand for local girls to work abroad as nurses, nannies and models, and are unaware of the suspect nature of advertised jobs. See, e.g., Dr. Juliette Engel, MiraMed Institute, Preliminary Report on Unifem Project in Russia (1998), p. 3.
58 Two particularly successful awareness-raising efforts were information campaigns carried out in 1998 by the NGO La Strada in Poland (funded by the EC PHARE programme) and the IOM in Ukraine (funded by the United States). Other awareness-raising efforts, such as the MiraMed Institute project in six oblasts in the Russian Federation, have also had a positive impact. In addition, NGOs such as La Strada Bulgaria have published and distributed effective information pamphlets explaining the risks of migrating for work abroad, advising on practical steps women can take to protect themselves, and providing contact information for embassies and NGOs in countries of destination.
59 See, e.g., Dr. Juliette Engel, MiraMed Institute, Preliminary Report on Unifem Project in Russia (1998).
60 Many women and girls are also unable to return home after being trafficked because their families or communities reject them (or in some cases because families or acquaintances were complicit in the trafficking). In most origin countries, there is no place for these women to go for shelter or other assistance, and they may return to prostitution for lack of any viable alternative.
61 The ODIHR has not yet researched the efforts of individual States, although it is aware that several participating States have undertaken and/or financially supported various initiatives to address trafficking at an international level. These include, for example, bilateral co-operation programmes involving the United States and Italy, Israel, and Ukraine; a 1998 US-EU joint public information campaign in Ukraine and Poland (implemented by IOM and La Strada); an NGO networking project in the Baltics, funded in part by the Swedish Foreign Ministry, and ongoing USAID projects in South East Asia and Ukraine.
62 In particular, specialized NGOs such as La Strada (Poland, Czech Republic, Bulgaria, and Ukraine), Phoenix (Germany), STV (Netherlands), and Payoke (Belgium) have been invaluable in leading the fight against trafficking in their respective countries.