Evaluation of traffiking in persons & smuggling of migrants laws
It is pertinent to understand that victims of trafficking are considered victims of a crime under international law, smuggled victims are not—they pay smugglers to facilitate their movement.
By Masud Khabeki
Trafficking in persons is a trade or an activity involving forced labor, sexual slavery or exploitation for the trafficker or others and is condemned as a violation of human rights by international conventions. Human trafficking is thought to be one of the fastest-growing activities of trans-national criminal organizations. Trafficking could occur within a country or trans-nationally. This is considered a crime against the person because of the violation of the victim’s rights of movement through coercion and because of their exploitation. According to an estimate by the ILO in 2014, there were 21 million victims of this trade. The only one component of Trafficking in Persons i.e. forced labor generates $150 billion in profits per annum.
Smuggling and Trafficking are often confused. The two crimes are very different and it is critical to understand the difference between the two. Trafficking in Person involves exploiting men, women, or children for the purposes of forced labor or commercial sexual exploitation. While, Human Smuggling is the facilitation, transportation, attempted transportation or illegal entry of a person or persons across an international border, in violation of one or more persons across an international border, in violation of one or more countries’ laws, either clandestinely or through deception, such as the use of fraudulent documents.
Unlike Human Trafficking, Human smuggling is characterized by the consent between customer and smuggler – a contractual agreement that typically terminates upon arrival in the destination location. However, people involved in smuggling operations may also be victims of trafficking, for example when they are tricked about the terms and conditions of their role for the purpose of exploiting their labor in the operation.
It is pertinent to understand that victims of trafficking are considered victims of a crime under international law, smuggled victims are not—they pay smugglers to facilitate their movement. A better awareness of the distinctions between human trafficking and human smuggling can potentially improve victims’ protection and avoid the re-exploitation of victims.
Trafficking Protocol or the Palermo Protocol under the UN Convention against Transnational Organized Crime (CTOC) which entered into force on 25 December 2003, is the first global, legally binding instrument on trafficking in over half a century, and the only one with an agreed-upon definition of trafficking in persons. One of its purposes is to facilitate international cooperation in investigating and prosecuting such trafficking. Another is to protect and assist human trafficking’s victims with full respect for their rights as established in the Universal Declaration of Human Rights.
It is pertinent to mention that in 2014, for the first time in the history, prominent religious leaders signed a declaration to have shared commitment against modern-day slavery and called for the elimination of slavery and human trafficking by the year 2020. The signatories include Pope Francis, Mātā Amṛtānandamayī (also known as Amma), Bhikkhuni Thich Nu Chân Không (representing Zen Master Thích Nhất Hạnh), Datuk K Sri Dhammaratana, Chief High Priest of Malaysia, Rabbi Abraham Skorka, Rabbi David Rosen, Abbas Abdalla Abbas Soliman, Undersecretary of State of Al Azhar Alsharif (representing Mohamed Ahmed El-Tayeb, Grand Imam of Al-Azhar), Grand Ayatollah Mohammad Taqi al-Modarresi, Sheikh Naziyah Razzaq Jaafar, Special advisor of Grand Ayatollah (representing Grand Ayatollah Sheikh Basheer Hussain al Najafi), Sheikh Omar Abboud, Justin Welby, Archbishop of Canterbury, and Metropolitan Emmanuel of France (representing Ecumenical Patriarch Bartholomew).
The Trafficking Protocol having 173 parties, defines human trafficking as “the recruitment, transportation, transfer, harboring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal, manipulation or implantation of organs”. Furthermore, the consent of a victim of trafficking in persons to the intended exploitation mentioned in preceding line has become irrelevant, and the recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons”.
The ‘3P Anti-trafficking Policy Index’ measures the effectiveness of government policies to fight human trafficking based on an evaluation of policy requirements prescribed by the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000). The policy level is evaluated using a five-point scale, where a score of five indicates the best policy practice, while score 1 is the worst. This scale is used to analyze the main three anti-trafficking policy areas: (i) prosecuting (criminalizing) traffickers, (ii) protecting victims, and (iii) preventing the crime of human trafficking.
The outcome of the Index shows that anti-trafficking policy has overall improved in Pakistan as the country improved its rating by moving up from Tier 2 to Tier 1 in the index. Tier 1 Countries and territories are defined governments who fully comply with the Act’s minimum standards. The government of Pakistan passed “The Prevention of Trafficking in Persons Act, 2018” and “The Prevention of Smuggling of Migrants Acts, 2018”. These laws safeguard the rights of victims of human trafficking and smuggled migrants, on the one hand, and empower the law enforcement agencies of Pakistan to effectively prosecute the organized gangs perpetuating and benefitting from these crimes, on the other. Under the new laws, FIA has the mandate to register and investigate the cases of tans-national trafficking while Police is made responsible to register and investigate the cases involving Trafficking in Persons within country.
The two laws were drafted by the Federal Investigation Agency (FIA) with the assistance of UNODC, are in-line with international standards and are based on United Nations model laws on Trafficking in Persons (TIP) and Smuggling of Migrants (SOM). These laws impose long imprisonment terms and substantial fines for traffickers, smugglers and their accomplices. One of the most important aspects of “The Prevention of Smuggling of Migrants Act, 2018” is the non-criminalization of smuggled migrants which shows the commitment of the Government of Pakistan to ensure the protection of human rights of victims trapped by unscrupulous migrant smugglers.
The UNODC Country Office Pakistan, under its country program framework, has extended technical assistance and advocacy support to FIA, as well as to the Ministry of Foreign Affairs, the Ministry of Law and Justice and the Ministry of Interior, in developing much-needed legal instruments to prevent and combat human trafficking and migrant smuggling by organizing multiple workshops and seminars to alert criminal justice practitioners to the existing gaps and legal limitations which made it impossible to fully address the issues of TIP and SOM in the country. In addition to these efforts, UNODC Pakistan has extended the support to law enforcement agencies by organizing the training programs to sensitize the officials with the new laws and the need to tackle the issues of TIP and SOM. The enactment of new powerful laws will strengthen the hands of FIA and Police in preventing and prosecuting the crimes of organized criminal groups of traffickers and smugglers who put the lives, freedom, wellbeing and dignity of countless human beings at risk every year.