37 Child Trafficking

Jhuma Sen

epgp books

 

Learning Outcomes

To give students an overview of the different international declarations, conventions and charters on child trafficking.

Introduction

Child trafficking is a worldwide problem which is especially acute in the third world countries.

Trafficking happens due to demand of forced labour, domestic work, child soldiers, camel jockeys, begging, work on construction sites and plantations and most importantly for sexual exploitation. The trafficked children who arrive in another country are generally in a miserable state, most of the times without contact with their home and at the mercy of their employer. Various national and international laws have been passed ensuring strict measures against child trafficking. These instruments ensure specific punishments for crimes related to child trafficking and provides for rehabilitation of the rescued children.

Definition of trafficking

The term “trafficking” was not concretely defined until 2000. The terms “trafficking” and “smuggling” were used interchangeably by government and international organizations. However, different organizations used to emphasise on different forms of trafficking, be it migrant labour or prostitution, and it was very difficult to come to a universally acceptable form for want of a concrete definition.

 

In 1994, the UN General Assembly defined trafficking as,“The illicit and clandestine movement ofpersons across national and international borders… with the end goal of forcing women and girl-children into sexually or economically oppressive and exploitative situations for the profit of recruiters, traffickers, crime syndicates as well as other illegal activities related to trafficking such as forced domestic labour, false marriage, clandestine employment and forced adoption”.

In 2000, the UN Crime Commission distinguished between trafficking and smuggling and came up with a full-proof definition as below:

The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the 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 purposes of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

4. International Legislatives and Policy Initiatives

Three landmark legislatives in the area are

  • Palermo Trafficking Protocol (2000)
  • SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002)
  • The Recommended Principles and Guidelines on Human Rights and Human Trafficking issued by the UN High Commissioner for Human Rights (2002)

4.1 Palermo Trafficking protocol (2000)

In November 2000, at Palermo, Italy, the UN General Assembly adopted three instruments designed to form the basis of a new international legal regime to fight transnational organized crime. Among these three legislatives one is the “parent” instrument under which two protocols were adopted.

4.1.1. Protection of Trafficked Child

 

The protocol adopted the provision for safety and protection of the trafficked child through four actions: Protect, Consider, Endeavour and Ensure.

  • Protect the trafficked child’s identity and privacy and ensure that they are provided adequate legal assistance to present their views and concerns during criminal procedures against offenders.
  • Consider implementing measures to provide for the physical and psychological recovery of trafficked children and their rehabilitation.
  • Endeavourto provide for the physical safety of trafficking victims within their territory.
  • Ensurethat the law of the regions (both from where the child is trafficked and to which region (s)he is trafficked) provides the child with the possibility of obtaining compensation.

4.1.2 Law Enforcement and Border Control

 

The protocol extensively provides for law enforcement and border control measures in its capacity.

 

The terms and conditions stated by the protocol in this area are as the following:

  • States Parties are obliged to exchange information for identifying perpetrators or victims of trafficking and trafficking methods.
  • Proper training and education must be provided to law enforcement, immigration and other border security personnel in order to prevent trafficking and prosecute the traffickers.
  • The training should include human rights issues, children and gender issues and issues of protecting the right of the trafficked child.
  • NGOs, Human Rights organizations and other relevant organizations are to be involved in this endeavor.
  • States parties must ensure the integrity of travel documents issued on their behalf and to appropriately penalize fraudulent uses.

4.2 SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002)

The SAARC Convention was adopted by the South Asian Association for Regional Cooperation in January, 2002. The countries which are members of SAARC are Bangladesh, Bhutan, India, the Maldives, Nepal, Pakistan and Sri Lanka

4.2.1 Overview of the Key Provisions

The Convention defines trafficking as below

The moving, selling or buying of women or children for prostitution within and outside a country for monetary or other considerations with or without the consent of the person subject to trafficking.

(Source: SAARC Convention 2002, note 12, Article I.3)

The Convention defines the trafficked victims as Women and children victimized or forced into prostitution by the traffickers by deception, threat, coercion, kidnapping, sale, fraudulent marriage, child marriage or any other unlawful means.

The convention equally treats women and children victims. The convention especially differentiates a child victim from other adults. According to the UN High Commissioner in the convention,

…the particular physical, psychological and psychosocial harm suffered by trafficked children and their increased vulnerability to exploitation require that they be dealt with separately from adult trafficked persons in terms of laws, policies, programs and interventions.

4.2.2 Assistance, Protection and Repatriation provisions

The Convention declares automatic rehabilitation of trafficked child to countries of origin. The Convention also provides for a number of protection programmes as below:

  • States Parties should provide legal assistance, proper maintenance and health care to trafficked children till their rehabilitation.
  • Protective homes or shelters must be provided to the victims.
  • Job training should be provided as a part of rehabilitation programme.
  • The issue of the trafficked child regarding their possible treatment as “social misfits” should be handled sensitively and ample time should be given before they are allowed back to society.

4.3 The Recommended Principles and Guidelines on Human Rights and Human Trafficking issued by the UN High Commissioner for Human Rights (2002)

In July, 2002, the then UN High Commissioner of Human Rights transmitted her Recommended Principles and Guidelines on Human Rights and Human Trafficking to the Economic andSocial Council of the UN (ECOSOC). The report explained the principles and guidelines to combat the trafficking issue. The report covers different aspects of trafficking and draws out legal guidelines to be executed. Though the report talks about trafficked victims in general, it also notes that women and children form the majority of those victims and hence the legislatives and legal guidelines are drawn mainly because of them. Regarding protection and assistance to the victim and punishment to the trafficker, the report provides some provisions which are stated verbatim below:

  • Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.
  • States shall ensure that trafficked persons are protected from further exploitation and harm and have access to adequate physical and psychological care. Such protection and care shall not be made conditional upon the capacity or willingness of the trafficked person to cooperate in legal proceedings.
  • Legal and other assistance shall be provided to trafficked persons for the duration of any criminal, civil or other actions against suspected traffickers. States shall provide protection and temporary residence permits to victims and witnesses during legal proceedings.
  • Children who are victims of trafficking shall be identified as such. Their best interests shall be considered paramount at all times. Child victims of trafficking shall be provided with appropriate assistance and protection. Full account shall be taken of their special vulnerabilities, rights and needs.
  • Safe (and, to the extent possible, voluntary) return shall be guaranteed to trafficked persons by both the receiving State and the State of origin. Trafficked persons shall be offered legal alternatives to repatriation in cases where it is reasonable to conclude that such repatriation would pose a serious risk to their safety and/or to the safety of their families.
  • States shall adopt appropriate legislative and other measures necessary to establish, as criminal offences, trafficking, its component acts and related conduct.
  • States shall effectively investigate, prosecute and adjudicate trafficking, including its component acts and related conduct, whether committed by governmental or by non-State actors.
  • States shall ensure that trafficking, its component acts and related offences constitute extraditable offences under national law and extradition treaties. States shall cooperate to ensure that the appropriate extradition procedures are followed in accordance with international law.
  • Effective and proportionate sanctions shall be applied to individuals and legal persons found guilty of trafficking or of its component or related offences.
  • States shall, in appropriate cases, freeze and confiscate the assets of individuals and legal persons involved in trafficking. To the extent possible, confiscated assets shall be used to support and compensate victims of trafficking.
  • States shall ensure that trafficked persons are given access to effective and appropriate legal remedies.

4. Child Trafficking Laws and Initiatives in India

India is a large source of child trafficking related crimes. Majority of the trafficking here relates to prostitution. 40% of the prostitutes in India are below 18 years of age. Though trafficking mainly happens between states, a large number comes from Nepal and Bangladesh as well. Also, a significant number of children are trafficked to the Middle Eastern countries for camel racing and other sports related purposes. Indian law and initiatives prohibiting child trafficking can be divided in two major areas as below:

  • Immoral Traffic Prevention Act, 1986.
  • Ministry of Women and Child Development (MWCD) initiatives to combat trafficking of women and children.

5.1 Immoral Traffic Prevention Act, 1986

In 1956 the Government of India passed the Suppression of Immoral Traffic in Women and Girls Act, 1956 (SITA). The act was further amended and changed in 1986, resulting in the Immoral Traffic Prevention Act also known as PITA. However, the act only talks about trafficking in relation to prostitution and does not consider other purposes of trafficking such as forced labour or organ business. The provisions regarding punishment of traffickers and rescue and rehabilitation of the trafficked child are mentioned as below:

  • If a person procures, induces or takes a child for the purpose of prostitution then the prison sentence may vary from seven years to life imprisonment.
  • Any person involved in the recruiting, transporting, transferring, harbouring, or receiving of persons for the purpose of prostitution is guilty of trafficking.
  • Any person attempting to commit trafficking or found in a brothel is punishable under the law.
  • If owner of an establishment, such as a hotel, has knowledge that child prostitution is happening at his/her property, the license of the establishment will be cancelled along with the given prison sentence and/or fines.
  • A trafficked child rescued from a brothel can be placed in a shelter by the magistrate. Landlords who unknowingly rented their property to a person or persons found guilty of trafficking in that property should get approval from the magistrate before re-leasing their property for three years.

5.1 Ministry of Women and Child Development (MWCD) initiatives to combat trafficking of women and children

In order to stop trafficking of children, the MWCD has taken a number of initiatives:

  • National Plan of Action to Combat Trafficking and Commercial Sexual Exploitation of Women and Children 1998, was formulated with the aim of rehabilitation of victims of trafficking.
  • Central Advisory Committee was formed to give consultation on methods and tactics to combat child trafficking.
  • A protocol on pre-rescue, Rescue and Post-rescue operations of trafficked child was published as guidelines by the MWCD.
  • The MWCD in collaboration with UNICEF has developed three manuals for ‘Judicial Handbook on combating Trafficking of women and Children for Commercial Sexual Exploitation’; ‘Manual for Medical Officers for Dealing with Child Victims of Trafficking and Commercial Sexual Exploitation’; and ‘Counselling services for Child survivors of trafficking’.
  • Ministry of Home Affairs has set up of a nodal Cell for prevention of trafficking. The cell is responsible for providing state governments with the necessary research, studies and information.
  • The MWCD runs shelters and short stay homes for trafficked children and women.
  • Three pilot projects were implemented
    • Pilot project to combat trafficking women and children for commercial sexual exploitation,
    • Pilot project to combat trafficking of women and children for commercial, sexual exploitation in source areas and
    • Pilot project to combat trafficking of women and children for commercial sexual exploitation in destination areas.
  • With cooperation from the Ministry of External Affairs, the MWCD has created special task forces to combat cross border trafficking.

6. Summary

In this module we studied different aspects of child trafficking and international and national laws and endeavours to combat them. We have also seen that over the years different international charters and declarations have been formed by the UN, UNICEF, SAARC and others that provides for specific laws and structural measures to criminalize trafficking of children and to legislate specific punishments. In India, the Immoral Trafficking Act and other initiatives by the WMCD ensures legal and social battle against child trafficking and rehabilitation of the victims.

you can view video on Child Trafficking

Reference

  • http://documents.gov.in/central/12262.pdf
  • http://childlineindia.org.in/child-trafficking-india.htm
  • https://www.savethechildren.in/what-we-do/child-protection/child-trafficking
  • https://www.hrw.org/reports/2003/togo0403/togo0303-11.htm
  • https://www.unicef.org/protection/57929_58005.html
  • https://www.unicef.org/southafrica/SAF_pressrelease_notetrafficking.pdf