CHILD TRAFFICKING

Preface
The day their god died[1]
“The girls described it in terms of, “the day that I was sold was the day my god died.”
--Matt Friedman, international health professional and trafficking expert[2]
“I trusted my friend. I didn’t know any better. They drugged us with something you take with bread. I never came back from there…when I refused to have sex they beat me for days. They threatened to bury me alive.”[3]
Anita, sold at age 12.
Having not been able to pay any transportation costs, she went with a bus driver who offered to take her for free to a factory job in Thailand. She was sold to a brothel owner, who told her that she could not leave until she worked off the money he paid to the driver. She was never told how much. She was given 2,500 Baht (US$67), and believes that she cannot leave. She does not know how much she earns per client, or how long it will take her to work off her debt.[4]
A child victim of trafficking into Thailand from the border areas.
Imagine yourself as a poor girl child living in a rural village in Nepal who did not go to school because her brothers did… who worked all day at the fields with her parents and still did not have enough to eat... who wanted to study and not have to see her father beat her mother everyday. Then one day, a young guy came to the sleepy village. He looked nice, bought her some gifts…and after a month, asked her parents if he could marry her. The poor parents thought that this might be good for their daughter…and he looked like a nice boy anyways...he was respectful...and he had given them some money…
So the girl found herself in a big city…it must be Kathmandu, she thought. I will be happy with him, she thought. He took her to this big house, and introduced her to the people who owned it. He said…wait for me for a week…I have some work to do…I will come pick you up …She didn’t exactly have a choice. She stayed…the family woke her up early next morning and asked her to get water from the well and come to the kitchen. She started working…and no, he never came back…Life did not change for her…
She decided to escape after 2 years of back breaking work…ran to the bus station…had some money with her…told the driver her story… he said he would take her to India for a better job in the film industry…she could not dream of anything better.
Rs. 30,000 was her price at the brothel in Mumbai.
That was the day her god died.
1.1 Background
Trafficking in human beings is probably the fastest-growing business of organized crime in the world. It has begun to rival the illegal trade in drugs and arms with estimated revenue of $12 billion a year, according to a 2003 ILO report. Traffickers use threats, intimidation, and violence to force victims to engage in sex acts or to labour under conditions comparable to slavery. Women, children, and men are trafficked for the purposes of prostitution, sex tourism, and other exploitative work. Obtaining reliable data on human trafficking is difficult owing to a lack of clear definition and the covert nature of the activity. Although trafficking afflicts men and women equally, rough estimates by the UN suggest that between 700,000 to 2 million persons trafficked across international borders annually are women and children.[5]
1.2 Trafficking – What, Where and How
A common consensus on the meaning of trafficking was reached for the first time at The UN Convention against Transnational Organized Crime (The Palermo Conventions) at Palermo, Italy in 2000. The definition of trafficking therefore is that: "(a) ' Trafficking in persons' shall mean 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 [interpretative note (63)][6] 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 [interpretative note (64)][7], forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;” "(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used [interpretative note (68)][8];"
According to the US Department of State, over 225,000 victims of trafficking each year are from Southeast Asia and over 150,000 from South Asia. The former Soviet Union, believed to be the largest new source of trafficking for prostitution and the sex industry, sees an estimated 100,000 women trafficked each year. An additional 75,000 or more are trafficked from Eastern Europe. Over 100,000 come from Latin America and the Caribbean, and over 50,000 victims are from Africa. Trafficking is no longer limited to global south–north movements; there are increasing instances of inter-regional traffic (Bangladeshi and Nepali girl children being smuggled into India) with the numbers of destination countries on the increase. Traffickers are reported to be most active in South and Southeast Asia, and although traffickers often operate individually or in small groups, the trade is also organized into international criminal syndicates. These groups employ brokers who find victims, others who secure travel documents smugglers who transport victims, and corrupt police and other officials whose cooperation is essential to conducting this trade.[9]
Child Trafficking is certainly not a new phenomenon and is probably one of the gravest abuses of human rights. Asia, which is home to more than one billion of the world’s poor, has the worst cases of child trafficking in the world. It can be seen as a result of demand of cheap labour in many industries and in the commercial sex market. According to a latest ILO/IPEC[10] report “ Unbearable to the Human Heart,” trafficking in South Asia is an extension of a very serious child labour problem, with poverty at the root cause combined with ignorance. The nature of trafficking revolves around deception and bondage. Most of the trafficked children end up as child labourers in commercial sex, into garment and carpet factories, as beggars, in brick making, or as domestic servants. Hence, there is a strong relationship between trafficking and the worst forms of child labour. In poor developing countries, child trafficking is a demand driven phenomenon- the demand coming from within the country and from outside the borders, and met by an abundant supply of poor children who are excited by the promise of a better life.
Children have become a very sought after commodity in the international market, and a great deal of profit can be earned through them. Though children are usually less productive than adults, they are easier to abuse, less assertive and less able to claim their rights, and can be made to work longer hours with no benefits and little food. They are also more vulnerable if they are working in a foreign environment because they cannot speak the language or are unfamiliar with the culture. Although children continue to be trafficked into commercial sexual exploitation, many children are trafficked into other forms of labour exploitation, including domestic service, armed conflict, service industries like restaurants and bars and hazardous work in factories, agriculture, construction, fishing and begging. The latest Trafficking in Persons report of the US State Department issued in June 2003 gave almost equal weight to the forced labour and sexual dimensions of human trafficking.
Globalisation has added an international dimension. The desire of families to break out of their cycle of poverty has made them increasingly receptive to “opportunities” abroad. It thus becomes relatively easy to trick women into “migrating” for employment overseas, or into selling their children to a broker for a cash advance on the money the child will be able to “earn” in their “care.” A recent IPEC assessment states that 1.2 million children are “trafficked”- moved within and across borders by force or deception, resulting in their economic and sexual exploitation. It is clearly stated in the UNICEF 2003 annual report that efforts to end the worst forms of child labour would not succeed without effective cooperative efforts to fight the trafficking of children and women within and across national borders. The trafficking of children is specifically prohibited under several international and regional conventions, including the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and of Institutions and Practices Similar to Slavery; the 1989 United Nations Convention on the Rights of the Child; the African Union’s African Charter on the Rights and Welfare of the Child; and the International Labour Organisation Convention No. 182 on the Worst Forms of Child Labour.
2. International Conventions on Child Trafficking - The Legislative Framework
2.1 The UN Convention on the Rights of the Child (CRC)
The Convention on the Rights of the Child was carefully drafted over the course of 10 years (1979-1989) with the input of representatives from all over the planet. The Convention reflects this global consensus and, in a very short period of time, it has become the most widely accepted human rights treaty ever. One hundred ninety-two countries, with the exception of the USA and Somalia, have ratified it. The Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights – civil and political rights as well as economic, social and cultural rights. Two Optional Protocols, on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography, were adopted in 2000. These latter protocol makes it obligatory for countries ratifying it to offer “the greatest measure of assistance” in investigations and criminal and extradition proceedings connected with the sale of children for the purpose of sexual exploitation, transfer of organs of the child for profit and engagement of the child in forced labour.
The UN Convention on the Rights of the Child or the CRC was ratified by Nepal in 1990 and by Sri Lanka in 1991. The article 35 of this convention specifically 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.” Thus the governments that ratify and sign this treaty are legally obliged to prevent child trafficking in any form. This treaty also applies to all children who have not reached the age of maturity in their respective countries under article 1 of the Convention. The age of majority is 16 in Nepal and 18 in Sri Lanka. The problem of illicit transfer and no return of children abroad is mentioned in Article 11. This article protects children who have been kidnapped “legally” (for example by a parent who is fighting for custody). Most states choose to solve such cases through multilateral agreements. The issue of trafficking is also mentioned in Article 36, which deals with “other forms of exploitation” which may not fall under any of the other provisions of exploitation. Article 9 of this Convention mentions that children should not be separated from their parents against their will, except when necessary for their best interests.
The CRC was the first Convention that stressed that children’s rights are human rights. Before this convention, children’s interests had rarely been perceived in a distinct manner and children had remained unheard. This Convention set the ethical and legal framework for the development of a concrete agenda for children everywhere and provided a common reference to assess the progress within countries. This Convention stresses that all children are important and that it is very essential to address those children who have not benefited from global progress either because of their gender, social origin or ethnicity. After the CRC came into force, many states undertook important institutional reform and added special legislations in their law, including Nepal and Sri Lanka.
2.2 The UN Convention Against Transnational Organized Crime (The Palermo Conventions)
The UN Convention against Transnational Organized Crime (the Palermo Conventions) was adopted by the UN General Assembly at its Millennium Meeting in November 2000.
States party to the Palermo Convention would be required to establish in their domestic laws four criminal offences:
• Participation in an organized criminal group;
• Money laundering;
• Corruption; and
• Obstruction of justice.
The Convention spells out how countries can improve cooperation on such matters as extradition, mutual legal assistance, transfer of proceedings and joint investigations. It contains provisions for victim and witness protection and shielding legal markets from infiltration by organized criminal groups. Parties to the treaty would also provide technical assistance to developing countries to help them take the necessary measures and upgrade their capacities for dealing with organized crime. The Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children (the Trafficking Protocol), is one of three optional protocols to the Palermo Convention and it deals with trafficking in persons, especially women and children. It was also adopted at the Millennium Meeting of the General Assembly in 2000. States party to the Trafficking Protocol would be required to establish in their domestic law measures "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.
In Article 3 of this Protocol, the legislators have drawn a basic distinction between trafficking of labour and forced labour exploitation on the one hand, and sexual exploitation and prostitution on the other. Exploitation was given to include, at a minimum, forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. The consent of a victim to the intended exploitation is irrelevant where any of the exploitative means have been used. Although the Protocol does recognize the distinction between voluntary prostitution and forced prostitution, it does not clearly define the meaning of “exploitation of prostitution of others or other forms of sexual exploitation” because government delegates at the negotiations do not agree on a common meaning. Groups on both sides of the trafficking debate see this indecision as potential for prejudice by governments in addressing prostitution in their domestic laws. In short, the focal point of these instruments is clearly the organized criminal group and how to weaken it through law enforcement. In adopting these instruments, governments therefore commit to criminalizing offences committed by organized groups, cracking down on the proceeds of crime, speeding up and widening the reaches of extradition of members of criminal groups and tightening law-enforcement cooperation to seek out and prosecute suspects. The logic of these instruments is that the interception and prosecution of the members of criminal groups will lead to their downfall.
2.3 International Labour Organization (ILO)’s International Labour Standards
The ILO’s International Programme on the Elimination of Child Labour (IPEC), which was launched in 1992, implements technical assistance programmes to support participating countries in combating child trafficking. Such programmes only operated in a few Asian countries from 1993-95, but after the First World Congress against Commercial Sexual Exploitation of Children in 1996, the IPEC program was expanded to 30 countries in Asia, Africa and Latin America. Currently, IPEC has activities in 82 ILO member states. Three IPEC member countries- the United Republic of Tanzania, Nepal and El Salvador became members of the IPEC’s Time Bound Programme (TBP) to end the worst forms of child labour, including child trafficking and children in prostitution. The TBP concept is designed to meet the need for large-scale interventions that exists in many countries. In this framework, national agencies and institutions take the lead in programme development and implementation, including resource mobilization.
For a long time, the ILO dealt with child trafficking through its Forced Labour Convention (No. 29), which aims to eradicate “ all work or service which is extracted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” But from 1999, the combat against child trafficking has been reinforced by ILO Worst Forms of Child Labour Convention, (No.182) and Recommendation (No.190). This powerful instrument confirms child trafficking as a practice similar to slavery and calls for its immediate elimination.
2.3.1 The Worst Forms Convention, (No.182), 1999.
Convention 182 on the Worst Forms of Child Labour is one of the most recent additions to the list of international instruments against child trafficking. This Convention calls for the ratifying states to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.[11] In article 3, the Convention establishes a form of prioritisation as to what forms of child labour are to be considered as the worst forms of child labour to be dealt with according to article 1. Trafficking of children falls explicitly under the area of the “ all forms of slavery.” A separate provision requires each Member to design and implement programmes of action to eliminate as a priority the worst forms of child labour - with such programs being designed and implemented in consultation with relevant government institutions, employers and workers organizations, and taking into consideration views of other concerned groups as appropriate. This convention recognises that child labour is to a great extent caused by poverty. The long-term solution lies in sustained economic growth leading to social progress, in particular poverty alleviation and universal education.
This Convention also has important provisions with regards to child soldiers, which is also one of the worst forms of labour. It prohibits the forced or compulsory recruitment of children under the age of 18 in armed conflicts and mandates immediate action to eliminate it. The Recommendation (No. 190), which was adopted along with Convention No.182, proposes specific ways in which the general provisions of the Convention can be translated into national law and practice. It also states that certain forms of child labour should be made criminal offences punishable under national laws. It emphasizes the importance of mobilizing the society as a whole through public information campaigns. This convention applies to all children under the age of 18 years, irrespective of the age of majority in their respective countries under national law. This Convention is complementary to the UN Convention on the Rights of the Child, and other partners against the struggle include UNICEF and many other NGOs. The CRC mainly deals with the protection of children and Convention 182 deals with implementation of one of the biggest threats to the well being of children- child labour. It states an important reference to international cooperation in prohibiting and eliminating the worst forms of child labour. The consensus that these abuses affect all the countries in the world is emphasized and it is further stressed that countries should help each other to eliminate such abuses, wherever they might exist. Nepal and Sri Lanka ratified this convention in 2001.
2.3.2 The Minimum Age Convention, (No.138), 1973.
As stated earlier, child trafficking in closely linked with exploitative child labour. The Minimum Age convention, although not directly related to child trafficking, deals with child labour, which is often a consequence of trafficking. This convention requires states to design and apply national policies to ensure the effective abolition of all forms of child labour and to set the minimum ages for employment. This has proven to be a difficult task confronted with much resistance, because of particularly vested commercial interests and market pressures as well as moral indifference and cultural attitudes. The Minimum Age Convention (No.138), supplemented by Recommendation No.146 requires ratifying States to pursue a national policy to ensure the effective abolition of child labour, and to progressively raise the minimum age for employment or work. The first principle of the Convention is that the minimum age should not be less than the age for completing compulsory schooling, and in no event less than age 15, and that the minimum age should be progressively raised to a level consistent with the fullest physical and mental development of young persons. The ultimate objective of Convention No.138 is the effective abolition of child labour; as such it is a key instrument of a consistent strategy against child labour, whilst Recommendation No.146 provides the broad framework and essential policy measures for both the prevention and elimination of the problem.
3.UN Agencies and other NGOs
Several UN organizations and Non-Governmental Organizations work on the issue of trafficking. The United Nations Children’s Fund (UNICEF) is probably the most closely tied with IPEC when it comes to working against child trafficking. Along with its country programs, UNICEF also works at the international level to promote and support agreements; standards and mechanisms that allow countries to better cooperate to combat trafficking. It has programmes in poverty reduction, government commitment to education, children’s life skills, strengthening legislation and law enforcement and recovery and reintegration after the children are rescued/returned. For example, in Nepal, UNICEF has initiated community surveillance systems and paralegal communities working against child trafficking in 14 districts. UNICEF has also assisted in establishing women’s cells in district police offices and has supported hostel facilities and rehabilitation centres for sexually abused and working children.
The Office of the High Commissioner for Human Rights (OHCHR) began its trafficking programme in March 1999 to work towards the integration of a human rights perspective into international, regional and national anti-trafficking initiatives. The work undertaken by the OHCHR is based on the principle that human rights should be at the core of any credible anti-trafficking strategy and that these strategies should be developed and implemented from the perspective of those who most need their human rights protected and promoted. The Office For Drug Control and Crime Prevention (ODCCP) was launched in 1999 to assist member states in implementing the Protocol against human trafficking. The ODCCP analyses routes and methods used by traffickers, improves cooperation among law enforcement agencies and works towards improving protection and support systems for victims and witnesses. The INTERPOL is an international network of police force, which is active in 177 states and works against organized crime in many parts of the world. The United Nations Interregional Crime Prevention Institute (UNICRI) and the Centre for International Crime Prevention (CRIC) have jointly developed a Global Programme against Trafficking in Human Beings, which includes data collection and analysis, the training of criminal justice practitioners, and advisory services on legislative reform and on developing victim assistance and witness protection modalities. ILO/IPEC launched its action programme to combat child trafficking in Nepal in 1997 and a regional programme was established in 2000 in Bangladesh, Nepal and Sri Lanka.
Many NGOs have active campaigns against child trafficking in many parts of the world, including Sri Lanka and Nepal. Save the Children, USAID, Terre des Hommes, AusAID have been working with ILO/IPEC, UNICEF, UNDP and many other organizations. For example, USAID/Nepal’s anti-trafficking activities address the need for prevention and protection, focusing primarily on raising awareness, gathering information, promoting advocacy, and providing assistance to victims. USAID’s anti-trafficking program funds NGO’s and organizations working to combat trafficking and is closely coordinated with the Nepalese Government’s national plan of action against trafficking. One of those NGOs, ABC Nepal, emphasizes the creation of educational opportunities for women and girls across 32 districts to reduce their vulnerability to trafficking. Another very major NGO called Maiti Nepal promotes community-based surveillance and rescues and rehabilitates trafficked girls. They have been well known for a long time for their efforts against trafficking of Nepali girls and women into prostitution.
Since the dimension of internal trafficking and displacement of children in Sri Lanka has been a big issue, the ILO/IFP Crisis and IPEC, with support from AusAID will soon launch a 24-month project titled “Rehabilitation of child soldiers from the Northern and eastern provinces of Sri Lanka,” The project aims to rehabilitate at least 100 child combatants, boys and girls, through provision of psychosocial trauma treatment and counselling, vocational training. It will also promote skills training and employment as a means to reintegration. UNICEF has also been in active dialogue with the LTTE in returning child combatants and placing them in rehabilitation homes for reintegration into their societies.
4. Regional Framework- SAARC Instruments
The South Asian Association for Regional Cooperation (SAARC) also has conventions that its member states- Pakistan, Maldives, Bhutan, Nepal, India, Sri Lanka and Bangladesh have signed against child trafficking. The SAARC Convention on Regional Arrangements on Child Welfare in South Asia includes trafficking as a regional priority, whereby states parties have to ensure that they have national laws to protect children from any form of trafficking[12]. The Colombo Resolution states in paragraph 5 under heading challenges that child trafficking is one of the most urgent challenges in the region and that “child trafficking particularly calls for both bilateral as well as regional cooperation.”[13] The Rawalpindi resolution calls for commitment from member states in the issues affecting children in the region. Similarly, the Declaration of the Ninth SAARC Summit expresses critical concern at the trafficking of women and children and pledges action on the part of the member countries[14]
The most recent convention that was created within the SAARC framework is the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, which was adopted at the Eleventh SAARC Summit, held in Kathmandu in January 2002. This is the latest step taken by the SAARC countries towards the goal of eliminating child trafficking within and outside their borders. It recognizes the need for extraterritorial application of jurisdiction; and extradition laws including a provision that the Convention shall be effective and the States Parties to the Convention will be bound to prosecute or extradite offenders in the absence of extradition treaties between the concerned states. Nevertheless, there are some pertinent issues, which have been overlooked in the proposed Convention. The definition provided in the Convention is very narrow and focuses only on prostitution and it does not address trafficking from broader perspective. The Convention also does not clarify the recipient country's accountability in rescue, rehabilitation, repatriation and reintegration of affected persons.
5. Case Studies
5.1 Nepal - Background
According to the World Bank Report Nepal is, with a per capita income of US$220 per annum, the 12th poorest country in the world and the poorest in South Asia, and in purchasing parity terms, the country’s per capita income makes it the 30th poorest country in the world. With more than 50% of children under five malnourished, literacy rates of 58% for men and 23% for women, and an infant mortality rate of 72.36 deaths/ 1,000 live births (2002 estimate), “ a staggering 71% of the population lives under the poverty line, which is defined as an annual income of less that $150.”[15] According to a recent ILO publication titled “Nepal: Trafficking in Girls with a special reference to Prostitution: A Rapid Assessment,” about 12,000 children are trafficked every year from Nepal. The local history implies that trafficking has long been associated with poverty, social exclusion and ignorance, as well as the practise of slavery and the bonded labour system. More than half of the trafficked girls are under the age of 16 and a quarter is under the age of 14. Another ILO study called “ Understanding Children’s Work,” reports that most trafficked girls end up in brothels in urban centres across the border in India, where as many as 30,000 Nepalese girls can be found at any given time. It also goes on to say that nearly 40% are trafficked before the age of 14. A Nepalese NGO CWIN (Child Workers in Nepal) reports that besides the sex trade that has been growing at an alarming rate, thousands of Nepalese children are also trafficked to carpet factories in India, to circus agencies, agricultural projects, road construction sites and to forced beggary in the bigger cities of India. Within the country, children are trafficked into Kathmandu where they work in manufacturing, sweatshops, hotels, or as domestic workers and child prostitutes. Although many figures differ from source to source, all of them paint a grave picture. Another report suggests that about 200,000 Nepali prostitutes work in Indian cities and 20 percent of 40,000 are under the age of 16. Maiti Nepal, a NGO working against trafficking in Nepal estimates that between 5,000 to 7,000 girls are trafficked from Nepal to prostitution in India annually.
5.1.2 Nepal’s National Legislation Against Trafficking
Nepal has made significant legislative and other policy efforts in the area of human rights. These efforts include ratifying several international conventions as well as adopting national legislation in order to bring the level of protection in Nepal up to a more internationally acceptable level. Nepal’s legislation in the area of trafficking is strongly characterized by a strong commitment to come to “terms” with the problem, while at the same time displaying a lack of technical capacity and implementation tools to have the desired effect. Recently; Nepal was selected as one of the three pilot countries worldwide to be chosen for ILO-IPEC’s Time Bound Program (TBP). This program is closely linked to the Worst Forms Convention and aims for the elimination of the worst firms of child labour from the pilot countries by 2005 and the elimination of al child labour by 2010.
5.1.3 The Constitution of Nepal
Article 20 of the Constitution, which guarantees the right against exploitation, states that trafficking of human beings and forced labour in any form, is prohibited. The Constitution is the fundamental law of the country. It voids other laws that are inconsistent with it, to the extent of their inconsistency (Article1)[16]. The Supreme Court has the power to issue necessary and appropriate orders for the enforcement of the fundamental rights conferred by the constitution. The right against exploitation is one of the fundamental rights. The Constitution also includes directive principles and policies of the state which cannot be enforced by any court but shall be “fundamental to the activities and governance of the state and shall be implemented in stages through laws within the limits of the resources and the means available in the country, according to Article 24. One of the state policies contained in Article 26(3) is that the “state shall make necessary arrangements to safeguard the rights and interests of children and shall ensure that they are not exploited.”
Although the Constitution of Nepal has all the legal language required for the protection of children and curbing trafficking, many of such principles are not upheld and the current Maoist crisis has led to Nepali citizens losing some of their fundamental rights. The other acts that exist in the Nepali law are the Human Trafficking Control Act (1986), written for the purpose of combat growing trafficking of women and girls. The Civil Code of Nepal called the “Muluki Ain” defines the trafficking of humans out of the country as a crime, and also prohibits the separation of minors from their legal guardians without consent. The State Cases Act defines the crime of trafficking in women and girls as an offence against the state of Nepal.
The Convention for the Suppression of the Traffic Person and of the Exploitation of the Prostitution of Others, the Convention of the Rights of the Child, the Convention on the Elimination of all Forms of Discrimination against Women, and the SAARC Convention on Prevention and Combating Trafficking in Women and Children (2002) provide the general legal framework for combating child trafficking. On 14th March 2002, the Parliament passed the Country Code Eleventh Amendment Bill, which hopes to significantly improve the rights of women and includes a bill dealing with paedophilia, which is now considered as rape[17]. The Children’s Act and The Traffic in Persons (Crime and Punishment) Act have many provisions against the trafficking situation and they will be briefly discussed in this paper.
5.1.4 The Children’s Act
The promulgation of the Children’s Act was prompted by the accession of Nepal to the Convention on the Rights of the Child in 1990. Many provisions of the CRC (Convention on the Rights of the Child) have been directly incorporated into this act. The act defines a “child” as a person under the age of 16 years, develops the concept of the parents’ obligations in bringing up the child and includes provisions on criminal responsibility of children.[18] But the interesting thing is that there are no specific provisions in the Nepali national legislation specifically protecting children from trafficking, rather the legislation applies to all people, including children. The issue of “other forms of exploitation” and illicit transfer and non-return of children. Article 36 of the CRC guarantees children’s right to protection from all other forms of exploitation not covered in preceding articles. There is no equivalent to this in the Children’s Act. Another issue is the illicit transfer and non-return of children expressed in article 11 of the CRC. The Convention hereby requires the state parties to take all measures to combat the problem, mainly through bilateral or multilateral agreements. The legislation in Nepal does not have specific legal provisions regarding illicit transfer and non-return of children.
5.1.5 The Traffic in Persons (Crime and Punishment) Act, 2000
Although this act has a lot of provisions against Trafficking, it exists only in a draft form and is actually a bill waiting to be incorporated into Nepali law. Its adoption will lead to the repealing of two other laws, which have been of significance in this area- the chapter on human trafficking in the Civil Code and the Offences of Traffic in Persons (Control) Act. The former contained provisions regarding transportation of a person to another country for the purpose of selling that person, forcing women in to prostitution and selling persons.
This new act is aimed at controlling the traffic in persons and other sexual offences related thereto, and to rehabilitate the victims thereof. This act includes provisions prohibiting a wide range of activities related to trafficking in persons and various forms of sexual exploitation including pornography. There are regulations regarding the privacy of the victims and about the closed sessions of the court. The act also gives wide powers to the police when it comes to the areas of arrest, detention and search. It also provides for rewards to informants and opens the possibility of plea-bargaining for offenders. The punishment is more severe if a person holding a public office commits the offence, or if false documentation is brought in front of law. The Act also includes provisions for the rehabilitation of women and provides free legal aid.[19] But this act does not make provisions for the rehabilitation of children, and legal aid is usually an issue only for defendants in criminal trials and for parties of civil proceedings. This Act addresses a wide variety of issues encompassed within the scope of trafficking in persons, including police work, assistance to victims and the international nature of the problem. Article 2 of this Act has extraterritorial application and these provisions are effective if the offenders try to go abroad to seek refuge from the law. This essentially means that a person committing an offence punishable under this act outside of Nepal shall be prosecuted the same way if he/she had committed the crime inside the kingdom, if the victim is a Nepali citizen. One thing to be considered is that a bilateral agreement needs to exist between the two countries and this sort of criminal proceeding is very difficult without the cooperation of the second country involved.
It is a positive aspect of the legislation that it is comprehensive, but a clear definition of terms is essential for the laws to be effectively used. For example, in articles 16 and 17, which are about penalties and punishment, it is not clear that the victim’s physical and mental condition shall be taken into account as an explanatory or aggravating circumstance. The provision in Article 24 regarding non- responsibility in the case of a woman committing an offence in the act of escaping from a trafficker is also insufficient because it does not refer to children as the victims. The policies and interventions should clearly distinguish between the issues of trafficking and its control for adults and children.
5.1.6 The Main Problems in Nepal related to Child Rights
The title of the National Policy in Nepal uses the word “controlling trafficking,” not abolition of trafficking. It might be debatable whether prostitution should be controlled or abolished according to various viewpoints, but trafficking should unquestionably be abolished. The choice of diction is not correct in this case. Nepal is also not in compliance with Article 2 of the CRC Convention because it has different marriage ages for boys and girls. The present discriminatory attitudes towards girls, the persistence of early marriages and their higher dropout rate from school further exacerbates the problem of child trafficking, which is mostly girls.
Besides the obvious non-implementation of the laws, there are a lot of things that prevent the victims from coming in front of the authorities. The laws of the State of Nepal do not protect the victims. “The victim of trafficking is an important witness of the prosecution during the trial. However, the state has no means of protecting such witnesses, till the Traffic in Persons (Crime and Punishment) Act, 2000 becomes a law. The victim is often exposed to the danger of being threatened or forced by the accused to change their statement or become indifferent to the case.”[20] There are many factors, which prevent victims, especially girls, to file complaints against traffickers. The majority of victims have no access to lawyers and they are also left to deal with the offenders in the open. The victims also get intimidated because the case takes up too much time and the whole process is very demanding. Even in cases of heinous crimes such as rape, which should be tried in private, are tried in the open court. The embarrassment and nervousness of such a system results in the silence of the victims, which is often used against them.
Further according to the Centre for Legal Research and Resource Development (CelRRd)’s research paper, the corruption in the law enforcement bodies as well as in judiciary has resulted in extensive distrust of the police and the criminal justice system. In cases on child trafficking, most children are not aware of the laws to begin with, and have no knowledge whatsoever as how to address the situation legally. Often, these children are in unfamiliar situations, far away from their families and are not treated as a grown up person even though they are expected to work like adults. One also cannot expect victims to go through the humiliating process of reporting an assault even if they are aware of the laws if they are children without legal support or in a totally alien circumstance. Often, the trafficked children are extremely vulnerable because their status of living is illegal, their age is often below the legally stipulated age of employment, their condition of work is illegal and the people whom they are working for are doing illegal work.
Nepal has a problem with birth registration because of which the children are not registered at the time of their birth, and it becomes a problem when they are missing, or trafficked from one place to other because there is not data available of them being there in the first place. Furthermore, the law in Nepal criminalizes abortion, including in cases of pregnancy through rape. This current law on abortion contributes to the high maternal mortality rate, a higher number of female prisoners and also the fact that if trafficked women or children come back to the country pregnant, the legal environment is hostile to them.
5.1.7 The Current Situation: the Maoist rebellion and its effects on human rights.
In Nepal, for the last eight years, the Maoist rebels have been waging a “people’s war” that has turned this once peaceful nation of 26 million, Lord Buddha’s birthplace, into a killing field with thousands dead. The language that they use is frighteningly similar to Pol Pot’s Cambodian regime, and the Maoists have vowed to kill millions more and turn Nepal into a Maoist totalitarian state. According to the latest available figures, about 8,000 Nepali people have lost their lives in course of the insurgency. Among them, about 5,500 were killed during the 9-month long state of emergency. Significantly, according to the cases reported in the media and/or revealed by the human rights organisations and activists, the total child deaths has touched 161 mark (45 girls and 116 boys). Till date, 100 children have been injured in various insurgency-related incidents and about 105 children have so far been arrested by the state. Due to the conflict, humanitarian organisations have been forced to withdraw their programmes from the insurgency-hit districts and also they are failing to reach target areas.
There has been an increase in child migration because of the conflict. Right from the start of the Nepali New Year on April 13 this year, the rebels went on a flurry of abduction rampage of schoolchildren at various parts of the country. A total of 518 children were reported to have been ‘abducted’ by the Maoist rebels in seven incidents in different parts of the country. The media claimed, quoting government officials, that the children were abducted for their possible recruitment of the children in the Maoist fighting army. The children had been reportedly used in the cultural troupes of the rebels, messengers, cook and sometimes porters, which are all vulnerable as their life is at stake any time. Likewise, CWIN (Child Workers in Nepal) has recorded at least four cases of sex abuse of young girl children involved in the Maoist movement by their male counterparts.[21] According to CWIN’s report published in December 2002, almost 2,000 children have been orphaned, while 4,000 children have been displaced due to the armed conflict. The Education sector has been greatly hampered as hundreds of schools have been closed down and the frequent strikes have disturbed the continuation of the school year.
5.2 Sri Lanka - Background
Sri Lanka is a low-income country with a 2001 per capita income of approximately US$809 and a population of 19.4 million people. Due to its strong human resource base and natural endowments, Sri Lanka has achieved notable success in economic and social development since its independence in 1948. However, despite significant improvements in infant mortality (15/1000), life expectancy (73 years) and literacy (90%) as described in the 2003 World Factbook of the Central Intelligence Agency approximately 22% of the population still lives below the official poverty line[22].
The law prohibits trafficking in persons; however, Sri Lanka is a country of origin and destination for trafficked persons. Women and children are trafficked for the purposes of forced labor and for sexual exploitation to Middle Eastern countries, Singapore and the United Kingdom. Boys are trafficked to the Middle East (primarily Qatar and the United Arab Emirates) as camel jockeys. The Chairman of the National Child Protection Authority in Sri Lanka recently stated that most of the child trafficking in Sri Lanka took place within the country. The latest statistics reveal there are more than 100,000 homeless children in Sri Lanka below the age of 16. Many work like slaves in tea kiosks, small restaurants and as domestic servants under pathetic and unpleasant conditions. Drug dealers use some girls and boys to transport and sell drugs and some are used to beg on the streets. Additionally, the rebel Liberation Tigers of Tamil Eelam often uses young boys and girls as child soldiers. There have been reports of forced conscription by the liberation fighters. Families that were in a position to pay for their children to leave the country paid up and protected them. The LTTE claims that the children are volunteers for the cause. The parties to the conflict have paid limited attention to humanitarian law and according to Save the Children;[23] many have used children as propaganda tools. There are over 900,000 children living in areas directly affected by the conflict; thousands have been denied their rights to protection, have lost family members or relatives, or have had their education disrupted.
But on the whole, Sri Lanka has been one of the more successful countries in the South Asian region as regards to child welfare. The age of majority in Sri Lanka is not attained till the age of 18 years, which means that more young people are brought under the protection of the state. The rate of school attendance is impressive and as mentioned above, the trafficking that occurs is largely confined to internal trafficking. The tradition of favouring the boy child over the girl child, which still continues in countries like Nepal, is not a part of the Sri Lankan culture. Still, the problem of commercial sexual exploitation, child pornography and commercial foreign adoption is huge, and research suggests that a staggering number of the victims are boys, and they are also the ones being absorbed into the child labour force.
5.2.1 The Constitution of Sri Lanka
The Constitution of Sri Lanka[24] guarantees the fundamental human rights of personal liberty as freedom from torture and inhuman degrading treatment. These are legally enforceable rights, and state authorities are legally liable if they do not abide by them. The Constitution specifically aims to protect children by stating in Chapter 6, Article 27 (13) that the “state shall promote with special care the interest of children and youth as to ensure their full development, physical, mental, moral, religious and social and to protect then from exploitation and discrimination.”
5.2.2 The Penal Code
Sri Lanka has over the past decades encountered the problem of the commercial foreign adoption of its children. Due to non-enforcement of the Adoption of Children’s Ordinance, there were many cases of trafficking of children being carried out under the cover of being legitimate adoptions. The Penal Code of Sri Lanka has a clear focus on preventing illegal commercial foreign adoption. There is a second provision, which deals with the preparatory acts involved in the process of trafficking, but it is very specific to trafficking of small children. The provision continues by stating that the offence of trafficking is also committed by anyone who, for the purpose of promoting, facilitating, or inducing the buying or selling or bartering or the placement in adoption, of any person for money or for any other consideration, (i) arranges for, or assists a child to travel to a foreign country without the consent of his parent or lawful guardian, or (ii) obtains an affidavit of consent from a pregnant woman, for money or for any other consideration, for the adoption of the unborn child of such woman, or (iii) recruits women or couples to bear children, or (iv) bring a person concerned with the registration of births knowingly permits the falsification of any birth record or register, or (v) engages in procuring children from hospitals, shelters for women, clinics, nurseries, day care centres, or other child care institutions or welfare centres, for money or for any other consideration or procures a child from any other place by intimidation of the mother or any other person, or (vi) impersonates the mother or any other person.
Since this form of adoption is one of the leading forms of child trafficking in Sri Lanka, this problem is dealt with by the above legislation. But again, in paragraph (i), the consent of the parents or the guardian is mentioned, which is very questionable because that means that if the parents are forced to consent, then this type of trafficking becomes legal. Poor families can be easily made to consent with financial pressure or hopes of a better future of their children. Even though it has technical glitches, the legislation against child trafficking in Sri Lanka seems to have been drafted with much more care than its counterpart in Nepal. Amendments to Sri Lanka’s Penal Code in 1995 and 1998 address both child labour and the trafficking in children for sexual and labour exploitation and introduce the concept of minimum mandatory sentences for trafficking-related offences. Under the law, procurement of children for sexual exploitation is punishable by a term of imprisonment not under five years and up to 20 years. In 1998, Sri Lanka added three new offences related to child trafficking to its penal code: the use of children for begging; the use of children for sexual intercourse; and the use of children for trafficking restricted articles.
5.2.3 The Children’s Charter
After Sri Lanka ratified the Convention on the Rights of the Child in 1991, the Children’s Charter has come into place. This Charter places a heavy responsibility on the state to ensure a dignified life to disabled children and protect all children from child labour[25]. This Charter is meant to pledge the government’s commitment to promote the rights that are expressed in the Convention. This Charter is not a law, but rather a policy document meant to express a political commitment in this area. This Charter nevertheless provides for a Monitoring Committee on Child Rights, which is actually an actively functioning body. This committee has a technical committee, whose task is to give recommendations as to policy changes and legislative measures that should be adopted in the area of child abuse and child labour.
5.2.4 The main problems in Sri Lanka related to Child Rights
Every year, the US law called Victims of Trafficking and Violence Protection Act of 2000 requires the US government to report on the status of severe forms of trafficking in persons worldwide annually to the US Congress. In their most recent report, Sri Lanka has been categorized as a tier 2 country, a nation whose government does not fully comply with the US laws minimum standards but is making significant efforts to bring themselves into compliance with those standards. This report further states, “ The LTTE abduct and hold children against their will for purposes of labour, military conscription and in some cases, sexual exploitation.”[26] The Sri Lankan government has undertaken several initiatives to provide protection and services to victims of internal trafficking, including supporting rehabilitation camps for victims. Foreign women trafficked to Sri Lanka are sometimes arrested and releases upon paying a fine.
The National Child Protection Authority provides medical and psychological assistance to Sri Lankan victims of trafficking and child soldiers. According to the chairman of the National Child Protection Authority, Professor Harendra de Silva, nearly 20% of boys and 10% of girls get sexually abused in their own homes at the hands of parents, teachers or someone known to them while Sri Lanka recorded nearly 150,000 children employed as servants and workers in homes and hotels around the country.[27] According to UNICEF and ILO statistics, there are nearly 40,000 child prostitutes in the country while western paedophile sex tourists in Sri Lanka use 5,000 to 30,000 Sri Lankan boys. Nearly 10,000 to 12,000 children from rural areas are trafficked and prostituted to paedophiles by organized crime groups. The situation has reached a climax today where the world identifies Sri Lanka as a “paedophiles’ paradise.” Most of these children, 80% of whom are boys, are sexually exploited in tourist centres and are trafficked around the country to serve the tourists. These boys are often referred to as “beach boys,” and it is estimated that a majority of them were trafficked into the tourist areas. According to the Factbook on Trafficking and Prostitution[28], Swedish police seized 300 hours of film showing Western men exploiting Sri Lankan children in 1995. According to BBC News dated November 8, 1997, 600 advertisements for Sri Lankan children, most boys, appeared on the Internet in October 1997.
Childcare experts in Sri Lanka have repeatedly warned that child prostitution is being promoted to foreigners on the Internet, making it one of the worst countries for child abuse. One of the worst forms of child labour also exists in the Sri Lankan fishing industry where children are recruited in fishing “vaadiyas,” most of whish are situated in remote areas and children are kept in conditions of virtual slavery. Sri Lanka’s greatest challenge in recent times has been the protection of children from the impact of the 19-year civil conflict. The LTTE is reportedly still recruiting children as young as 10/11 years of age.
As regards to the law in Sri Lanka, there is a problem with its Corporal Punishment Ordinance of 1889, which allows male offenders to be whipped and caned, which is a violation of child rights. Sri Lanka has signed but not ratified the Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The Sri Lankan Penal Code, under the provisions of different forms of child trafficking, the offence of trafficking is first and foremost committed by anyone who engages in the act of buying and selling of bartering of any person for money or any other consideration. The question of what actually consists buying and selling need to be addressed clearly in this situation. Since the Sri Lankan law includes the act of bartering of people, it should be made clear so as to what the law actually means. It is also no mentioned clearly in the laws that the consent of the victim is irrelevant in the issue of trafficking, and it might cause a problem while dealing with a case of trafficking.
5.2.5 The Current situation in Sri Lanka – The LTTE Conflict Continues
The 19 years of civil conflict in Sri Lanka has meant that a whole generation has grown up knowing only the intractable conflict between the government and the guerrillas of the Liberation of Tamil Tiger Eelam (LTTE). Hundreds of thousands of children who live in the north and east of the island have been directly affected by the violence - their relatives or friends have been killed or injured, for example. More than a quarter of mine victims are children. The LTTE is now shying away from admitting the fact that children are actually recruited by them, even though there is a lot of proof that child soldiers as young as 12 have been fighting with the rebels. Children have been used as they make good fighters. They are dependable, obey orders; don’t make demands; are dangerous even if they seem harmless, and are effective spies. With the availability and lightness of weapons such as the AK-47 or the M-16, which are easy to master and use, children are deadly in any frontline. But the recent peace talks between the government and the LTTE is proving to bring positive news for the children. UNICEF has been working with the LTTE to encourage them to release children to the transit centres that have been set up in various parts of the conflict torn areas. According to the UNICEF’s most recent publication, of September 30th, UNICEF has received 1,683 reports of children who have been recruited by the LTTE. 385 underage recruits have been released and 1, 155 children from the UNICEF list of reported cases remain with the LTTE.[29]
6. Recommendations
Even though a lot of Conventions have been signed for the protection of children, there is still a lot to be done for their effective implementation, including awareness campaigns, legal reform in countries, universal birth registration, (which is a big issue in Nepal), and strong international cooperation between countries of origin and destination of trafficked children. Giving refugee status or humanitarian visas to trafficked children will also grant them a legal standing, which will help them greatly. Combating trafficking will require a two-fold approach: a criminal justice response, which will prevent the crime and deter the offenders and a human rights response to protect the trafficked persons and their rights. Only law enforcement will not seal the borders or restrict trafficking. These crimes are committed across borders and transcend the individual legal jurisdiction of each member state; they call for a response and for prevention strategies that are based on mutual cooperation between Member states. Neither Nepal nor Sri Lanka lack laws against Child trafficking, but what they lack is effective implementation. The connections of trafficking with controversial issues such as migration and prostitution have contributed to the complex situation. It is also difficult to apply international legal norms to non-State actors. Despite these difficulties, the existing human rights law does provide a base from which to secure dignity and justice for trafficked persons.
Firstly, education of key groups such as the police, prosecutors, the judiciary, immigration officials and consulate staff as well as civil society groups including the media, educators, NGOs and community leaders is extremely essential. These people should understand the human rights aspect of trafficking because they come into first hand contact with the victim, and have a lot of responsibility to assess particulars of any case of trafficking. The National Laws in the countries should be reviewed for small details, especially in the case of Nepal, where the lawmakers have left out a lot of details.
In addition to anti-trafficking legislation, attention should be paid to laws relating to immigration, emigration and prostitution; as well as extraterritorial legislation and laws relating to birth registration and citizenship. This is to ensure that a trafficked person may exercise their right to return home. More effort need to be put into education because most of the trafficking happens when the traffickers are able to take advantage of poor, ignorant children and people who do not know what is going around them and who are not aware of their legal rights. The public should be more involved in the whole picture. They need to know that they can complain if they see something that looks suspicious. Despite the range of government and NGO action on the issue of child trafficking for labour exploitation, much more work needs to be done in countries in South Asia, especially Nepal and Sri Lanka. Data seems to indicate that the increased number of projects and governments involved in combating child trafficking has not stemmed the tide of children who fall prey to trafficking.
The majority of research and interventions at the international, regional and national levels address the issue of child trafficking only from the perspective of prostitution. But trafficking in children for other purposes- including begging gangs, camel racing, and other forms of bonded labour- is also increasing and this problem should also be dealt with in the country’s legislation. In Sri Lanka, boys are usually more victimized by traffickers, special programmes that take into account their special needs and vulnerability should be designed and implemented. The prevention programmes that have been designed should go beyond community awareness and they should be able to provide viable alternatives to children in local communities. Income generation and vocational programmes must be tailored to growth areas of local economies. Education programmes must be relevant to the lives of the children and must show parents that the cost of attending school today will pay off later with profitable jobs. Also, prevention programmes that include vocational training or income-generation components should include casework with children to monitor their experiences in these classes. Repatriation programmes, similarly, should use casework to understand and address children’s fears about returning home before they are placed back in their communities. A follow up study should be done to ensure that these children do not go back to exploitative work.
Once again, there is an important need for carefully designed research studies in all countries of the region to help governments and NGOs design appropriate intervention strategies. Standard definitions and measures of trafficking for labour exploitation must be used to allow for comparisons over time, within countries and across national boundaries.
7. Conclusion
The understanding that the problem of trafficking is not only a problem of the country of origin is essential in tackling the problem. The recipient country is equally responsible to the plight of the victim, since trafficking is mainly a demand-driven phenomenon. It is evident that the problem has to be confronted at several levels, including the development of programs for children immediately at risk. Particularly important are the lessons learned that could be drawn from past experiences. The complexity of the causes of trafficking, its push and pull factors requires a comprehensive program of action. A combination of trafficking prevention, prosecution of traffickers and protection of human rights is essential for the program to succeed. Trafficked women and children must be recognized as victims of trafficking and not as criminals. Additionally, ways have to be found to measure the costs of repatriating and rehabilitating the victims of trafficking. The current system of forced repatriation does not serve any purpose in the absence of rehabilitation since the victim, having no other option, simply falls prey to the trafficking cycle all over again.
Most societies today are plagued by the malady of child trafficking, making it a global phenomenon today. Many children cross borders and leave home with dreams in their eyes- and those dreams are shattered before long. Children are naïve, they are innocent and they want to be happy. No child deserves to be sold for sexual exploitation or exploitative labour. These children need to be protected and treated as equal citizens. They are the children of the world, and if they do not get a healthy childhood, they will not become responsible citizens. It is a vicious cycle that affects a lot of young children and it stems from poverty and illiteracy. It stems from deprivation and a home that cannot provide them the basics to grow up as healthy individuals. But all the people in the countries where trafficking occurs, need to be aware and need to do their best to protect them. The state and the government should be able to ensure that its future citizens live a life of dignity. The biggest killer of children is indifference and ignorance. We cannot afford to let that happen to 1.2 million children every year. It has to stop. And soon.
Preface
The day their god died[1]
“The girls described it in terms of, “the day that I was sold was the day my god died.”
--Matt Friedman, international health professional and trafficking expert[2]
“I trusted my friend. I didn’t know any better. They drugged us with something you take with bread. I never came back from there…when I refused to have sex they beat me for days. They threatened to bury me alive.”[3]
Anita, sold at age 12.
Having not been able to pay any transportation costs, she went with a bus driver who offered to take her for free to a factory job in Thailand. She was sold to a brothel owner, who told her that she could not leave until she worked off the money he paid to the driver. She was never told how much. She was given 2,500 Baht (US$67), and believes that she cannot leave. She does not know how much she earns per client, or how long it will take her to work off her debt.[4]
A child victim of trafficking into Thailand from the border areas.
Imagine yourself as a poor girl child living in a rural village in Nepal who did not go to school because her brothers did… who worked all day at the fields with her parents and still did not have enough to eat... who wanted to study and not have to see her father beat her mother everyday. Then one day, a young guy came to the sleepy village. He looked nice, bought her some gifts…and after a month, asked her parents if he could marry her. The poor parents thought that this might be good for their daughter…and he looked like a nice boy anyways...he was respectful...and he had given them some money…
So the girl found herself in a big city…it must be Kathmandu, she thought. I will be happy with him, she thought. He took her to this big house, and introduced her to the people who owned it. He said…wait for me for a week…I have some work to do…I will come pick you up …She didn’t exactly have a choice. She stayed…the family woke her up early next morning and asked her to get water from the well and come to the kitchen. She started working…and no, he never came back…Life did not change for her…
She decided to escape after 2 years of back breaking work…ran to the bus station…had some money with her…told the driver her story… he said he would take her to India for a better job in the film industry…she could not dream of anything better.
Rs. 30,000 was her price at the brothel in Mumbai.
That was the day her god died.
1.1 Background
Trafficking in human beings is probably the fastest-growing business of organized crime in the world. It has begun to rival the illegal trade in drugs and arms with estimated revenue of $12 billion a year, according to a 2003 ILO report. Traffickers use threats, intimidation, and violence to force victims to engage in sex acts or to labour under conditions comparable to slavery. Women, children, and men are trafficked for the purposes of prostitution, sex tourism, and other exploitative work. Obtaining reliable data on human trafficking is difficult owing to a lack of clear definition and the covert nature of the activity. Although trafficking afflicts men and women equally, rough estimates by the UN suggest that between 700,000 to 2 million persons trafficked across international borders annually are women and children.[5]
1.2 Trafficking – What, Where and How
A common consensus on the meaning of trafficking was reached for the first time at The UN Convention against Transnational Organized Crime (The Palermo Conventions) at Palermo, Italy in 2000. The definition of trafficking therefore is that: "(a) ' Trafficking in persons' shall mean 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 [interpretative note (63)][6] 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 [interpretative note (64)][7], forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;” "(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used [interpretative note (68)][8];"
According to the US Department of State, over 225,000 victims of trafficking each year are from Southeast Asia and over 150,000 from South Asia. The former Soviet Union, believed to be the largest new source of trafficking for prostitution and the sex industry, sees an estimated 100,000 women trafficked each year. An additional 75,000 or more are trafficked from Eastern Europe. Over 100,000 come from Latin America and the Caribbean, and over 50,000 victims are from Africa. Trafficking is no longer limited to global south–north movements; there are increasing instances of inter-regional traffic (Bangladeshi and Nepali girl children being smuggled into India) with the numbers of destination countries on the increase. Traffickers are reported to be most active in South and Southeast Asia, and although traffickers often operate individually or in small groups, the trade is also organized into international criminal syndicates. These groups employ brokers who find victims, others who secure travel documents smugglers who transport victims, and corrupt police and other officials whose cooperation is essential to conducting this trade.[9]
Child Trafficking is certainly not a new phenomenon and is probably one of the gravest abuses of human rights. Asia, which is home to more than one billion of the world’s poor, has the worst cases of child trafficking in the world. It can be seen as a result of demand of cheap labour in many industries and in the commercial sex market. According to a latest ILO/IPEC[10] report “ Unbearable to the Human Heart,” trafficking in South Asia is an extension of a very serious child labour problem, with poverty at the root cause combined with ignorance. The nature of trafficking revolves around deception and bondage. Most of the trafficked children end up as child labourers in commercial sex, into garment and carpet factories, as beggars, in brick making, or as domestic servants. Hence, there is a strong relationship between trafficking and the worst forms of child labour. In poor developing countries, child trafficking is a demand driven phenomenon- the demand coming from within the country and from outside the borders, and met by an abundant supply of poor children who are excited by the promise of a better life.
Children have become a very sought after commodity in the international market, and a great deal of profit can be earned through them. Though children are usually less productive than adults, they are easier to abuse, less assertive and less able to claim their rights, and can be made to work longer hours with no benefits and little food. They are also more vulnerable if they are working in a foreign environment because they cannot speak the language or are unfamiliar with the culture. Although children continue to be trafficked into commercial sexual exploitation, many children are trafficked into other forms of labour exploitation, including domestic service, armed conflict, service industries like restaurants and bars and hazardous work in factories, agriculture, construction, fishing and begging. The latest Trafficking in Persons report of the US State Department issued in June 2003 gave almost equal weight to the forced labour and sexual dimensions of human trafficking.
Globalisation has added an international dimension. The desire of families to break out of their cycle of poverty has made them increasingly receptive to “opportunities” abroad. It thus becomes relatively easy to trick women into “migrating” for employment overseas, or into selling their children to a broker for a cash advance on the money the child will be able to “earn” in their “care.” A recent IPEC assessment states that 1.2 million children are “trafficked”- moved within and across borders by force or deception, resulting in their economic and sexual exploitation. It is clearly stated in the UNICEF 2003 annual report that efforts to end the worst forms of child labour would not succeed without effective cooperative efforts to fight the trafficking of children and women within and across national borders. The trafficking of children is specifically prohibited under several international and regional conventions, including the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and of Institutions and Practices Similar to Slavery; the 1989 United Nations Convention on the Rights of the Child; the African Union’s African Charter on the Rights and Welfare of the Child; and the International Labour Organisation Convention No. 182 on the Worst Forms of Child Labour.
2. International Conventions on Child Trafficking - The Legislative Framework
2.1 The UN Convention on the Rights of the Child (CRC)
The Convention on the Rights of the Child was carefully drafted over the course of 10 years (1979-1989) with the input of representatives from all over the planet. The Convention reflects this global consensus and, in a very short period of time, it has become the most widely accepted human rights treaty ever. One hundred ninety-two countries, with the exception of the USA and Somalia, have ratified it. The Convention on the Rights of the Child is the first legally binding international instrument to incorporate the full range of human rights – civil and political rights as well as economic, social and cultural rights. Two Optional Protocols, on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography, were adopted in 2000. These latter protocol makes it obligatory for countries ratifying it to offer “the greatest measure of assistance” in investigations and criminal and extradition proceedings connected with the sale of children for the purpose of sexual exploitation, transfer of organs of the child for profit and engagement of the child in forced labour.
The UN Convention on the Rights of the Child or the CRC was ratified by Nepal in 1990 and by Sri Lanka in 1991. The article 35 of this convention specifically 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.” Thus the governments that ratify and sign this treaty are legally obliged to prevent child trafficking in any form. This treaty also applies to all children who have not reached the age of maturity in their respective countries under article 1 of the Convention. The age of majority is 16 in Nepal and 18 in Sri Lanka. The problem of illicit transfer and no return of children abroad is mentioned in Article 11. This article protects children who have been kidnapped “legally” (for example by a parent who is fighting for custody). Most states choose to solve such cases through multilateral agreements. The issue of trafficking is also mentioned in Article 36, which deals with “other forms of exploitation” which may not fall under any of the other provisions of exploitation. Article 9 of this Convention mentions that children should not be separated from their parents against their will, except when necessary for their best interests.
The CRC was the first Convention that stressed that children’s rights are human rights. Before this convention, children’s interests had rarely been perceived in a distinct manner and children had remained unheard. This Convention set the ethical and legal framework for the development of a concrete agenda for children everywhere and provided a common reference to assess the progress within countries. This Convention stresses that all children are important and that it is very essential to address those children who have not benefited from global progress either because of their gender, social origin or ethnicity. After the CRC came into force, many states undertook important institutional reform and added special legislations in their law, including Nepal and Sri Lanka.
2.2 The UN Convention Against Transnational Organized Crime (The Palermo Conventions)
The UN Convention against Transnational Organized Crime (the Palermo Conventions) was adopted by the UN General Assembly at its Millennium Meeting in November 2000.
States party to the Palermo Convention would be required to establish in their domestic laws four criminal offences:
• Participation in an organized criminal group;
• Money laundering;
• Corruption; and
• Obstruction of justice.
The Convention spells out how countries can improve cooperation on such matters as extradition, mutual legal assistance, transfer of proceedings and joint investigations. It contains provisions for victim and witness protection and shielding legal markets from infiltration by organized criminal groups. Parties to the treaty would also provide technical assistance to developing countries to help them take the necessary measures and upgrade their capacities for dealing with organized crime. The Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children (the Trafficking Protocol), is one of three optional protocols to the Palermo Convention and it deals with trafficking in persons, especially women and children. It was also adopted at the Millennium Meeting of the General Assembly in 2000. States party to the Trafficking Protocol would be required to establish in their domestic law measures "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.
In Article 3 of this Protocol, the legislators have drawn a basic distinction between trafficking of labour and forced labour exploitation on the one hand, and sexual exploitation and prostitution on the other. Exploitation was given to include, at a minimum, forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. The consent of a victim to the intended exploitation is irrelevant where any of the exploitative means have been used. Although the Protocol does recognize the distinction between voluntary prostitution and forced prostitution, it does not clearly define the meaning of “exploitation of prostitution of others or other forms of sexual exploitation” because government delegates at the negotiations do not agree on a common meaning. Groups on both sides of the trafficking debate see this indecision as potential for prejudice by governments in addressing prostitution in their domestic laws. In short, the focal point of these instruments is clearly the organized criminal group and how to weaken it through law enforcement. In adopting these instruments, governments therefore commit to criminalizing offences committed by organized groups, cracking down on the proceeds of crime, speeding up and widening the reaches of extradition of members of criminal groups and tightening law-enforcement cooperation to seek out and prosecute suspects. The logic of these instruments is that the interception and prosecution of the members of criminal groups will lead to their downfall.
2.3 International Labour Organization (ILO)’s International Labour Standards
The ILO’s International Programme on the Elimination of Child Labour (IPEC), which was launched in 1992, implements technical assistance programmes to support participating countries in combating child trafficking. Such programmes only operated in a few Asian countries from 1993-95, but after the First World Congress against Commercial Sexual Exploitation of Children in 1996, the IPEC program was expanded to 30 countries in Asia, Africa and Latin America. Currently, IPEC has activities in 82 ILO member states. Three IPEC member countries- the United Republic of Tanzania, Nepal and El Salvador became members of the IPEC’s Time Bound Programme (TBP) to end the worst forms of child labour, including child trafficking and children in prostitution. The TBP concept is designed to meet the need for large-scale interventions that exists in many countries. In this framework, national agencies and institutions take the lead in programme development and implementation, including resource mobilization.
For a long time, the ILO dealt with child trafficking through its Forced Labour Convention (No. 29), which aims to eradicate “ all work or service which is extracted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” But from 1999, the combat against child trafficking has been reinforced by ILO Worst Forms of Child Labour Convention, (No.182) and Recommendation (No.190). This powerful instrument confirms child trafficking as a practice similar to slavery and calls for its immediate elimination.
2.3.1 The Worst Forms Convention, (No.182), 1999.
Convention 182 on the Worst Forms of Child Labour is one of the most recent additions to the list of international instruments against child trafficking. This Convention calls for the ratifying states to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.[11] In article 3, the Convention establishes a form of prioritisation as to what forms of child labour are to be considered as the worst forms of child labour to be dealt with according to article 1. Trafficking of children falls explicitly under the area of the “ all forms of slavery.” A separate provision requires each Member to design and implement programmes of action to eliminate as a priority the worst forms of child labour - with such programs being designed and implemented in consultation with relevant government institutions, employers and workers organizations, and taking into consideration views of other concerned groups as appropriate. This convention recognises that child labour is to a great extent caused by poverty. The long-term solution lies in sustained economic growth leading to social progress, in particular poverty alleviation and universal education.
This Convention also has important provisions with regards to child soldiers, which is also one of the worst forms of labour. It prohibits the forced or compulsory recruitment of children under the age of 18 in armed conflicts and mandates immediate action to eliminate it. The Recommendation (No. 190), which was adopted along with Convention No.182, proposes specific ways in which the general provisions of the Convention can be translated into national law and practice. It also states that certain forms of child labour should be made criminal offences punishable under national laws. It emphasizes the importance of mobilizing the society as a whole through public information campaigns. This convention applies to all children under the age of 18 years, irrespective of the age of majority in their respective countries under national law. This Convention is complementary to the UN Convention on the Rights of the Child, and other partners against the struggle include UNICEF and many other NGOs. The CRC mainly deals with the protection of children and Convention 182 deals with implementation of one of the biggest threats to the well being of children- child labour. It states an important reference to international cooperation in prohibiting and eliminating the worst forms of child labour. The consensus that these abuses affect all the countries in the world is emphasized and it is further stressed that countries should help each other to eliminate such abuses, wherever they might exist. Nepal and Sri Lanka ratified this convention in 2001.
2.3.2 The Minimum Age Convention, (No.138), 1973.
As stated earlier, child trafficking in closely linked with exploitative child labour. The Minimum Age convention, although not directly related to child trafficking, deals with child labour, which is often a consequence of trafficking. This convention requires states to design and apply national policies to ensure the effective abolition of all forms of child labour and to set the minimum ages for employment. This has proven to be a difficult task confronted with much resistance, because of particularly vested commercial interests and market pressures as well as moral indifference and cultural attitudes. The Minimum Age Convention (No.138), supplemented by Recommendation No.146 requires ratifying States to pursue a national policy to ensure the effective abolition of child labour, and to progressively raise the minimum age for employment or work. The first principle of the Convention is that the minimum age should not be less than the age for completing compulsory schooling, and in no event less than age 15, and that the minimum age should be progressively raised to a level consistent with the fullest physical and mental development of young persons. The ultimate objective of Convention No.138 is the effective abolition of child labour; as such it is a key instrument of a consistent strategy against child labour, whilst Recommendation No.146 provides the broad framework and essential policy measures for both the prevention and elimination of the problem.
3.UN Agencies and other NGOs
Several UN organizations and Non-Governmental Organizations work on the issue of trafficking. The United Nations Children’s Fund (UNICEF) is probably the most closely tied with IPEC when it comes to working against child trafficking. Along with its country programs, UNICEF also works at the international level to promote and support agreements; standards and mechanisms that allow countries to better cooperate to combat trafficking. It has programmes in poverty reduction, government commitment to education, children’s life skills, strengthening legislation and law enforcement and recovery and reintegration after the children are rescued/returned. For example, in Nepal, UNICEF has initiated community surveillance systems and paralegal communities working against child trafficking in 14 districts. UNICEF has also assisted in establishing women’s cells in district police offices and has supported hostel facilities and rehabilitation centres for sexually abused and working children.
The Office of the High Commissioner for Human Rights (OHCHR) began its trafficking programme in March 1999 to work towards the integration of a human rights perspective into international, regional and national anti-trafficking initiatives. The work undertaken by the OHCHR is based on the principle that human rights should be at the core of any credible anti-trafficking strategy and that these strategies should be developed and implemented from the perspective of those who most need their human rights protected and promoted. The Office For Drug Control and Crime Prevention (ODCCP) was launched in 1999 to assist member states in implementing the Protocol against human trafficking. The ODCCP analyses routes and methods used by traffickers, improves cooperation among law enforcement agencies and works towards improving protection and support systems for victims and witnesses. The INTERPOL is an international network of police force, which is active in 177 states and works against organized crime in many parts of the world. The United Nations Interregional Crime Prevention Institute (UNICRI) and the Centre for International Crime Prevention (CRIC) have jointly developed a Global Programme against Trafficking in Human Beings, which includes data collection and analysis, the training of criminal justice practitioners, and advisory services on legislative reform and on developing victim assistance and witness protection modalities. ILO/IPEC launched its action programme to combat child trafficking in Nepal in 1997 and a regional programme was established in 2000 in Bangladesh, Nepal and Sri Lanka.
Many NGOs have active campaigns against child trafficking in many parts of the world, including Sri Lanka and Nepal. Save the Children, USAID, Terre des Hommes, AusAID have been working with ILO/IPEC, UNICEF, UNDP and many other organizations. For example, USAID/Nepal’s anti-trafficking activities address the need for prevention and protection, focusing primarily on raising awareness, gathering information, promoting advocacy, and providing assistance to victims. USAID’s anti-trafficking program funds NGO’s and organizations working to combat trafficking and is closely coordinated with the Nepalese Government’s national plan of action against trafficking. One of those NGOs, ABC Nepal, emphasizes the creation of educational opportunities for women and girls across 32 districts to reduce their vulnerability to trafficking. Another very major NGO called Maiti Nepal promotes community-based surveillance and rescues and rehabilitates trafficked girls. They have been well known for a long time for their efforts against trafficking of Nepali girls and women into prostitution.
Since the dimension of internal trafficking and displacement of children in Sri Lanka has been a big issue, the ILO/IFP Crisis and IPEC, with support from AusAID will soon launch a 24-month project titled “Rehabilitation of child soldiers from the Northern and eastern provinces of Sri Lanka,” The project aims to rehabilitate at least 100 child combatants, boys and girls, through provision of psychosocial trauma treatment and counselling, vocational training. It will also promote skills training and employment as a means to reintegration. UNICEF has also been in active dialogue with the LTTE in returning child combatants and placing them in rehabilitation homes for reintegration into their societies.
4. Regional Framework- SAARC Instruments
The South Asian Association for Regional Cooperation (SAARC) also has conventions that its member states- Pakistan, Maldives, Bhutan, Nepal, India, Sri Lanka and Bangladesh have signed against child trafficking. The SAARC Convention on Regional Arrangements on Child Welfare in South Asia includes trafficking as a regional priority, whereby states parties have to ensure that they have national laws to protect children from any form of trafficking[12]. The Colombo Resolution states in paragraph 5 under heading challenges that child trafficking is one of the most urgent challenges in the region and that “child trafficking particularly calls for both bilateral as well as regional cooperation.”[13] The Rawalpindi resolution calls for commitment from member states in the issues affecting children in the region. Similarly, the Declaration of the Ninth SAARC Summit expresses critical concern at the trafficking of women and children and pledges action on the part of the member countries[14]
The most recent convention that was created within the SAARC framework is the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, which was adopted at the Eleventh SAARC Summit, held in Kathmandu in January 2002. This is the latest step taken by the SAARC countries towards the goal of eliminating child trafficking within and outside their borders. It recognizes the need for extraterritorial application of jurisdiction; and extradition laws including a provision that the Convention shall be effective and the States Parties to the Convention will be bound to prosecute or extradite offenders in the absence of extradition treaties between the concerned states. Nevertheless, there are some pertinent issues, which have been overlooked in the proposed Convention. The definition provided in the Convention is very narrow and focuses only on prostitution and it does not address trafficking from broader perspective. The Convention also does not clarify the recipient country's accountability in rescue, rehabilitation, repatriation and reintegration of affected persons.
5. Case Studies
5.1 Nepal - Background
According to the World Bank Report Nepal is, with a per capita income of US$220 per annum, the 12th poorest country in the world and the poorest in South Asia, and in purchasing parity terms, the country’s per capita income makes it the 30th poorest country in the world. With more than 50% of children under five malnourished, literacy rates of 58% for men and 23% for women, and an infant mortality rate of 72.36 deaths/ 1,000 live births (2002 estimate), “ a staggering 71% of the population lives under the poverty line, which is defined as an annual income of less that $150.”[15] According to a recent ILO publication titled “Nepal: Trafficking in Girls with a special reference to Prostitution: A Rapid Assessment,” about 12,000 children are trafficked every year from Nepal. The local history implies that trafficking has long been associated with poverty, social exclusion and ignorance, as well as the practise of slavery and the bonded labour system. More than half of the trafficked girls are under the age of 16 and a quarter is under the age of 14. Another ILO study called “ Understanding Children’s Work,” reports that most trafficked girls end up in brothels in urban centres across the border in India, where as many as 30,000 Nepalese girls can be found at any given time. It also goes on to say that nearly 40% are trafficked before the age of 14. A Nepalese NGO CWIN (Child Workers in Nepal) reports that besides the sex trade that has been growing at an alarming rate, thousands of Nepalese children are also trafficked to carpet factories in India, to circus agencies, agricultural projects, road construction sites and to forced beggary in the bigger cities of India. Within the country, children are trafficked into Kathmandu where they work in manufacturing, sweatshops, hotels, or as domestic workers and child prostitutes. Although many figures differ from source to source, all of them paint a grave picture. Another report suggests that about 200,000 Nepali prostitutes work in Indian cities and 20 percent of 40,000 are under the age of 16. Maiti Nepal, a NGO working against trafficking in Nepal estimates that between 5,000 to 7,000 girls are trafficked from Nepal to prostitution in India annually.
5.1.2 Nepal’s National Legislation Against Trafficking
Nepal has made significant legislative and other policy efforts in the area of human rights. These efforts include ratifying several international conventions as well as adopting national legislation in order to bring the level of protection in Nepal up to a more internationally acceptable level. Nepal’s legislation in the area of trafficking is strongly characterized by a strong commitment to come to “terms” with the problem, while at the same time displaying a lack of technical capacity and implementation tools to have the desired effect. Recently; Nepal was selected as one of the three pilot countries worldwide to be chosen for ILO-IPEC’s Time Bound Program (TBP). This program is closely linked to the Worst Forms Convention and aims for the elimination of the worst firms of child labour from the pilot countries by 2005 and the elimination of al child labour by 2010.
5.1.3 The Constitution of Nepal
Article 20 of the Constitution, which guarantees the right against exploitation, states that trafficking of human beings and forced labour in any form, is prohibited. The Constitution is the fundamental law of the country. It voids other laws that are inconsistent with it, to the extent of their inconsistency (Article1)[16]. The Supreme Court has the power to issue necessary and appropriate orders for the enforcement of the fundamental rights conferred by the constitution. The right against exploitation is one of the fundamental rights. The Constitution also includes directive principles and policies of the state which cannot be enforced by any court but shall be “fundamental to the activities and governance of the state and shall be implemented in stages through laws within the limits of the resources and the means available in the country, according to Article 24. One of the state policies contained in Article 26(3) is that the “state shall make necessary arrangements to safeguard the rights and interests of children and shall ensure that they are not exploited.”
Although the Constitution of Nepal has all the legal language required for the protection of children and curbing trafficking, many of such principles are not upheld and the current Maoist crisis has led to Nepali citizens losing some of their fundamental rights. The other acts that exist in the Nepali law are the Human Trafficking Control Act (1986), written for the purpose of combat growing trafficking of women and girls. The Civil Code of Nepal called the “Muluki Ain” defines the trafficking of humans out of the country as a crime, and also prohibits the separation of minors from their legal guardians without consent. The State Cases Act defines the crime of trafficking in women and girls as an offence against the state of Nepal.
The Convention for the Suppression of the Traffic Person and of the Exploitation of the Prostitution of Others, the Convention of the Rights of the Child, the Convention on the Elimination of all Forms of Discrimination against Women, and the SAARC Convention on Prevention and Combating Trafficking in Women and Children (2002) provide the general legal framework for combating child trafficking. On 14th March 2002, the Parliament passed the Country Code Eleventh Amendment Bill, which hopes to significantly improve the rights of women and includes a bill dealing with paedophilia, which is now considered as rape[17]. The Children’s Act and The Traffic in Persons (Crime and Punishment) Act have many provisions against the trafficking situation and they will be briefly discussed in this paper.
5.1.4 The Children’s Act
The promulgation of the Children’s Act was prompted by the accession of Nepal to the Convention on the Rights of the Child in 1990. Many provisions of the CRC (Convention on the Rights of the Child) have been directly incorporated into this act. The act defines a “child” as a person under the age of 16 years, develops the concept of the parents’ obligations in bringing up the child and includes provisions on criminal responsibility of children.[18] But the interesting thing is that there are no specific provisions in the Nepali national legislation specifically protecting children from trafficking, rather the legislation applies to all people, including children. The issue of “other forms of exploitation” and illicit transfer and non-return of children. Article 36 of the CRC guarantees children’s right to protection from all other forms of exploitation not covered in preceding articles. There is no equivalent to this in the Children’s Act. Another issue is the illicit transfer and non-return of children expressed in article 11 of the CRC. The Convention hereby requires the state parties to take all measures to combat the problem, mainly through bilateral or multilateral agreements. The legislation in Nepal does not have specific legal provisions regarding illicit transfer and non-return of children.
5.1.5 The Traffic in Persons (Crime and Punishment) Act, 2000
Although this act has a lot of provisions against Trafficking, it exists only in a draft form and is actually a bill waiting to be incorporated into Nepali law. Its adoption will lead to the repealing of two other laws, which have been of significance in this area- the chapter on human trafficking in the Civil Code and the Offences of Traffic in Persons (Control) Act. The former contained provisions regarding transportation of a person to another country for the purpose of selling that person, forcing women in to prostitution and selling persons.
This new act is aimed at controlling the traffic in persons and other sexual offences related thereto, and to rehabilitate the victims thereof. This act includes provisions prohibiting a wide range of activities related to trafficking in persons and various forms of sexual exploitation including pornography. There are regulations regarding the privacy of the victims and about the closed sessions of the court. The act also gives wide powers to the police when it comes to the areas of arrest, detention and search. It also provides for rewards to informants and opens the possibility of plea-bargaining for offenders. The punishment is more severe if a person holding a public office commits the offence, or if false documentation is brought in front of law. The Act also includes provisions for the rehabilitation of women and provides free legal aid.[19] But this act does not make provisions for the rehabilitation of children, and legal aid is usually an issue only for defendants in criminal trials and for parties of civil proceedings. This Act addresses a wide variety of issues encompassed within the scope of trafficking in persons, including police work, assistance to victims and the international nature of the problem. Article 2 of this Act has extraterritorial application and these provisions are effective if the offenders try to go abroad to seek refuge from the law. This essentially means that a person committing an offence punishable under this act outside of Nepal shall be prosecuted the same way if he/she had committed the crime inside the kingdom, if the victim is a Nepali citizen. One thing to be considered is that a bilateral agreement needs to exist between the two countries and this sort of criminal proceeding is very difficult without the cooperation of the second country involved.
It is a positive aspect of the legislation that it is comprehensive, but a clear definition of terms is essential for the laws to be effectively used. For example, in articles 16 and 17, which are about penalties and punishment, it is not clear that the victim’s physical and mental condition shall be taken into account as an explanatory or aggravating circumstance. The provision in Article 24 regarding non- responsibility in the case of a woman committing an offence in the act of escaping from a trafficker is also insufficient because it does not refer to children as the victims. The policies and interventions should clearly distinguish between the issues of trafficking and its control for adults and children.
5.1.6 The Main Problems in Nepal related to Child Rights
The title of the National Policy in Nepal uses the word “controlling trafficking,” not abolition of trafficking. It might be debatable whether prostitution should be controlled or abolished according to various viewpoints, but trafficking should unquestionably be abolished. The choice of diction is not correct in this case. Nepal is also not in compliance with Article 2 of the CRC Convention because it has different marriage ages for boys and girls. The present discriminatory attitudes towards girls, the persistence of early marriages and their higher dropout rate from school further exacerbates the problem of child trafficking, which is mostly girls.
Besides the obvious non-implementation of the laws, there are a lot of things that prevent the victims from coming in front of the authorities. The laws of the State of Nepal do not protect the victims. “The victim of trafficking is an important witness of the prosecution during the trial. However, the state has no means of protecting such witnesses, till the Traffic in Persons (Crime and Punishment) Act, 2000 becomes a law. The victim is often exposed to the danger of being threatened or forced by the accused to change their statement or become indifferent to the case.”[20] There are many factors, which prevent victims, especially girls, to file complaints against traffickers. The majority of victims have no access to lawyers and they are also left to deal with the offenders in the open. The victims also get intimidated because the case takes up too much time and the whole process is very demanding. Even in cases of heinous crimes such as rape, which should be tried in private, are tried in the open court. The embarrassment and nervousness of such a system results in the silence of the victims, which is often used against them.
Further according to the Centre for Legal Research and Resource Development (CelRRd)’s research paper, the corruption in the law enforcement bodies as well as in judiciary has resulted in extensive distrust of the police and the criminal justice system. In cases on child trafficking, most children are not aware of the laws to begin with, and have no knowledge whatsoever as how to address the situation legally. Often, these children are in unfamiliar situations, far away from their families and are not treated as a grown up person even though they are expected to work like adults. One also cannot expect victims to go through the humiliating process of reporting an assault even if they are aware of the laws if they are children without legal support or in a totally alien circumstance. Often, the trafficked children are extremely vulnerable because their status of living is illegal, their age is often below the legally stipulated age of employment, their condition of work is illegal and the people whom they are working for are doing illegal work.
Nepal has a problem with birth registration because of which the children are not registered at the time of their birth, and it becomes a problem when they are missing, or trafficked from one place to other because there is not data available of them being there in the first place. Furthermore, the law in Nepal criminalizes abortion, including in cases of pregnancy through rape. This current law on abortion contributes to the high maternal mortality rate, a higher number of female prisoners and also the fact that if trafficked women or children come back to the country pregnant, the legal environment is hostile to them.
5.1.7 The Current Situation: the Maoist rebellion and its effects on human rights.
In Nepal, for the last eight years, the Maoist rebels have been waging a “people’s war” that has turned this once peaceful nation of 26 million, Lord Buddha’s birthplace, into a killing field with thousands dead. The language that they use is frighteningly similar to Pol Pot’s Cambodian regime, and the Maoists have vowed to kill millions more and turn Nepal into a Maoist totalitarian state. According to the latest available figures, about 8,000 Nepali people have lost their lives in course of the insurgency. Among them, about 5,500 were killed during the 9-month long state of emergency. Significantly, according to the cases reported in the media and/or revealed by the human rights organisations and activists, the total child deaths has touched 161 mark (45 girls and 116 boys). Till date, 100 children have been injured in various insurgency-related incidents and about 105 children have so far been arrested by the state. Due to the conflict, humanitarian organisations have been forced to withdraw their programmes from the insurgency-hit districts and also they are failing to reach target areas.
There has been an increase in child migration because of the conflict. Right from the start of the Nepali New Year on April 13 this year, the rebels went on a flurry of abduction rampage of schoolchildren at various parts of the country. A total of 518 children were reported to have been ‘abducted’ by the Maoist rebels in seven incidents in different parts of the country. The media claimed, quoting government officials, that the children were abducted for their possible recruitment of the children in the Maoist fighting army. The children had been reportedly used in the cultural troupes of the rebels, messengers, cook and sometimes porters, which are all vulnerable as their life is at stake any time. Likewise, CWIN (Child Workers in Nepal) has recorded at least four cases of sex abuse of young girl children involved in the Maoist movement by their male counterparts.[21] According to CWIN’s report published in December 2002, almost 2,000 children have been orphaned, while 4,000 children have been displaced due to the armed conflict. The Education sector has been greatly hampered as hundreds of schools have been closed down and the frequent strikes have disturbed the continuation of the school year.
5.2 Sri Lanka - Background
Sri Lanka is a low-income country with a 2001 per capita income of approximately US$809 and a population of 19.4 million people. Due to its strong human resource base and natural endowments, Sri Lanka has achieved notable success in economic and social development since its independence in 1948. However, despite significant improvements in infant mortality (15/1000), life expectancy (73 years) and literacy (90%) as described in the 2003 World Factbook of the Central Intelligence Agency approximately 22% of the population still lives below the official poverty line[22].
The law prohibits trafficking in persons; however, Sri Lanka is a country of origin and destination for trafficked persons. Women and children are trafficked for the purposes of forced labor and for sexual exploitation to Middle Eastern countries, Singapore and the United Kingdom. Boys are trafficked to the Middle East (primarily Qatar and the United Arab Emirates) as camel jockeys. The Chairman of the National Child Protection Authority in Sri Lanka recently stated that most of the child trafficking in Sri Lanka took place within the country. The latest statistics reveal there are more than 100,000 homeless children in Sri Lanka below the age of 16. Many work like slaves in tea kiosks, small restaurants and as domestic servants under pathetic and unpleasant conditions. Drug dealers use some girls and boys to transport and sell drugs and some are used to beg on the streets. Additionally, the rebel Liberation Tigers of Tamil Eelam often uses young boys and girls as child soldiers. There have been reports of forced conscription by the liberation fighters. Families that were in a position to pay for their children to leave the country paid up and protected them. The LTTE claims that the children are volunteers for the cause. The parties to the conflict have paid limited attention to humanitarian law and according to Save the Children;[23] many have used children as propaganda tools. There are over 900,000 children living in areas directly affected by the conflict; thousands have been denied their rights to protection, have lost family members or relatives, or have had their education disrupted.
But on the whole, Sri Lanka has been one of the more successful countries in the South Asian region as regards to child welfare. The age of majority in Sri Lanka is not attained till the age of 18 years, which means that more young people are brought under the protection of the state. The rate of school attendance is impressive and as mentioned above, the trafficking that occurs is largely confined to internal trafficking. The tradition of favouring the boy child over the girl child, which still continues in countries like Nepal, is not a part of the Sri Lankan culture. Still, the problem of commercial sexual exploitation, child pornography and commercial foreign adoption is huge, and research suggests that a staggering number of the victims are boys, and they are also the ones being absorbed into the child labour force.
5.2.1 The Constitution of Sri Lanka
The Constitution of Sri Lanka[24] guarantees the fundamental human rights of personal liberty as freedom from torture and inhuman degrading treatment. These are legally enforceable rights, and state authorities are legally liable if they do not abide by them. The Constitution specifically aims to protect children by stating in Chapter 6, Article 27 (13) that the “state shall promote with special care the interest of children and youth as to ensure their full development, physical, mental, moral, religious and social and to protect then from exploitation and discrimination.”
5.2.2 The Penal Code
Sri Lanka has over the past decades encountered the problem of the commercial foreign adoption of its children. Due to non-enforcement of the Adoption of Children’s Ordinance, there were many cases of trafficking of children being carried out under the cover of being legitimate adoptions. The Penal Code of Sri Lanka has a clear focus on preventing illegal commercial foreign adoption. There is a second provision, which deals with the preparatory acts involved in the process of trafficking, but it is very specific to trafficking of small children. The provision continues by stating that the offence of trafficking is also committed by anyone who, for the purpose of promoting, facilitating, or inducing the buying or selling or bartering or the placement in adoption, of any person for money or for any other consideration, (i) arranges for, or assists a child to travel to a foreign country without the consent of his parent or lawful guardian, or (ii) obtains an affidavit of consent from a pregnant woman, for money or for any other consideration, for the adoption of the unborn child of such woman, or (iii) recruits women or couples to bear children, or (iv) bring a person concerned with the registration of births knowingly permits the falsification of any birth record or register, or (v) engages in procuring children from hospitals, shelters for women, clinics, nurseries, day care centres, or other child care institutions or welfare centres, for money or for any other consideration or procures a child from any other place by intimidation of the mother or any other person, or (vi) impersonates the mother or any other person.
Since this form of adoption is one of the leading forms of child trafficking in Sri Lanka, this problem is dealt with by the above legislation. But again, in paragraph (i), the consent of the parents or the guardian is mentioned, which is very questionable because that means that if the parents are forced to consent, then this type of trafficking becomes legal. Poor families can be easily made to consent with financial pressure or hopes of a better future of their children. Even though it has technical glitches, the legislation against child trafficking in Sri Lanka seems to have been drafted with much more care than its counterpart in Nepal. Amendments to Sri Lanka’s Penal Code in 1995 and 1998 address both child labour and the trafficking in children for sexual and labour exploitation and introduce the concept of minimum mandatory sentences for trafficking-related offences. Under the law, procurement of children for sexual exploitation is punishable by a term of imprisonment not under five years and up to 20 years. In 1998, Sri Lanka added three new offences related to child trafficking to its penal code: the use of children for begging; the use of children for sexual intercourse; and the use of children for trafficking restricted articles.
5.2.3 The Children’s Charter
After Sri Lanka ratified the Convention on the Rights of the Child in 1991, the Children’s Charter has come into place. This Charter places a heavy responsibility on the state to ensure a dignified life to disabled children and protect all children from child labour[25]. This Charter is meant to pledge the government’s commitment to promote the rights that are expressed in the Convention. This Charter is not a law, but rather a policy document meant to express a political commitment in this area. This Charter nevertheless provides for a Monitoring Committee on Child Rights, which is actually an actively functioning body. This committee has a technical committee, whose task is to give recommendations as to policy changes and legislative measures that should be adopted in the area of child abuse and child labour.
5.2.4 The main problems in Sri Lanka related to Child Rights
Every year, the US law called Victims of Trafficking and Violence Protection Act of 2000 requires the US government to report on the status of severe forms of trafficking in persons worldwide annually to the US Congress. In their most recent report, Sri Lanka has been categorized as a tier 2 country, a nation whose government does not fully comply with the US laws minimum standards but is making significant efforts to bring themselves into compliance with those standards. This report further states, “ The LTTE abduct and hold children against their will for purposes of labour, military conscription and in some cases, sexual exploitation.”[26] The Sri Lankan government has undertaken several initiatives to provide protection and services to victims of internal trafficking, including supporting rehabilitation camps for victims. Foreign women trafficked to Sri Lanka are sometimes arrested and releases upon paying a fine.
The National Child Protection Authority provides medical and psychological assistance to Sri Lankan victims of trafficking and child soldiers. According to the chairman of the National Child Protection Authority, Professor Harendra de Silva, nearly 20% of boys and 10% of girls get sexually abused in their own homes at the hands of parents, teachers or someone known to them while Sri Lanka recorded nearly 150,000 children employed as servants and workers in homes and hotels around the country.[27] According to UNICEF and ILO statistics, there are nearly 40,000 child prostitutes in the country while western paedophile sex tourists in Sri Lanka use 5,000 to 30,000 Sri Lankan boys. Nearly 10,000 to 12,000 children from rural areas are trafficked and prostituted to paedophiles by organized crime groups. The situation has reached a climax today where the world identifies Sri Lanka as a “paedophiles’ paradise.” Most of these children, 80% of whom are boys, are sexually exploited in tourist centres and are trafficked around the country to serve the tourists. These boys are often referred to as “beach boys,” and it is estimated that a majority of them were trafficked into the tourist areas. According to the Factbook on Trafficking and Prostitution[28], Swedish police seized 300 hours of film showing Western men exploiting Sri Lankan children in 1995. According to BBC News dated November 8, 1997, 600 advertisements for Sri Lankan children, most boys, appeared on the Internet in October 1997.
Childcare experts in Sri Lanka have repeatedly warned that child prostitution is being promoted to foreigners on the Internet, making it one of the worst countries for child abuse. One of the worst forms of child labour also exists in the Sri Lankan fishing industry where children are recruited in fishing “vaadiyas,” most of whish are situated in remote areas and children are kept in conditions of virtual slavery. Sri Lanka’s greatest challenge in recent times has been the protection of children from the impact of the 19-year civil conflict. The LTTE is reportedly still recruiting children as young as 10/11 years of age.
As regards to the law in Sri Lanka, there is a problem with its Corporal Punishment Ordinance of 1889, which allows male offenders to be whipped and caned, which is a violation of child rights. Sri Lanka has signed but not ratified the Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. The Sri Lankan Penal Code, under the provisions of different forms of child trafficking, the offence of trafficking is first and foremost committed by anyone who engages in the act of buying and selling of bartering of any person for money or any other consideration. The question of what actually consists buying and selling need to be addressed clearly in this situation. Since the Sri Lankan law includes the act of bartering of people, it should be made clear so as to what the law actually means. It is also no mentioned clearly in the laws that the consent of the victim is irrelevant in the issue of trafficking, and it might cause a problem while dealing with a case of trafficking.
5.2.5 The Current situation in Sri Lanka – The LTTE Conflict Continues
The 19 years of civil conflict in Sri Lanka has meant that a whole generation has grown up knowing only the intractable conflict between the government and the guerrillas of the Liberation of Tamil Tiger Eelam (LTTE). Hundreds of thousands of children who live in the north and east of the island have been directly affected by the violence - their relatives or friends have been killed or injured, for example. More than a quarter of mine victims are children. The LTTE is now shying away from admitting the fact that children are actually recruited by them, even though there is a lot of proof that child soldiers as young as 12 have been fighting with the rebels. Children have been used as they make good fighters. They are dependable, obey orders; don’t make demands; are dangerous even if they seem harmless, and are effective spies. With the availability and lightness of weapons such as the AK-47 or the M-16, which are easy to master and use, children are deadly in any frontline. But the recent peace talks between the government and the LTTE is proving to bring positive news for the children. UNICEF has been working with the LTTE to encourage them to release children to the transit centres that have been set up in various parts of the conflict torn areas. According to the UNICEF’s most recent publication, of September 30th, UNICEF has received 1,683 reports of children who have been recruited by the LTTE. 385 underage recruits have been released and 1, 155 children from the UNICEF list of reported cases remain with the LTTE.[29]
6. Recommendations
Even though a lot of Conventions have been signed for the protection of children, there is still a lot to be done for their effective implementation, including awareness campaigns, legal reform in countries, universal birth registration, (which is a big issue in Nepal), and strong international cooperation between countries of origin and destination of trafficked children. Giving refugee status or humanitarian visas to trafficked children will also grant them a legal standing, which will help them greatly. Combating trafficking will require a two-fold approach: a criminal justice response, which will prevent the crime and deter the offenders and a human rights response to protect the trafficked persons and their rights. Only law enforcement will not seal the borders or restrict trafficking. These crimes are committed across borders and transcend the individual legal jurisdiction of each member state; they call for a response and for prevention strategies that are based on mutual cooperation between Member states. Neither Nepal nor Sri Lanka lack laws against Child trafficking, but what they lack is effective implementation. The connections of trafficking with controversial issues such as migration and prostitution have contributed to the complex situation. It is also difficult to apply international legal norms to non-State actors. Despite these difficulties, the existing human rights law does provide a base from which to secure dignity and justice for trafficked persons.
Firstly, education of key groups such as the police, prosecutors, the judiciary, immigration officials and consulate staff as well as civil society groups including the media, educators, NGOs and community leaders is extremely essential. These people should understand the human rights aspect of trafficking because they come into first hand contact with the victim, and have a lot of responsibility to assess particulars of any case of trafficking. The National Laws in the countries should be reviewed for small details, especially in the case of Nepal, where the lawmakers have left out a lot of details.
In addition to anti-trafficking legislation, attention should be paid to laws relating to immigration, emigration and prostitution; as well as extraterritorial legislation and laws relating to birth registration and citizenship. This is to ensure that a trafficked person may exercise their right to return home. More effort need to be put into education because most of the trafficking happens when the traffickers are able to take advantage of poor, ignorant children and people who do not know what is going around them and who are not aware of their legal rights. The public should be more involved in the whole picture. They need to know that they can complain if they see something that looks suspicious. Despite the range of government and NGO action on the issue of child trafficking for labour exploitation, much more work needs to be done in countries in South Asia, especially Nepal and Sri Lanka. Data seems to indicate that the increased number of projects and governments involved in combating child trafficking has not stemmed the tide of children who fall prey to trafficking.
The majority of research and interventions at the international, regional and national levels address the issue of child trafficking only from the perspective of prostitution. But trafficking in children for other purposes- including begging gangs, camel racing, and other forms of bonded labour- is also increasing and this problem should also be dealt with in the country’s legislation. In Sri Lanka, boys are usually more victimized by traffickers, special programmes that take into account their special needs and vulnerability should be designed and implemented. The prevention programmes that have been designed should go beyond community awareness and they should be able to provide viable alternatives to children in local communities. Income generation and vocational programmes must be tailored to growth areas of local economies. Education programmes must be relevant to the lives of the children and must show parents that the cost of attending school today will pay off later with profitable jobs. Also, prevention programmes that include vocational training or income-generation components should include casework with children to monitor their experiences in these classes. Repatriation programmes, similarly, should use casework to understand and address children’s fears about returning home before they are placed back in their communities. A follow up study should be done to ensure that these children do not go back to exploitative work.
Once again, there is an important need for carefully designed research studies in all countries of the region to help governments and NGOs design appropriate intervention strategies. Standard definitions and measures of trafficking for labour exploitation must be used to allow for comparisons over time, within countries and across national boundaries.
7. Conclusion
The understanding that the problem of trafficking is not only a problem of the country of origin is essential in tackling the problem. The recipient country is equally responsible to the plight of the victim, since trafficking is mainly a demand-driven phenomenon. It is evident that the problem has to be confronted at several levels, including the development of programs for children immediately at risk. Particularly important are the lessons learned that could be drawn from past experiences. The complexity of the causes of trafficking, its push and pull factors requires a comprehensive program of action. A combination of trafficking prevention, prosecution of traffickers and protection of human rights is essential for the program to succeed. Trafficked women and children must be recognized as victims of trafficking and not as criminals. Additionally, ways have to be found to measure the costs of repatriating and rehabilitating the victims of trafficking. The current system of forced repatriation does not serve any purpose in the absence of rehabilitation since the victim, having no other option, simply falls prey to the trafficking cycle all over again.
Most societies today are plagued by the malady of child trafficking, making it a global phenomenon today. Many children cross borders and leave home with dreams in their eyes- and those dreams are shattered before long. Children are naïve, they are innocent and they want to be happy. No child deserves to be sold for sexual exploitation or exploitative labour. These children need to be protected and treated as equal citizens. They are the children of the world, and if they do not get a healthy childhood, they will not become responsible citizens. It is a vicious cycle that affects a lot of young children and it stems from poverty and illiteracy. It stems from deprivation and a home that cannot provide them the basics to grow up as healthy individuals. But all the people in the countries where trafficking occurs, need to be aware and need to do their best to protect them. The state and the government should be able to ensure that its future citizens live a life of dignity. The biggest killer of children is indifference and ignorance. We cannot afford to let that happen to 1.2 million children every year. It has to stop. And soon.