Human Trafficking Under International and Tanzanian Law (International Criminal Justice Series, 27) 9462654344, 9789462654341

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International Criminal Justice Series

Volume 27

Human Trafficking Under International and Tanzanian Law

Nicksoni Filbert Kahimba

International Criminal Justice Series Volume 27

Series Editors Gerhard Werle, Berlin, Germany Moritz Vormbaum, Münster, Germany

Series Information The International Criminal Justice Series aims to create a platform for publications covering the entire field of international criminal justice. It, therefore, deals with issues relating, among others, to: – – – –

the work of international criminal courts and tribunals; transitional justice approaches in different countries; international anti-corruption and anti-money laundering initiatives; the history of international criminal law.

It is peer-reviewed and seeks to publish high-quality works emanating from excellent scholars. Editorial Office Prof. Dr. Moritz Vormbaum University of Münster Faculty of Law Bispinghof 24–25 48143 Münster, Germany [email protected]

More information about this series at http://www.springer.com/series/13470

Nicksoni Filbert Kahimba

Human Trafficking Under International and Tanzanian Law

123

Nicksoni Filbert Kahimba School of Law University of Dar es Salaam Dar es Salaam, Tanzania

ISSN 2352-6718 ISSN 2352-6726 (electronic) International Criminal Justice Series ISBN 978-94-6265-434-1 ISBN 978-94-6265-435-8 (eBook) https://doi.org/10.1007/978-94-6265-435-8 Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the author 2021 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

To my stepmother whom I consider my mother and to all the young people in Africa who, despite the challenges they face, resolve that it is not their unfortunate origins that determine who they become but the faith in the better tomorrow.

Acknowledgements

I would like to sincerely thank Prof. Werle for his priceless and invaluable supervision and counselling in the writing and completion of this book. I am immensely indebted to Dr. Epik and Dr. Li for their assisting supervision and endless encouragement in the course of writing this work. I highly appreciate the time they dedicated to reading, correcting and suggesting areas for improvement in each chapter of this book. My gratitude as well reaches out to the entire team of the Chair of Prof. Werle, especially to Frau Schepke, Anna, Nella and Tanja, for their ceaseless readiness to help whenever I consulted them. I also acknowledge the role played by my colleagues, especially Victoria and Seada, in giving me hope and constant strength in the course of developing the book. I acknowledge the contribution of my family and all the relatives who have played their part like none other. I give special thanks to my stepmother, who, because of her initial decision to enrol me at Vingunguti Primary School in Dar Es Salaam for my primary education and also at Mbingu Sister’s Education Centre in Mbingu Kilombero for my secondary education, I have been able to reach this far. I also thank my aunt and uncle, Mr. and Mrs. Rwenyagira, whose initial trust in my intellectual capacity when I was but a small boy sparked in me that hope which I forever cherish in my heart. I am as well thankful to my church communities and friends at Vingunguti, Chuo Kikuu and New Life Berlin for their spiritual, moral and intellectual support. Finally, I have to admit that my faith in God in the person of Jesus Christ has been the reason for my life and all that I have been able to accomplish. To Him resides all the wisdom and knowledge I ever can attain. To Him, I shall constantly return the glory forever and ever, amen.

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Contents

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1 1 12 12 13

Understanding Trafficking in Persons . . . . . . . . . . . . . 2.1 Historical Perspectives . . . . . . . . . . . . . . . . . . . . 2.1.1 Before the League of Nations . . . . . . . . . 2.1.2 After the League of Nations . . . . . . . . . . 2.1.3 United Nations (UN) . . . . . . . . . . . . . . . 2.1.4 International Organization for Migration . 2.1.5 European Union . . . . . . . . . . . . . . . . . . . 2.1.6 Council of Europe . . . . . . . . . . . . . . . . . 2.1.7 Organization of American States (OAS) . 2.1.8 African Union (AU) and Asia . . . . . . . . . 2.1.9 Report of the UN Special Rapporteur . . . 2.2 Need for a New Definition of Trafficking . . . . . . . 2.3 Drafting the TIP Protocol 2000 and Its Definition . 2.4 Current Definition of Trafficking . . . . . . . . . . . . . 2.4.1 Action Element of Trafficking . . . . . . . . . 2.4.2 Means Element of Trafficking . . . . . . . . . 2.4.3 Purpose Element of Trafficking . . . . . . . . 2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Introduction to the Book . . . . . . . . . . . . . . . . . 1.1 Introduction and Background Information 1.2 Objectives of the Book . . . . . . . . . . . . . . 1.3 Chapter Outlines . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part I 2

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International Anti-trafficking Legal Frameworks

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International Legal Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Anti-trafficking Primary Legal Regime . . . . . . . . . . . . . . . 3.1.1 Organised Crime Convention . . . . . . . . . . . . . . . 3.1.2 TIP Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.3 Migrant Smuggling Protocol . . . . . . . . . . . . . . . . 3.2 Regional Anti-trafficking Legal Frameworks . . . . . . . . . . . 3.2.1 SAARC Convention . . . . . . . . . . . . . . . . . . . . . . 3.2.2 CoE Anti-trafficking Convention . . . . . . . . . . . . . 3.2.3 Directive 2011/36/EU . . . . . . . . . . . . . . . . . . . . . 3.2.4 Fragmented Legal Framework of the AU . . . . . . . 3.3 Human Rights Instruments . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Universal Declaration of Human Rights (UDHR) . 3.3.2 ICCPR Covenant . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 ICESCR Covenant . . . . . . . . . . . . . . . . . . . . . . . 3.3.4 CEDAW Convention . . . . . . . . . . . . . . . . . . . . . 3.3.5 CERD Convention . . . . . . . . . . . . . . . . . . . . . . . 3.3.6 CRC Convention . . . . . . . . . . . . . . . . . . . . . . . . 3.3.7 CoE Human Rights Convention . . . . . . . . . . . . . 3.3.8 African Human Rights Charter . . . . . . . . . . . . . . 3.3.9 American Convention on Human Rights . . . . . . . 3.3.10 Migrant Workers Convention . . . . . . . . . . . . . . . 3.3.11 Refugee Convention . . . . . . . . . . . . . . . . . . . . . . 3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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89 90 92 97 105 115 116 119 124 132 138 140 140 141 142 143 145 146 147 149 149 155 161 161

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State 4.1 4.2 4.3 4.4

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Anti-trafficking Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Obligation of a Criminal Justice Response . . . . . . . . . . . 5.1.1 Obligation to Criminalise Trafficking in Persons . 5.1.2 Criminalisation of Trafficking Related Crimes . . 5.1.3 Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . 5.1.4 Investigation, Prosecution and Adjudication . . . . 5.1.5 Sanctions and Penalties . . . . . . . . . . . . . . . . . . .

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Responsibility for Trafficking . . . . . . . . . . . . State Responsibility in International Law . . . . Attribution . . . . . . . . . . . . . . . . . . . . . . . . . . Breach of an International Obligation . . . . . . . Special Considerations on State Responsibility for Trafficking . . . . . . . . . . . . . . . . . . . . . . . 4.5 Legal Consequences . . . . . . . . . . . . . . . . . . . 4.6 Invoking International Responsibility . . . . . . . 4.7 Countermeasures . . . . . . . . . . . . . . . . . . . . . . 4.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Contents

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5.1.6 Asset Confiscation, Recovery and Use . . . . . . . . . . 5.1.7 International Co-operation . . . . . . . . . . . . . . . . . . . 5.2 Obligation to Prevent Trafficking . . . . . . . . . . . . . . . . . . . . 5.2.1 Preventing Trafficking through Addressing Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Preventing Trafficking by Addressing Demand . . . . 5.2.3 Preventing Trafficking Lawfully . . . . . . . . . . . . . . 5.3 Obligation of Protection, Assistance, Support and Remedies 5.3.1 Obligation to Identify Victims of Trafficking . . . . . 5.3.2 Obligation not to Punish Victims . . . . . . . . . . . . . 5.3.3 Protection from Further Harm and of Privacy . . . . . 5.3.4 Physical and Psychological Care and Support . . . . 5.3.5 Obligation Relating to Legal Assistance and Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.6 Obligations Relating to Repatriation . . . . . . . . . . . 5.3.7 Obligation of Effective and Appropriate Remedies . 5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part II 6

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Tanzania’s Legal and Institutional Anti-trafficking Framework

Trafficking in Persons in Tanzania . . . . . . . . . . . . . . . . . . . . 6.1 Human Trafficking General Landscape . . . . . . . . . . . . . . 6.1.1 Legal and Geographical Background . . . . . . . . . 6.1.2 Trafficking and Its Historical Underpinnings . . . 6.1.3 Nature of Trafficking in Tanzania . . . . . . . . . . . 6.1.4 Causes of Trafficking in Persons . . . . . . . . . . . . 6.2 Early Anti-trafficking Legal Response . . . . . . . . . . . . . . 6.2.1 Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 Sexual Offences Special Provisions Act of 1998 (SOSPA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.3 Penal Act of Tanzania Zanzibar . . . . . . . . . . . . 6.3 Need for a Different Legal Regime . . . . . . . . . . . . . . . . 6.3.1 Domestication . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Enactment of the 2008 Act . . . . . . . . . . . . . . . . 6.3.3 Constitution of Tanzania . . . . . . . . . . . . . . . . . . 6.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Criminal Justice Response . . . . . . . . . . . . . . . . . . . . 7.1 Some Interpretational and Problematic Aspects . . 7.2 Criminalisation and Prohibition of Trafficking . . 7.2.1 First Act of Trafficking [Section 4(1)(a)]

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Contents

7.2.2 7.2.3 7.2.4 7.2.5 7.2.6 7.2.7 7.2.8

Second Act of Trafficking [Section 4(1)(b)] . Third Act of Trafficking [Section 4(1)(c)] . . Fourth Act of Trafficking [Section 4(1)(d)] . Fifth Act of Trafficking [Section 4(1)(e)] . . . Sixth Act of Trafficking [Section 4(1)(f)] . . . Seventh Act of Trafficking [Section 4(1)(g)] Eighth Act of Trafficking (Placement) [Section 4(2)] . . . . . . . . . . . . . . . . . . . . . . . 7.2.9 Acts Promoting or Facilitating Trafficking [Section 5] . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Trafficking of Children [Section 4(3)] . . . . . . . . . . . 7.4 Consent of the Victim [Section 4(4)] . . . . . . . . . . . . 7.5 Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Duty to Investigate Cases of Trafficking . . . . . . . . . . 7.7 Judicial Proceedings . . . . . . . . . . . . . . . . . . . . . . . . 7.8 Powers of the Court on Compensation . . . . . . . . . . . 7.9 Sanctions and Penalties . . . . . . . . . . . . . . . . . . . . . . 7.10 Asset Confiscation, Forfeiture and Use . . . . . . . . . . . 7.11 Obligation to Collect and Exchange Information . . . . 7.12 Obligation of International Co-operation . . . . . . . . . . 7.13 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Prevention of Human Trafficking and Protection of Victims . . . 8.1 Obligation to Prevent Trafficking in Persons . . . . . . . . . . . . 8.1.1 Preventing Trafficking through Addressing Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.2 Preventing Trafficking through Addressing Demand 8.1.3 Preventing Trafficking by Acting Lawfully . . . . . . 8.2 Obligation of Assistance, Protection, Support and Remedies 8.2.1 Obligation to Identify Victims of Trafficking . . . . . 8.2.2 Obligation Not to Punish Victims . . . . . . . . . . . . . 8.2.3 Rescue, Protection from Further Harm and Respect of Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.4 Obligation to Provide Physical, Social and Psychological Care . . . . . . . . . . . . . . . . . . . . . 8.2.5 Obligation to Provide Legal Assistance and Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.6 Obligation of Repatriation . . . . . . . . . . . . . . . . . . . 8.2.7 Obligation of Effective and Appropriate Remedies . 8.2.8 Special Consideration on the Child Victims and Disabled Persons . . . . . . . . . . . . . . . . . . . . . .

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8.3 Centres for Protection and Assistance of Victims . . . . . . . . . . . 444 8.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447 9

Institutional Framework and the Action Plans 9.1 Institutional Framework . . . . . . . . . . . . . . 9.2 National Action Plans . . . . . . . . . . . . . . . 9.2.1 Guiding Principles . . . . . . . . . . . 9.2.2 Strategic Actions . . . . . . . . . . . . 9.3 Case Law . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part III

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Summary, Conclusion and Recommendations

10 Summary, Conclusion and Recommendations . 10.1 Comprehensive Summary . . . . . . . . . . . . 10.2 Conclusion . . . . . . . . . . . . . . . . . . . . . . . 10.3 Recommendations . . . . . . . . . . . . . . . . . .

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Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509

Acronyms and Abbreviations

ACJHPR AG AIDS ASEAN ATC ATF ATS AU AU.COMMIT CAP CATW CCPR CEDAW CERD CESCR CoE CRC CRPD C-SEMA CSOs DPP DRC DSW EAC EARPCCO EC ECOWAS

African Court of Justice and Human and Peoples’ Rights Attorney General Acquired Immune Deficiency Syndrome Association of Southeast Asian Nations Anti-Trafficking Committee Anti-Trafficking Fund Anti-Trafficking Secretariat African Union AU Commission Initiative against Trafficking Chapter Coalition against Trafficking in Women Committee on Civil and Political Rights Convention on the Elimination of All Forms of Discrimination against Women International Convention on the Elimination of All Forms of Racial Discrimination Committee on Economic, Social and Cultural Rights Council of Europe Committee on the Rights of the Child, Convention on the Rights of the Child Committee on the Rights of Persons with Disabilities Children’s SEMA, Swahili National Helpline 116 Civil Society Organisations Director of Public Prosecution Services Democratic Republic of the Congo Department of Social Welfare East African Community Eastern African Regional Police Chiefs Corporation Organisation European Commission Economic Community of Western African States

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ECtHR EES EMN ESCR EU EUROPOL FATF GAATW GCIM GN GRETA HCD HIV IACtHR ICAT ICC ICCPR ICESCR ICJ ICTY IGP ILC ILFS ILO IMT INTERPOL IOM KIWOHEDE LGAs LHRC LRC M&E MCDGC MDAs MLA MoHA NGOs NMIS NOLA NSGRP OAS OAU OECD OSCE PCCB

Acronyms and Abbreviations

European Court of Human Rights Employment and Earnings Survey European Migration Network Economic, Social and Cultural Rights European Union European Union Agency for Law Enforcement Cooperation Financial Action Task Force Global Alliance Against Trafficking in Women Global Commission on International Migration Government Notice Group of Experts on Action against Trafficking in Human Beings High Court Digest Human Immunodeficiency Virus Inter-American Court of Human Rights Inter-Agency Coordination Group against Trafficking in Persons International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Criminal Tribunal for the Former Yugoslavia Inspector General of Police of Tanzania International Law Commission Integrated Labour Force Survey International Labour Organization International Military Tribunal International Criminal Police Organization International Organization for Migration Kiota Women’s Health and Development Organisation Local Government Authorities Legal and Human Rights Centre Law Reform Commission of Tanzania Monitoring and Evaluation Ministry of Community Development, Gender and Children Ministries, Departments and Agencies Mutual Legal Assistance Ministry of Home Affairs Non-Governmental Organisations National Management Information System National Organisation for Legal Assistance National Strategy for Growth and Reduction of Poverty Organization of American States Organisation of African Unity Organization for Economic Co-operation and Development Organization for Security and Co-operation in Europe Prevention and Combating of Corruption Bureau

Acronyms and Abbreviations

PCIJ R RE RECs RMMS SAARC SADC SARPCCO SOSPA SSA STDs TAWLA TI TIP TISS TLR TLS TNBS TRA TUKI TV UAE UDHR UN UN.GIFT UNCHR UNGA UNHCR UNICEF UNODC UNTC UNTS USA UTSS WHO WLAC ZLSC

Permanent Court of International Justice Republic Revised Edition Regional Economic Communities Regional Mixed Migration Secretariat South Asian Association for Regional Cooperation Southern African Development Community Southern African Regional Police Chiefs Cooperation Organisation Sexual Offences Special Provisions Act Sub-Saharan Africa Sexually Transmitted Diseases Tanzania Women Lawyers Association Transparency International Trafficking in Persons Tanzania Intelligence and Security Services Tanzania Law Reports Tanganyika Law Society Tanzania National Bureau of Statistics Tanzania Revenue Authority Swahili-English Dictionary Television United Arab Emirates Universal Declaration of Human Rights United Nations United Nations Global Initiative to Fight Human Trafficking United Nations High Commissioner for Human Rights United Nations General Assembly United Nations High Commissioner for Refugees United Nations Children’s Fund United Nations Office on Drugs and Crime United Nations Treaty Collections United Nations Treaty Series United States of America Under The Same Sun World Health Organization Women’s Legal Aid Centre Zanzibar Legal Services Centre

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Chapter 1

Introduction to the Book

Contents 1.1 Introduction and Background Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Objectives of the Book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 1.3 Chapter Outlines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Abstract This chapter introduces the subject of trafficking in persons both from its international and domestic contexts. The chapter provides comprehensive background information regarding the current state of international law on human trafficking and the extent of the research and literature that currently exist on the subject. Thereafter, chapter introduces the problem of human trafficking in Tanzania from the existing research materials to its current crystallisation in the Anti-Trafficking in Persons Act 2008 and its Implementing Regulations. This chapter then provides a brief overview of the current anti-trafficking legal and institutional framework in terms of the crimes it criminalises, the extent to which it protects victims of human trafficking, the nature of its prevention provisions and generally, the strengths it portrays and the challenges this framework presents, all of which necessitated the writing of this book. Finally, the chapter provides the objective for writing this book and outlines, in a summarised manner, the basic content of all the remaining chapters of the book. Keywords Trafficking in Persons · Organised Crime · Organised Crime Convention 2000 · TIP Protocol 2000 · Migrant Smuggling Protocol 2000 · Implementing Regulations · Anti-Trafficking in Persons Act · Tanzania · Legal Framework · Ad Hoc Committee · Literature · Offences

1.1 Introduction and Background Information Since the early 1990s and throughout this period, trafficking in persons, also human trafficking or simply trafficking, and the appropriate measures to combat it became an

© t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_1

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agenda in several regional and international arenas.1 As a result, the United Nations General Assembly (UNGA) adopted resolution 53/111 of 9 December 1998 through which it established an open-ended intergovernmental Ad Hoc Committee to elaborate a thorough international convention to combat transnational organised crime and, as far as possible, to elaborate other international instruments against trafficking in women and children, illicit manufacturing and trafficking in firearms and illegal trafficking in and transporting of migrants.2 Following the work of the Ad Hoc Committee and pursuant to resolution 55/25 of 15 November 2000,3 the UNGA adopted, among other instruments, the United Nations Convention against Transnational Organized Crime,4 the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime5 and the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.6 These three instruments form the primary international legal framework on trafficking in persons and migrant smuggling. Besides, the regional legal regimes of the EU, CoE, ASEAN and SAARC all have anti-trafficking specialty instruments that govern the prevention and combating of trafficking in their specific areas of jurisdiction.7 This framework is also supported 1 Nikoli´ c-Ristanovi´c

2012, p. 206; Sullivan 2010, p. 89; Kneebone 2010, p. 141; Meriläinen and Vos 2015, p. 18. See as well Cholewinski 2015, p. 36; Schloenhardt and Hickson 2013, pp. 40–41; Brolan 2003, pp. 581–583; Kneebone 2014, pp. 298–299; Dottridge 2017, p. 61. 2 UNGA 1999, para 10. See as well Warren 2007, pp. 243–244; Dauvergne 2008, p. 71; Vlassis 2002a, pp. 477–494, 495–513, b, pp. 76–91. 3 UNGA 2001. 4 United Nations Convention against Transnational Organized Crime, opened for signature 15 November, 2222 UNTS 209 (2000), entered into force 29 September 2003 (Organised Crime Convention 2000). 5 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (2000), entered into force 25 December 2003 (TIP Protocol 2000). 6 Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2241 UNTS 507 (2000), entered into force 28 January 2004 (Migrant Smuggling Protocol 2000). 7 An elaborate exposition of this international and regional legal framework on trafficking in persons is the subject of chapter three in this work. Generally the international and regional legal framework on trafficking in persons and which has been referred to consistently in this work largely consists of the: Organised Crime Convention 2000, above n 4; TIP Protocol 2000, above n 5; Migrant Smuggling Protocol 2000, above n 6; ASEAN Convention Against Trafficking in Persons, Especially Women and Children, opened for signature 21 November 2015, entered into force 8 March 2016; SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, opened for signature 5 January 2002, entered into force 15 November 2005; Council of Europe Convention on Action against Trafficking in Human Beings, opened for signature 16 May 2005, CETS-No. 197, Warsaw 16.V.2005, entered into force 1 February 2008; Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims, and Replacing Council Framework Decision 2000/629/JHA, opened for signature 5 April 2011, OJ L 101, 15.4.2011, P.1 entered into force 15

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by other regimes of international law such as international human rights law, criminal law, humanitarian law, refugee law, labour law, migration law and the law governing stateless persons and non-citizens.8 Due to its global ramifications, a lot has been written on the subject of trafficking in persons. Thematically, trafficking has been studied from several diverse approaches

April 2011; African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS 217 (1981), entered into force 21 October 1986; African Charter on the Rights and Welfare of the Child, opened for signature 1 July 1990, OAU Doc. CAB/LEG/2.49/49 (1990), entered into force 29 November 1999; Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, opened for signature 1 July 2003, CAB/LEG/66.6, entered into force 25 November 2005. This international and regional framework is supported by a body of international human rights and other instruments, including: Universal Declaration of Human Rights, UNGA Res. 217A (III). UN Doc. A/810, 10 December 1948; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (1966), entered into force 23 March 1976; International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (1966), entered into force 3 January 1976; Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (1979), entered into force 3 September 1981; International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (1965), entered into force 4 January 1969; Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (1989), entered into force 2 September 1990; Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (1950), entered into force 3 September 1953; American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (1969), entered into force 18 July 1978; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened for signature 18 December 1990, 2220 UNTS 3 (1990), entered into force 1 July 2003; Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (1951), entered into force 22 April 1954, as Amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 666 UNTS 267 (1967), entered into force 4 October 1967; Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (1954), entered into force 6 June 1960; Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (1961), entered into force 13 December 1975; Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (2006), entered into force 3 May 2008. 8 Gallagher 2017b, pp. 8–9; Gallagher and Skrivankova 2015, p. 26; Weiss 2016, p. 41; Thomson 2016, pp. 63–64; Piotrowicz 2005, pp. 160–161.

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and positions. It has been combated, approached and/or addressed from the perspectives of being an issue related to state and human security,9 human rights,10 historical and modern slavery,11 state politics,12 prostitution, sexual exploitation and gender,13 migration and its control,14 labour-related exploitation,15 religion and faith,16 crimes against humanity or even a core crime under international criminal law,17 public health problem,18 globalisation and technological development issue19 and/or as a transnational organised crime.20 These differing approaches and positions on understanding, addressing and combating trafficking are all based on the fact that trafficking in persons is a complex, multidimensional problem that cannot be explained or combated through one policy approach or intervention alone.21 As a consequence, there have been proposals for new approaches to understanding and combating trafficking by showing the inherent weaknesses of the current approaches, explanations

9 Clark 2003, pp. 247–263; Iroanya 2018; Borraccetti 2017, pp. 187–210; Okubo and Shelley 2011;

Dandurand and Chin 2011, pp. 36–56; Piotrowicz 2010, pp. 404–418; Turek 2013, pp. 73–87; Lobasz 2009 pp. 319–344; Yousaf 2018, pp. 209–225. 10 Obokata 2006; Gallagher 2017c, pp. 556–582; Pearson 2000; Shifman 2003, pp. 125–132; 2010; Hua 2011; Gallagher and Karlebach 2011. 11 Scarpa 2008; Bales 2007; Bravo 2007, pp. 207–295; Bales and Soodalter 2009; Allain 2008, 2013; Welch 2009, pp. 70–128; Vijeyarasa and Villarino 2013, pp. 38–61; Torgoley 2006, pp. 553–578; Stevens 2006, pp. 645–667; Sigmon 2008, pp. 245–257; Bravo 2011, pp. 561–572. 12 Morehouse 2009; O’Brien and Wilson 2015, pp. 123–137; Wylie 2016; Aradau 2008; O’Brien et al. 2013; Kempadoo 2007, pp. 79–85; Kelley 2017. 13 Kara 2009; Watson and Silkstone 2006, pp. 110–118; Frescura 2006, pp. 133–144; Lehti and Aromaa 2006, pp. 133–227; Kiremire 2006, pp. 18–27; Elabor-Idemudia 2003, pp. 101–116; Di Nicola et al. 2009; Cameron 2008, pp. 80–110. But for a critical comment that the gendered approach largely excludes men, see Shoaps 2013, pp. 931–972. 14 Yousaf 2018, pp. 209–225; Chacón 2010, pp. 1609–1653; Chuang 2006, pp. 137–163; Maher 2017, pp. 77–91; Aronowitz 2009; Aradau 2008; Van de Glind 2010; Sharma 2017, pp. 31–47; Howard 2017; Avdan 2012, pp. 171–205. 15 Stone and Vandenberg 1999, pp. 36–38; Pickup 1998, pp. 44–51; Andrees and van der Linden 2005, pp. 55–74; Belanger 2014, pp. 87–106; Suchland 2015. 16 Zimmerman 2018, pp. 335–365; Pemberton 2006, pp. 399–408; Raimi 2012, pp. 297–310; Barrows 2017, pp. 279–289. 17 Obokata 2005, pp. 445–457; Moran 2014, pp. 32–45; Pocar 2007; Kim 2011, pp. 1–35; van der Wilt 2014, pp. 297–334; Atak and Simeon 2014, pp. 1035–1037; Mahmood 2019, pp. 35–57. 18 Scholte et al. 2018, pp. 291–302; Pemberton 2006, pp. 399–408; Perry and McEwing 2013, pp. 138–159; Maher et al. 2015, pp. 102–113; Duger 2015, pp. 114–123; Lugris 2013, pp. 231–241; Travis and Sharshenkulov 2013, pp. 242–255; Doherty and Morley 2016, pp. 121–135; ChisolmStraker and Stoklosa 2017. 19 Shelley 2009; Shifman 2003, pp. 125–132; Lansink 2006, pp. 45–56; Samarasinghe and Burton 2007, pp. 51–64; Penttinen 2008; Dinan 2008, pp. 58–79. 20 Bajrektarevic 2000, pp. 57–70; Benedek et al. 2010; Di Nicola 2014, pp. 143–164; Bruckert and Parent 2002; Albanese and Reichel 2014; Leman and Janssen 2015; Shelley 2007. 21 Shahrokhi 2010, p. 38; Zhang 2007, p. 119; Van Impe 2000, p. 115; Edwards 2007, p. 10.

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and methods of the dominant anti-trafficking discourse.22 For example, while human rights and gender-based approaches have been considered one of the best frameworks of analysis and action to understanding and combating trafficking while also protecting the victims,23 some research has shown the limitation of these approaches due to their inability to overcome ‘dichotomous understandings and politicized discourses’ on trafficking.24 The evolving discourse on human trafficking has brought up other suggestive approaches to tackling and understanding trafficking which, in the view of their proponents, appear more realistic and implementable. These include, for example, capabilities approaches, demand-oriented approaches, constructive international relations theories, business approaches, social justice and longer chain of causation approaches, victims’ voice approaches and the use of micro level research as opposed to generalised macro level studies on trafficking.25 Increasingly, however, it has been observed that all these different approaches are not mutually exclusive and therefore, based on the fact that they all intend to effectively combat trafficking in persons everywhere, they should be applied “simultaneously and coherently”.26 Exploitative end results of trafficking such as sexual exploitation and prostitution, forced labour, slavery, practices similar to slavery or servitude, debt bondage and the removal of organs as well as new and emerging exploitative end results, prominent being forced begging, forced criminality and participation in armed conflicts, have also been studied and explored.27 This diversified understanding of trafficking and its manifestations, however, is very much evolving, recovering from its previous position in which it was dominated by the prostitution agenda and sexual exploitation as the most prevalent expressions of trafficking,28 thereby excluding from protective and supportive measures victims of other manifestations of trafficking who were also trafficked.29 There also have been general and specific examinations of the problem of trafficking, its legal and institutional framework, approaches to prevent and combat

22 Kaye and Winterdyk 2012, pp. 58–72. Each policy approach used in the anti-trafficking discourse

influences the way one approaches and fights trafficking, see Richards and Lyneham 2015, p. 110; Schofield et al. 2012, p. 393; Davidson 2015, p. 154. 23 Sax 2018, p. 254; Gallagher and Ezeilo 2015, pp. 913–940; Vrancken and Chetty 2009, pp. 119– 120; Obokata 2006, p. 35; Todres 2011, pp. 67–70; Gallagher and Karlebach 2011, pp. 5 et seq.; Laird 2016, p. 104; Atak and Simeon 2014, p. 1024. 24 Kaye and Winterdyk 2012, p. 72. See also Bruch 2004, pp. 32–33. 25 Weitzer 2014, pp. 15–16; Briones 2010, pp. 62–65; Yen 2008, pp. 682–686; Wylie 2016, pp. 9–11, 21 et seq.; Davitti 2010, pp. 41–42; D’estree 2012, pp. 79–102; Rao and Presenti 2012, pp. 231–263; Mahmoud and Trebesch 2010, pp. 173–188. 26 Bruckmüller and Schumann 2012 p. 104; Van Impe 2000, p. 115; Waismann 2010, p. 388. 27 Healy 2018, pp. 157–168; Renzikowiski 2018, p. 16; Aronowitz 2009, pp. 103–127, 129–143; Cherneva 2011, pp. 31 et seq.; Bakirci 2009, pp. 163–164; Skrivankova 2018, pp. 115–117. 28 Zheng 2010a, b, p. 5; Wylie 2016, p. 48; Weitzer 2014, pp. 12–13. On a considered, yet very critical examination on the limitation of prostitution as trafficking, see Suchland 2015; Gould 2014, pp. 183–201; Di Nicola et al. 2009; Kara 2009; Gallagher and Ezeilo 2015, p. 915. 29 Copi´ ´ c and Simeunovi´c-Pati´c 2012, p. 280; Chuang 2006, pp. 153–154; Fredette 2009, pp. 109– 110.

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it, its ethical concerns, the framework’s inherent limitations and recommendations for improvement.30 Conversely, available information suggests the existence of a very critical look at the entire or some of the aspects of the discourse on trafficking. While not necessarily disputing the fact that trafficking does exist as an objective problem, there has been much scepticism over the discourse on trafficking, with arguments that the discourse is discriminatory or one-sided because it is sustained through the capitalist economies of violence, is culture blind, lacks honesty, its definition ambiguous, suffers from moral panic, its research methodology faulted, its data based on guesstimates, its discourse evidence-deficient, its efforts misdirected, its analysis highly statist and largely ignores the perspectives of the victims themselves and that, as a concept, trafficking is of doubtful value.31 There even have been a persistent contention that the discourse has occasioned collateral damage in that its response to the problem of trafficking in several countries has brought negative consequences to the very victims it was supposed to help and protect,32 including several other unintended consequences such as the securitisation of borders, gendered stereotypes of migrants and individualisation of blame that shifts a focus from the problem of global inequality that makes trafficking and exploitation possible.33 Being critical of the media and the entertainment industry, despite their role as anti-trafficking arsenals, some research has questioned their authenticity and unintended consequences. There has been an argument that the use of the entertainment industry and the media, including celebrities and TV actors has, sometimes, actually ended up marginalising and harming victims of trafficking and damaging their rights and the very cause which, in reality, they intend to protect and advance.34 By focusing on single narratives of real or imaged trafficking oppression, this industry and the media have denied victims of their agency and the access to give their narratives, have individualised social problems, commodified human rights advocacy, misdirected anti-trafficking policies and interventions and have failed to challenge the causal and structural factors of inequality through the

30 Gallagher 2010; Scarpa 2008; Savona and Stefanizzi 2007a, b; Mninde-Silungwe 2017, pp. 109–

124; Obokata 2006; Winterdyk et al. 2012; Siegel and De Wildt 2016. 2014, pp. 6–24; Andrijasevic and Anderson 2009, pp. 151–155; Howard 2017; Alpes 2010, pp. 117–133; Suchland 2015; Mahdavi 2011; Howard and Morganti 2015, pp. 41–104; Weitzer 2006, pp. 33–38; Sanghera 2005, pp. 3–24; Merry 2017, pp. 273, 276, 299–300; Vernier 2006, p. 7 quoted in Stoyanova 2017, p. 6; Feingold 2010, pp. 46–74. 32 Dottridge 2018, pp. 342–354; GAATW 2007; Maher et al. 2015, pp. 102, 106–110; Mahdavi 2011, p. 11; Ahmed and Seshu 2015, pp. 169–178. 33 Wylie 2016 pp. 183–184; Dottridge 2018, p. 343; Howard 2018, pp. 523–524; Segrave 2009, pp. 251–260. 34 For a dedicated special issue exploring this aspect of the anti-trafficking discourse in specific countries, see Hill 2016, pp. 39–55; Hoefinger 2016, pp. 56–78; Krsmanovic 2016, pp. 139–160; Andrijasevic and Mai 2016, pp. 1–10; Cojocaru 2016, pp. 12–38; Wallinger 2010, pp. 13–19. 31 Weitzer

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simplistic solutions they give.35 There even has been a formulation that the international legal foundation of the anti-trafficking discourse is a quagmire.36 Thus, there is a huge diversity of research and information on human trafficking, with each approach taken playing a decisive function on how trafficking is approached and combated in any state or region. It is also clear that a multifaceted approach to the problem of trafficking is the most appropriate in understanding and combating this crime because such an approach looks at trafficking in its totality.37 It also reveals that, unlike the extensive examination of the situation of trafficking in other countries,38 the problem of trafficking in Tanzania has never been examined holistically or comprehensively. In addition to reports from international treatymonitoring mechanisms, as discussed in this work, studies on the situation of trafficking in Tanzania have been selective, limited only to particular regions and do not at all focus on providing a comprehensive and succinct understanding of the problem and its current legal regime.39 While the works by Mathias, Magare and Kraemer attempt to provide a holistic approach on trafficking in Tanzania, they, nevertheless, take simplistic approaches limited to the aspects of children experiences, gender and comparative methods which fail to capture not only the actual content but also lack any comprehensive and analytical examination of the Anti-Trafficking in Persons Act 2008.40 The existing knowledge, however, has provided a starting point to study the problem of trafficking in Tanzania from which this work has been able to go further. Through the new concepts, ideas and additional knowledge that this book has produced, it is expected to inspire significant legal and institutional reforms in Tanzania and add knowledge to the current discourse on trafficking in persons. Against this background, it becomes necessary and possible also to provide a preliminary introduction of the Tanzanian profile regarding this problem. In practice, Tanzania has taken some concrete legal steps to combat trafficking in persons. Concerning the TIP Protocol 2000, Tanzania signed first the Organised Crime Convention 2000 on 13 December 2000 and deposited its instrument of ratification on 24 May 2006.41 It also, on the same date, signed and deposited instruments of ratification for the TIP Protocol 2000 and the Migrant Smuggling Protocol 2000. These 35 Doorninck

2018, pp. 422–423; Small 2012, pp. 415–443; Haynes 2014, pp. 25–45; Lasocik 2010, pp. 31–32; Andrijasevic and Mai 2016, pp. 1–5; Cojocaru 2016, pp. 12–13; Winterdyk 2017, pp. 226–227. 36 Hathaway 2008, pp. 1–59. 37 Papantoniou-Frangouli and Moritz 2010, p. 123; Hynes 2004, p. 225. 38 Extensive studies on trafficking in persons and migrant smuggling in other countries are well documented. For some of these studies, see Zhang 2007; Wylie and McRedmond 2010; Holmes 2010; Dragiewicz 2015; Cameron and Newman 2008. 39 Such studies include for example, Kamazima 2009; Kamazima et al. 2016; Kamazima et al. 2018a, pp. 1–11; 2018b, pp. 1049–1056; Kamuli 2013; Pearson 2003. 40 Mathias 2016; Magare 2016; Kraemer 2013. 41 UNTC Ratification Status. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY& mtdsg_no=XVIII-12&chapter=18&clang=_en. Accessed 21 February 2019. See also the Organised Crime Convention 2000, Article 37(2): “In order to become a Party to a protocol, a State or a regional economic integration organization must also be a Party to this Convention.”

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three legal instruments entered into force for Tanzania on 23 June 2006.42 Thus, as of 23 June 2006, Tanzania has been internationally bound by these instruments. Following this ratification, the Parliament of Tanzania enacted the AntiTrafficking in Persons Act in 2008,43 thereby domesticating the TIP Protocol 2000.44 In 2011, Tanzania established the National ATC and its Secretariat, the ATS, as institutions with the overall obligation to oversee, supervise and co-ordinate the implementation of Tanzania’s international and domestic anti-trafficking obligations on behalf of the Government under the Ministry of Home Affairs.45 This was followed by the promulgation of the Anti-Trafficking in Persons Act 2008’s Implementing Regulations in 2015. These Regulations are the Anti-Trafficking in Persons (Establishment of Centres for Protection and Assistance of Victims) Regulations46 and the AntiTrafficking in Persons (Prevention, Protection and Treatment) Regulations.47 The Anti-Trafficking in Persons Act 2008, Centres for Protection and Assistance Regulations 2015 and the Main Regulations 2015 govern the prevention and combating of trafficking in Tanzania. They encapsulate the three international anti-trafficking obligations, namely: obligation of an effective, appropriate and adequate criminal justice response; obligation to prevent trafficking in persons; and obligation to support, assist and protect victims of trafficking. These three instruments, together with the Constitution of the United Republic of Tanzania, contain the anti-trafficking legal and institutional framework of Tanzania. Furthermore, in 2015, the Government of Tanzania adopted also the first National Anti-Trafficking in Persons Action Plan (2015–2017) to concretise, in measurable and monitored actions, Tanzania’s implementation of its anti-trafficking obligations under international and national law.48 Following its expiration at the end of 2017, the Government adopted Tanzania’s second National Anti-Trafficking in Persons Action Plan (2018–2021) which is currently in use.49 The current legal framework on trafficking in Tanzania criminalises acts of trafficking in persons,50 trafficking in persons by placement,51 acts that facilitate or

42 UNTC United Republic of Tanzania Ratification https://treaties.un.org/doc/Publication/CN/2006/

CN.416.2006-Eng.pdf. Accessed 21 February 2019. Anti-Trafficking in Persons Act, Act No. 6 of 2008, (CAP 432) (Anti-Trafficking in Persons Act 2008, the Act or the 2008 Act). 44 Constitution of the United Republic of Tanzania, 1977, CAP 2: RE 2002, Article 63(3)(e); United Republic of Tanzania, Ministry of Home Affairs 2018, p. 4. 45 Anti-Trafficking in Persons Act 2008, Sections 30, 32. 46 GN. No. 27 of 2015 (Centres for Protection and Assistance Regulations 2015). 47 GN. No. 28 of 2015 (Main Regulations 2015). 48 United Republic of Tanzania, Ministry of Home Affairs 2015–2017. 49 United Republic of Tanzania, Ministry of Home Affairs 2018. 50 Anti-Trafficking in Persons Act 2008, Section 4(1). 51 Ibid., Section 4(2). 43 The

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promote trafficking in persons,52 the offence of severe trafficking in persons,53 trafficking in persons by an intermediary54 and the offence of knowing use of the services of the victim of trafficking.55 It also has extensive provisions on the prevention of trafficking and assistance, protection and support to victims of trafficking.56 However, this domestic legal and institutional framework has never been examined before and this has obscured its actual understanding. Thus, this book provides a seminal, analytical examination of this framework while also revealing its fundamental legal strengths and shortcomings. As established in the following chapters, while its obligation to provide an effective, appropriate and adequate criminal justice response is framed in mandatory terms, most of the 2008 Act’s criminal provisions are ambiguous as they are unjustifiably long, repetitive, unexplained and vague.57 The 2008 Act introduces new forms of the crimes of trafficking without any legal clarity on their necessary criminal elements.58 The 2008 Act offers definitions of some key terms which fundamentally differ from and/or conflict with similar or related terms as used in the Main Regulations 2015.59 The 2008 Act and its Main Regulations 2015 largely copy verbatim some provisions of the TIP Protocol 2000 with certain modifications in a manner that obscures the purpose of their criminalisation.60 The 2008 Act’s criminalisation provisions confuse certain concepts and crimes which are differently and separately defined and governed in international law. For example, the 2008 Act criminalises the crime of trafficking in persons for people smuggling or smuggling of migrants. This crime, according to international law, is different from that of trafficking in persons.61 52 Ibid.,

Section 5. Section 6. 54 Ibid., Section 7. 55 Ibid., Section 8. 56 Section 24 of the 2008 Act narrowly contains provisions on the prevention of trafficking. However, extensive provisions on the prevention of trafficking are contained in Part II of the Main Regulations 2015. As regards the obligation to provide assistance, protection and support to victims of trafficking, Part IV of the Anti-Trafficking in Persons Act 2008 contains extensive provisions. Part IV, nonetheless, has to be read together with the Implementing Regulations. 57 This is the character of the most of its criminalisation provisions of the Anti-Trafficking in Persons Act 2008, Sections 4–8. 58 For example, Section 4(2) criminalises “placement for sale, bonded placement, temporary placement or placement as services where exploitation by some other person is the motive”. The 2008 Act, however, provides no evident clues on what are the criminal ingredients of these crimes. 59 For instance, the definition of the term “exploitation” and the constitutive crimes or forms of “exploitation” under Section 3 of the 2008 Anti-Trafficking in Persons Act somehow, in certain fundamental aspects, differ from those of the definition of “exploitation” as contained under Regulation 3 of the Main Regulations 2015. 60 Both the Anti-Trafficking in Persons Act 2008 and the Main Regulations 2015, while trying to copy verbatim the three elements of the crime of trafficking in persons as proscribed under Articles 3 and 5 of the TIP Protocol 2000, omit, add or modify certain terms from the TIP Protocol 2000 in a way that does not promote harmonious interpretation of the Act, its Main Regulations 2015 and the TIP Protocol 2000. 61 Sections 3 and 4(1) of the 2008 Anti-Trafficking in Persons Act. The Tanzanian Police Force has, in very strong language, stated that “the definition of smuggling under the Act is misleading, as it 53 Ibid.,

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Similarly, the Main Regulations 2015 consider trafficking in persons for the purpose of exploitation for the prostitution of others as a criminal offence.62 This crime does not exist in international law and for which there exists no clarity domestically.63 In the definition of several crimes forming part of the purpose elements of most of the crimes of trafficking, the 2008 Act and its Main Regulations 2015 provide legal explanations which in substance differ, confuse and obfuscate their actual meaning under national and international law.64 The 2008 Act’s provisions on the punishments for certain offences of trafficking do not, in actual sense, correspond to their gravity.65 The 2008 Act’s provisions criminalising the offence of severe trafficking in persons, otherwise referred to as the offence of aggravated trafficking, are drafted is a very ambiguous language.66 The 2008 Act takes a very narrow approach in the criminalisation of certain offences of trafficking.67 Generally, its criminalisation provisions reflect poor drafting which, as has been shown in this book, has unintended legal consequences, putting Tanzania into a calamitous and precarious legal position.68 Adding further to this uncertainty, the legal jurisprudence on trafficking

has been included in “exploitation”. The Immigration and Deportation Act of Tanzania does not define smuggling as such”, see Tanzania Police Force 2014, p. 7. 62 Main Regulations 2015, regulation 3. 63 International law considers “exploitation of the prostitution of others”, not “exploitation for the prostitution of others” as one of the exploitative forms for which trafficking in persons is committed. While Tanzania has the legal sovereignty to define on its own terms what trafficking in persons should mean, implicit in that obligation is the requirement to observe the criminal law principle of legal certainty. This is partly acknowledged by the Tanzanian Police Force which notes, among others, that “When a country is party to the TOC Convention and the Palermo Protocol (hereinafter referred to as the Protocol), it is obligated to align its domestic Criminal Code accordingly. The precise wording of the definition can differ from that which is defined in the Protocol, however the conduct of trafficking must be criminalised nonetheless”, Tanzania Police Force 2014, p. 5. See as well Coster van Voorhout 2007, pp. 44–45. 64 Under Section 4(1), forced labour and slavery are defined as one crime with the same criminal ingredients. Under international law, these are two different crimes governed by two different legal instruments. 65 This has even been pointed out by the United States Department of State that “a provision allowing offenders to pay a fine in lieu of serving prison time allows for penalty that is not proportionate to the crime and such a fine does not provide an adequate deterrent to potential perpetrators of trafficking offences”, United States Department of State 2014, p. 372. 66 Section 6 which criminalises the offence of severe trafficking in persons does criminalise “circumstances” which in themselves do not really amount to an act of trafficking in persons. In actual legal sense, the Act was required to make these circumstances offences of severe trafficking in persons when committed in the context of the criminalisation provisions of the Anti-trafficking in Persons Act 2008. 67 A good example being Section 8 which criminalises the conduct of a person who knowingly uses the services of the victim of trafficking in persons only for the purpose of prostitution to the exclusion of all other forms in which the services of the victim of trafficking can be exploited by some other persons. 68 For example, the Act treats migrant smuggling as one of the exploitative forms in which a trafficked person can be exploited under Sections 3 and 4(1) of the Act. This would mean that smuggled migrants are to be treated as victims of trafficking instead of criminals. This position has serious

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as developed by the courts of law in Tanzania is infant, confusing and sometimes unhelpful.69 While the 2008 Act’s provisions on victim support, assistance and protection are couched in a mandatory language, unlike the TIP Protocol 2000, the fact that the 2008 Act subjects these measures “to the availability of resources”70 on the part of the Government renders their access and enjoyment by the victims of trafficking illusory and shields the Government from further responsibility. To clear some of these ambiguities one has to read and go through several other Acts together,71 and even then, the law in this area is imprecise, fragmented and, in certain areas, incomprehensive to effectively prevent and combat trafficking. There is a great indication that lack of a proper legal understanding on the part of those who drafted the law and/or on the side of those who have to apply it is the greatest cause of most of the legal challenges of Tanzania’s framework, especially its criminalisation provisions.72 There was, therefore, a clear need to use the international legal regime on trafficking in persons to examine Tanzania’s framework regarding its ability to effectively prevent and combat trafficking.73 It is these legal challenges and how they impact on the ability of Tanzania to prevent and combat trafficking that this book has sought to examine.

and calamitous but unintended legal consequences for Tanzania in the way it handles smuggled migrants and those who smuggle migrants based on its international legal commitments assumed under the Migrant Smuggling Protocol 2000. 69 As shown in the decision of High Court of Tanzania at Mbeya, John Njwanga v R, Criminal Appeal, 30 December 2016, No. 124 of 2016 (Unreported), the High Court of Tanzania copies provisions of the 2008 Anti-Trafficking in Persons Act verbatim without explaining which ingredients of the crimes have been fulfilled to convict the appellant for the crime of trafficking a child. The High Court neither expounded on the basic principles of the crime of trafficking nor provided an explicit explanation on some of the ambiguous provisions of the Act or its Main Regulations 2015 in relation to the criminalisation of trafficking. 70 Section 18(3) of the 2008 Anti-Trafficking in Persons Act: “(3) Protection, rehabilitation, assistance and other services to rescued victims shall be offered subject to availability of resources and may include but not limited to-.” 71 Some of these Acts include, for example, the Anti-Money Laundering Act, Act No. 12 of 2006 (CAP 423); Criminal Procedure Act, Act No. 9 of 1985 (CAP 20 RE: 2002); Extradition Act, Act No. 15 of 1965 (CAP 368); Immigration Act, Act No. 7 of 1995 (CAP 54 RE: 2016); Mutual Legal Assistance in Criminal Matters Act, Act No. 24 of 1991; Interpretation of the Laws Act, Act Nos. 4 and 17 of 1996 (CAP 1 RE: 2015); Law of the Child Act, Act No. 21 of 2009 (CAP 13); Non-Governmental Organisations Act, Act No. 24 of 2002 (CAP 56); Persons with Disabilities Act, Act No. 9 of 2010; Employment and Labour Relations Act, Act No. 6 of 2004; Prevention and Combating of Corruption Act, Act No. 11 of 2007; Penal Code of 1945 (CAP 16). 72 This has been discussed extensively in Chaps. 6 and 7 of this work. 73 This legal need is already suggested in the Preamble to the Act according to which Tanzania’s anti-trafficking legal framework supplements and should be read together with the international legal framework on trafficking and the wider legal frameworks protecting the fundamental rights of all human beings, including victims of trafficking.

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1 Introduction to the Book

1.2 Objectives of the Book The general objective of this book was to make an analytical examination of Tanzania’s legal framework on trafficking in the light of international law. This was achieved firstly, by discussing the actual content of the international legal framework, and secondly, using this framework as a legal yardstick to examine the Tanzanian domestic legal regime. Specifically, the book intended: (i) To study and analyse the international legal regime on trafficking in persons; (ii) To provide an analytical examination of the current regime on trafficking in Tanzania in the light of international law; and (iii) To proffer recommendations to make Tanzania’s legal framework more comprehensive and effective in addressing the crime of trafficking in persons.

1.3 Chapter Outlines This work is divided into ten chapters. While this part provides only a general outline of the chapters, a comprehensive summary of the basic content of these chapters and the entire work is found in Chap. 10 (Sect. 10). Generally in this book, Chaps. 2, 3, 4 and 5 contain the first part on the international anti-trafficking legal frameworks, Chaps. 6, 7, 8 and 9 encompass the second part on Tanzania’s legal and institutional anti-trafficking framework, and Chap. 10 forms the last part which contains the summary, conclusion and recommendations. This chapter in this book is an introductory chapter which provides background information on the crime of trafficking in persons. Chapter 2 gives a detailed description and analysis of the legal development of the crime of trafficking from its historical origins to its current crystallisation in the TIP Protocol 2000 and the Organised Crime Convention 2000. Chapter 3 furnishes a consideration of the current international legal framework on the crimes of trafficking and the smuggling of migrants. The chapter also provides a discussion of the regional specialty instruments on trafficking together with a scrutiny of the human rights and other instruments whose provisions somehow have a bearing on the problem of trafficking. Chapter 4 is devoted to analysing the doctrine of state responsibility under international law as contained in the ILC Draft Articles 2001 and other sources. The chapter shows how the doctrine’s principles find applicability in the attribution of international responsibility on the states in cases of trafficking. Chapter 5 analyses the anti-trafficking obligations of the states based on the antitrafficking regime discussed in Chap. 3 and the principles of state responsibility found in Chap. 4. Chapter 6 provides a background understanding of the problem of trafficking in Tanzania and the initial legal response, including its limitations that necessitated the need to adopt and establish the current legal framework.

1.3 Chapter Outlines

13

The obligation of a criminal justice response is examined in Chap. 7. The discussion of this obligation has taken the chapter of its own due to its length and centrality in the Anti-Trafficking in Persons Act 2008. Also, the chapter points out the general problematic nature of most of the criminal and definitional provisions of the 2008 Act. Chapter 8 analyses the remaining two international obligations, namely, the obligation to prevent trafficking and the obligation to provide, support, assistance, protection and remedies for victims of trafficking. Chapter 9 is allotted to a consideration of the institutional framework and the national anti-trafficking Action Plans, followed by a critical and analytical study of the case law of Tanzania with a limited comparative study from other Commonwealth jurisdictions. Chapter 10 is the final chapter which provides a comprehensive summary of this chapter as well as of Chaps. 2, 3, 4, 5, 6, 7, 8 and 9. Chapter 10 also states the overall conclusion of the book and provides a set of recommendations to make Tanzania’s anti-trafficking legal framework more effective and comprehensive.

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Andrijasevic R, Mai N (2016) Editorial: Trafficking (in) Representations: Understanding Recurring Appeal of Victimhood and Slavery in Neoliberal Times. Anti-Trafficking Review 7: 1–10. Aradau C (2008) Rethinking Trafficking in Women: Politics Out of Security. Palgrave Macmillan, New York. Aronowitz AA (2009) Human Trafficking, Human Misery: The Global Trade in Human Beings. Praeger Publishers, Westport. ASEAN Convention Against Trafficking in Persons, Especially Women and Children, opened for signature 21 November 2015, entered into force 8 March 2016. Asia and Far East Institute for the Prevention of Crime and Treatment of Offenders (2000) Resource Material Series No. 59. Atak I, Simeon JC (2014) Human Trafficking: Mapping the Legal Boundaries of International Refugee Law and Criminal Justice. Journal of International Criminal Justice 12: 1019–1038. Avdan N (2012) Human Trafficking and Migration Control Policy: Vicious or Virtuous Cycle? Journal of Public Policy 32(2): 171–205. Bajrektarevic AH (2000) Trafficking in and Smuggling of Human Beings—Linkages to Organised Crime—International Legal Measures. Criminologija I socijalna integracija 8: 57–70. Bakirci K (2009) Human Trafficking and Forced Labour: A Criticism of the International Labour Organisation. Journal of Financial Crime 16(2): 160–165. Bales K (2007) Ending Slavery: How We Free Today´s Slaves. University of California Press, Berkeley. Bales K, Soodalter R (2009) The Slave Next Door: Human Trafficking and Slavery in America Today. University of California Press, California. Barrows J (2017) The Role of Faith-Based Organizations in the US Anti-Trafficking Movement. In: Chisolm-Straker M, Stoklosa H (eds) Human Trafficking Is a Public Health Issue: A Paradigm Expansion in the United States. Springer, Cham, pp. 277–292. Belanger D (2014) Labor Migration and Trafficking among Vietnamese Women in Asia. Annals of the American Academy of Political and Social Science 653: 87–106. Benedek W et al. (eds) (2010) Transnational Terrorism, Organised Crime and Peace-Building: Human Security in the Western Balkans. Palgrave Macmillan, Hampshire. Borraccetti M (2017) Trafficking in Human Beings and Human Security: A Comprehensive Approach. In: Salomon S et al. (eds) Blurring Boundaries: Human Security and Forced Migration. Brill Nijhoff, Leiden, pp. 187–210. Bravo KE (2007) Exploring the Analogy Between Modern Trafficking in Human Beings and the Trans-Atlantic Slave Trade. Boston University International Law Journal 25: 207–295. Bravo KE (2011) The Role of Transatlantic Slave Trade in Contemporary Anti-Human Trafficking Discourse. Seattle Journal for Social Justice 2(3): 555–597. Briones L (2010) Beyond the Victim: Capabilities and Livelihood in Filipina Experiences of Domestic Work in Paris and Hong Kong. In: Zheng T (ed) Sex Trafficking, Human Rights and Social Justice. Routledge, New York, pp. 62–83. Brolan C (2003) An Analysis of the Human Smuggling Trade and the Protocol Against the Smuggling of Migrants by Land, Air and Sea (2000) from a Refugee Protection Perspective. International Journal of Refugee Law 14(4): 561–596. Bruch EM (2004) Models Wanted: The Search for an Effective Response to Human Trafficking. Stanford Journal of International Law 40(1): 1–45. Bruckert C, Parent C (2002) Trafficking in Human Beings and Organised Crime: A Literature Review. Royal Canadian Mounted Police. Bruckmüller K, Schumann S (2012) Crime Control versus Social Work Approaches in the Context of the “3P” Paradigm Prevention, Protection, Prosecution. In: Winterdyk J et al. (eds) Human Trafficking: Exploring the International Nature, Concerns, and Complexities. CRC Press, Boca Raton, pp. 103–128. Burke MC (ed) (2013) Human Trafficking: Interdisciplinary Perspectives. Routledge, New York.

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Cameron S (2008) Trafficking of Women for Prostitution. In: Cameron S, Newman E (eds) Trafficking in Human Beings: Social, Cultural and Political Dimensions. United Nations University Press, New York, pp. 80–110. Cameron S, Newman E (eds) (2008) Trafficking in Human Beings: Social, Cultural and Political Dimensions. United Nations University Press, New York. Chacón C (2010) Tensions and Trade-Offs: Protecting Trafficking Victims in the Era of Immigration Enforcement. University of Pennsylvania Law Review 158: 1609–1653. Cherneva I (2011) Human Trafficking for Begging. Buffalo Human Rights Law Review 17: 25–73. Chisolm-Straker M, Stoklosa H (eds) (2017) Human Trafficking Is a Public Health Issue: A Paradigm Expansion in the United States. Springer, Cham. Cholewinski R (2015) Migration for Employment. In: Plender R (ed) Issues in International Migration Law. Brill Nijhoff, Leiden, pp 27–80. Chuang J (2006) Beyond a Snapshot: Preventing Human Trafficking in the Global Economy. Indian Journal of Global Legal Studies 13(1)(5): 137–163. Clark MA (2003) Trafficking in Persons: An Issue of Human Security. Journal of Human Development 4(2): 247–263. Cojocaru C (2016) My Experience Is Mine to Tell: Challenging the Abolitionist Victimhood Framework. Anti-Trafficking Review 7: 12–38. Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (1950), entered into force 3 September 1953. Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (1979), entered into force 3 September 1981. Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (1961), entered into force 13 December 1975. Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (2006), entered into force 3 May 2008. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (1989), entered into force 2 September 1990. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (1951) entered into force 22 April 1954, as Amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 666 UNTS 267 (1967), entered into force 4 October 1967. Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (1954), entered into force 6 June 1960. ´ c S, Simeunovi´c-Pati´c B (2012) Victims of Human Trafficking: Meeting Victims. In: Winterdyk Copi´ J et al. (eds) Human Trafficking: Exploring the International Nature, Concerns, and Complexities. CRC Press, Boca Raton, pp. 265–290. Coster van Voorhout JEB (2007) Human Trafficking for Labour Exploitation: Interpreting the Crime. Utrecht Law Review 3(2): 44–69. Council of Europe Convention on Action against Trafficking in Human Beings, opened for signature 16 May 2005, CETS-No. 197, Warsaw 16.V.2005, entered into force 1 February 2008. D’estree C (2012) Voices from Victims and Survivors of Human Trafficking. In: Winterdyk J et al. (eds) Human Trafficking: Exploring the International Nature, Concerns, and Complexities. CRC Press, Boca Raton, pp. 79–102. Dandurand Y, Chin V (2011) Human Security Objectives and the Fight against Transnational Organised Crime and Terrorism. In: Okubo S, Shelley L (eds) Human Security, Transnational Crime and Human Trafficking: Asian and Western Perspectives. Routledge, New York, pp. 36–56. Dauvergne C (2008) Making People Illegal: What Globalisation Means for Migration and Law. Cambridge University Press, New York. Davidson JO (2015) On Broken Chains and Missing Links: Tackling the “Demand Side of Trafficking”? In: Dragiewicz M (ed) Global Human Trafficking: Critical Issues and Contexts. Routledge, New York, pp. 153–166.

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Davitti D (2010) Shirking Responsibilities: Receiving Countries and the Structural Causes of Conflict-Related Child Trafficking. In: Wylie G, McRedmond P (eds) Human Trafficking in Europe: Character, Causes and Consequences. Palgrave Macmillan, Basingstoke, pp. 41–59. Di Nicola A (2014) Trafficking in Persons and Smuggling of Migrants. In: Reichel P, Albanese J (eds) The Handbook of Transnational Crime and Justice, 2nd edn. SAGE Publications, Inc, California, pp. 143–164. Di Nicola A et al. (eds) (2009) Prostitution and Human Trafficking: Focusing on Clients. Springer, New York. Dinan KA (2008) Globalization and National Sovereignty: From Migration to Trafficking. In: Cameron S, Newman E (eds) Trafficking in Human Beings: Social, Cultural and Political Dimensions. United Nations University Press, New York, pp. 58–79. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims, and Replacing Council Framework Decision 2000/629/JHA, opened for signature 5 April 2011, OJ L 101, 15.4.2011, P.1, entered into force 15 April 2011. Doherty S, Morley R (2016) Promoting Psychological Recovery in Victims of Human Trafficking. In: Malloch M, Rigby P (eds) Human Trafficking: The Complexities of Exploitation. Edinburgh University Press, Edinburgh, pp. 121–135. Doorninck M (2018) Changing the System from Within: The Role of NGOs in the Flawed AntiTrafficking Framework. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 419–430. Dottridge M (2017) Trafficked and Exploited: The Urgent Need for Coherence in International Law. In: Kotiswaran P (ed) Revisiting the Law and Governance of Trafficking, Forced Labour and Modern Slavery. Cambridge University Press, New York, pp 59–82. Dottridge M (2018) Collateral Damage Proved by Anti-Trafficking Measures. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 342–354. Dragiewicz M (ed) (2015) Global Human Trafficking: Critical Issues and Contexts. Routledge, New York. Duger A (2015) Focusing on Prevention: The Social and Economic Rights of Children Vulnerable to Sex Trafficking. Health and Human Rights 17(1): 114–123. Edwards A (2007) Traffic in Human Beings: At the Intersection of Criminal Justice, Human Rights, Asylum/Migration and Labor. Denver Journal of International Law and Policy 36: 9–53. Edwards A, Ferstman C (eds) (2010) Human Security and Non-Citizen: Law, Policy and International Affairs. Cambridge University Press, New York. Elabor-Idemudia P (2003) Migration, Trafficking and the African Woman. Agenda: Empowering Women for Gender Equity 58: 101–116. Feingold DA (2010) Trafficking in Numbers: The Social Construction of Human Trafficking Data. In: Andreas P, Greenhill KM (eds) Sex, Drugs, and Body Counts: The Politics of Numbers in Global Crime and Conflict. Cornell University Press, Ithaca, pp. 56–74. Fredette K (2009) Revisiting the UN Protocol on Human Trafficking: Striking Balances for More Effective Legislation. Cardozo Journal of International and Comparative Law 17: 101–134. Frescura L (2006) There Is No Escape from that Miserable Life. Empowering Women for Gender Equity 1(2): 133–144. GAATW (2007) Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World. GAATW, Bangkok. Gallagher AT (2010) The International Law of Human Trafficking. Cambridge University Press, New York. Gallagher AT (2017) Human Rights and Human Trafficking. In: Nollkaemper A, Plakokefalos I (eds) The Practice of Shared Responsibility in International Law. Cambridge University Press, Cambridge. Found as SHARES Research Paper 81(2016).

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Gallagher AT (2017) Human Rights and Human Trafficking. In: Nollkaemper A, Plakokefalos I (eds) The Practice of Shared Responsibility in International Law. Cambridge. University Press, Cambridge, pp. 556–582. Gallagher AT, Ezeilo JN (2015) The UN Special Rapporteur on Trafficking: A Turbulent Decade in Review. Human Rights Quarterly 37: 913–940. Gallagher AT, Karlebach N (2011) Prosecution of Trafficking in Persons Cases: Integrating a Human Rights-Based Approach in the Administration of Criminal Justice. Office of the High Commissioner for Human Rights, Geneva Switzerland, 4 July 2011. Gallagher AT, Skrivankova K (2015) Human Rights and Trafficking in Persons, 15th Informal ASEM Seminar on Human Rights: A Background Paper, 24-26 November 2015, Montreux, Switzerland. Goodale M, Merry SE (eds) (2007) The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge University Press, New York. Gould C (2014) Sex Trafficking and Prostitution in South Africa. Annals of American Academy of Political and Social Science 653: 183–201. Guild E, Minderhoud P (eds) (2006) Immigration and Criminal Law in the European Union: The Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings. Martinus Nijhoff Publishers, Leiden/Boston. Hathaway JC (2008) The Human Rights Quagmire of Human Trafficking. Virginia Journal of International Law 49(1): 1–59. Haynes DF (2014) The Celebritization of Human Trafficking. Annals of the America Academy of Political and Social Science 653: 25–45. Healy C (2018) Exploitation through Begging as a Form of Trafficking in Human Beings—OverEstimated or Under-Reported? In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 157–168. Hill A (2016) How to Stage a Raid: Police, Media and the Master Narrative of Trafficking. AntiTrafficking Review 7: 39–55. Hoefinger H (2016) Neoliberal Sexual Humanitarianism and Story-Telling: The Case of Somali Mam. Anti-Trafficking Review 7: 56–78. Holmes L (ed) (2010) Trafficking and Human Rights: European and Asia-Pacific Perspectives. Edward Elgar, Cheltenham. Howard N (2017) Child Trafficking, Youth Labour Mobility and the Politics of Protection. Palgrave Macmillan, London. Howard N (2018) ‘Of Coyotes and Caporali’: How Anti-Trafficking Discourses of Criminality Depoliticise Mobility and Exploitation. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 511–525. Howard N, Morganti S (2015) (Not!) Child Trafficking in Benin. In: Dragiewicz M (ed) Global Human Trafficking: Critical Issues and Contexts. Routledge, New York, pp. 91–104. Hua J (2011) Trafficking Women’s Human Rights. University of Minnesota Press, Minneapolis. Hynes DA (2004) Used, Abused, Arrested and Deported: Extending Immigration Benefits to Protect Victims of Trafficking and to Secure Prosecution of Traffickers. Human Rights Quarterly 26(2): 221–272. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (1965), entered into force 4 January 1969. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened for signature 18 December 1990, 2220 UNTS 3 (1990), entered into force 1 July 2003. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (1966), entered into force 23 March 1976. International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (1966), entered into force 3 January 1976. Iroanya RO (2018) Human Trafficking and Security in Southern Africa: The South African and Mozambican Experience. Palgrave Macmillan, Switzerland.

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Lobasz JK (2009) Beyond Border Security: Feminist Approaches to Human Trafficking. Security Studies 18: 319–344. Lugris VM (2013) Human Trafficking and Post-Traumatic Stress Disorder. In: Burke MC (ed) Human Trafficking: Interdisciplinary Perspectives. Routledge, New York, pp. 231–241. Magare FM (2016) A Simplified Information Booklet on Human Trafficking and Gender in Tanzania. Women in Law and Development in Africa (WiLDAF), Dar es Salaam. Mahdavi P (2011) Labor, Migration, and Human Trafficking in Dubai. Stanford University Press, Stanford. Maher L et al. (2015) Conflicting Rights: How the Prohibition of Human Trafficking and Sexual Exploitation Infringes the Right to Health of Female Sex Workers in Phnom Penh, Cambodia. Health and Human Rights 17(1): 102–113. Maher S (2017) Historicising Irregular Migration from Senegal to Europe. Anti-Trafficking Review 9: 77–91. Mahmood F (2019) Prosecuting Human Trafficking for the Purpose of Sexual Exploitation under Article 7 of the Rome Statute: Enslavement or Sexual Slavery? Journal of Trafficking and Human Exploitation 3(1): 35–57. Mahmoud TO, Trebesch C (2010) The Economics of Human Trafficking and Labour Migration: Micro-Evidence from Eastern Europe. Journal of Comparative Economics 38: 173–188. Malloch M, Rigby P (eds) (2016) Human Trafficking: The Complexities of Exploitation. Edinburgh University Press, Edinburgh. Mathias A (2016) Child Trafficking in Tanzania: Exploring Experiences of Trafficked Girls in Dar es Salaam, A Master’s Thesis Submitted to the Faculty of Psychology of the Universitas Bergensis. Meriläinen N, Vos M (2015) Public Discourse on Human Trafficking in International Issue Arenas. Societies 5:14–42. Merry SE (2017) Counting the Uncountable: Constructing Trafficking through Measurement. In: Kotiswaran P (ed) Revisiting the Law and Governance of Trafficking, Forced Labour and Modern Slavery. Cambridge University Press, New York, pp. 273–304. Mninde-Silungwe F (2017) Trafficking in Persons (Article 28J) and Trafficking in Drugs (Article 28k). In: Werle G, Vormbaum M (eds) The African Criminal Court: A Commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague, pp. 109–124. Moran CF (2014) Human Trafficking and the Rome Statute of the International Criminal Court. Age of Human Rights Journal 3: 32–45. Morehouse C (2009) Combating Human Trafficking: Policy Gaps and Hidden Political Agendas in the US and Germany. VS Verlag Für Sozialwissenschaften. Nikolic´-Ristanovic´ V (2012) Human Trafficking Between Profit and Survival. In: Šelih A, Završnik A (eds) Crime and Transition in Central and Eastern Europe. Springer, New York, pp 205–228. Nollkaemper A, Plakokefalos I (eds) (2017) The Practice of Shared Responsibility in International Law. Cambridge University Press, Cambridge. O’Brien E et al. (2013) The Politics of Sex Trafficking: A Moral Geography. Palgrave Macmillan, Hampshire. O’Brien E, Wilson M (2015) Clinton, Bush, and Obama: Changing Policy and Rhetoric in the United States Annual Trafficking in Persons Report. In: Dragiewicz M (ed) Global Human Trafficking: Critical Issues and Contexts. Routledge, New York, pp. 123–137. Obokata T (2005) Trafficking in Persons as a Crime against Humanity: Some Implications for the International Legal System. International and Comparative Law Quarterly 54(2): 445–457. Obokata T (2006) Trafficking in Human Beings from a Human Rights Perspective: Towards a Holistic Approach. Nijhoff Publishers, Leiden. Okubo S, Shelley L (eds) (2011) Human Security, Transnational Crime and Human Trafficking: Asian and Western Perspectives. Routledge, New York. Papantoniou-Frangouli M, Moritz T (2010) Trafficking for Sexual Exploitation: Researching the Demand Side. In: Wylie G, McRedmond P (eds) Human Trafficking in Europe: Character, Causes and Consequences. Palgrave Macmillan, Basingstoke.

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Pearson E (2000) Human Rights and Trafficking in Persons: A Handbook. Global Alliance Against Traffic in Women, Bangkok. Pearson E (2003) Study on Trafficking in Women in East Africa. Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ), Eschborn. Pemberton C (2006) For God’s Sake Not for Sale: Trafficking and the Church in Europe. Gender and Development 14(3): 399–408. Penttinen E (2008) Globalisation, Prostitution and Sex-Trafficking: Corporeal Politics. Routledge, New York. Perry KM, McEwing L (2013) How do Social Determinants Affect Human Trafficking in South East Asia and What Can We Do About It? A Systematic Review. Health and Human Rights 15(2): 138–159. Pickup F (1998) Words but Not Action? Forced Migration and Trafficking of Women. Gender and Development 6(1): 44–51. Piotrowicz R (2005) Victims of People Trafficking and Entitlement to International Protection. Australian Year Book of International Law 24: 159–180. Piotrowicz R (2010) Human Security and Trafficking of Human Beings: The Myth and the Reality. In: Edwards A, Ferstman C (eds) Human Security and Non-Citizen: Law, Policy and International Affairs. Cambridge University Press, New York, pp. 404–418. Piotrowicz R et al. (eds) (2018) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London. Plender R (ed) (2015) Issues in International Migration Law. Brill Nijhoff, Leiden. Pocar F (2007) Human Trafficking: A Crime against Humanity. In: Savona F, Stefanizzi S (eds) Measuring Human Trafficking: Complexities and Pitfalls. Springer Sciences + Business Media, New York, pp. 5–12. Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2241 UNTS 507 (2000), entered into force 28 January 2004. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (2000), entered into force 25 December 2003. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, opened for signature 1 July 2003, CAB/LEG/66.6, entered into force 25 November 2005. Raimi L (2012) Faith-Based Advocacy as a Tool for Mitigating Human Trafficking in Nigeria. Humanomics 28(4): 297–310. Rao S, Presenti C (2012) Understanding Human Trafficking Origin: A Cross-Country Empirical Analysis. Feminist Economics 18(2): 231–263. Reichel P, Albanese J (eds) (2014) The Handbook of Transnational Crime and Justice, 2nd edn. SAGE Publications, Inc, California. Renzikowiski J (2018) Trafficking in Human Beings as a Crime and as a Human Rights Violation. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 13–20. Richards K, Lyneham S (2015) Bride Traffic: Trafficking for Marriage to Australia. In: Dragiewicz M (ed) Global Human Trafficking: Critical Issues and Contexts. Routledge, New York, pp. 105–120. SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, opened for signature 5 January 2002, entered into force 15 November 2005. Salomon S et al. (2017) Blurring Boundaries: Human Security and Forced Migration. Brill Nijhoff, Leiden. Samarasinghe V, Burton B (2007) Strategising Prevention: A Critical Review of Local Initiatives to Prevent Female Sex Trafficking. Development in Practice 17(1): 51–64. Sanghera J (2005) Unpacking the Trafficking Discourse. In: Kempadoo K et al. (eds) Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights. Paradigm Publishers, Boulder, pp. 3–24.

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Savona F, Stefanizzi S (2007) Introduction. In: Savona F, Stefanizzi S (eds) Measuring Human Trafficking: Complexities and Pitfalls. Springer Sciences + Business Media, New York, pp. 1–4. Savona F, Stefanizzi S (eds) (2007) Measuring Human Trafficking: Complexities and Pitfalls. Springer Sciences + Business Media, New York. Sax H (2018) Child Trafficking—A Call for Rights-Based Integrated Approaches. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 251–260. Scarpa S (2008) Trafficking in Human Beings: Modern Slavery. Oxford University Press, Oxford. Schloenhardt A, Hickson H (2013) Non-Criminalisation of Smuggled Migrants: Rights, Obligations, and Australian Practice under Article 5 of the Protocol against the Smuggling of Migrants by Land, Sea, and Air. International Journal of Refugee Law 25(1): 39–64. Schofield T et al. (2012) Health and Community Services for Trafficked Women: An Exploratory Study of Policy and Practice. Australian Journal of Social Issues 46(4): 391–400. Scholte WF et al. (2018) The Mental Health of Trafficked Persons. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 291–302. Segrave M (2009) Order at the Border: The Repatriation of Victims of Trafficking. Women’s Studies International Forum 32: 251–260. Šelih A, Završnik A (eds) (2012) Crime and Transition in Central and Eastern Europe. Springer, New York. Shahrokhi S (2010) Beyond “Tragedy”: A Cultural Critique of Sex Trafficking of Young Iranian Women. In: Zheng T (ed) Sex Trafficking, Human Rights and Social Justice. Routledge, New York, pp. 37–46. Sharma N (2017) The New Order of Things: Immobility as Protection in the Regime of Immigration Controls. Anti-Trafficking Review 9: 31–47. Shelley L (2007) Trafficking as a Form of Transnational Crime. In: Lee M (ed) Human Trafficking. Willan Publishing, Devon, pp. 116–137. Shelley L (2009) Human Trafficking: A Global Perspective. Cambridge University Press, New York. Shepherd LJ (ed) (2010) Gender Matters in Global Politics: A Feminist Introduction to International Relations. Routledge, London. Shifman P (2003) Trafficking and Women’s Human Rights in a Globalised World. Gender and Development 11(1): 125–132. Shoaps LL (2013) Room for Improvement: Palermo Protocol and the Trafficking Victims Protection Act. Lewis & Clark Law Review 17(3): 931–972. Siegel D, De Wildt R (eds) (2016) Ethical Concerns in Research on Human Trafficking. Springer International Publishing, Cham. Sigmon JN (2008) Combating Modern-Day Slavery: Issues in Identifying and Assisting Victims of Human Trafficking Worldwide. Victims and Offenders 3: 245–257. Skrivankova K (2018) Defining Exploitation in the Context of Trafficking—What Is a Crime and What Is Not. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 109–119. Small JL (2012) Trafficking in Truth: Media, Sexuality, and Human Rights Evidence. Feminist Studies 38(2): 415–443. Stevens R (2006) The Trafficking of Children: A Modern Form of Slavery, Using the Alien Tort Statute to Provide Legal Recourse. Whitter Journal of Child and Family Advocacy 5(2): 645–667. Stone A, Vandenberg M (1999) How the Sex Trade Becomes A Slave Trade: The Trafficking of Women to Israel. Middle East Report 221: 36–38. Stoyanova V (2017) Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law. Cambridge University Press, New York. Suchland J (2015) Economies of Violence: Transnational Feminism, Post Socialism, and the Politics of Sex Trafficking. Duke University Press, Durham.

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Sullivan B (2010) Trafficking in Human Beings. In: Shepherd LJ (ed) Gender Matters in Global Politics: A Feminist Introduction to International Relations. Routledge, London, pp 85–96. Tanzania Police Force (2014) Anti-Trafficking in Persons Act 2008: Training Manual on Investigations and Interviewing of Human Trafficking Offences. Tanzania Police Force, Dar es Salaam. The International Centre for Criminal Law Reform and Criminal Justice Policy (2002) The Changing Face of International Criminal Law: Selected Papers. International Centre for Transnational Criminal Law Reform and Criminal Justice Policy, Vancouver. Thomson K (2016) International and European Standards in Relation to Victims and Survivors of Human Trafficking. In: Malloch M, Rigby P (eds) Human Trafficking: The Complexities of Exploitation. Edinburgh University Press, Edinburgh, pp. 63–83. Todres J (2011) Widening Our Lens: Incorporating Essential Perspectives in the Fight against Human Trafficking. Michigan Journal of International Law 33(1): 53–76. Torgoley SP (2006) Trafficking and Forced Prostitution: A Manifestation of Modern Slavery. Tulane Journal of International & Comparative Law 14: 553–578. Travis N, Sharshenkulov N (2013) Human Trafficking and Its Contribution to the Globalization of Infectious Diseases: Implications for Victims and Health Care Providers. In: Burke MC (ed) Human Trafficking: Interdisciplinary Perspectives. Routledge, New York, pp. 242–255. Turek JM (2013) Human Security and Development Issues in Human Trafficking. In: Burke MC (ed) Human Trafficking: Interdisciplinary Perspectives. Routledge, New York, pp. 73–87. UNGA (1999) Transnational Organized Crime. UN Doc. A/RES/53/111, 20 January 1999. UNGA (2001) United Nations Convention against Transnational Organized Crime. UN Doc. A/RES/55/25, 8 January 2001. United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2222 UNTS 209 (2000), entered into force 29 September 2003. United Republic of Tanzania Ministry of Home Affairs (2015-2017) National Anti-Trafficking in Persons Action Plan (2015-2017). Ministry of Home Affairs, Dar es Salaam. United Republic of Tanzania, Ministry of Home Affairs (2018) National Anti-Trafficking in Persons Action Plan (2018-2021), May 2018. Ministry of Home Affairs, Dar es Salaam. United States Department of State Office to Monitor and Combat Trafficking in Persons (2014) Trafficking in Persons Report, June 2014. Department of State, Washington, D.C. Universal Declaration of Human Rights, UNGA Res. 217A (III), UN Doc. A/810, 10 December 1948. Van de Glind H (2010) ILO’s International Programme on the Elimination of Child Labour (IPEC)— Migration and Child Labour—Exploring Child Migrant Vulnerabilities and those of Children Left-Behind. ILO, Geneva. Van der Wilt H (2014) Trafficking in Human Beings, Enslavement, Crimes against Humanity: Unravelling the Concepts. Chinese Journal of International Law 13: 297–334. Van Impe K (2000) People for Sale: The Need for a Multidisciplinary Approach Towards Human Trafficking. International Migration Special Issue 1: 113–131. Vernier J (2006) French Criminal and Administrative Law Concerning Smuggling of Migrants and Trafficking in Human Beings: Punishing Trafficked Persons for Their Protection? In: Guild E, Minderhoud P (eds) Immigration and Criminal Law in the European Union: The Legal Measures and Social Consequences of Criminal Law in Member States on Trafficking and Smuggling in Human Beings. Martinus Nijhoff Publishers, Leiden/Boston, pp. 7–40. Vijeyarasa R, Villarino JMB (2013) Modern-Day Slavery—A Judicial Catchall for Trafficking, Slavery and Labour Exploitation: A Critique of Tang and Rantsev. Journal of International Law and International Relations 9: 38–61. Vlassis D (2002) The Global Situation of Transnational Organised Crime, the Decision of the International Community to Develop an International Convention and the Negotiation Process. In: Asia and Far East Institute for the Prevention of Crime and Treatment of Offenders. Resource Material Series No. 59, pp. 475–494.

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Vlassis D (2002) The United Nations Convention against Transnational Organised Crime and Its Protocols: A New Era in International Co-operation. In: The International Centre for Criminal Law Reform and Criminal Justice Policy - The Changing Face of International Criminal Law: Selected Papers. International Centre for Transnational Criminal Law Reform and Criminal Justice Policy, Vancouver, pp. 75–104. Vrancken P, Chetty K (2009) International Child Sex Tourism: A South African Perspective. Journal of African Law 53(1): 111–141. Waismann V (2010) Human Trafficking: State Obligations to Protect Victims’ Rights, the Current Framework and a New Due Diligence Standard. Hastings International & Comparative Law Review 33(2):385–430. Wallinger CS (2010) Media Representation and Human Trafficking: How Anti-Trafficking Discourse Affects Trafficked Persons. Second Annual Interdisciplinary Conference on Human Trafficking 3–24. Warren K (2007) The 2000 UN Human Trafficking Protocol: Rights, Enforcement, Vulnerabilities. In: Goodale M, Merry SE (eds) The Practice of Human Rights: Tracking Law Between the Global and the Local. Cambridge University Press, New York, pp. 242–269. Watson J, Silkstone C (2006) Human Trafficking as a Form of Gender-Based Violence: Protecting the Victim. Empowering Women for Gender Equity 1(2): 110–118. Weiss A (2016) The Application of International Legislation: Is the Federalisation of AntiTrafficking Legislation in Europe Working for Trafficking Victims? In: Malloch M, Rigby P (eds) Human Trafficking: The Complexities of Exploitation. Edinburgh University Press, Edinburgh, pp. 41–62. Weitzer R (2006) Moral Crusade against Prostitution. Society 33–38. Weitzer R (2014) New Directions in Research on Human Trafficking. Annals of the American Academy of Political and Social Science 653: 6–24. Welch, Jr. C (2009) Defining Contemporary Forms of Slavery: Updating a Venerable NGO. Human Rights Quarterly 31(1): 70–128. Werle G, Vormbaum M (eds) (2017) The African Criminal Court: A Commentary on the Malabo Protocol. T.M.C. Asser Press, The Hague. Winterdyk J (2017) Combating Human Trafficking at the Local Level: Better Informing (Inter)national Action Plans. International Annals of Criminology 55: 220–236. Winterdyk J et al. (eds) (2012) Human Trafficking: Exploring the International Nature, Concerns, and Complexities. CRC Press, Boca Raton. Wylie G (2016) The International Politics of Human Trafficking. Palgrave Macmillan, London. Wylie G, McRedmond P (eds) (2010) Human Trafficking in Europe: Character, Causes and Consequences. Palgrave Macmillan, Basingstoke. Yen I (2008) Of Vice and Men: A New Approach to Eradicating Sex Trafficking by Reducing Male Demand through Educational Programmes and Abolitionist Legislation. Journal of Criminal Law and Criminology 98(2): 653–686. Yousaf FN (2018) Force Migration, Human Trafficking, and Human Security. Current Sociology Monograph 66(2): 209–225. Zhang SX (2007) Smuggling and Trafficking in Human Beings: All Roads Lead to America. Praeger Publishers, Westport. Zheng T (2010) Introduction. In: Zheng T (ed) Sex Trafficking, Human Rights and Social Justice. Routledge, New York, pp. 1–22. Zheng T (ed) (2010) Sex Trafficking, Human Rights and Social Justice. Routledge, New York. Zimmerman Y (2018) Disrupting Religious Privilege: Code of Conduct for Religious Institutions, Faith Communities and Faith-Based Organisations for their Work with Survivors of Forced Labour, Human Trafficking and Modern Slavery. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 355–365.

Part I

International Anti-trafficking Legal Frameworks

Chapter 2

Understanding Trafficking in Persons

Contents 2.1 Historical Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 Before the League of Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.2 After the League of Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.3 United Nations (UN) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.4 International Organization for Migration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.5 European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.6 Council of Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.7 Organization of American States (OAS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.8 African Union (AU) and Asia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.9 Report of the UN Special Rapporteur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Need for a New Definition of Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Drafting the TIP Protocol 2000 and Its Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Current Definition of Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Action Element of Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Means Element of Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 Purpose Element of Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

28 29 30 34 36 36 38 39 40 41 42 43 44 45 47 55 73 74

Abstract This chapter forms the substantive section on the historical genesis of the crime of trafficking in persons under international law. The chapter intends to provide the reader with a historical understanding of the stages and phases that took place and which finally resulted in the international community adopting the current TIP Protocol 2000 which provides the most widely accepted definition of what amounts to trafficking in persons. The chapter defines the crime of human trafficking and analyses its constituent three elements of the action, means and purpose elements and points out its implications for the states parties to the TIP Protocol 2000 and the Organised Crime Convention 2000. The chapter examines almost all the individual constitutive components of the action, means and purpose elements. This analysis serves to lay a foundation for examining the criminalisation provisions of the Anti-Trafficking in Persons Act 2008 in Chap. 7. It also helps to gauge Tanzania’s compliance or implementation of its international and domestic anti-trafficking obligations assumed under the TIP Protocol 2000 in so far as the obligation to criminalise the crime of trafficking in persons is concerned.

© t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_2

27

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2 Understanding Trafficking in Persons

Keywords Action Element · Means Element · Purpose Element · Trafficking in Persons · United Nations · European Union · Human Rights Caucus · TIP Protocol 2000 · Consent · CATW-led Network

2.1 Historical Perspectives The TIP Protocol 2000 defines the crime of trafficking in persons to 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 or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.1

This is currently the most internationally agreed-upon definition of what trafficking in persons is. The definition presents the three key defining elements of the crime of trafficking, namely, the action, means and purpose elements.2 However, the current definition reflects a crystallisation of many years of progress in search of an agreed understanding of what actually should be understood by trafficking.3 The genesis of the current legal framework started in the early twentieth century, before even the establishment of the League of Nations.4 In the ensuing discussion, the linking of the historical progress on the need to clarify the legal parameters of trafficking is intentionally disconnected from the history of the crime of slavery.5 The author takes the approach that trafficking has the history and genesis of its own as a concept and as a crime independently of the historical rise of and the movement to abolish and criminalise slavery in international law.6

1 Article

3(a).

2 Gallagher 2001, pp. 986–987; Richards and Lyneham 2015, p. 108; Kane 2013, p. 116; Aronowitz

2009, p. 1. 3 In what can be referred to as the development of the anti-trafficking norm, see Wylie 2016, p. 45. See

also Kranrattanasuit 2014, p. 3; Britton and Dean 2014, pp. 306, 311–312; Hacker 2015, pp. 20–21. 2017j, p. 1; Martin 2014, p. 155; Outshoorn 2015, p. 7; Obokata 2019b, p. 531. 5 Linking the current understanding of trafficking in persons partly as an outgrowth of the historical slavery, which this book avoids, has been taken by several authors including Munk 2010, p. 23; Winterdyk et al. 2012, p. 6; Scarpa 2008, pp. 3–4; Olaniyi 2003, p. 46; Obokata 2006, pp. 10–13; Picarelli 2007, pp. 26–34; Cullen-DuPont 2009, pp. 3, 6 et seq.; Bales 2007; Bales and Soodalter 2009. 6 In support of this position, see Thomas 2017, pp. 218–219; Hall and Stahn 2016, p. 261; Feingold 2010, p. 49. Generally, see Davidson 2017, pp. 157–178. 4 Allain

2.1 Historical Perspectives

29

2.1.1 Before the League of Nations In the early 1900s, the international community was concerned with “white slave traffic”, a term used to refer to the unlawful traffic in white women for prostitution outside their countries of origin.7 Concerned that white slave traffic was widespread, the international community adopted two anti-white slave traffic instruments in the first decade of the twentieth century. The first international instrument to be adopted was the International Agreement for the Suppression of the White Slave Traffic of 1904.8 The contracting states, being desirous to protect women and girls against forced prostitution, established authorities to co-ordinate all information relating to the “procuring of women or girls for immoral purposes abroad”.9 The Agreement, however, did not explain what amounted to “immoral purposes abroad”, did not define or criminalise prostitution itself in relation to trafficking and completely lacked the provisions on law enforcement.10 Six years later, in 1910, the international community adopted another international instrument.11 The 1910 White Slave Traffic Convention was adopted to make it an offence and to punish the trafficking for prostitution in girls who were minors even when they consented, regardless of the means employed. It was adopted also to criminalise and punish the trafficking of women of full age where constraint, abduction, violence, threats and abuse of authority were the means used to hire or entice them into prostitution.12 7 Obokata

2006a, p. 13; Demleitner 1994, pp. 165–167; Zheng 2010a, b, p. 5; Pickup 1998, p. 45; O’Brien et al. 2013, p. 2; Gozdziak and Collett 2005, pp. 100; Iroanya 2018, p. 3; Miller and Zivkovic 2018, p. 330; Lederer 2017, p. 401. 8 International Agreement for the Suppression of the “White Slave Traffic”, opened for signature 18 May 1904, 1 LNTS 83 (1904), amended by a Protocol approved by the UN General Assembly on 3 December 1948, opened for signature on 4 May 1949, 30 UNTS 23, entered into force 21 June 1951 (White Slave Traffic Agreement). Briefly on this instrument, see Scarpa 2008, p. 50; Outshoorn 2015, p. 9. See as well Halley 2017, p. 180; Pati 2011, pp. 104–105. 9 White Slave Traffic Agreement, Article 1 and the Preamble thereto. See also Vrancken and Chetty 2009, pp. 114–115; Wijers and Lap-Chew 1999, p. 24; Shoaps 2013, p. 936; Martin 2014, pp. 156– 157; Pati 2011, pp. 104–105. 10 Obokata 2006, p. 14; Gozdziak and Collett 2005, p. 100; Pearson 2000, p. 20; Hyland 2001, pp. 30–31. 11 International Convention for the Suppression of the White Slave Traffic, opened for signature 4 May 1910, 3 LNTS 278 (1910), amended by a Protocol approved by the General Assembly on 4 May 1949, 30 UNTS 23, entered into force 14 August 1951 (1910 White Slave Traffic Convention). See as well Martin 2014, p. 157; Obokata 2019, pp. 531–532. 12 Article 1: “Any person who, to gratify the passions of others, has hired, abducted or enticed, even with her consent, a woman or a girl who is a minor, for immoral purposes, even when the various acts which together constitute the offence were committed in different countries, shall be punished” and Article 2 of the White Slave Traffic Convention: “Any person who, to gratify the passions of others, has by fraud or by the use of violence, threats, abuse of authority, or any other means of constraint, hired, abducted or enticed a woman or a girl of full age for immoral purpose, even when the various acts which together constitute the offence were committed in different countries, shall be punished.”

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Thus, the 1910 White Slave Traffic Convention criminalised exploitation of the prostitution of women of full age and all the exploitation of the prostitution of others in the case of girls under the age of majority.13 The 1910 White Slave Convention also used terms such as “abuse of authority”, “fraud”, “violence” and “threats” as the means element of the exploitation of the prostitution of women of full age and “immoral purposes” as the purpose element of the crime of trafficking or exploitation of the prostitution of others, whether of full age or not.14 The 1910 White Slave Traffic Convention was also explicit that the action element of hiring or recruiting a girl under the age of majority was sufficient to constitute a prohibited offence irrespective of the means used. The Convention also was straightforward on the areas of enforcement and extradition.15 These two instruments, however, were insufficient in reflecting the true nature and dimension of the problem. They used an overtly racist or ethnic exclusivity language, were gender-specific, implicitly equated prostitution with slavery and the slave trade, had an undefined end purpose of the exploitation of the prostitution of others, and focused only on procurement or recruitment and transportation (only the action element) of girls and women for prostitution.16 Also, while the 1910 White Slave Traffic Convention tried to expressly criminalise and punish the white slave traffic, both the 1904 and 1910 instruments actually did not define trafficking in concrete terms and treated prostitution as a domestic issue beyond the jurisdiction of international law.17

2.1.2 After the League of Nations With the establishment of the League of Nations, Article 23(c) of its founding treaty charged the League of Nations with the duty to ensure effective execution of all agreements relating to the traffic in women and children.18 Under the auspices of the League of Nations, the first agreement to be adopted was the International Convention for the Suppression of the Traffic in Women and Children of 1921.19 The high contracting parties pledged to “take all measures to discover and prosecute persons” who were engaged in the traffic of “children of both sexes” and the traffic of girls 13 Allain

2017j, p. 30; Doezema 2002, p. 23; Roth 2014, pp. 15–16. 2017j, p. 31; Vrancken and Chetty 2009, p. 115; Pati 2011, p. 106. 15 Articles 3–11. 16 Obokata 2006, p. 3; Morehouse 2009, p. 28; Doezema 2002, pp. 22–23; Shoaps 2013, pp. 936; Kempadoo 2004, p. 148; Bruch 2004, p. 3. 17 Gallagher 2010, p. 14; Obokata 2006, p. 16; Scarpa 2008, p. 51; Wijers and Lap-Chew 1999, pp. 24–25. 18 Covenant of the League of Nations, 18 June 1919. See Vrancken and Chetty 2009, p. 115; Martin 2014, p. 157. 19 International Convention for the Suppression of Traffic in Women and Children, opened for signature 30 September 1921, 9 LNTS 415 (1921), amended by a Protocol approved by the General Assembly on 20 October 1943, 53 UNTS 13, entered into force 15 June 1922. (1921 International Convention). 14 Allain

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under the age of majority under Article 1 of the 1910 White Slave Traffic Convention.20 The high contracting parties also agreed to take “all necessary steps to secure punishment of attempts to commit, and, within legal limits, of acts preparatory to” the commission of the offences outlawed under Articles 1 and 2 of the 1910 White Slave Traffic Convention.21 To make enforcement possible and effective, parties agreed to either conclude extradition conventions or take measures within their powers to extradite persons accused or convicted of the stipulated offences.22 They also agreed to take other legal and administrative measures aiming at protecting women against trafficking.23 The 1921 International Convention, therefore, in addition to criminalising and prosecuting offences under the 1910 White Slave Traffic Convention, recognised and outlawed trafficking for prostitution and sexual exploitation of children of both sexes. Also, the words “white slave” did not appear in the title of the Convention. This was a recognition that trafficking for prostitution and sexual exploitation crossed racial boundaries.24 The second instrument was the International Convention for the Suppression of the Traffic in Women of Full Age of 1933 which criminalised the traffic in women of full age, regardless of their consent.25 The 1933 International Convention was not concerned about the means used to obtain women for prostitution or “immoral purposes” abroad. It treated women of full age in the same manner the 1910 and 1921 Conventions treated children under the age of majority. Its presumption was simple: women, as children under age, cannot consent to be sexually exploited by traffickers. It is in this respect that the 1933 International Convention differed from the 1910 and 1921 Conventions.26 The 1933 International Convention also criminalised attempted preparatory acts to the commission of the offences outlawed under Article 1. The 1933 Convention also called upon its states parties to share information as regards persons of either sex who have committed or attempted to commit any of the offences which were also proscribed under the 1910 or 1921 Conventions.27 Like the previous instruments, the 1933 International Convention continued to treat prostitution and sexual exploitation as a domestic concern, left trafficking undefined, did not obligate states to punish and outlaw the

20 1921

International Convention, Article 2. See as well Martin 2014, pp. 157–158. International Convention, Article 3. 22 1921 International Convention, Article 4. 23 1921 International Convention, Articles 6, 7. 24 Obokata 2006, p. 16; Martin 2014, p. 157. 25 Article 1: “Whoever, in order to gratify the passions of another person, has procured, enticed or led away, even with her consent, a woman or girl of full age for immoral purposes to be carried out in another country, shall be punished….”, International Convention for the Suppression of the Traffic in Women of Full Age, opened for signature 11 October 1933, 150 LNTS 431 (1933), amended by a Protocol approved the General Assembly on 20 October 1947, 53 UNTS 13, entered into force 24 August 1934 (1933 International Convention). See also Doezema 2002, p. 23; Martin 2014, pp. 158–159; Stoyanova 2017, p. 20. 26 Wylie 2016, p. 47; Doezema 2002, p. 23. 27 1933 International Convention, Article 3. 21 1921

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practice and was concerned with international or transnational sexual trafficking.28 Even the end result of their recruitment, the detention in brothels abroad, was not considered as an area that needed international action.29 Important to note in all these Conventions was the absence of an understanding that adult men could also be trafficked in prostitution and other exploitative situations, just like women and children.30 Through the UNGA resolution 317 (IV) (1949), the international community adopted the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others.31 The 1949 Trafficking Convention considered prostitution and traffic in persons for prostitution as “incompatible with the dignity and worth of the human person” because they jeopardise the welfare of the individual, the family and the community.32 The 1949 Trafficking Convention punished anyone who, to “gratify the passions” of another person: procured, enticed or led away another person into prostitution or exploited the prostitution of another person, even when that person consented.33 It obligated states parties to punish any person who kept, managed and financed brothels or rented any building or other place or any part thereof for the prostitution of others.34 The 1949 Trafficking Convention also criminalised, as separate offences, preparation, participation and attempts to commit offences under Articles 1 and 2.35 It also took an approach that women cannot consent to trafficking even when no coercion was employed. In addition, the 1949 Trafficking Convention had detailed provisions concerning the prevention of prostitution and traffic in persons for prostitution of either sex, rehabilitation of victims, extradition, law enforcement and transnational co-operation.36 While the 1949 Trafficking Convention consolidates the substance of the 1904, 1910, 1921 and 1933 instruments, it slightly differs from them. For example, while it outlawed the exploitation of the prostitution of others, it recognised that prostitution can be the result of the offence of traffic in persons.37 It was also gender-neutral as it recognised that boys and men can become victims of trafficking for prostitution within and outside their countries of origin. However, like the previous Conventions, 28 Obokata

2006, p. 16; Bruch 2004, pp. 6, 9. 2010, p. 14; Stoyanova 2017, p. 20. 30 Hyland 2001, p. 31; Heinrich 2010, p. 2. 31 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, opened for signature 21 March 1950, 96 UNTS 271 (1949), entered into force 25 July 1951 (1949 Trafficking Convention). Briefly on the substance of this Convention, see Vrancken and Chetty 2009, pp. 116–118. 32 The Preamble to the 1949 Trafficking Convention. See also Pickup 1998, p. 45; Holmes 2010a, b, p. 56; Doezema 2002, p. 24. 33 1949 Trafficking Convention, Article 1. See also Outshoorn 2015, p. 9; Cole 2006, pp. 793–794; Breuil et al. 2011, p. 33. 34 1949 Trafficking Convention, Article 2. See also Martin 2014, p. 159; Stoyanova 2017, p. 21. 35 1949 Trafficking Convention, Articles 3 and 4. 36 1949 Trafficking Convention, Articles 5–20. 37 Stoyanova 2017, p. 21. 29 Gallagher

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it did not proscribe prostitution itself and did not define what trafficking is.38 It also focused on the process of trafficking or procurement and its result or the exploitation of the prostitution of others than the means used. Its jurisprudence in some of these aspects has influenced the current understanding of trafficking in persons in several aspects.39 One thread of fact, however, seems to run across all these Conventions: the international community-related traffic in persons with prostitution or the exploitation of the prostitution of others, mostly of women and children.40 So far, this was the legal jurisprudence and the international action to the first half of the twentieth century in combating trafficking. From the 1970s onward and in addition to other factors such as the fall of the Berlin Wall, the collapse of communism in Eastern and Central Europe and the rise of a strong feminist movement that urged states to abolish prostitution, there was a surge in the increase in prostitution and trafficking.41 It was from this time that international tourism and labour migration of women expanded. Instead of white women from developed countries, it was women from developing countries who migrated to provide sexual and other services in the developed Western countries. With the improvement of transportation and communication infrastructures, trafficking and migration grew greatly. It is thus that from the mid-1980s onward, trafficking and prostitution ranked high on the political agenda of several states and several international institutions such as the UN and the EU.42 With the growing concern over trafficking and prostitution rose also the debate over the definition of trafficking since the early 1990s. Due to several reports and scholarship indicating the prevalence of trafficking as a serious problem, concerns that the international legal framework of the 1904–1950 was incapable of preventing and protecting women and children against sexual exploitation grew.43 According to Salt and Stein, it is at this period also that studies emerged examining the relationship between trafficking, migrant smuggling, migration and organised crime.44 However, efforts to establish a comprehensive and practical framework against trafficking started with various organisations taking some initiatives to formulate a common understanding of what trafficking is. To some extent, the current definition of trafficking in the TIP Protocol 2000 reflects these efforts. The UN remains a pioneer Organisation of these efforts.45 38 Obokata 2006, pp. 16–17; Scarpa 2008, p. 54; Heintze and Lülf 2016, p. 152. See also Stoyanova

2017, p. 20. 39 Gallagher

2010, p. 17; Stoyanova 2017, pp. 22–23; Fredette 2009, p. 109. 2012, pp. 210–211; Pickup 1998, p. 45; Outshoorn 2015, pp. 8–9; Stoyanova 2017, p. 22; Fredette 2009, p. 108. 41 Pickup 1998, p. 44; Miko 2007, p. 38; Suchland 2015, p. 1; Savona and Stefanizzi 2007a, b, p. 2; Bruch 2004, pp. 11–12. Important to note, however, is the point argued by Piotrowicz that the phenomenon of trafficking in persons “is not a product of the collapse of communism” because trafficking has existed and exists in all societies, see Piotrowicz 2002, p. 263. 42 Outshoorn 2005, pp. 141–144; Stoyanova 2017, p. 23. 43 Gallagher 2010, p. 16; Fredette 2009, p. 112; Ad Hoc Committee 1999b, para 11. 44 Salt and Stein 1997, pp. 469–476; Bajrektarevic 2000, pp. 57–70. 45 Gallagher 2010, p. 17; Wijers and Lap-Chew 1999, pp. 26–27. 40 Dandurand

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2.1.3 United Nations (UN) The UNGA resolutions in this respect are very informative.46 In its 23 December 1994 resolution 49/166, the UNGA took a position on the trafficking of women and girl children. It called upon governments and several institutions, within and outside the UN system, to take urgent measures to fight trafficking. Some of these measures included: ratifying anti-trafficking and other relevant international instruments; further examination of the issue by the UN specialised agencies; and the submission of the preliminary report by the Secretary-General to the UNGA on the status of implementation of the resolution.47 In coming up with the resolution, the UN took a pragmatic approach that “all forms of sexual exploitation and trafficking” are direct violations of the human rights of women and girl children.48 It considered that trafficking, especially of women and girl children, was facilitated by clandestine movement and syndicates across borders, recruiting people especially from developing countries and countries whose economies are on the transition to developed countries, where they end up in “sexually or economically oppressive and exploitative situations” to benefit persons involved in the whole process of trafficking.49 While the resolution recognised that boy children can be trafficked, too, its chief emphasis was on the increase in internationalisation of trafficking in women and girl children for prostitution. Although it did not define trafficking, the resolution tried to identify some of its elements. In the year 1995, the UN Secretary-General submitted its report to the UNGA on the status of implementation of the 23 December 1994 49/166 resolution.50 In submitting the progress made, the Secretary-General considered the several programmes and initiatives of various organisations and institutions, within and outside the UN system on combating trafficking.51 The report also emphasised the old approach that trafficking affects women and girl children’s human rights than boys and men and is mostly for prostitution and sexual exploitation.52 Of importance to this discussion is the Secretary-General’s consideration of trafficking in relation to illegal migration. The Secretary-General submitted that while trafficking and illegal migration can be similar and related, the two legal concepts are fundamentally different.53 The Secretary-General argued that the fundamental 46 Mninde-Silungwe

2017, p. 113; Wijers and Lap-Chew 1999, pp. 27–30. 1994, paras 10–11. 48 Resolution 49/166, para 3 to the Preamble. 49 Resolution 49/166, paras 4–5 to the Preamble. 50 UNGA 1995 Traffic in Women and Girls: Report of the Secretary-General. UN Doc. A/50/369, 24 August 1995 (Report A/50/369). 51 Report A/50/369, paras 2–44. 52 Report A/50/369, paras 1–7. 53 Report A/50/369, para 17: “Trafficking across international borders is by definition illegal. The very nature of undocumented status makes illegal migrants vulnerable to various forms of exploitation. The question must be asked, however, whether trafficking is the same as illegal migration. It would seem that the two are related, but different. Migration across frontiers without documentation 47 UNGA

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difference was in the end result or purpose for which borders are crossed. To the Secretary-General, trafficking exists only when, in order to benefit those involved in trafficking, women and children are forced into sexual or economic oppression or exploitative situations. In other words, the Secretary-General identified the core definitional elements of trafficking as the ultimate exploitative purpose resulting from recruiting people by means of some force and that in illegal migration, the exploitative purpose and the coercive means are missing. Gallagher argues that this step was on itself “a conceptual breakthrough”.54 By resolution 50/167 adopted on 22 December 1995, the UNGA adopted the 1995 report of the Secretary-General and, among other things, requested the SecretaryGeneral to submit a further report on the implementation of the resolution 50/167, especially as regards the improvement of the reporting procedures in its next fifty-first session.55 On 27 August 1996, the Secretary-General submitted the report pursuant to resolution 50/167.56 Although the report touched several issues relating to reporting, it also dealt with other aspects fundamental to the current definition of trafficking.57 In para 4 and 5, the Secretary-General took the position that trafficking happens nationally and internationally and that it is not limited to prostitution alone. It extended to include other forms of exploitation of women. The Secretary-General noted that his report, representing the position of the UN at that time, took this wider view. Although this view expanded greatly on its approach to trafficking in comparison to the 1995 report and the previous legal instruments, it still treated trafficking in other forms in relation to women’s exploitation only. The report did not consider that trafficking, chiefly affecting women, can manifest itself in various forms that affect men as well. The report also noted the increasing involvement of transnational organised crime and crime syndicates in trafficking.58 All these observations feature

does not have to be coerced or exploitative. At the same time, persons can be trafficked with their consent. A distinction could be made in terms of the purpose for which borders are crossed and whether movement occurs through the instrumentality of another person. Under this distinction, trafficking of women and girls would be defined in terms of “the end goal of forcing women and girl children into sexually or economically oppressive and exploitative situations” and the fact that it is done “for the profit of recruiters, traffickers and crime syndicates”. 54 Gallagher 2010, p. 18. 55 UNGA 1996a, para 13. 56 UNGA 1996b. 57 “What is encompassed within the concept of trafficking and the exploitation of the prostitution of others is set out in Articles 1 and 2 of the 1949 Convention for the Suppression of the traffic in Persons and of the Exploitation of the Prostitution of Others. The Convention refers to actions both national and international, indicating that the phenomenon must be seen at both levels. The concern of the United Nations is primarily at the international level, but there are clear links with national action. It should be noted, however, that since 1949 the concept of trafficking has been extended to include trafficking for the purpose of other forms of exploitation of women…. This wider view of trafficking and exploitation is reflected in the Beijing Declaration and Platform for Action, which also includes forced marriages and forced labour within the concept, and it is the wider view that is used in the present report”, paras 4–5. 58 UNGA 1996b, para 6.

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predominantly in the current legal framework on trafficking. Despite these efforts, no decisive action was taken to come up with an agreed-upon definition of trafficking.

2.1.4 International Organization for Migration The IOM, an organisation established in 1951 as the leading intergovernmental organisation in the field of migration, dealt with the issue of trafficking since the 1990s.59 The work of the IOM at this time also coincided with tight immigration control policies of the Western governments that handled trafficking in women as an issue of illegal migration. These governments equated women trafficking with alien trafficking, smuggling of aliens or trafficking in migrants.60 Thus, even at the beginning of its work on trafficking, IOM examined and defined trafficking in migrants interchangeably with migrant smuggling and women trafficking. In its 1994 definition, IOM defined trafficking as involving these conditions: money or another form of payment changes hands; involvement of the facilitator or trafficker; the crossing of an international border; the entry or crossing of the border is illegal; and the movement is voluntary.61 What the IOM defined as trafficking in 1994 resembles greatly what is legally understood as smuggling of migrants today.62 Their definition of trafficking (of migrant smuggling in the actual sense) missed the element of exploitation.

2.1.5 European Union At this time, too, the European supranational institutions worked on combating trafficking. Of particular importance is how the definition of trafficking was formulated. The European Parliament took concrete steps to define trafficking and take decisive action since April 1989.63 Its first April 1989 resolution on the exploitation of prostitution and the traffic in human beings denounced prostitution as well as trafficking for the purpose of prostitution and urged for efforts and measures to abolish both practices.64 This was followed by the September 1993 resolution which called for international co-operation against trafficking for prostitution and the protection of victims.65 All these resolutions, like other international instruments during that time, 59 Official

website of the IOM, available at https://www.iom.int/about-iom. Accessed 8 June 2018. and Lap-Chew 1999, pp. 34–35. 61 Laczko 2005, p. 10; Schloenhardt 2001, p. 331. 62 Migrant Smuggling Protocol 2000, Article 3(a). See also Rao and Presenti 2012, p. 233. 63 Wylie and McRedmond 2010, p. 3; Hynes 2004, p. 228; Outshoorn 2015b, p. 17; Wijers and Lap-Chew 1999, pp. 30–31. 64 Resolution on the Exploitation of Prostitution and the Traffic in Human Beings, OJ C 120, May 16 1989 cited by Wijers and Lap-Chew 1999, pp. 30–31. See as well Sharapov 2016, p. 19. 65 Wijers and Lap-Chew 1999, pp. 30–31. 60 Wijers

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considered trafficking for prostitution and prostitution itself, especially of women and children.66 However, it was the 18 January 1996 resolution that contained several features observed in the current definition of trafficking in persons.67 In the resolution’s Preamble, the European Parliament considered trafficking in human beings as “incompatible with human dignity and worth and constitutes a serious violation of human rights”.68 Regarding the status of the definition of the crime of trafficking, the Parliament noted that: Whereas the offence of trafficking in women is not always clearly defined in national legislation or international conventions, thereby leading to confusion which makes it more difficult to fight these crimes.69

The European Parliament observed that lack of a clear definition of trafficking in national and international law has made it more impossible to fight trafficking. Consequently, the Parliament went on to define trafficking in human beings to mean: The illegal action of someone who, directly or indirectly, encourages a citizen from a third country to enter or stay in another country in order to exploit that person by using deceit or any other form of coercion or by abusing that person’s vulnerable situation or administrative status.70

In this definition, the European Parliament determined that trafficking goes beyond sexual exploitation. It established that people are trafficked through illegal and dishonest means of “deceit or any other form of coercion” and the abuse of a “person’s vulnerable situation”. It recognised that men, women, children and young adults can all be victims of trafficking.71 This definition had the action, though ill-defined, means and purpose elements. The resolution went on to urge governments to “provide a definition of the concept of trafficking in human beings, and to identify trafficking as a violation of human rights and a serious crime”.72 It considered the national definition of trafficking to be an important part of the crime’s deterrence measures. This was similarly followed by the European Commission (EC) issuing a Communication from the Commission to the Council and the European Parliament of 1996 titled “Trafficking in Women for the Purposes of Sexual Exploitation” which also attempted to define what trafficking is.73 On 24 February 1997, the Council of the 66 Coso

2011, pp. 206–207.

67 European Parliament 1996 Resolution on Trafficking in Human Beings. AR-0326/95 No C32/89,

18 January 1996 (European Parliament 1996 Resolution). 68 European Parliament 1996 Resolution, para A. 69 European Parliament 1996 Resolution, para U. 70 European Parliament 1996 Resolution, para 1. 71 European Parliament 1996 Resolution, para 1. 72 European Parliament 1996 Resolution, para 15; Piotrowicz 2010, p. 406; Piotrowicz 2007, pp. 275–281. 73 European Commission 1996. The Communication defined also trafficking as “The transport of women from third countries into the European Union (including perhaps subsequent movements between Member States) for the purpose of sexual exploitation…. Trafficking for the purpose of

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EU adopted a Joint Action concerning “action to combat trafficking in human beings and sexual exploitation of children”.74 Its main emphasis was on trafficking whose end purpose is only the sexual exploitation of children and adults, with all other end purposes of trafficking excluded. Although it defined trafficking of children, it is the definition of trafficking for sexual exploitation of adults that is being considered. It defined this form of trafficking as: Any behaviour which facilitates the entry into, transit through, residence in or exit from the territory of a Member State, for the purpose (of)… (a) Sexually exploiting a person other than a child for gain purposes, where: use is made of coercion, in particular violence or threats, or deceit is used, or there is abuse of authority or other pressure, which is such that the person has no real and acceptable choice but to submit to the pressure or abuse involved; (b) trafficking in persons other than children for gainful purposes with a view to their exploitation under the conditions set out in paragraph (a).75

This definition, while narrowly considering trafficking’s end purpose to be sexual exploitation, was progressive as it implicitly used gender-neutral language, implying that also boy children and men can be sexually trafficked. It also considered that a conduct becomes trafficking only when, to achieve a gainful purpose, dishonest or coercive methods and threats are used as the means. Two months later, in the April 1997 Ministerial Conference, Member States of the EU took a retreating position by formulating a declaration of trafficking which limited trafficking to affecting women only.76 Equally informative also is the recommendation adopted by the Committee of Ministers of the EU. Although considering trafficking to have the end purpose of sexual exploitation predominantly of women, it also submitted that trafficking is committed by both natural and legal persons and is made possible through the use of means that negate consent, even when consent was obtained.77

2.1.6 Council of Europe At the same time, the CoE was also establishing its position regarding the definition of trafficking and how to combat it. Its main focus was on trafficking for sexual

sexual exploitation covers women who have suffered intimidation and/or violence through the trafficking. Initial consent may not be relevant, as some enter the trafficking chain knowing they will work as prostitutes, but who are then deprived of their basic human rights, in conditions which are akin to slavery”, para 4. 74 Council of the European Union 1997. 75 Gallagher 2010, p. 21. 76 “Trafficking in women relates to any behaviour which facilitates the legal or illegal entry into, transit through, residence in or exit from the territory of a country, of women for the purpose of gainful sexual exploitation by means of coercion, in particular violence or threats, or deceit, abuse of authority or other pressure which is such that the person has no real and acceptable choice but to submit to the pressure or abuse involved”, European Union Ministerial Conference 1997, p. 3. 77 Committee of Ministers 2000.

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exploitation.78 In 1996, the Steering Committee for Equality between Women and Men (CDEG) of the Council of Europe came up with a Plan of Action against trafficking in women and forced prostitution. It adopted the following definition: There is trafficking when a woman is exploited in a country other than her own by another person (natural or legal) for financial gain, the traffic consisting of organising (the stay or) the legal or illegal emigration of a woman, even with her consent, from her country of origin to the country of destination and luring her by whatever means into prostitution or any form of sexual exploitation.79

This definition considered trafficking as limited only to prostitution or other forms of sexual exploitation of women occurring at the international level, irrespective of the women’s agency. It equally as well recognised that “whatever means” can be used to lure women into trafficking. At its 11th meeting, the Steering Committee (CDEG) modified its understanding of trafficking. Although it still focused on sexual exploitation and prostitution of women, it narrowly acknowledged that trafficking is not limited to sexual exploitation alone and it affects women and men as well.80 Thus, the major definitions of the European states and institutions as surveyed in this work reveal that European states preferred to have a definition of trafficking which: differentiated trafficking in adults and children; rendered agency or consent meaningless when dishonest or coercive means have been employed; paid particular attention to women and children; and included an element of international trafficking as well as that trafficking was committed by both natural and legal persons.81

2.1.7 Organization of American States (OAS) In the Americas, too, the OAS adopted the Inter-American Convention on International Traffic in Minors (B-57) on 18 March 1994.82 The Convention defined international traffic in minor to mean: The abduction, removal or retention, or attempted abduction, removal or retention, of a minor for unlawful purposes or by unlawful means.83

78 Briefly,

Wijers and Lap-Chew 1999, pp. 32–33. by Wijers and Lap-Chew 1999, p. 32. 80 Gallagher 2010, p. 20. 81 Gallagher 2010, p. 22. Regarding the involvement of legal persons such as business corporations in trafficking in persons, whether directly or indirectly, Muskat-Gorska notes that “the fact that 90% of forced labour cases are estimated to take place in the private sector… calls for urgent attention to the legal accountability of business actors involved in abuses or benefiting from labour or services provided by trafficked persons, including through their supply chains”, Muskat-Gorska 2017, p. 443. 82 Inter-American Convention on International Traffic in Minors, opened for signature 18 March 1994, OAS Doc. OEA/Ser.K/XXI.5, 79 OASTS, reprinted in (1994) 33 ILM 721, entered into force 15 August 1997 (Inter-American Convention). 83 Inter-American Convention, Article 2(b). 79 Quoted

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The definition, while dealt only with international traffic in minors, considered trafficking to have occurred only when there was actual or attempted abduction, removal or retention of the minor, defined as a person below the age of eighteen, for unlawful purposes or by unlawful means.84 This meant that a minor could be considered as sufficiently trafficked where the actual or attempted abduction, removal or retention ended up in the use of the minor for unlawful purposes85 or where actual or attempted abduction, removal or retention was achieved by unlawful means.86 Thus, the illegal purpose represented the end purpose of the minor’s trafficking and the unlawful means represented the illegal means used to obtain the minor. The presence of either the means element or the purpose element was enough to substantiate that the minor has been trafficked. This definition reflects greatly the definition and understanding of trafficking of children under Article 3(c) of the TIP Protocol 2000.

2.1.8 African Union (AU) and Asia In other regions of the world, little was done in the area of trafficking before 2000. In 1992, a Regional Workshop on Protecting the Rights of Women and Children in South Asia was held in Dhaka. It defined trafficking as “all acts involved in the capture and acquisition of persons for trade and transport with the intent to sell, exchange or use for any illegal purpose”.87 This definition coincided more with the understanding of slavery under international law than with trafficking in persons. The definition considers persons as things to be acquired and disposed of for various illegal purposes by whatsoever means. As regards Africa, efforts to define and combat trafficking before 2000 were lacking. With the exception of Article 29 of the African Charter on the Rights and Welfare of the Child adopted in 1990, which urges governments to take appropriate measures to “prevent the abduction, the sale of, or trafficking of children for any purpose”, it is difficult to establish any meaningful steps taken by the African governments through the African (AU) in this respect.

84 Inter-American

Convention, Article 2(b). purpose” is defined by the Inter-American Convention under Article 2(c) to mean: “Prostitution, sexual exploitation, servitude or any other purpose unlawful in either the State of the minor’s habitual residence or the State Party where the minor is located”. 86 The Convention defined “unlawful means” under Article 2(d) as: “Kidnapping, fraudulent or coerced consent, the giving or receipt of unlawful payments or benefits to achieve the consent of the parents, persons or institutions having care of the child, or any other means unlawful in either the State of the minor’s habitual residence or the State Party where the minor is located”. See also Davitti 2010, p. 43. 87 Quoted in Wijers and Lap-Chew 1999, p. 34. However, for a considered and extensive discussion on the situation regarding trafficking in persons in the Asia region, see Bélanger 2014, pp. 87–106; Zheng 2010a, b; Taylor 2013; Okubo and Shelley 2011; Kranrattanasuit 2014; Thomas 2011. 85 “Unlawful

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2.1.9 Report of the UN Special Rapporteur Of particular relevance to this discussion is the report of Ms. Radhika Coomaraswamy, the UN Special Rapporteur on violence against women, its causes and consequences, on trafficking in women, women’s migration and violence against women submitted shortly before the adoption of the current definition of trafficking in persons.88 At para 13, she took this position on the definition of trafficking: Trafficking occurs for a myriad of exploitative purposes to which trafficking victims have not consented, including but not limited to forced and/or bonded labour, including within the sex trade, forced marriage and other slavery-like practices. It is the non-consensual and exploitative or servile nature of the purpose with which the definition concerns itself…. The structure of the trafficking definition must distinguish trafficking as a separate violation from its component parts. For the purposes of this report, the Special Rapporteur uses the following definition of trafficking. Trafficking in persons means the recruitment, transportation, purchase, sale, transfer, harbouring or receipt of persons: (i) by threat or use of violence, abduction, force, fraud, deception or coercion (including the abuse of authority), or debt bondage, for the purpose of: (ii) placing or holding such person, whether for pay or not, in forced labour or slavery-like practices, in a community other than the one in which such a person lived at the time of the original act described in (i).

This definition was very expansive and encompassed several aspects of trafficking reflected in the current definition. The definition: considered that trafficking has the action, means and purpose elements; emphasised that the means element plays a fundamental role in explaining the crime of trafficking; recognised that trafficking occurs for various exploitative end purposes; positioned trafficking as either national or international with a focus on the trafficked person being outside his own community; and considered that the illegal means element used nullifies the consent of a trafficked person. In para 14, the Special Rapporteur emphasised that this definition of trafficking covered and included all persons involved in the trafficking chain, “those at the beginning of the chain, who provide or sell the trafficked person, and those at the end of the chain, who receive or purchase the trafficked person, hold the trafficked person in forced labour and profit from that labour”. Thus, the Special Rapporteur considered the action component of the definition as going beyond the process of trafficking to include also its result.89 In this regard, she concluded that any meaningful definition of trafficking must include the common elements of: “(i) the lack of consent; (ii) the brokering of human beings; (iii) the transport; and (iv) the exploitative or servile conditions of the work or relationship”.90

88 Commission

on Human Rights 2000. 2010, pp. 25–26. See as well Scarpa 2008, p. 60; Aronowitz 2009, p. 1. For current support of this approach, see Gallagher and Skrivankova 2015, pp. 4–5; Piotrowicz 2010, p. 407. 90 Commission on Human Rights 2000, para 17. 89 Gallagher

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2.2 Need for a New Definition of Trafficking The whole period of the 1990s and the weaknesses and fragmented nature of the above-described anti-trafficking framework suggested a need to formulate an internationally agreeable and comprehensive anti-trafficking legal and institutional regime, together with an agreed-upon definition.91 This need was expressed several years before by the UN, the EU and even by states. In his report to the UNGA dated 24 August 1995, the UN Secretary-General, after analysing the content of international law concerning trafficking, noted that there is a need to evaluate the approach to trafficking in the context of the international interventions, the ambiguity on trafficking on how it is to be addressed, the increase of its international dimension and the effectiveness of the international legal regime in addressing trafficking.92 The following year, in August 1996, the Secretary-General lamented on the small number of ratifications of the 1949 International Convention. He said: “… after 47 years, only 71 States have become party to the Convention. Between 1949 and 1960, 27 States became party; between 1961 and 1970, 11 States; between 1971 and 1980, 10; and between 1981 and 1990, 11. Since 1990, 12 more States have become party, although 7 of these were successors to States that had previously been party.”93 In its 18 January 1996 resolution on trafficking in human beings, the European Parliament even used a more direct and stronger language urging the Commission and the states at the international level to: Take action at an international level to draft a new UN convention to supersede the obsolete and ineffective Convention on the Suppression of Traffic in Persons and of the Prostitution of Others (1949); any new convention should focus on coercion and deception.94

The Australian government expressed similar views, noting that the 1949 International Convention blurs the distinction between coerced and voluntary prostitution with trafficking and unless this effect as evidenced in some of its provisions is addressed, the 1949 International Convention’s collateral damage, especially from a public health point of view, might be damaging to the very people it was intended to protect.95

91 Gallagher

and Ezeilo 2015, p. 914. A/50/369, para 18. 93 UNGA 1996b, para 24. 94 European Parliament 1996, para 31. 95 UNGA 1996c, para 26. See also Hashim and Thorsen 2011, pp. 77–78. 92 Report

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2.3 Drafting the TIP Protocol 2000 and Its Definition Based on the discussion above, it was evident that drafting a new instrument and its definition was not going to be an easy process as governments and various organisations and civil society institutions had differing and opposing ideas regarding trafficking and its actual meaning. Contentious debates and differing positions that characterised the 1904–1949 international instruments on trafficking emerged again.96 The first concern was the subject or persons the Protocol will be protecting. By resolutions 53/111 and 53/114 of 9 December 1998, the UNGA tasked the Ad Hoc Committee with the duty to, among others, develop a protocol against trafficking of women and children only. Thus, the early mandate of the Ad Hoc Committee contemplated an elaboration of a protocol that did not consider the trafficking of all persons. This is reflected in the revised proposal by the governments of the United States and Argentine which proposed the title of the protocol to be “Revised Draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, Supplementing the United Nations Convention on Transnational Organised Crime”.97 After several discussions, the majority of countries thought that the Protocol should address all persons, with particular attention to the protection of women and children. Accordingly, through resolution 54/126, the mandate of the Ad Hoc Committee was amended to consider trafficking in all persons, but especially women and children.98 The current nomenclature of the TIP Protocol 2000 reflects this understanding. Therefore, the argument that the TIP Protocol 2000 frames the problem of trafficking in persons at the expense of male victims of trafficking fails to capture the actual intent of the TIP Protocol 2000 as presented in this discussion.99 Most of the contentious issues centred on what the TIP definition should entail. This necessitated the inclusion of a provision in the TIP Protocol 2000 on definitional matters.100 During the negotiation process, there were several international NGOs and activists which were divided into two blocs: the Human Rights Caucus, consisting of NGOs engaged in human rights, sex workers’ rights and anti-trafficking activities; and the Coalition Against Trafficking in Women (CATW-led Network), consisting mostly of abolitionist NGOs.101 Governments were aligned to either one or the other of these blocs. Their irreconcilable arguments and submissions have

96 On the extensive discussion of these debates and some contestations on the TIP Protocol 2000 and its negotiation process, see Wylie 2016, pp. 52–66. 97 UNODC Travaux Préparatoires 2006, pp. 319–321. 98 Economic and Social Council 2004, p. 34; Abramson 2003, p. 476. On the critical comment regarding how the issue of gender was handled during the drafting process and its negative consequences on male victims, see Shoaps 2013, pp. 931–972. 99 Shoaps 2013, p. 936. 100 TIP Protocol 2000, Article 3. 101 Ditmore and Wijers 2003, pp. 80–81; Doezema 2000, pp. 23–50; Doezema 2002, p. 20; Gallagher 2010, pp. 26–27; Gozdziak and Collett 2005, pp. 103–104. On the critical perspectives on these negotiations, see Doezema 2005, pp. 62–89.

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impacted immensely on the current framework of the TIP Protocol 2000 and its definition of trafficking, mostly in the area of human rights protection and assistance of trafficked persons.102 The Human Rights Caucus had at the core of its argument that the definition of trafficking, as far as the issue of prostitution is concerned, should explicitly exclude non-coercive and voluntary prostitution. Their rationale being that while prostitution can be one of the end results of trafficking, prostitution is not trafficking as it can be voluntary, unlike trafficking which by its nature encompasses consentnullifying activities.103 On the other hand, the CATW-led Network submitted that all sex work, including prostitution, is a violation of women’s human rights. Accordingly, any distinction between free or forced and coerced prostitution is meaningless as prostitution is, by definition, forced and that no woman can consent to engage in prostitution.104 In the course of explaining the content of the definition of trafficking herein below, several of these issues will be reflected and pointed out.

2.4 Current Definition of Trafficking The TIP Protocol 2000 defines trafficking in persons as: The recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or organs.105

This definition contains three basic but separate elements of trafficking, namely, the action, means and purpose elements.106 Rather than being a narrower view on trafficking as argued by Wylie,107 the crime of trafficking can only be constituted by the altogether presence of the three elements and therefore, going beyond the

102 Ditmore and Wijers 2003, pp. 84–86; Zheng 2010a, b, pp. 3–4; Outshoorn 2015, p. 16; Davidson

2015, p. 155. 103 Gallagher

2010, p. 27; Wylie 2016, p. 1; Scarpa 2008, pp. 59–60; Yea 2010, p. 156; Outshoorn 2015, pp. 14–15; Chapkis 2003, p. 928; Askola 2007, p. 34; Jones 2012, p. 486. 104 Doezema 2002, p. 21; Kaye and Winterdyk 2012, p. 60; Scarpa 2008, p. 59; Yea 2010, p. 156; Askola 2007, p. 33. 105 TIP Protocol 2000, Article 3(a). See also Gallagher 2017, pp. 83–111. 106 ICAT 2012, pp. 2–3; Lansink 2006, p. 49; Mahdavi 2011, pp. 16–17; Kranrattanasuit 2014, p. 1. Unconvincing, however, is the argument advanced by Di Nicola that the definition of trafficking requires the presence of four elements, namely: (a) recruitment; (b) movement/receipt; (c) deception, abuse of power or of a position of vulnerability; and (d) purpose of exploitation because recruitment and movement are clearly one and part of the same action element, see Di Nicola 2007, p. 51. 107 Wylie 2016, pp. 4, 6.

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mere recognition of trafficking as a crime of process alone.108 Thus, while each element is distinct but connected with other elements, the TIP Protocol 2000 does not criminalise each of the separate elements as to constitute a crime of trafficking on their own.109 The unlawful act and the culpable state of mind of the perpetrator must be established. However, a proper reading of the provision indicates that it is not necessary to establish that actual exploitation took place in order to establish the mens rea of the accused or to vindicate the commission of the crime.110 It suffices that from the action and the means element employed, the perpetrator purposed to ultimately exploit someone. This definition also has clarified that trafficking relates to both the process through which an individual is obtained to be taken into exploitation and his maintenance in the state of exploitation.111 The definition also indicates that trafficking affects all persons both men and women.112

2.4.1 Action Element of Trafficking The action element encompasses the “recruitment, transportation, transfer, harbouring or receipt of persons”.113 It explains what is done in order to traffic people. It forms the first part of the actus reus or the material element of the crime of trafficking in persons because it explains the act of trafficking.114 The constitutive acts of the action element are neutral in nature and cannot constitute a prohibited conduct on their own.115 Accordingly, they must be read together with the remaining two elements of the definition. The use of a comma “,” for each constitutive act of the action element and “or” between harbouring and receipt of persons indicate that each constitutive act of the action element is sufficient on its own to constitute the action element.116 Thus, it is not a defence for an accused to argue that he transported but did not recruit or harbour a trafficked individual. Accordingly, it is unnecessary for all the constitutive acts of the action element to be established simultaneously or

108 Gallagher 2012, para. 2. See as well Gallagher and Skrivankova 2015, pp. 4–5; Piotrowicz 2010,

p. 407; Mahmood 2019, p. 38. 2002, p. 266; Vijeyarasa and Villarino 2013, p. 48; OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings 2013, p. 14. 110 Dandurand 2012, p. 217; Obokata 2006, p. 20; UNODC Legislative Guide 2004, p. 269. 111 Scarpa 2008, p. 60; Aronowitz 2009, p. 1. 112 Scarpa 2008, p. 62; UNODC 2006a, b, p. 44. 113 These five components of the action element were initially introduced by the United States, see Ad Hoc Committee 1999a, Article 2(2). See further UNODC Travaux Préparatoires 2006a, b, p. 349; Stoyanova 2017, p. 33. 114 Heintze and Lülf 2016, p. 157. Further see ICAT 2012, pp. 2–3; Lansink 2006, p. 49; Mahdavi 2011, pp. 16–17; Kranrattanasuit 2014, p. 1. 115 Gallagher 2010, pp. 29–31; Moser 2018, p. 2. 116 UNODC 2006a, b, p. 51; Odera and Malinowski 2011, p. 17; Stoyanova 2017, p. 34. 109 Piotrowicz

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all at once. While one constitutive act suffices, the presence of several constitutive acts together establishes the action element more sufficiently.117 While the constitutive acts of the action element are left undefined, their meaning is not difficult to ascertain. During the drafting process, the action element was not a subject of any serious debate.118 To recruit means: enlisting someone voluntarily, for example, “in the armed forces” and in “an organisation;”119 or to conscript someone, a term connoting the use of “coercion or compulsion” to obtain someone.120 Recruitment comprises, therefore, of voluntary enlisting or involuntary conscription of someone. In the context of trafficking, recruitment refers to the means and ways used to obtain, commit or engage someone voluntarily or involuntarily with a purpose to lead him to his exploitation and this always takes place in the country of origin of the victim of trafficking.121 To transport generally means carrying “people or goods from one place to another by means of a vehicle, aircraft, or ship”.122 In the context of trafficking, transportation would mean the carrying of persons, through various means of transport, either within their own country but from one location to another or outside their countries of origin in order to ultimately exploit them.123 To transfer, with regard to persons, means “an act of moving someone to another place, organisation, team, etc”.124 When applied to trafficking, transfer entails the handing over, surrendering or giving up a person to another person. The transfer relates to movement and/or facilitation of movement of persons to be trafficked or even already trafficked from the custody of one person to another or even from one working environment to another for exploitation.125 Gallagher notes that in certain cultural settings, the transfer occurs where control over individuals, especially family members, can be entrusted to other people. In such contexts, the offer to transfer someone, whether explicit or implied and regardless of its subsequent acceptance, is sufficient to constitute the action element.126 To harbour a person means to give shelter, a hide or home to someone. For the purpose of trafficking, the harbouring of persons consists of accommodating, housing, containing or sheltering persons either in the course of their movement to their eventual exploitation or at such places in the course of and 117 Odera

and Malinowski 2011, p. 17. for example, UNODC Travaux Préparatoires 2006a, b, pp. 341–348. 119 “Recruit”, Online Oxford Dictionaries. https://www.oxfordlearnersdictionaries.com/definition/ english/recruit_1?q=recruit. Accessed 13 July 2018. See also Stoyanova 2017, p. 34. 120 Werle and Jessberger 2014, pp. 464–465. 121 International Labour Office 2005, p. 31; Tanzania Police Force 2014, p. 17; Organisation for Security and Cooperation in Europe 2014, p. 12. On examples of how traffickers use recruitment as an action element of trafficking in persons, see UNODC 2006a, b, pp. 59–60; Galiana 2000, pp. 8–10. 122 “Transport”, Online Oxford Dictionaries. https://www.lexico.com/definition/transport. Accessed 13 July 2018. 123 UNODC 2006a, b, pp. 60–61; Tanzania Police Force 2014, p. 18. 124 “Transfer”, Online Oxford Dictionaries. https://www.lexico.com/definition/transfer. Accessed 13 July 2018. 125 International Labour Office 2005, p. 10; Stoyanova 2017, p. 34. 126 Gallagher 2010, p. 30. See also Kneebone 2010, p. 153. 118 See

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during their exploitation.127 Receipt means “the action of receiving something”.128 Thus, receipt of persons refers to the action of receiving persons either in the course of their movement to their eventual exploitation or at the place where they are ultimately exploited.129 This discussion clearly indicates that the action element makes legal sense only as it is connected with the remaining elements of the definition. However, these constitutive acts of the action element, especially harbouring and receipt of persons, require knowledge or intention on the part of the person executing them that his actions are part of the trafficking process leading to exploitation.130

2.4.2 Means Element of Trafficking The means element ranges across “threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”. In a word, it explains how trafficking, especially the action element, is accomplished. It is about the techniques used to recruit, transport, transfer, harbour or receive trafficked persons. It forms the second part of the actus reus or the material element of trafficking in persons.131 As it will be shown herein below, the means element not only explains how the action element is achieved, but it also acts as a tool or means of control traffickers use over the victims of trafficking.132 In the context of the Anti-Trafficking in Persons Act 2008, these means through which persons are obtained, maintained and controlled during the whole of their trafficking experience are in addition to any other means whether stipulated or not but which achieve the same outcomes.133 Unlike the action element, the means element was considerably debated. Until its final adoption, the text containing the means element underwent several improvements. For example, the earlier proposal contained three options for a means element.134 One of the main concerns was the question of consent. This is evident from one of the proposals for a means element. It proposed the means element to read “…by the threat or use of force, by abduction, fraud, deception, (inducement,) coercion or the abuse of power or by the giving or receiving of payments or benefits 127 Gallagher and Ezeilo 2015, p. 930; Tanzania Police Force 2014, p. 19; Stoyanova 2017, pp. 34–35. 128 “Receipt”, Online Oxford Dictionaries, https://www.lexico.com/definition/receipt. Accessed 13 July 2018. 129 Council of Europe/United Nations Study 2009, p. 78; Frescura 2006, p. 140; Stoyanova 2017, p. 35. 130 International Labour Office 2005, p. 10. 131 Heintze and Lülf 2016, p. 157. See also ICAT 2012, pp. 2–3; Lansink 2006, p. 49; Mahdavi 2011, pp. 16–17; Kranrattanasuit 2014, p. 1. 132 Aronowitz 2009, pp. 58–60; Torgoley 2006, p. 562; Makisaka 2009, pp. 2–3; Sigmon 2008, p. 253. 133 Anti-Trafficking in Persons Act 2008, Section 4(1). 134 UNODC Travaux Préparatoires 2006a, b, pp. 341–343.

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to achieve the consent of a person having control over another person, for the purpose of exploitation (irrespective of the consent of the person).”135 While most delegations opined that consent of the victim should not be relevant to whether the victim had been trafficked, many delegations, however, expressed their concern as regards the effect of directly omitting consent from a provision in which many of the means listed preclude such consent. Others expressed concern that an actual inclusion of consent in the provision implies that in certain situations it would be possible to consent to such things as the use of the threat of force or fraud.136 Ultimately, after many deliberations, it was decided to have a separate provision dealing with consent under Article 3(b).137 The effect of this paragraph is to nullify the victim’s consent where any of the constitutive components of the consent-nullifying means element has been used in the course of trafficking.138 Also, the literal and purposive interpretation of this provision indicates that where one ends in exploitative situations but the means element is not used, the crime of trafficking does not exist. In such situations, consent might be used to ascertain if other crimes have been committed.139 It is not clear whether the TIP Protocol 2000 allows a wide or strict interpretation of the relationship between the means element and the role of consent and if so, what are the consequences of either approach. It is also left open whether the principle of the irrelevance of consent when means have been used depends on the severity and nature of the means used or the nature and severity of the exploitation involved. It is also not clear what is the TIP Protocol 2000’s position when, for example, the means element has been used which, in principle, vitiates consent but the victim insists that he has nevertheless consented and does not agree with a categorisation that he has been trafficked.140 This is even compounded by the fact that Article 3(b) nullifies the consent of the victim of trafficking to “the intended exploitation” rather than the action element which is directly linked to the means element.141 Nonetheless, a purposive reading of Article 3(a) would indicate that the means element to “the intended exploitation” denotes that the means element, though part of the action element, extends also to the purpose element as part of the overall coercive strategy through which trafficked persons are maintained in exploitative situations.142 The constitutive methods of the means element differ from one another. While some methods are indirect and subtle such as fraud, deception and abuse of power or 135 Ad

Hoc Committee 2000, p. 3. Travaux Préparatoires 2006a, b, p. 44. 137 Article 3(b): “The consent of a victim of trafficking in persons to the intended exploitation set forth in subpara (a) of this article shall be irrelevant where any of the means set forth in subpara (a) have been used.” 138 Piotrowicz 2018, p. 42; Okyere 2017, p. 95; Bakirci 2009, p. 161; Heintze and Lülf 2016, pp. 157–158; Abramson 2003, p. 477. 139 Gallagher 2014, p. 35; Okyere 2017, pp. 94–95. 140 Renzikowiski 2018, pp. 16–17; Jones 2012, pp. 497–499. 141 Gallagher 2014, p. 27; Jovanovic 2017, p. 50. 142 Tuan and Thanh 2013, p. 168; Torgoley 2006, p. 562; Sigmon 2008, p. 253; Makisaka 2009, pp. 2–3; Joshi 2002, p. 47; UNODC 2009d, p. 1. 136 UNODC

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a position of vulnerability, other methods are more direct such as the use or force or abduction.143 The TIP Protocol 2000 does not define any of the means elements at all. Ascertaining their meaning demands a critical examination of the TIP Protocol 2000’s preparatory works, interpretative text, international law, the practice by states parties through their legislation and case law as well as from other official and unofficial guidance documents.

2.4.2.1

Threat or Use of Force or Other Forms of Coercion

Threat or use of force indicate that in trafficking persons, actual physical force or the threat of its use might be employed to force someone into trafficking.144 It is the force or its threat, not persuasion that forms the core of this method of realising the action element. The aim of using force or its threat seems to be either infliction of actual bodily harm or fear. As regards coercion, the Oxford Dictionary defines it to mean “the action or practice of persuading someone to do something by using force or threats”.145 The use of the phrase “other forms of coercion” indicates that the actual harm or fear is more than physical. It goes on to include even the mental or psychological force or threat thereof.146 It is less direct, just like fraud or deception, unlike the use of force or threat of force which are more direct means. It can include restraining the person, putting a person in a certain situation to persuade him to believe that unless he performs an act, the result might be physical restraint or serious harm against him or another person as well as the use of psychological pressure.147 This indicates that coercion is a less direct means than the use of force that operates to nullify any genuine consent of the person.148 As used in the previous anti-trafficking instruments, coercion encompassed violence, deceit, threats and abuse of a position of vulnerability.149

143 Mahmood

2019, p. 38; Gallagher and McAdam 2018, pp. 186–187; UNODC 2009c, p. 4. “The words ‘abuse of a position of vulnerability‘ make it clear that trafficking can occur without any use of force”, South African Law Reform Commission 2006, p. 15, para 2.15. 144 UNODC 2009d, p. 3. 145 “Coercion” Oxford Online Dictionaries. https://www.lexico.com/definition/coercion. Accessed 17 July 2018. 146 Obokata 2006, p. 25; Aronowitz 2009, p. 3. 147 UNODC Model Law 2009, p. 11. 148 See, for example, rule 70 of the Rules of Procedure and Evidence of the Rome Statute of the International Criminal Court, Official Records, UN Doc. ICC-ASP/1/3; Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Kunarac, Criminal Judgment, 22 February 2001, Case No. IT-96-23, paras. 459, 542. 149 Gallagher 2010, p. 31.

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Abduction

Abduction refers to a deliberate and forcible action of taking away, detaining or seizing a victim of trafficking or a person to be trafficked against his will.150 In the context of trafficking, abduction appears to be a direct means related to other methods such as the use of force, coercion and threats. In the negotiation process, the word “kidnapping” was preferred.151 It was the Special Rapporteur on violence against women, its causes and consequences that proposed its replacement by abduction.152 Following the informal consultations held during the fifth session of the Ad Hoc Committee, kidnapping was replaced by abduction, although there is no indication regarding the reasons for the replacement.153 It can be argued, however, that kidnapping was abandoned based on its intended purpose, which appears to be abducting a person to obtain a ransom, although not in all of the cases.154 Thus, kidnapping could not capture the whole essence of abduction as a means element.

2.4.2.3

Fraud and Deception

Fraud and deception are different methods forming part of the means element but which are always used interchangeably. The main essence of fraud is deception for financial gain while deception itself goes beyond financial gain or economic aspects to include also other personal gains or advantages.155 In the context of trafficking, fraud and deception relate to the misleading of trafficked persons about either the nature of the work or services they will be engaged in or the conditions under which they will be forced to undertake the work or services.156 The misleading can also relate to both aspects and can include misleading by withholding information. Their end purpose is victims’ exploitation either for the economic advantage of the perpetrator in the case of fraud or other advantages in the case of deception or even both. For example, the person is recruited on a promise to work as a domestic worker but is forced to work as a prostitute. In this sense, the trafficker cannot claim that the trafficked person consented because the consent of the victim at one stage does not amount to consent at all stages of the trafficking chain.157 It is not yet clear as regards the standard or 150 International

Labour Office 2005, p. 21. for example, Ad Hoc Committee 1999c, Article 2(2)(a). 152 UNODC Travaux Préparatoires 2006a, b, p. 354. 153 UNODC Travaux Préparatoires 2006a, b, p. 356. 154 “Kidnap”, Online Oxford Dictionaries. https://www.lexico.com/definition/kidnap. Accessed 18 July 2018. See also Iroanya 2018, pp. 2–3. 155 “Fraud”, Online Cambridge Dictionary. https://dictionary.cambridge.org/dictionary/english/ fraud; “Deception”, https://dictionary.cambridge.org/dictionary/english/deceive. Accessed 18 July 2018. 156 Cameron 2008, p. 81; Gallagher 2010, p. 31; Piotrowicz 2010, p. 405; Aronowitz 2009, p. 2; Marinova 2017, p. 3; Gallagher and Skrivankova 2015, p. 8. 157 Williams 2008, p. 129; UNODC Model Law 2009, p. 12; Kruger 2016, p. 63; Cameron 2008, p. 81; Bales et al. 2009, p. 39; Fredette 2009, p. 116. 151 See,

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threshold of seriousness that fraud or deception must exhibit to vitiate the consent and constitute a means element of trafficking.

2.4.2.4

Abuse of Power

In the course of negotiations, it was the “abuse of authority” that was used as the first alternative.158 While it was agreed that abuse of authority can include the power that might be possessed by male family members over female family members in certain legal systems and the power that parents might possess over their children, its exact meaning was not clear. Abuse of power came as its replacement. Abuse of power does not appear for the first time in the TIP Protocol 2000. It was applied, for example, in the 1910 White Slave Traffic Convention as “the abuse of authority”.159 Although the word power itself signifies multiple meanings, among others, ability or capacity to do, act or influence, and the authority or control exercised or given to a person or body,160 the TIP Protocol 2000 is silent as regards its exact meaning. Practice by some states, however, indicates that abuse of power is associated with a public authority or other formalised relationships such as employer-employee relationship as provided in the legislation, as broadly interpreted by courts of law or even extending beyond formalised settings to include other power-exhibiting relationships.161 It is not clear whether the power here is limited to real power or extends to include even supposed power. While abuse of power does not appear to require the presence of a pre-existing relationship between the abusing power holder and the vulnerable individual, the question needs more examination. As a means of trafficking, a person in a position of power abuses his power in order to recruit, transport, harbour, transfer or receive a person for the purpose of exploitation. It is possible that the vulnerable position of the victim renders it viable for the perpetrator to abuse his power and use the abuse to traffic the victim, or the perpetrator, by abusing his power, puts someone in a situation of vulnerability with the intention to move the individual into exploitation. It seems that abuse of power has a certain level of a relationship with the abuse of a position of vulnerability. In certain instances, abuse of power as well as abuse of a position of vulnerability, as is generally the case with other means of trafficking, have been considered as the subtle forms of coercion used to retain control over a person in exploitative work or services.162

158 UNODC

Travaux Préparatoires 2006, p. 343. 1910 White Slave Traffic Convention, Article 2. 160 “Power”, Oxford Online dictionary. https://www.lexico.com/definition/power. Accessed 19 July 2018. 161 Gallagher 2013, pp. 30, 35, 40, 44, 46, 73–74; Gallagher and McAdam 2018, pp. 185–197. 162 Gallagher 2013, pp. 46, 50; Torgoley 2006, p. 562; UNODC 2009c, p. 4. See as well Schloenhardt and Markey-Towler 2016, p. 11. 159 The

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Abuse of a Position of Vulnerability

Abuse of a position of vulnerability is special to the TIP Protocol 2000 as this was the first anti-trafficking instrument to include it as a means element. Since then, its inclusion in several national, regional and international anti-trafficking policies and legal instruments has been widespread.163 It encompasses two elements, namely: the existence of vulnerability on the side of the victim and the abuse or the intention to abuse that vulnerability as a means with the intention to exploit.164 Thus, abuse of a position of vulnerability includes vulnerability as comprising a susceptibility to trafficking and abuse of that vulnerability as a means of trafficking. Due to the lack of a definition in the TIP Protocol 2000, ascertaining its exact meaning has been subjected to several interpretations. The Travaux Préparatoires contains an interpretative note clarifying that abuse of a position of vulnerability refers to “any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved”.165 The note defines neither the situation (existence) of vulnerability nor the meaning of “real and acceptable alternative”. While a multi-disciplinary term, vulnerability, in the context of trafficking, appears to contemplate physical, psychological, economic family-related, legal or emotional factors.166 It consists also of the inherent, contextual or environmental factors that increase the susceptibility of a person or a group of persons to being trafficked. Broadly, these include such factors as: illegal residence in a country or lack of legal status, economic dependence, poverty, inequality, unemployment, humanitarian emergencies such as armed conflicts or natural disasters, social exclusion, sexual violence or gender discrimination, age, disability, cultural or ethnic circumstances such as belonging to indigenous minorities or communities, migration, international displacement and deprivation of liberty.167 Negating consent through abuse of any of these factors of vulnerability in order to move someone into exploitation will amount to trafficking. A clear examination of these factors indicates that it is impossible to generalise the existence of vulnerability or susceptibility to trafficking. Assessment needs to be conducted on a case-by-case basis, taking into account the situational, circumstantial 163 Council of Europe/United Nations Study 2009, p. 79; UNODC Model Law 2009, p. 10; Gallagher

2013, p. 13 et seq.; SAP-FL 2009, pp. 1–8; UNODC 2009a, pp. 1–10; UNODC Legislative Guide 2004, pp. 265–269; European Union Directive 2011/36/EU, Article 2(2); National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children 2016, p. 12. 164 UNODC Human Trafficking and Migrant Smuggling Section 2012, p. 1; National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children 2016, pp. 12–13. 165 UNODC Travaux Préparatoires 2006, p. 347; National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children 2016, pp. 12–13. 166 CoE Anti-Trafficking Convention Explanatory Report 2005, para 83; Gallagher 2013, pp. 13–14; EUROPOL 2016, p. 6. 167 Gallagher and McAdam 2018, p. 186; UNODC Model Law 2009, p. 10; Council of Europe/United Nations Study 2009, p. 79; Gallagher 2013, pp. 13–14; Ibero-American Judicial Summit 2008, Section 2; Daniel-Wrabetz and Penedo 2015, pp. 2-–3. See also Fredette 2009, p. 116.

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or personal situation of the victim.168 Regarding real and acceptable alternative, opinions differ. On the one hand, the interpretative note contained in the Travaux Préparatoires uses “real and acceptable alternative”, thereby indicating that real alternative and acceptable alternative need to be established together. On the other hand, the European Union Directive 2011/36/EU uses “real or acceptable alternative”, thereby indicating that any of either option might suffice.169 It appears that real or acceptable alternative means that the abuse must be serious such that it negates consent. Otherwise, it is impossible to amount to a means of trafficking. While it is unclear as regards the actual meaning of these words or how one establishes the existence of an alternative, it appears reasonable to approach this question from the victim’s point of view, taking into account the personal circumstances and characteristics. The victim’s vulnerability must be abused resulting in putting a person in a situation where one believes that to submit to the perpetrator is the only real or acceptable option available to him or her.170 It appears that in the subjective mind of the victim, because of the abuse involved, he is unable to see any other alternative to pursue which is real, possible or reasonable in his coercive environment to avoid being trafficked. This makes abuse of a position of vulnerability a subtle form of coercion. Thus, it is not unreasonable to argue that in most situations of trafficking, the vulnerability of the victims and its abuse is predominant and that this as a means element becomes convincing when augmented by the presence of other means of trafficking. It appears also that addressing vulnerabilities is an important approach in fighting and preventing trafficking in persons.171

2.4.2.6

Giving or Receiving Payments or Benefits

This method appears to contemplate two situations. The first is a situation where one person possesses control over another person who is in a vulnerable position but a third person or the trafficker, by achieving the consent of the person with control, moves the vulnerable person into exploitation. The trafficker achieves or gains the consent of the controlling person by giving payments or benefits to the controlling person. It is not clear whether the controlling person needs to know the criminal intention of the trafficker. From the way the provision has been drafted, it can be argued that the controlling person lacks that knowledge. However, the possibility that the controlling person can be an accomplice and therefore, having knowledge, is not excluded because practice has shown that parents and persons who control the decision making capacities of others, especially in the family setting, have 168 UNODC

Human Trafficking and Migrant Smuggling Section 2012, p. 2. Union Directive 2011/36/EU, Article 2(2). 170 UNODC Human Trafficking and Migrant Smuggling Section 2012, p. 2. 171 Gallagher 2013, pp. 14–15. On the international nature of this obligation, see Organised Crime Convention 2000, Article 31(7); TIP Protocol 2000, Articles 9(1), 9(5); Directive 2011/36/EU, Article 18(2); CoE Anti-Trafficking Convention 2005, Article 5(2); SAARC Convention 2002, Articles VIII(2), VIII(7); ASEAN Convention 2015, Article 11(4). 169 European

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been complicit in trafficking cases.172 In such situations, the legislation might state or criminalise their participation as a criminal offence of trafficking in persons.173 The second is a situation where the trafficker receives payments or benefits so that he achieves or gains the consent of the controlling person and thereby obtaining the vulnerable person for trafficking. The second situation actually includes also the controlling person who receives payments or benefits and acts with knowledge and, therefore, complicit in leading the vulnerable person to trafficking. These two situations suggest that the perpetrator or trafficker is a person in a relationship of trust with the controlling person and/or has a form of power which he or she abuses.174 They also indicate that the controlling person is as well as a person in a position of trust to the trafficked person. The TIP Protocol 2000 and the Travaux Préparatoires do not define or give a decisive understanding of this concept. For that matter, it has been subjected to several explanations. The early wording, as indicated in the Travaux Préparatoires, indicated that payments and benefits were unlawful.175 When used in the context of child trafficking, the Travaux Préparatoires provides that “giving of payments or benefits to achieve the consent of a person having control of a child”,176 indicating that a vulnerable person is a person such as a child or a person incapable of giving any reasonable, meaningful and valid consent.177 In the course of negotiating the TIP Protocol 2000’s text, this means was bracketed because some delegations took the opinion that other means such as fraud, deception, force or inducement can cover or include this method.178 This might mean that the giving or receiving of payments or benefits to achieve the consent of a person having control of another person can, for example, be included in the abuse of power or a position of vulnerability. In actual sense, the constitutive methods of the means elements seem to interrelate with each other greatly. The reason for having interrelated modes in the means of trafficking is not clear. Some have argued that the drafters intended that “no means of trafficking would be excluded, even if this resulted in overlap and unnecessary inclusions”.179 The clause does not use the “unlawful payments or benefits” phrase. This indicates that the payments or benefits given or received might include either lawful and unlawful payments or benefits. Regarding the nature of control the controlling person has over the vulnerable person and even who actually amounts to the controlling person or the vulnerable person is still not clearly established. For example, is the 172 Ikeora

2018, p. 142. See as well Dottridge 2017, p. 62. Tanzania, such persons are criminally liable under Section 7 which criminalises the offence of trafficking in persons by an intermediary. 174 See, for example, Council of Europe/United Nations Study 2009, p. 79. This understanding of the two scenarios is reinforced partly by the approach taken by South Africa’s Prevention and Combating of Trafficking in Persons Act as quoted by Mollema 2014, p. 248. 175 UNODC Travaux Préparatoires 2006, p. 341. 176 UNODC Travaux Préparatoires 2006, pp. 342–343. 177 See, for example, Council of Europe/United Nations Study 2009, p. 79. 178 UNODC Travaux Préparatoires 2006, p. 343. 179 Gallagher 2013, p. 19. 173 In

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control exercised extend to include de facto control such as that exercised in the employer-employee relationship or is only limited to de jure control such as that of a parent over a child?180 If it includes a parent-child control, there is a strong case to argue against. As a rule, child trafficking does not require one to establish the means element of trafficking.181 It requires only the first part of the action element and the purpose element of trafficking. The second part of the action element, the means element of trafficking, does not form the material element of trafficking in children.182 The rationale is that children, because of their vulnerable and disadvantaged position, are prone to trafficking. The law creates an irrefutable presumption that children will never consent to trafficking and therefore, the means element is rendered obsolete in their case.183 More research, therefore, is still needed in this area.

2.4.3 Purpose Element of Trafficking The purpose element explains why trafficking is done. The main objective of trafficking is exploitation. It is the mental element or the mens rea of the offence.184 It is the ultimate purpose of the action and means used. The purpose element reflects the trafficker’s state of mind for the offence of trafficking. Even when action and means elements are present, if there is no purpose element, the trafficker cannot be convicted of trafficking. The purpose element, however, needs not to be evidenced by actual exploitation. It can be inferred from the action and the means elements employed, which if the trafficking process was not interfered, would have resulted in actual exploitation. Since it is the purpose that matters as opposed to the actual practical results, the mental element of trafficking is the special intent or dolus specialis, the purpose or intention aimed at by the perpetrator when carrying on the action and means elements of trafficking.185 It is, therefore, enough that by the actions and means employed, the perpetrator purposed that exploitation should occur. This makes trafficking a serious crime which is completed at a very early stage of its commission.186 Furthermore, the justification for this position is found in the TIP Protocol 2000 itself. The TIP Protocol 2000 talks about “intended exploitation”,187

180 Gallagher

2013, p. 33. Protocol 2000, Article 3(c). See also Stevens 2006, p. 663. 182 Aronowitz 2009, p. 2. 183 UNODC Global Report on Trafficking in Persons 2012, p. 15. See further Kruger 2016, pp. 61–62; Scarpa 2008, p. 5; Piotrowicz 2012, p. 190. 184 Heintze and Lülf 2016, p. 157; ICAT 2012, pp. 2–3; Lansink 2006, p. 49; Mahdavi 2011, pp. 16–17; Kranrattanasuit 2014, p. 1. 185 Siller 2016, p. 418; Jovanovic 2017, p. 50; UNODC 2009a, p. 5; Gallagher and McAdam 2018, p. 186; Mahmood 2019, pp. 38–39. 186 Jovanovic 2017, p. 49. 187 TIP Protocol 2000, Article 3(b). 181 TIP

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thereby indicating that one can be convicted of trafficking even when actual exploitation has not taken place and the list of exploitative forms of trafficking operates to confirm this understanding.188 In addition, where a victim of trafficking is subjected to slavery as the result of trafficking, his or her offender can be prosecuted either for the crime of trafficking, the crime emanating from the form of exploitation such as slavery, for both crimes of trafficking and slavery or where proving trafficking is difficult, for the other crime of slavery only.189 The term “exploitation” itself, like the action and means elements, is not defined in the TIP Protocol 2000.190 The TIP Protocol 2000, however, explains exploitation by examples or incidences of exploitation. It provides that “exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.191 It needs to be emphasised here that these forms of exploitation are not trafficking in themselves and neither is trafficking any of these forms on their own.192 Rather, they are forms of exploitation through which trafficking is perpetrated. The TIP Protocol 2000, nevertheless, states categorically that the incidences of exploitation it sets are “at a minimum”, indicating that the list is not exhaustive. It allows states parties, when criminalising the crime of trafficking, to go beyond the parameters of the TIP Protocol 2000 so as to consider peculiar characteristics of trafficking in persons in their respective countries.193 The rationale was that at the time of drafting the TIP Protocol 2000, the drafters knew that in the future other forms of trafficking exploitative end results will emerge which were not foreseeable when the TIP Protocol 2000 was drafted.194 Having a closed provision would have meant that new exploitative results of trafficking will be left uncriminalised and unpunished. The consequence would have been putting vulnerable people or groups into more susceptibility to trafficking while allowing traffickers to act with impunity. It is very important to emphasise here that what the TIP Protocol 2000 sets as the minimum forms of exploitation, international law recognises them as the gravest and severest forms of human exploitation.195 This entails an understanding that these forms being the minimum and the most serious, the forms of human exploitation that will be criminalised later by states parties will be of a lesser degree in comparison to these. Also, the TIP Protocol 2000 does not include the element of profit in the final 188 Dandurand

2012, p. 217; EUROPOL 2016, p. 5; Obokata 2006, p. 20. as cautioned by ICAT, “This may, however, have a number of undesirable consequences, including the inability of trafficked persons to access appropriate services and that any criminal justice action under non-TIP laws may not show up in counter-TIP data”, ICAT 2016, p. 35. 190 Dottridge 2017, p. 61. As to the advantage of not defining what exploitation is but rather to consider it as a “continuum of exploitation”, see Skrivankova 2018, pp. 109–111; Gallagher 2017, p. 99. 191 TIP Protocol 2000, Article 3(a). On exploitation and the advantages of the term remaining undefined, see Skrivankova 2018, pp. 109–119. 192 This is particularly acknowledged by Munk, see Munk 2010, p. 19. 193 Dottridge 2017, p. 61; Chuang 2017, p. 112; Gallagher 2017, p. 100. 194 UNODC Travaux Preparatoires 2006, pp. 343–344. See also Fredette 2009, p. 114. 195 Kelley 2017, p. 65; Lasocik 2010, p. 21. 189 But

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element of exploitation, representing an intentioned move on the part of the drafters of the TIP Protocol 2000 not to restrict its scope.196 As it is with exploitation, the forms or incidences of exploitation listed in the TIP Protocol 2000 are left undefined. Nevertheless, international law has extensive provisions that deal with crimes such as slavery, practices similar to slavery, servitude and forced labour.197 The TIP Protocol 2000 already provides a savings clause to the effect that the rights, obligations and responsibilities of individuals and states arising from the TIP Protocol 2000 will not affect individuals’ and states’ obligations, rights and responsibilities under international law.198 Thus, the TIP Protocol 2000 takes note that international law is of great assistance in understanding most of its concepts, especially the forms of exploitation.

2.4.3.1

Prostitution of Others and Other Forms of Sexual Exploitation

In international law, the fight against trafficking came into being through the fight against prostitution. The 1904–1949 international anti-trafficking legal instruments considered prostitution as the sole reason or end purpose of trafficking.199 This explains why the 1904–1949 instruments took an abolitionist approach to prostitution. The 1933 and 1949 anti-trafficking instruments called upon states parties to criminalise the procurement of women or girls under age for prostitution, irrespective of whether there was consent or not.200 Except for the 1949 Convention, these instruments were more concerned with criminalising the process of recruitment, not the outcome. The latter part was considered a matter reserved to the domestic laws of member states.201 The TIP Protocol 2000 restates the principle that meaningful consent cannot be given when consent-nullifying means have been used and that the TIP Protocol 2000 addresses the exploitation of the prostitution of others and other forms of sexual exploitation only in the context of trafficking.202 Therefore, the TIP Protocol 2000 does not criminalise prostitution neither does it call upon states parties to criminalise prostitution.203 The TIP Protocol 2000 deliberately does not define the terms “exploitation of the prostitution of others” or “other forms of sexual exploitation”. 196 Gallagher

2015a, b, p. 26. 2017, pp. 65–74. 198 TIP Protocol 2000, Article 14. 199 Dottridge 2017, pp. 65–66. See also Stoyanova 2017, pp. 22–23; Fredette 2009, p. 108; Bruch 2004, p. 2; Matter 2006, p. 7. 200 1933 International Convention, Article 1; 1949 Trafficking Convention, Article 1. 201 Gallagher 2010, pp. 14–15. 202 TIP Protocol 2000, Article 3(b); UNODC Travaux Préparatoires 2006, p. 347. See also Goodey 2003, pp. 157–159; Kelley 2017, pp. 69–70; Heintze and Lülf 2016, pp. 157–158; Cole 2006, pp. 795–796. 203 In this sense, the argument made by Zheng that the TIP Protocol 2000 defines sex work as a “coercive form of sexual exploitation” and that every sex worker is a trafficked victim, is unfounded, see Zheng 2010a, b, p. 2. 197 Dottridge

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The rationale was that these are matters to be regulated by domestic laws of the states parties and not the TIP Protocol 2000 which is not an anti-prostitution instrument.204 This was also based upon the understanding of the sharp and divergent views states have had on prostitution and sexual exploitation as evidenced by the 1904–1949 anti-trafficking instruments. Generally, the term “exploitation of the prostitution of others” seems to refer to the “unlawful obtaining of financial and other material benefits from the prostitution of another person”. The word “unlawful” was added to explain that the unlawfulness must be in accordance with the national laws on prostitution.205 Thus, the TIP Protocol 2000 urges states parties to criminalise the conduct of the perpetrator who unlawfully benefits financially and materially from the exploitation of the prostitution of others. This serves also to differentiate the term from prostitution per se where it is the person who benefits from her or his own prostitution. The term “other forms of sexual exploitation” though undefined, appears to contemplate other forms of exploitation, in which the perpetrator unlawfully obtains financial or other benefits through the involvement and exploitation of another person’s sexuality apart from the exploitation of the prostitution.206 The UNODC Model Law considers sexual exploitation to encompass “prostitution, sexual servitude or other kinds of sexual service, including pornographic acts or the production of pornographic materials”.207 Still, explaining or providing the exact meaning of sexual exploitation in adults seems to be difficult due to the lack of a commonly agreed-upon definition or even a clear criterion for such a definition. The US Department of Justice, World Health Organization (WHO), the UN, Global Alliance Against Trafficking in Women, the EU and several other institutions all have differing opinions regarding sexual exploitation. Their views range across enforced prostitution, false or enforced marriages and work situations that encourage sexual exploitation, sexual servitude, production of pornographic materials, profiting monetarily, politically or socially from such exploitation, engaging in sex with prostitutes, pandering, pimping, procuring and profiting from prostitution, child pornography and maintaining a brothel.208 Its meaning is still not clear even when sexual exploitation is used in connection with the exploitative use of children in prostitution and similar practices.209 Drafters of the TIP Protocol 2000 deliberately decided to leave the term undefined. This was because the term is subject to a differing range of interpretations presenting a danger of subsuming all activities in the sex industry into sexual exploitation, thereby 204 Jordan

2002, p. 4; Scarpa 2008, pp. 5–6; South African Law Reform Commission 2006, p. 15 para 2.16; International Labour Office 2005, p. 10; Heintze and Lülf 2016, p. 157. 205 UNODC Model Law 2009, pp. 13–14. 206 Banda 2013, p. 83. See as well Dottridge 2017, p. 66. 207 UNODC Model Law 2009, p. 19. In support of this approach, see Müller 2016, p. 287. 208 Gallagher 2010, p. 39. See also Dottridge 2017, p. 67. 209 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (1989), entered into force 2 September 1990, Article 34; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature 25 May 2000, 2171 UNTS 227 (2000), entered into force 18 January 2002, Article 3.

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reducing the anti-trafficking instrument into an anti-prostitution or anti-pornography instrument. Also, it was debatable whether the element of profit should be included in the definition of sexual exploitation. Although it was rejected, several interpretations after the TIP Protocol 2000 came into force tend to include the profit element into their definitions. Another reason was that sexual exploitation was left undefined so as not to prejudice how states parties define the term in their domestic laws.210

2.4.3.2

Forced Labour or Services

Since the TIP Protocol 2000 does not define what forced labour or services is, the work of the International Labour Organization (ILO) becomes relevant. The ILO Convention No. 29 (1930) defines forced or compulsory labour to mean “all work or services which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.211 The definition consists of three main elements, namely: work or service; menace or threat of any penalty; and involuntary offer.212 In other words, a person provides some form of work or service to another person, the work or service is rendered under the threat of any penalty and the person performs the work or service involuntarily. Involuntariness reflects the subjective element while the work or services rendered under the threat of any penalty for non-performance represent the objective element of the crime of forced labour.213 Several exceptions are recognised in relation to forced or compulsory labour. Forced labour is not determined by the type of performed work or service which might be legal or illegal under national law. Forced labour is also not defined by poor working conditions, low wages, situations of pure economic necessity or its recognition as an economic activity. Neither does it include things such as compulsory education or training.214 It is the nature of the relationship between the person doing the work or service and the person exacting or ordering the work or service that depicts the presence of forced labour.215 The relationship between the parties helps to identify all the required elements of forced labour. As regards the penalty, it does not need to be penal sanctions. It can include a loss of rights, advantages, benefits and privileges by the worker such as transfer, promotion, access to new employment 210 UNODC

Travaux Préparatoires 2006, pp. 334, 340, 342, 347. Concerning Forced or Compulsory Labour, opened for signature 28 June 1930, 39 UNTS 55, ILO No. 29 (1930), entered into force 1 May 1932, Article 2(1); Convention Concerning the Abolition of Forced Labour, opened for signature 27 June 1957, 320 UNTS 291, ILO No. 105 1957, entered into force 17 January 1959, Article 1. 212 SAPL-FL 2012, p. 19; SAPL-FL 2009, pp. 12–13; Director-General ILO Global Alliance 2005, pp. 5–6. 213 Gallagher 2010, p. 35. 214 International Labour Conference 1979, para 20; UNODC Model Law 2009, p. 14; DirectorGeneral ILO Global Alliance 2005, p. 5. 215 UNODC Model Law 2009, p. 14; Working Group on Trafficking in Persons 2010, para 18; SAPL-FL 2012, p. 19; International Labour Organzation 2015, pp. 10–11. 211 Convention

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opportunities, education opportunities and even housing.216 Menace of a penalty is a broad phrase that includes both extreme and subtle forms of penalties. The extreme forms can be physical violence or even death threats directed to the victim or relatives. In other words, the menace of a penalty includes actual violence or threats. The subtle forms can be psychological or financial such as threats to incriminate victims to the immigration or police authorities for having illegal employment status, economic penalties, threats to confiscate identity or travel papers of the worker and even loss of payments or wages together with threats of dismissal in case the worker declines to work overtime, even when doing so is against the scope of his contract or national law.217 Concerning a voluntary offer, several factors need to be borne into consideration. The overarching goal is to establish whether the worker gave a free, informed and willing consent and whether he continues to retain the ability to offer or refuse his consent any time in the course of his labour. It can happen that the worker’s consent was manipulated or was not premised on an informed decision. It is possible also that the worker was recruited voluntarily only to be kept in an exploitative situation whose effect is to negate voluntary consent.218 Forced labour in the context of trafficking entails that where the person is recruited or even maintained in an exploitative situation by the use of the consent-nullifying means, meaningful consent is completely vitiated.219

2.4.3.3

Slavery

Although not defined in the TIP Protocol 2000, there is a sufficient international legal framework on the subject of slavery. Some have argued that the prohibition of slavery has attained the status of jus cogens, thus an obligation erga omnes to the international community.220 It is not surprising to find that several times when the UN calls upon states to ratify anti-trafficking instruments or take action against trafficking, it has equally called upon its member states to ratify anti-slavery conventions.221 In this connection, judgments touching on the question of slavery and enslavement in relation to trafficking in persons have been issued by national and regional courts 216 International Labour Conference 1968, para 27; International Labour Office 2005, p. 20; SAPL-

FL 2009, p. 12. Model Law 2009, p. 15; SAPL-FL 2009, p. 12. 218 SAPL-FL 2009, pp. 12–13; Director-General ILO Global Alliance 2005, p. 6; International Labour Conference 2007, pp. 20–21. 219 Kane 2013, p. 119. 220 Scarpa 2008, p. 78; Jeßberger 2016, p. 330; Pocar 2007, p. 9. As regards the principles of jus cogens and obligations erga omnes, see Kadellbach 2006, pp. 21–40; Czapli´nski 2006, pp. 83–97; Memeti and Nuhija 2013, pp. 31–47; Bassiouni 1996, pp. 63–74; Frowein 1981, pp. 327–329; Welch, Jr. 2009, pp. 74–75. 221 As to the list of instruments and resolutions in which the United Nations and its bodies have called upon states to do so, see Gallagher 2008, p. 417. On slavery and trafficking, see, generally, Allain 2018, pp. 3–12. 217 UNODC

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as well as internationalised domestic and international criminal tribunals, including the European Court of Human Rights (ECHR),222 International Criminal Tribunal for the former Yugoslavia (ICTY),223 the High Court of Australia224 and the Special Court for Sierra Leone.225 Further, the Rome Statute of the International Criminal Court (ICC) has also criminalised the crime against humanity of enslavement as well as the war crime and a crime against humanity of sexual slavery.226 At the same time, there has been a serious conflation of slavery with almost every form of human exploitation and trafficking in persons.227 Prostitution, forced labour, organ trafficking, child adoption, begging and diverse other forms of human exploitation, including trafficking itself, have collectively been referred to as modernday slavery, modern forms of slavery and slavery-like practices.228 Thus, slavery and trafficking are presented as a mantle that covers all forms of human exploitation.229 This tendency, considered by Chuang as amounting to “exploitation creep”, has ended up obfuscating the actual meaning of slavery in international law.230 Although its use intends to arouse emotional and moral reaction attached to the states’ disapproval of the historical slavery and the slave trade, it also has ended up obscuring its actual meaning. Some even have gone further to offer a new definition of trafficking in

222 European

Court of Human Rights Second Section, Case of Siliadin v. France, Human Rights Judgment, 26 July 2005, Application No. 73316/01; European Court of Human Rights First Section, Case of Rantsev v. Cyprus and Russia, Judgment (Merits and Just Satisfaction), 7 January 2010, Application No. 25965/04; European Court of Human Rights Fourth Section, Case of C.N. v. The United Kingdom, Human Rights Judgment, 13 November 2012, Application No. 4239/08. See also Schabas 2015, pp. 201–218; ECOWAS Community Court of Justice, Hadijatou Mani Koraou v. Republic of Niger, Human Rights Judgment, 27 October 2008, Judgment No. ECW/CCJ/JUD/06/08 and its considered discussion by Allain 2009c, pp. 311–317. 223 International Criminal Tribunal for the Former Yugoslavia Appeals Chamber, Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Criminal Judgment, 12 June 2002, Case No. IT-96-23 & IT-96-23/1-A. 224 High Court of Australia, The Queen v Tang, Appeal Judgment, 28 August 2008, [2008] HCA 39. For extensive commentary regarding The Queen v Tang, see Allain 2009e, pp. 246-257. 225 Special Court for Sierra Leone Trial Chamber II, Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Trial Judgment, 20 June 2007, Case No. SCSL-04-16-T. 226 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 1998, entered into force 1 July 2002, Articles 7(1)(c), 7(1)(g); 8(2)(b)(xxii); 8(2)(e)(vi) (Rome Statute). 227 But as noted by the European Parliament: “Whereas THB (or trafficking in persons) as a concept is distinct from slavery and broader discussions of exploitation; whereas not all types of exploitation would qualify as THB” (emphasis supplied), European Parliament 2016, para AB. See as well Dottridge 2017, pp. 75–77. 228 Nanu 2010, p. 142; Scarpa 2008, pp. 3–4; Schrover 2015, p. 44; Welch, Jr. 2009, p. 77; Hauck and Peterke 2010, p. 418. 229 Olaniyi 2003, p. 45; Elabor-Idemudia 2003, p. 104; Scarpa 2008, pp. 1, 3; Suchland 2015, pp. 6–10; Welch, Jr. 2009, pp. 97–98. 230 Chuang 2014, p. 611; Weitzer 2014, p. 8; Gallagher and Ezeilo 2015, p. 931; Vijeyarasa and Villarino 2013, p. 39.

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persons, arguing that the difference between trafficking and slavery is merely that of “linguistic attenuation”.231 To clarify the actual position of what amounts to slavery in international law in relation to trafficking in persons, the beginning point is the 1926 Slavery Convention.232 This is because, by leaving slavery undefined, the drafters of the TIP Protocol 2000 well knew that the actual meaning of slavery can be ascertained from the international legal framework. Article 1(1) defines slavery to mean: The status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.

This definition is produced verbatim in the 1956 Supplementary Slavery Convention.233 This definition states that for slavery to exist, two elements must be shown to exist: (a) the enslaved person must be in either the status or condition and (b) there must be the exercise, by the enslaving person, of any or all of the powers attaching to the right of ownership, over the enslaved person. The term status is defined in the Cambridge Dictionary to mean, inter alia, “the official or legal position of a person”.234 When taken as a legal term, the Oxford Dictionary traces the original meaning of the term status to mean “legal standing”.235 Thus, status denotes a legal concept. The drafting history of the 1926 Slavery Convention admits to this interpretation.236 Likewise, the 28 August 2008 judgment of the High Court of Australia in the case of The Queen v Tang confirms that status “is a legal concept” as applied in Article 1 of the 1926 Slavery Convention.237 Concerning the term condition, the Online Oxford Dictionary defines the term, among others, to mean “a characteristic, property, attribute, quality (of men or things)”.238 While the term condition also has a legal meaning, that cannot be applied in this context as the term status already captures the legal aspect. As defined by the Oxford Dictionary, the term denotes characteristics or attributes of a person or a thing. This implies a

231 Kara

2009, pp. 4–6. See also Davidson 2006, p. 6. It is on the basis such as this that Tavakoli proposes to reclassify trafficking in persons as an international crime for effective prosecution and prevention by the international community, Tavakoli 2009, pp. 84 et seq. 232 Convention to Suppress the Slave Trade and Slavery, opened for signature 25 September 1926, 60 LNTS 254 (1926), entered into force 9 March 1927 (1926 Slavery Convention). 233 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, opened for signature 7 September 1956, 226 UNTS 3 1956, entered into force 30 April 1957, Article 7(a) (1956 Supplementary Slavery Convention). See also Pati 2011, p. 112. 234 “Status”, Online Cambridge Dictionary. https://dictionary.cambridge.org/dictionary/english/ status. Accessed 8 August 2018. 235 “Origin of the Word Status in the Legal Sense”, Online Oxford Dictionaries. https://www.lex ico.com/definition/status. Accessed 8 August 2018. 236 Allain 2008, pp. 32, 33, 55; Siller 2016, p. 408. See as well Davidson 2017, p. 166. 237 The Queen v Tang 2008, para 25. 238 “Condition”: http://www.oed.com/view/Entry/38550?rskey=rxwkfP&result=1&isAdvanced= false#eid. Accessed 8 August 2018.

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factual as opposed to a legal concept. The 1926 Slavery Convention Travaux Préparatoires,239 court decisions240 and the writings of prominent commentators241 in this area confirm that the term condition was inserted to deal with slavery in the factual as opposed to the legal sense. The two terms are differentiated with the conjunction “or” indicating that they are different and that they can exist in the alternative. Considered in this light, the terms status and condition refer to both de jure slavery and de facto slavery. Thus, status refers to slavery as recognised and enforced by law against another person, save that the law does not recognise such right over a person, and condition refers to slavery as recognised factually, for example, by customs or cultural traditions, but which the law neither recognises nor enforces.242 This means that the prohibition on slavery is not as restrictive as to not extend beyond slavery de jure243 and is not as expansive and all-embracing as to go beyond de facto slavery so as to easily encompass forced or compulsory labour, trafficking in persons and other crimes.244 The exercise of any or all of the powers attaching to the right of ownership is what distinguishes slavery from all other forms of human exploitation that are not slavery.245 This has been called the “actus reus” of the crime of slavery.246 The provision does not speak about “the exercise of the right of ownership”. This is because the law does not recognise nor confer the exercise of the legal right of ownership by one person over another as if that person was a thing or a property.247 Had the drafters intended that to be the meaning, the provision would have read that slavery is the “exercise of the right of ownership over a person” or the “the status of a person over whom the right of ownership is exercised”. The absence of this language indicates that the drafters never recognised the existence of such a right in law. Even when the drafters never recognised the existence of such right in law, they still sought to outlaw such a practice should the law of a certain country allow. For this reason, the provision admits that one can only exercise the “powers attaching” to the right of ownership, not the right of ownership itself. Put it differently, while one cannot possess a legal right of ownership over another person, he can exercise powers that are inherent in the legal right of ownership, save that such an arrangement is 239 Allain

2008, p. 75. example, The Queen v Tang 2008, 39, para 25. 241 For example, Allain 2008, p. 166. See also Stoyanova 2017, p. 6; Hall and Stahn 2016, p. 191. 242 Duffy 2008, p. 10; Allain 2007, pp. 11–15; Allain 2007, pp. 48–52; Working Group on Trafficking in Persons 2010, paras 20–21. See also Arocha 2010, p. 31. 243 As it was held in Siliadin v France 2005, para 122. Some authors have rejected this approach, see for example, McGeehan 2012, p. 440. 244 As it was held in Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic 2002, para 117 and also stated by Weissbrodt and Anti-Slavery International 2002, paras 11–12; Happold 2009, p. 603. Some authors have rejected this expansionist view, see for example, Gallagher 2009, pp. 800–810. See as well Siller 2016, p. 408. 245 Vijeyarasa and Villarino 2013, p. 57; Gallagher 2012, paras 3–4. 246 The Queen v Tang 2008, para 28. 247 The Queen v Tang 2008, para 33. 240 For

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not recognised in law.248 It is for this reason that much as Article 1(1) of the 1926 Slavery Convention proscribes against slavery de jure, it equally deals with and outlaws slavery de facto as well. For example, two armed robbers steal a car. A conflict ensues among them as who should own it. In any way, they cannot go to the court of law for a determination of a right of ownership because such right from the theft the law never recognises. Nevertheless, one of them will exercise the powers that are naturally attached to the legal right of ownership as if the car had been legally acquired. It follows from this discussion that for slavery to exist, it must be shown that the enslaving person has control over the enslaved person as if possessing a thing.249 It must be clearly manifested that the enslaving person exercises control tantamount or analogous to possession over the enslaved person.250 It is pertinent to establish this condition because the exercise of any or all of the powers attaching to the right of ownership depends on the existence of control of a person tantamount or analogous to possession.251 Such control, which fundamentally deprives a person of his liberty, can be done through actual violence, threats of violence as well as coercion or deception and this goes beyond physical control of a person. Once possession is established, then any or all of the powers attaching to the right of ownership can be established. Quoting the 1953 Secretary-General of the United Nations’ Memorandum, Allain presents some of the attributes that indicate the presence of the powers attaching to the right of ownership as including: reducing the enslaved individual into the object of purchase; the use of the enslaved individual as the master wishes, including using him in an absolute manner; appropriation of the products of labour of the enslaved person into being the property of the master without any compensation commensurate to the value of the labour; transferability of the ownership of the enslaved individual to another person; permanence of the status or condition of slavery which cannot be terminated at the will of the enslaved person; and the transferability of the slavery status or condition to the descendants of the enslaved individual.252 The presence of any or all of these powers attaching to the right of ownership presents strong evidence of the existence of slavery as recognised in law. The Rome Statute of the ICC criminalises the crime against humanity of enslavement.253 It defines the term enslavement to mean:

248 Allain

2017a, b, pp. 49–51. Model Law 2009, pp. 19-20; The Queen v Tang 2008, paras 38, 89, 95. 250 Allain 2017a, b, p. 39. For an extensive discussion on the paradigm of property ownership and its relation to the definition of slavery, see also Allain and Hickey 2012, pp. 915–938. 251 Research Network on the Legal Parameters of Slavery 2012, guidelines 2, 3. 252 Allain 2007, pp. 13–14; The Queen v Tang 2008, para 26; Allain 2017a, b, pp. 40–43. See also Happold 2009, p. 603; Siller 2016, pp. 409–411. 253 As regards the historical genesis of the crime of enslavement, see Bassiouni 1990, 1991a, pp. 445– 517, 1991b, pp. 663–704. 249 UNODC

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The exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.254

In substance, this definition of enslavement reflects the definition of slavery as contained in the 1926 Slavery Convention, thus acknowledging that the 1926 Slavery Convention’s definition of slavery reflects the position in international law. Where all the elements of the crimes against humanity are satisfied255 and where it is shown that any or all of the powers attaching to the right of ownership are present, the ICC will have jurisdiction. The last part of the definition, “and includes the exercise of such power in the course of trafficking in persons, in particular women and children”, does not add any new definition of enslavement or slavery as recognised in international law. Rather, it brings to the attention of those applying the Statute that in the course of trafficking, conditions can develop such that there can be manifested any or all of the powers attaching to the right of ownership.256 Only in this case and upon fulfilment of the contextual element can trafficking be brought to the jurisdiction of the ICC as a crime against humanity of enslavement.257 For that matter, it is worthy to stress here that the Rome Statute does not criminalise trafficking as a crime against humanity of enslavement nor does it equate trafficking with enslavement, the reason being that generally trafficking is not an international crime as such.258 The Rome Statute only recognises the possibility of trafficking exhibiting the presence of any or all of the powers attaching to the right of ownership, thereby becoming enslavement, where all other elements of the crimes 254 Rome

Statute, Article 7(1)(c), 7(2)(c). see as well Cryer et al. 2010, pp. 247–249.

255 Werle and Jessberger 2014, pp. 334–347; Ambos 2014, pp. 50–77; Cole and Vermeltfoort 2018,

p. 20; Tavakoli 2009, p. 81. On the controversial analysis of how the contextual element of the crimes against humanity can readily be fulfilled in the context of trafficking in persons see Atak and Simeon 2014, pp. 1036–1037; Obokata 2006, pp. 136–139. 256 Allain 2013, pp. 12–13. See as well Hall and Stahn 2016, p. 262. 257 Van der Wilt 2014, pp. 305–306; Piotrowicz 2012, p. 185. Pocar posits that the way trafficking in persons results into exploitation and control of one person by another, it also can be subsumed in the Rome Statute’s catch-all provision of Article 7(1)(k) of “other inhuman acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, Pocar 2007, pp. 7–8. While this approach is plausible, nevertheless, it must be shown that all the elements of the crimes against humanity have been fulfilled, including the policy element. A similar approach of reasoning is taken by Obokata when he argues that the crime of trafficking can be argued from the Rome Statute’s crimes against humanity of torture, forced transfer of population and deportation, see Obokata 2006, pp. 124–127. Seeing the limitation and difficulty of including or prosecuting the crime of trafficking in persons as a crime against humanity, Moran proposes for the use of the “threshold requirements of the crime of genocide as a theoretical model” to criminalise and prosecute trafficking as an independent “core crime” under the Rome Statute because the “brutality which occurs when human beings are trafficked for the purposes of sexual exploitation by criminal gangs is of an equally egregious nature” as those crimes listed under article 5 of the Rome Statute, Moran 2014, pp. 33–34, 40 et seq. It seems, however, the approach Moran uses, especially on the establishment of the contextual element of the specific or special intent of the crime of genocide which in the Rome Statute must be established to elevate genocide to international law’s core crimes, is somehow unconvincing when the requirement of the profit to traffickers is added. 258 Sandoz 2009, p. 1065; Cole and Vermeltfoort 2018, p. 20.

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against humanity in the Rome Statute are fulfilled. This is so because the jurisdiction of the ICC encompasses only “the most serious crimes of international concern”,259 for which trafficking does not qualify unless any or all of the powers attaching to the right of ownership are shown to exist, thus elevating the crime of trafficking within the parameters of enslavement.260 The Elements of Crimes to the Rome Statute, while giving more clarification to the elements of the crime against humanity of enslavement, seems to complicate this matter further in relation to the crime of trafficking. In explaining the elements of the crime against humanity of enslavement, the Elements of Crimes provides thus: 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. 2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population. 3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.261 Footnote 11 to the first element clarifies the meaning of “a similar deprivation of liberty” to the effect that: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.262 Before examining this provision in detail, it is important to note here that the first element of the crime against humanity of enslavement is the same and is also applied consistently and verbatim to the crime against humanity of sexual slavery and the war crime of sexual slavery,263 thus indicating that, in substance, sexual slavery is and remains to be slavery with a sexual element.264

259 Rome

Statute, Articles 1, 5. reason for not considering trafficking in persons, in addition to the requirements of the Rome Statute is noted by Hauck who argues that: “Although trafficking in persons appears to be punishable, the reasons for its international disregard are obvious: while the misconduct can be defined clearly in line with Article 3 of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, and while many countries provide for this offence in their domestic jurisdictions, a general and uniform international state practice cannot be detected”, Hauck 2016, p. 464. 261 International Criminal Court Elements of the Crimes 2000, Article 7(1)(c). 262 International Criminal Court Elements of the Crimes 2000, Footnote 11, Article 7(1)(c). 263 International Criminal Court Elements of the Crimes 2000, Article 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi). 264 Allain 2013, p. 14; Commission on Human Rights 1998, para 30. Generally see also Oosterveld 2004, pp. 605–651; Queen’s University Belfast Human Rights Centre Public Submission 2009, paras 1–83; Dörmann 2004, pp. 328–329. 260 Another

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The first element clarifies more on the exercise of the powers attaching to the right of ownership over one or more persons. Such powers include purchasing, selling, lending or bartering such a person or persons. While this list is not exhaustive,265 it still confirms some of the elements exhibiting the exercise of the powers attaching to the right of ownership as enumerated by the Secretary-General’s report quoted above. The first element also introduces another statement to the effect that “or by imposing on them a similar deprivation of liberty”. In effect, that means the imposition of a similar deprivation of liberty over the enslaved person is another example of the exercise of any or all of the powers attaching to the right of ownership of the nature of or similar to purchasing, selling, lending or bartering. Therefore, similar deprivation of liberty is but one of the examples of a power attaching to the right of ownership.266 According to Footnote 11, deprivation of liberty as used in the Elements of Crimes includes also the exacting of forced labour or reducing a person to a servile status as defined in the 1956 Supplementary Slavery Convention. What is the effect of this statement? The effect of the phrase “a similar deprivation of liberty” is to introduce, therefore, other forms of human exploitation and destruction of individual liberty which in and of themselves do not amount to slavery or enslavement under international law. Such forms are introduced in the 1956 Supplementary Slavery Convention, not the 1926 Slavery Convention. In the 1956 Supplementary Slavery Convention, these forms are also referred to as “institutions and practices similar to slavery”. They are also referred to collectively as servitudes or practices similar to slavery. The 1956 Supplementary Slavery Convention lists the four main servitudes as consisting of debt bondage, serfdom, servile marriage and child exploitation.267 These are the four conventional servitudes as recognised in international law. Forced labour is not mentioned as slavery or servitude. However, earlier on in 1926, the Preamble to the 1926 Slavery Convention, read together with Article 5 of the same, reminded states parties to prevent forced labour from “developing into conditions analogous to slavery”. This was a recognition that while forced labour is not slavery, it can develop certain conditions that elevate it into a status tantamount to slavery.268 But what is it that elevates the servitudes and forced labour into practices similar to slavery while in and of themselves are naturally not slavery? It is the same factor mentioned above—the exercise of any or all of the powers attaching to the right of ownership. Therefore, when these servitudes or institutions or practices similar to slavery, which are not slavery in themselves, exhibit in them the exercise of any or all of the powers attaching to the right of ownership they become slavery and fall within the regime of the 1926 Slavery Convention and consequently within the regime of

265 International Criminal Court Trial Chamber II, Prosecutor v Katanga and Ngudjolo Chui, Judg-

ment Pursuant to Article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07-3436, paras 975-976. 266 Allain 2013, p. 17. See as well Mahmood 2019, pp. 39–40. 267 The 1956 Supplementary Slavery Convention, Article 1. See also Schrover 2015, p. 47; Dottridge 2017, p. 62; Pati 2011, p. 111. 268 Dottridge 2017, pp. 67–68.

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the Rome Statute as similar deprivations of liberty.269 The Chapeau to Article 1 of the 1956 Supplementary Slavery Convention even sheds more light in this regard. In effect, it provides that states parties take necessary steps to: bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention (Emphasis added).

By the use of “whether or not”, the 1956 Supplementary Slavery Convention seems to recognise that while the institutions and practices similar to slavery are not slavery, there is a possibility of these institutions being covered by the definition of slavery as contained in Article 1 of the 1926 Slavery Convention. When that possibility is manifested, then the definition of slavery will appropriately apply to the institutions and practices similar to slavery. That possibility, as argued above, can only be reached when these servitudes manifest the exercise of any or all of the powers attaching to the right of ownership.270 This is further buttressed by the fact that a person subjected to any of these servitudes is not referred to as a slave, rather as a person of servile status.271 This language is employed similarly in the Elements of Crimes. Finally in this connection is the last and independent sentence introduced by footnote 11 to the first element of the crime against humanity of enslavement which reads: “It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.” The surface reading of this provision would imply that the Elements of Crimes equate trafficking in persons to the crime of enslavement. This position, however, cannot be sustained as such a construction puts the Elements of Crimes in direct contradiction with the Rome Statute. Considering that the purpose of the Elements of Crimes is to assist the ICC in the interpretation of the Rome Statute,272 it follows that the Elements of Crimes must be interpreted consistently with the Rome Statute, which as has been shown, does not equate trafficking with the crime against humanity of enslavement. The proper understanding of this last sentence lies in what the sentence itself says: the conduct described “in this element”. Which element? It is part of the last phrase, that of “a similar deprivation of liberty”, the first element of the crime against humanity of enslavement in the Elements of Crimes. Taken in this light, the effect of the last sentence to Footnote 11 becomes obvious— only when trafficking exhibits the presence of the exercise of any or all of the powers attaching to the right of ownership, as it is with the institutions and practices similar to slavery, can it fall within the ambit of the crime against humanity of enslavement.273 269 Further

see Mahmood 2019, pp. 39–40.

270 Triffterer and Ambos 2016, p. 260; Allain 2013, pp. 19–20. See also Dottridge 2017, pp. 67–68. 271 The

1956 Supplementary Slavery Convention, Article 7(b). See also Scarpa 2008, p. 48; Mahmood 2019, pp. 39–40. 272 Rome Statute, Article 9. 273 Allain 2013, p. 22. In this sense, the argument by Pocar that “human Trafficking should be qualified as a crime against humanity, both under general international law and the Statute of the

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This interpretation is sound as it retains the purpose of why the ICC was established: only to deal with the most serious crimes of concern to the international community, not every lesser form of human exploitation. In substance, trafficking is a wider concept and more expansive than slavery or practices similar to slavery.274 This is reflected, for example, by the definition of trafficking in persons which includes slavery and practices similar to slavery or servitude as but some of the few forms in which trafficking can be manifested or exist, at a minimum. For that matter, it is impossible to argue that the Rome Statute criminalises trafficking in persons without the presence of certain characteristics to elevate trafficking within the parameters of enslavement.

2.4.3.4

Practices Similar to Slavery and Servitude

As regards these, much has already been discussed above. This is to the effect that in law, there is no difference between practices similar to slavery and servitude.275 They are all the same thing. The 1956 Supplementary Slavery Convention uses the phrase “institutions and practices similar slavery” to describe the four conventional servitudes of debt bondage, serfdom, servile marriages and child exploitation or trafficking. These are all defined in the 1956 Supplementary Slavery Convention.276 Servitude seems to have been used in several international human rights instruments277 in comparison to practices similar to slavery, which for example, appears to feature mostly in anti-trafficking instruments such as the TIP Protocol 2000,278 the 2005 CoE Anti-Trafficking Convention279 and several other instruments.280 In this connection, the TIP Protocol 2000 and several other anti-trafficking instruments use the two phrases together. However, the use of “slavery or practices similar to slavery, servitude or the removal of organs” seems to be slightly confusing. Since slavery is not the same as practices similar to slavery but that practices similar to ICC‘ because enslavement or slavery is its characteristic feature does not reflect the actual legal position of the Rome Statute nor the actual understanding of trafficking in persons under the TIP Protocol 2000 and international law in general, Pocar 2007, p. 10. 274 Triffterer and Ambos 2016, p. 261. 275 Allain 2009d, p. 304. 276 The 1956 Supplementary Slavery Convention, Article 1. See also UNODC Model Law 2009, p. 17; Gallagher Allain 2015, pp. 34–36; Dottridge 2017, p. 62. 277 UNGA 1948 Universal Declaration of Human Rights, UNGA Res. 217A(III) (1948), adopted 10 December 1948, Article 4; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (1966), entered into force 23 March 1976, Article 8(2); Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (1950), entered into force 3 September 1953, Article 4(1); American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (1969), entered into force 18 July 1978, Article 6(1). 278 TIP Protocol 2000, Article 3(a). 279 CoE Anti-Trafficking Convention 2005, Article 4(a). See as well Thomson 2016, p. 64. 280 ASEAN Convention 2015, Article 2(a).

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slavery is similar to servitude, it would have made more sense, therefore, for the phrase to read: “slavery, practices similar to slavery or servitude or the removal of organs”. In the course of negotiating the TIP Protocol 2000, the arrangement was “slavery, forced labour or servitude”, in which case practices similar to slavery did not appear. In this case practices similar to slavery would have been subsumed in the term servitude which was closely linked to forced labour. Some delegates opposed the inclusion of servitude in the TIP Protocol 2000, arguing that it lacked clarity and that it will be a duplication of meaning with reference to slavery or practices similar to slavery. Ultimately, the TIP Protocol 2000 uses servitude and practices similar to slavery together, with the confusing definition of servitude being left out.281 Despite the clear exposition of what servitude is, views have been prevailing of looking at servitude as “an obligation to provide one’s services that is imposed by the use of coercion, and is to be linked with the concept of “slavery” or as a serious form of denial of freedom to be regarded as a particular form of slavery, differing from it less in character than in degree.282 It is also important to emphasise here that practices similar to slavery, while the same thing as servitude, are fundamentally different from “slavery-like practices”. Practices similar to slavery is a legal term, but slavery-like-practices is a term of art, unknown in any major anti-trafficking, slavery or human rights instruments.283 Its introduction and use has largely obscured the actual meaning of slavery and institutions and practices similar to slavery. It has been used to justify that all forms of human exploitation are slavery. Out of its use have emerged words and other terms of art such as modern-day slavery, contemporary forms of slavery and modern slavery.284 These terms of art have been used by several sources in a manner that leads into, to use Allain’s terminology, “obfuscation”285 of the actual meaning of slavery, practices similar to slavery and the potential of using the prohibition of slavery and practices similar to slavery to fight serious forms of human exploitation.

2.4.3.5

Removal of Organs

Unlike the other exploitative end purposes of trafficking in persons, the removal of organs is not a crime in and of itself. It is a neutral concept and can be legal depending on the circumstances in which it is done. The TIP Protocol 2000, however, addresses the removal of organs in the context of trafficking in persons.286 Thus, where one or more methods of the action element and one or a combination of several methods of 281 UNODC Travaux Préparatoires 2006, pp. 342–346. See also UNODC Model Law 2009, pp. 17–

18. 282 CoE

Anti-Trafficking Convention Explanatory Report 2005, para 95; Siliadin v France 2005, para 124 as quoted by Gallagher 2015a, b, pp. 35–36. 283 Allain 2012, pp. 27–28. 284 Quirk 2006, p. 565. 285 Allain 2012, pp. 27–28. 286 Allain 2012, p. 326; Scheper-Hughes 2015, pp. 76–77; López-Fraga et al. 2018, pp. 120–134.

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the means element are employed for the removal of organs, the crime of trafficking in persons for the removal of organs is committed. The proposal to include trafficking for the removal of organs was introduced in the course of negotiating the TIP Protocol 2000.287 Early versions included words such as “the removal of organs for illicit purposes”, “the illicit removal of organs”, “transfer of organs of persons for profit” and “trafficking in organs” and that, if possible, this should be expanded to include tissues and other body parts.288 Concerns such as that the TIP Protocol 2000 to be formulated was for the purpose of trafficking in persons and not organs led to the rejection of the inclusion of trafficking in persons for the removal of organs, tissues and cells. For this reason, there is a difference between trafficking in body organs, tissues and cells from trafficking in persons for the removal of organs. While trafficking in persons for the removal of organs is a crime proscribed under the TIP Protocol 2000, trafficking in body organs, tissues and cells, which is broader than trafficking in persons for the removal of organs, is not criminalised in the TIP Protocol 2000. It seems also that while in the trafficking of organs, tissues and cells the main target is those organs, tissues and cells, in trafficking in persons for the removal of organs, the main target is the person who is trafficked to have his organs removed.289 Further, while in trafficking in persons for the removal of organs, the three elements of trafficking must be shown to exist, it is not necessarily the case with trafficking in body organs, tissues and cells.290 Lastly, while the TIP Protocol 2000 as an internationally binding instrument exists to proscribe trafficking in persons for the removal of organs, there exists neither an internationally accepted definition of what amounts to trafficking in body organs, tissues and cells nor an international treaty to proscribe the same.291 Despite these differences, the Special Rapporteur on Trafficking in Persons, especially women and children, considers the difference to be one of semantic as the source of the two is the same.292 However, since the TIP Protocol 2000 sets these forms of exploitation at a minimum, states parties are not prohibited from extending the crime of trafficking in persons for the removal of organs to cover also tissues and cells in their domestic jurisdictions.293 This is because both crimes are based on the internationally recognised principle that no one shall make financial gains with the human body or its body parts.294 Research indicates that most of the people who are trafficked for the removal of organs are 287 UNODC

Travaux Préparatoires 2006, p. 342. Travaux Préparatoires 2006, p. 344. 289 UN.GIFT 2008, p. 4; Council of Europe/United Nations Study 2009, p. 11. 290 UNODC 2015, pp. 14–15; Declaration of Istanbul on Organ Trafficking and Transplant Tourism 2008, pp. 3375–3376. 291 Council of Europe/United Nations Study 2009, p. 12. 292 UNGA 2013, para 20. 293 As it will be shown later on in this study, Tanzania takes this approach under the 2008 AntiTrafficking in Persons Act. 294 Council of Europe Convention on Human Rights and Biomedicine, opened for signature 4 April 1997, CETS No. 164 (1997), entered into force 1 December 1999, Article 21; Additional Protocol to the Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origins, opened for signature 24 January 2002, CETS No. 186 (2002), entered into 288 UNODC

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from predominantly poor countries with the most beneficiaries being persons in the North and other affluent countries.295 As far as trafficking of children for the removal of organs is concerned, the United Nations Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography296 calls upon states parties to criminalise “the offering, delivering or accepting, by whatever means, a child for the purpose of”, among other proscribed activities, “transfer of organs of the child for profit”, irrespective of whether such offence is committed internally or transnationally by an individual or organised crime.297 Also, when children are concerned, their parents’ or guardians’ consent for the removal of organs does not amount to a crime of trafficking where such removal is for “legitimate medical or therapeutic reasons”.298 The effect of this provision is to limit the extent to which parents or guardians can consent to the removal of organs of children. Where the removal goes beyond legitimate medical or therapeutic reasons, the crime of trafficking of children for the removal of organs is committed. As what amounts to legitimate medical or therapeutic reasons, reference must be made to recognised medical standards.299 It is also a fundamental principle of the TIP Protocol 2000 that where a child is trafficked for any purposes, including for the removal of organs, consent is not a defence, regardless of the absence of the means element. It suffices that there was an act to obtain the child and the purpose to exploit the child for organ removal.300 As far as adults are concerned, it is generally recognised that no person can consent to trafficking in persons for the removal of organs where consent-vitiating means are employed.301 Factors that can be taken into account to determine that consent cannot exist include whether the victim or the donor was compelled by economic desperation or economic pressures and other factors, among others, social marginalisation, legal status and membership in the minority group.302 In practice, the means element, prominent being deception, force or the threat of its use, coercion and the abuse of power or of a position of vulnerability, nullifies any meaningful consent.303 For the removal of organs not to amount to trafficking, the donor or concerned person must force 1 May 2006, Article 22. See also OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings 2013, p. 14. 295 Scheper-Hughes 2002, p. 64; Council of Europe/United Nations Study 2009, pp. 57–58; Moniruzzaman 2016, p. 227. 296 The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature 25 May 2000, 2171 UNTS 227 (2000), entered into force 18 January 2002. 297 Article 3(b). 298 UNODC Travaux Préparatoires 2006, p. 347; Scarpa 2008, p. 7. 299 Council of Europe/United Nations Study 2009, pp. 80–81. 300 Article 3(c); UNODC 2015, pp. 15–16; Gallagher and Skrivankova 2015, p. 5; Vijeyarasa and Villarino 2013, p. 48. 301 Bakirci 2009, p. 161; Abramson 2003, p. 477. 302 OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings 2013, p. 15; Boyce 2006, p. 61; UN.GIFT 2008, pp. 5–6. 303 Working Group on Trafficking in Persons 2011, paras 10–15.

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give informed and voluntary consent, acting willingly and free of any undue influence or coercion. Such a well-informed decision or consent requires a “full, objective, and locally relevant information and excludes vulnerable persons who are incapable of fulfilling the requirements for voluntary and knowledgeable consent”.304 Trafficking in persons for the removal of organs is mostly done for transplantation as well as for other reasons such as scientific research, medical advancement and even witchcraft, supernatural rituals and traditional medicine.305

2.5 Conclusion This chapter has provided an extensive and critical study on the evolution of the crime of trafficking in persons and its current status under international law. The chapter has achieved this through a consideration of its evolution before and after the League of Nations (1904–1949), shortcomings that resulted into the need to adopt a new legal framework, TIP Protocol 2000’s drafting history and its current definition of trafficking and what its three elements—action, means and purpose—entail under international law. Since the TIP Protocol 2000’s adoption and entering into force, nearly two decades have passed. As it stands now, the TIP Protocol 2000 has 117 signatories and 173 states parties306 compared to the Migrant Smuggling Protocol 2000 which has 112 signatories and 146 states parties.307 The TIP Protocol 2000 has been accepted worldwide and has played a fundamental role in shaping the international community’s reaction against the crime of trafficking. Reflection of its impact since adoption and entering into force has revealed that, despite its shortcomings,308 the TIP Protocol 2000’s flexibility and revolutionary legal framework suggest that it will continue to influence the future anti-trafficking efforts of the various stakeholders and states as well in several areas.309

304 UNODC

2015, pp. 15–16. 2012, p. 16; Steverson 2012, p. 289; UN.GIFT 2008, p. 2; UNODC Global Report on Trafficking in Persons UNODC Human Trafficking and Migrant Smuggling Section 2012, p. 39. 306 “Ratification Status”, https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=xviii12-a&chapter=18&lang=en. Accessed 20 August 2018. 307 “Ratification Status”, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no= XVIII-12-b&chapter=18&lang=en. Accessed 20 August 2018. For some reasons as to why a lesser number of states have ratified the Migrant Smuggling Protocol 2000 as compared to the TIP Protocol 2000, see Schloenhardt and Macdonald 2017, pp. 18–36. 308 Gallagher 2017, pp. 84, 89; Kneebone 2010, p. 156; Dottridge 2017, p. 61. Generally, for some very critical perspectives on the definition of trafficking and the limitation of the trafficking legal framework, see Stoyanova 2017. 309 Wylie and McRedmond 2010, p. 2; Kangaspunta 2007, p. 28; Obokata 2006, p. 3; Fredette 2009, p. 113. 305 Neagle

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Chapter 3

International Legal Regime

Contents 3.1 Anti-trafficking Primary Legal Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1 Organised Crime Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.2 TIP Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.3 Migrant Smuggling Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Regional Anti-trafficking Legal Frameworks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 SAARC Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 CoE Anti-trafficking Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Directive 2011/36/EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 Fragmented Legal Framework of the AU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Human Rights Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Universal Declaration of Human Rights (UDHR) . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 ICCPR Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 ICESCR Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.4 CEDAW Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.5 CERD Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.6 CRC Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.7 CoE Human Rights Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.8 African Human Rights Charter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.9 American Convention on Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.10 Migrant Workers Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.11 Refugee Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

90 92 97 105 115 116 119 124 132 138 140 140 141 142 143 145 146 147 149 149 155 161 161

Abstract This chapter examines the anti-trafficking international legal regime. It is premised on the understanding that trafficking is an objectively real and serious problem that justifies the presence of an extensive array of legal instruments which, directly or indirectly, aim at preventing and combating it. In doing so, the study examines the various instruments adopted to fight trafficking at the international and regional levels. The study begins this examination by analysing the primary antitrafficking and anti-migrant smuggling legal frameworks. These legal frameworks are contained in the Organised Crime Convention 2000 through the TIP Protocol 2000 and the Migrant Smuggling Protocol 2000. The examination of the specialty antitrafficking regional instruments and other international and regional human rights legal frameworks with a bearing on trafficking follows thereafter. This chapter also highlights the past and recent legal developments in the criminalisation of the crime © t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_3

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trafficking in persons in Africa and its challenges. The chapter lays the foundation upon which to base states’ anti-trafficking obligations as presented in Chap. 5 of this book. Keywords Organised Crime Convention 2000 · TIP Protocol 2000 · Migrant Smuggling Protocol 2000 · ICCPR Covenant · ICESCR Covenant · CEDAW Convention · CRC Convention · CERD Convention · CoE Human Rights Convention · Migrant Workers Convention · African Human Rights Charter · American Convention on Human Rights · Refugee Convention

3.1 Anti-trafficking Primary Legal Regime The insufficiency of the human rights frameworks on their own, especially in implementation and enforcement, and the events transpiring in the 1990s, such as the fall of communism in Eastern Europe and that of the Berlin Wall,1 brought in the dimension of transnational organised crime and the smuggling of migrants in the context of trafficking.2 It is for this reason that the primary international legal regime against trafficking is governed by transnational criminal law through the Organised Crime Convention 2000 and the TIP Protocol 2000.3 Fundamentally, it means that the anti-trafficking legal regime treats trafficking as a criminal offence first before its consideration as a human rights violation.4 Transnational criminal law, as opposed to international criminal law stricto sensu, is a branch of international law, which according to Boister, is concerned with “the indirect suppression by international law through domestic penal law of criminal activities that have actual or potential transboundary effects”.5 As such, transnational criminal law is characterised by: indirect individual criminal responsibility for treaty proscribed offences as opposed to direct individual criminal responsibility for international crimes; presence of extraterritorial jurisdiction based on the treaty as opposed to absolute universality for core 1 Roth

2010, pp. 11–12, 16, 18; Sheptycki 2003, p. 42; Stoica 2016, p. 18; Livey 2017, pp. 15, 21–22; Kelley 2017, pp. 68–69. 2 Aleinikoff 2007, p. 469; Davidson 2015, p. 155. Generally on the historical overview of transnational organised crime and its involvement in the smuggling of migrants and trafficking in persons, see Roth 2014, pp. 5–20; Leman and Jansses 2015. 3 Gallagher 2018, pp. 21–22; Kotiswaran 2017a, pp. 9–10; Shoaps 2013, p. 960. 4 Livey 2017, p. 56; Edwards 2011, pp. 246–247. But on the relation between trafficking in persons as a crime and a human rights violation see Renzikowski 2018, pp. 13–20; and on the protection of the victims’ human rights in this Convention, see Gallagher 2018, pp. 31–32; Boister 2002, pp. 211– 216; Currie 2015, pp. 27–40. See further, Gallagher 2017a, p. 563; Gallagher 2018, pp. 21–22; Kotiswaran 2017a, pp. 9–10; Shoaps 2013, p. 960. 5 Boister 2003, p. 955. See as well Gless and Vervaele 2013, pp. 3–4; Wade 2013, pp. 165–167; Boister 2015, pp. 9–30; Stoyanova 2017, p. 25; Mueller 2001, p. 13. Also see Koh 2006, p. 745. It cannot be over-emphasised here that this book considers trafficking in persons as an objective, real problem. This position contrasts from that of scholars such as Lobasz who considers that trafficking in persons “is a contested concept or an unstable category than as an objective given problem”, Lobasz 2019, p. 14.

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international crimes; protection of shared national interests or cosmopolitan values as distinguished from “the most serious crimes of international concerns;” and suppression of treaty crimes by the states parties as opposed suppression of international crimes by the international community as a whole.6 Although the UN’s determination to deal with the problem of transnational organised crime is traced back at the 1975 United Nations’ fifth Congress on the Prevention of Crime and the Treatment of Offenders,7 it was the 21–23 November 1994 World Ministerial Conference on Organised Transnational Crime held in Naples that laid a foundation for the current international legal framework against transnational organised crime and its contents.8 The Conference adopted the Naples Political Declaration and Global Action Plan against Organised Transnational Crime.9 The World Ministerial Conference urged states to come up with a global action against organised transnational crime and the contents to be included in the global action. From the Naples’ Conference, several meetings and conferences were held that ultimately resulted in the UNGA adopting resolution 53/111 of 9 December 1998 which established an open-ended intergovernmental Ad Hoc Committee on the Elaboration of a Convention against Transnational Organised Crime (the Ad Hoc Committee).10 The Ad Hoc Committee was established to elaborate a thorough international convention to combat transnational organised crime and, as far as possible, to elaborate other international instruments against trafficking in women and children, illicit manufacturing and trafficking in firearms and illegal trafficking in and transporting of migrants.11 The Ad Hoc Committee commenced its work on 19 January 1999 and held a total of 12 sessions. Following the work of its tenth session held in Vienna on 17–28 July 2000, the Ad Hoc Committee endorsed the draft Convention and submitted it to the UNGA for adoption pursuant to resolution 54/126 of 17 December 1999.12 The Ad Hoc Committee also endorsed two draft protocols, one on trafficking and the second on migrant smuggling and submitted them to the UNGA for adoption during its eleventh session held in Vienna on 2–28 October 2000 pursuant to the same resolution. Through resolution 55/25 of 15 November 2000, the UNGA adopted the Organised Crime Convention 2000, the TIP Protocol 2000 and the Migrant Smuggling Protocol 2000.13 The third Protocol, the Protocol against the Illicit Manufacturing of 6 Boister

2003, pp. 961–976. See as well Gless and Vervaele 2013, pp. 2–3; Clapham 2016, p. 21; Clark 2016, pp. 214–215; Ambos 2011, pp. 667–668; Luban 2010, p. 572. 7 UNODC Travaux Préparatoires 2006, p. ix. 8 Boister 2016b, p. 129; UNODC Travaux Préparatoires 2006, pp. xiii–xiv. On the extensive history leading to the negotiations of the Organised Crime Convention 2000 and the Protocol 2000, see Vlassis 2002d, pp. 76–91. 9 UNGA 1995. See also Joutsen 2002, pp. 360–361. 10 UNGA 1999a, b, para 10. 11 UNGA 1999a, b, para 10. See also UNGA 1998. Regarding the negotiation history and the adoption of the Organised Crime Convention 2000 and the Protocols 2000, see Vlassis 2002a, pp. 495–513, 2002c, pp. 477–494. 12 UNGA 2000a, b. 13 UNGA 2001a, b, para 2.

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and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime, was adopted later on 31 May 2001.14

3.1.1 Organised Crime Convention The Organised Crime Convention 2000 was adopted as an instrument to promote states’ co-operation in the fight against transnational organised crime.15 Due to its stated purpose,16 some have argued that rather than criminalisation, it is international co-operation that forms the bulk of the Organised Crime Convention 2000’s provisions.17 The key areas of the Organised Crime Convention 2000 are further analysed herein below.18

3.1.1.1

Scope of Application

The Organised Crime Convention 2000 applies to any situation where the offence committed is a serious crime19 of a transnational character20 involving an organised criminal group.21 The Organised Crime Convention 2000 considers a crime a serious offence when it has either a punishment with a maximum deprivation of liberty of at least four years or a more serious penalty.22 It considers an offence to be transnational in nature where: it is committed in more than one state, it is committed in one state with its substantial organisation for its commission happening in another state, it is committed in one state by an organised criminal group engaging in criminal activities in more than one state, and it is committed in one state but has substantial effects in another state.23 It considers an organised criminal group as any structured group of three or more persons, formed at a particular time and acting in concert aiming to 14 UNGA

2001a, para 2. 1; Boister 2016b, p. 127. Generally, see Livey 2017, pp. 37–56. 16 Article 1: “The purpose of this Convention is to promote cooperation to prevent and combat transnational organized crime more effectively.” 17 Boister 2016a, p. 41; Gallagher 2001, p. 978; Boister 2016b, p. 127. 18 For a general elaboration on these areas, see Betti 2001, pp. 7–106; Boister 2016b, pp. 126–148; Clark 2004, pp. 161–184. 19 Articles 3(1)(b), 2(b). Generally on the scope of application, see Article 3; UNODC Legislative Guide 2004, paras 30–31, 45, pp. 15–16, 18–19. 20 Article 3(2). See also Roth 2010, p. 12. 21 Articles 3(1)(b), 2(a); Jørgensen 2009, p. 213. On these three concepts and critical issues connected with defining them, see further Orlova and Moore 2005, pp. 282–287; Sinn 2016, pp. 24 et seq.; Hauck 2016, pp. 449–451. 22 Article 2(b). See also UNODC Legislative Guide 2004, para 27, pp. 13–14; Boister 2016b, pp. 134–136. 23 Article 3(2)(a)–(d). 15 Article

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commit any of the proscribed crimes so as to obtain, directly or indirectly, a financial or other material benefits.24 Based on how the Organised Crime Convention 2000 defines the organised criminal group, it is clear that rather than the hierarchical and structural nature of the criminal group or organisation or how it carries out its criminal activities, it is the number of people who act together to commit a prohibited criminal conduct to obtain a benefit that matters the most.25

3.1.1.2

Criminalisation

The Organised Crime Convention 2000’s mandate comprises prevention, investigation and prosecution of the crimes of: laundering of the proceeds of crime;26 public sector corruption;27 obstruction of justice;28 and participation in an organised criminal group.29 The final crime, participation in an organised criminal group is wellcrafted to take into account the concepts of conspiracy as used in the common law jurisdictions and various forms of participation as used in civil law jurisdictions.30 Where it is consistent with their legal principles, the Organised Crime Convention 2000 urges states parties to establish, as a supplementary form of liability, the liability of legal persons whether criminal, civil or administrative and once their liability is established, to subject them to sanctions that are effective, proportionate and dissuasive.31 States parties are required to criminalise transnational organised crimes “independently of the transnational nature or the involvement of an organised criminal group” in their domestic legislation.32

3.1.1.3

Transnational Organised Crime Enforcement

The Organised Crime Convention 2000 obligates its states parties to establish jurisdiction to investigate and prosecute the criminalised offences.33 States parties must establish territorial and flag state jurisdiction.34 States may, without violating the 24 Article 2(a).

See also UNODC Legislative Guide 2004, paras 25–26, 28, p. 14; Roth 2010, p. 11; Elvins 2003, p. 34; Schloenhardt 2012, pp. 152–158; Boister 2016b, pp. 131–132. 25 Madsen 2016, p. 4; Boister 2016b, pp. 131–132. See as well Orlova and Moore 2005, pp. 282–283; Obokata 2017, pp. 42–43; Boister 2016a, pp. 43–44. 26 Article 6; UNODC Legislative Guide 2004, paras 77–159, pp. 38–58. 27 Article 8; UNODC Legislative Guide 2004, paras 163–193, pp. 79–86. 28 Article 23; UNODC Legislative Guide 2004, paras 195–207, pp. 91–94. 29 Article 5. See also the UNODC Legislative Guide 2004, paras 48–76, pp. 21–28. 30 Vlassis 2002d, p. 92. 31 Article 10; UNODC Legislative Guide 2004, paras 240–239, pp. 116–121. See as well MuskatGorska 2017, p. 443. 32 Article 34(2). Further on this issue, see Scarpa 2008, pp. 61–62; Schloenhardt 2016, p. 174. 33 UNODC Legislative Guide 2004, paras 210–239, pp. 104–110. See also Schabas 2004, pp. 72–73. 34 Article 15(1). See as well van Hoek and Luchtman 2005, p. 5.

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sovereignty of other states, establish objective or extended forms of territorial jurisdiction as well as nationality jurisdiction both active and passive.35 Also, in the area of prosecution, adjudication, sanctions and other measures, states parties are to: prosecute and punish; institute confiscation and asset recovery mechanisms; protect witnesses; assist and protect victims; establish criminal records; and co-operate with law enforcement authorities.36

3.1.1.4

International Co-operation

States parties are to co-operate together in: extradition;37 mutual legal assistance;38 transnational transfers;39 and co-operative law enforcement.40 On technical assistance,41 the Organised Crime Convention 2000 calls upon states, especially developed and advanced states parties, to help developing and poor states parties in realising the objectives of the Organised Crime Convention 2000 in, among others: capacity building; financial or material assistance and voluntary contributions; training programmes and modern equipment; and the conclusion of bilateral and multilateral agreements or arrangements on material and logistical assistance.42

3.1.1.5

Prevention

The Organised Crime Convention 2000 encourages states to prevent transnational organised crime by developing and evaluating national projects and establishing and promoting best practices and policies.43 In doing so, states parties are called to: reduce existing or future opportunities that might be used by organised criminal groups to participate in lawful markets with proceeds of crime; integrate into society persons convicted of the proscribed crimes; promote public awareness about transnational organised crime; and collaborate with each other and other regional and international organisations in the prevention of transnational organised crime.44 35 Article

15(2). See further, Clark 2015, pp. 91–106; Fichtelberg 2014, pp. 356–357.

36 Articles 11–14, 22–26. See further the UNODC Legislative Guide 2004, paras 264–285, 131–135,

341–383, pp. 164–176, paras 287–339, pp. 140–152; Monteith and Pereira 2015, pp. 137–152. 16; UNODC Legislative Guide 2004, paras 394–448, pp. 197–207; Harrington 2015, pp. 153–166; Zagaris 2015, pp. 415–450. 38 Article 18; UNODC Legislative Guide 2004, paras 450–498, pp. 216–228. See also Joutsen 2002, pp. 364–392; Vervaele 2015, pp. 121–136. 39 Articles 17, 21. 40 Articles 27, 28, 19, 20; UNODC Legislative Guide 2004, paras 500–510, pp. 234–237. Generally, see Boister 2016a, pp. 39–70; Joutsen 2014, pp. 307–322. 41 See generally Article 29(2)–29(4). 42 Article 30(2)(a)–(d), 30(4). 43 Article 31(1), 31(4). 44 Article 31(2)–31(7). 37 Article

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3.1.1.6

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Implementation

The Organised Crime Convention 2000 establishes the Conference of the Parties to the Convention.45 The Conference of the Parties is established to improve the capacity of the states parties in the fight against transnational organised crime as well as to promote and review the implementation of the Organised Crime Convention 2000.46 In achieving these objectives, the Conference of the Parties is mandated to: facilitate the activities of the states parties in areas of training, technical and economic assistance and prevention; facilitate information exchange among the states parties on various matters touching on transnational organised crime; co-operate with relevant international and regional organisations and NGOs; review the implementation of the Convention periodically; and make recommendations to improve the Convention’s implementation.47 In discharging these duties, the Conference of the Parties is assisted by the Secretariat.48

3.1.1.7

Relation to the Supplementary Protocols

The provisions of the Organised Crime Convention 2000 apply, mutatis mutandis, to the Protocols.49 This means that its provisions as applied to the Protocols would “consequently be modified or interpreted so as to have the same essential meaning or effect in the Protocols as in the Convention”.50 Offences proscribed in the Supplementary Protocols are regarded as offences established and proscribed by the Organised Crime Convention 2000.51 Therefore, the Organised Crime Convention 2000’s provisions on co-operation on such areas as extradition, mutual legal assistance, transnational transfers and co-operative law enforcement apply to the Protocols as well.52 Since the three Protocols supplement the Organised Crime Convention 2000, a state or a regional economic integration organisation cannot become a party to any of the Supplementary Protocols without first becoming a party to the Convention.53 Also, a state party to the Organised Crime Convention 2000 cannot be bound to any of the Supplementary Protocols unless the party to the Convention ratifies any of

45 Article

32. 32(1). 47 Article 32(3)(a)–(e). 48 Article 33. 49 Supplementary Protocols, common Article 1(2); Gallagher 2001, pp. 977–978. 50 UNODC Travaux Préparatoires 2006, p. 330. 51 Supplementary Protocols, common Article 1(3). 52 Zagaris 2015, p. 194; McClean 2007, p. 313; Scarpa 2008, p. 63; Boister 2016b, p. 127. 53 Article 37(2); Heintze and Lülf 2016, p. 156. In addition, Dandurand provides another substantive reason for this legal requirement that “the general means through which countries can cooperate in fighting human trafficking are established in the main Convention”, see Dandurand 2012, p. 213. 46 Article

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the Supplementary Protocols.54 This also means that the Organised Crime Convention 2000 and its Supplementary Protocols must be interpreted together, taking into account their stated purposes.55 In addition to these rules, and in accordance with the Vienna Convention on the Law of Treaties,56 the Organised Crime Convention 2000 and its Supplementary Protocols are interpreted together by employing the assistance of several interpretative tools. These include the Travaux Préparatoires or the official records of the negotiation process, a Legislative Guide to the Convention and its Supplementary Protocols, interpretative notes and several materials and tools from the United Nations Office on Drugs and Crime (UNODC), the Guardian of the Convention and its Protocols.57 Of particular interest is the nature of the obligations the Organised Crime Convention 2000 and the Supplementary Protocols envisage. Some provisions in the Convention and the Supplementary Protocols present mandatory or hard obligations to states parties.58 Yet some provisions contain non-binding, soft or hortatory obligations;59 provisions which obligate states parties to consider or endeavour applying certain measures but sometimes with clauses of “reservation in favour of domestic law”.60 Provisions that are sometimes mandatory or obligate states to consider or endeavour to take certain measures might not be self-executing where their execution is subject to and dependent on the means of the states parties and the fundamental principles of their domestic legal systems.61

54 Article

37(3). 37(4); Supplementary Protocols, Common Article 1(1). 56 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (1969), entered into force 27 January 1989, Articles 31–32. 57 The official website of the UNODC, https://www.undc.org/. Accessed 21 August 2018. The website has useful information, tools and materials on the Organised Crime Convention 2000 and the Supplementary Protocols. 58 For example, provisions on criminalisation such as Organised Crime Convention 2000, Articles 5(1), 6(1), 7(1), 7(2), 8(2), 23; TIP Protocol 2000, Articles 5(1), 9(1); Migrant Smuggling Protocol 2000, Articles 6, 7; Firearms Trafficking Protocol 2001, Articles 5, 7, 9. See the UNODC Legislative Guide 2004, paras 8(a), 9, pp. 6–7. 59 For example, Organised Crime Convention 2000, Articles 12(7), 13(7), 14(2), 15(2), 15(4), 16(2), 16(4), 16(15), 17, 18(4), 18(9), 18(20), 18(21), 22, 34(3), 35(3); TIP Protocol 2000, Articles 15(2), 15(4); Migrant Smuggling Protocol 2000, Articles 8(1), 8(2), 8(5), 18(6); Firearms Trafficking Protocol 2001, Article 10(6). See also the UNODC Legislative Guide 2004, paras 8(c), 9, pp. 6–7. As to the nature, consequences, advantages and even disadvantages of soft law obligations see Abbot and Snidal 2000, pp. 423, 434–450. 60 For example, Organised Crime Convention 2000, Articles 7(2), 7(4), 8(2), 11(2), 13(9), 16(8), 17, 18(30), 21, 26(2), 26(3), 27(3), 28(1), 28(2), 30(2)(c), 31(1), 31(2), 31(3), 31(4), 31(5), 35(1); TIP Protocol 2000, Articles 6(3), 6(5), 7(1), 9(2), 11(5), 11(6), 15(1); Migrant Smuggling Protocol 2000, Articles 11(5), 11(6), 14(3), 17, 18(2), 20(1), Firearms Trafficking Protocol 2001, Articles 15(1), 16(1). See also the UNODC Legislative Guide 2004, paras 8(b), 9, pp. 6–7. 61 Organised Crime Convention 2000, Articles 24(1), 25(1), 27(3); TIP Protocol 2000, Articles 6(1), 12; Migrant Smuggling Protocol 2000, Articles 8(1), 9(1)(d), 12; Firearms Trafficking Protocol 2001, Articles 10(5), 12(4). As regards the distinction of the hard and soft laws in international law, see Pronto 2015, pp. 941–956. 55 Article

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3.1.2 TIP Protocol The drafters of the TIP Protocol 2000 were deeply convinced that in the absence of a universal instrument that addresses all aspects of trafficking in persons, the fragmented framework of international law in this area would not have been able to sufficiently protect victims of trafficking. By adopting the TIP Protocol 2000, the drafters aspired to establish a comprehensive and collaborative international approach containing measures that prevent trafficking, punish the traffickers and protect victims of trafficking.62 In this connection, the TIP Protocol 2000’s major areas include: criminalisation and punishment of trafficking; protection, assistance and support of the victims of trafficking, with a special protection regime for child victims of trafficking; repatriation and legal status of trafficking victims; prevention of trafficking; and the anti-trafficking transnational co-operation.63

3.1.2.1

Criminalisation and Punishment of Trafficking

Primarily and mandatorily, the TIP Protocol 2000 obligates states parties to criminalise the intentional commission of the crime of trafficking in persons.64 The TIP Protocol 2000, however, does not call upon states parties to criminalise individual elements of the crime of trafficking in persons, as is the case, for example, with the Migrant Smuggling and Firearms Trafficking Protocols, which allow criminalisation of the related conduct.65 Rather, states parties are to criminalise trafficking in persons as a stand-alone crime with its constitutive elements. Additionally, the TIP Protocol 2000 urges states parties to criminalise participating as an accomplice in the commission of trafficking in persons,66 organising or directing other people (s) to commit the offence of trafficking in persons,67 and subject to their basic concepts or principles of their legal systems,68 to criminalise attempting to commit the crime of trafficking in persons.69 Liability for these offences is not only limited to natural persons, which is essentially criminal in nature. It also extends to legal persons and

62 TIP

Protocol 2000, paras 1–3 to the Preamble; Article 2. See as well Livey 2017, pp. 56–60; Gallagher 2018, pp. 24–30; Vlassis 2002b, pp. 460–463. 63 Association of Southeast Asian Nations Handbook 2010; Heintze and Lülf 2016, pp. 150–167; Warren 2007, pp. 245–252; Stoyanova 2017, pp. 74–181. 64 TIP Protocol 2000, Article5(1). 65 UNODC Legislative Guide 2004, paras 31–33, pp. 267–269. 66 Article 5(2)(b). 67 Article 5(2)(c). 68 This clause was inserted in order to “create a general obligation on States parties to criminalise attempts, while not making this fully mandatory for States where it would be inconsistent with basic systemic requirements for the application of the crime of attempt”, UNODC Legislative Guide 2004, para 41, p. 272. 69 Article 5(2)(a).

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goes further to encompass not only criminal liability but also administrative and civil liability.70 To fulfil the obligation to criminalise the TIP Protocol 2000’s proscribed offences, states parties are required also to consider the applicability of the Organised Crime Convention 2000 to such conducts as proscribed.71 In this connection, offences such as obstruction of justice72 in relation to the investigation and prosecution of the offences proscribed in the TIP Protocol 2000 are also criminalised.73 Other mandatory provisions of the Organised Crime Convention 2000 applicable to the TIP Protocol 2000 in relation to the obligation to criminalise trafficking offences include: criminalisation of the laundering of the proceeds of trafficking offences; imposition of sanctions that are proportionate, taking into account the gravity of the offences; ensuring the presence of the defendant in the subsequent criminal proceedings; early release or parole; enactment of long statutes of limitations; asset confiscation and recovery; establishment of jurisdiction; institution of extradition and mutual legal assistance as forms of international co-operation; the use of special investigative techniques; protection of witnesses and victims of trafficking; securing the co-operation of offenders with the competent authorities; and strengthening law enforcement co-operation, training and technical assistance.74 The Legislative Guide includes also other general criminalisation requirements such as: ensuring that although criminalisation of trafficking offences can include necessary legislative or “other measures”, such other measures must have been founded or have a prior basis in law in order to guarantee the rule of law;75 criminalising only the intentional commission of trafficking offences, thus making the criminalisation of other conducts based on lower standards such as negligence and recklessness not mandatory. However, based on Article 34(3) of the Organised Crime Convention 2000,76 states parties are permitted to adopt more “strict or severe” measures going beyond those provided for in the Organised Crime Convention 2000, where doing so helps to effectively combat trafficking offences; and in describing the trafficking offences in their domestic law, rather than reproducing the Convention’s and the TIP Protocol 2000’s provisions verbatim, states parties should, in principle, focus more on describing such provisions based on their meaning and the intention of the drafters.77

70 UNODC

Legislative Guide 2004, para 35, p. 270. Generally on the liability of legal persons, especially business entities, see Muskat-Gorska 2017, pp. 443 et seq. 71 UNODC Legislative Guide 2004, para 30, p. 267. 72 Organised Crime Convention 2000, Article23. 73 Gallagher 2010, p. 81. See also Kruger 2016, p. 59. 74 Articles 6, 11(1), 11(3)–11(5), 12–16, 18, 20, 24–27. See as well UNODC Legislative Guide 2004, paras 384–392, pp. 183–187. 75 UNODC Travaux Préparatoires 2006, p. 364. 76 Article 34(3): “Each State Party may adopt more strict or severe measures than those provided for by this Convention for preventing and combating transnational crime.” 77 UNODC Legislative Guide 2004, para 45, pp. 275–277.

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Protection, Assistance and Support

The TIP Protocol 2000 obligates its states parties to protect the privacy and identity of the victims of trafficking, among others, by making confidential the legal proceedings relating to their trafficking.78 Protection of their privacy and identity as well as the confidentiality of their proceedings may include, for example, excluding public participation or that of the media representatives or restricting the extent to which information about the victims can be published or reported. However, this duty is to be discharged only in appropriate cases and to the extent possible under the domestic law of the states parties.79 The use of “appropriate cases and to the extent possible under its domestic law” airs out the concerns that unless there are constitutional, legal and other measures that accommodate these protections, it is possible to find a state party breaching fundamental constitutional guarantees such as the right to confront witnesses or accusers, the right to disclose any information that might be incriminatory or of assistance to the defence and the right of the media to free expression.80 The final sentence of Article 6(1) that “by making legal proceedings relating to such trafficking confidential” meant that open public legal proceedings should be the norm and that these proceedings should be confidential only to protect victims of trafficking in appropriate cases, cases in which their safety or that of their family members or close relatives would be in danger.81 In addition, states parties should provide opportunities for victims of trafficking to participate in criminal court proceedings against the offenders by obtaining relevant information on court proceedings and the opportunity to have their views and concerns presented.82 This provision, while obligatory, does not require the enactment of the legislative measures as the primary obligation of states parties to allow victims’ participation in criminal proceedings is already provided for in the Organised Crime Convention 200083 to which states parties must have such measures already. However, this is only applicable in appropriate cases in which the rights of the defence are not jeopardised.84 States parties are to implement measures providing for the physical, psychological and social recovery of the victims of trafficking which, among others, include: housing ; counselling and information concerning their legal rights; medical, psychological and material assistance; and employment, educational and training opportunities.85 To a great extent, these measures incorporate the public health dimension of

78 Article

6(1). See also International Organization for Migration 2007, p. 7. 6(1). 80 UNODC Legislative Guide 2004, para 54, pp. 283–284; UNODC Travaux Préparatoires 2006, p. 369. 81 UNODC Travaux Préparatoires 2006, p. 370. See also International Organization for Migration 2007, p. 3. 82 TIP Protocol 2000, Article6(2). 83 Organised Crime Convention 2000, Article 25(3). 84 UNODC Legislative Guide 2004, para 56, p. 284. 85 Article 6(3). 79 Article

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trafficking in persons.86 It seems that the high costs of implementing these benefits for victims’ rehabilitation and recovery, which apply to all states regardless of their economic conditions, made the applicability of this provision optional. However, implementing these obligations make it easier for victims and witnesses to be able to assist or willingly co-operate in the legal proceedings against the traffickers.87 The TIP Protocol 2000 also urges states parties to endeavour to guarantee the physical safety of the victims of trafficking while in their territories.88 Taking into account articles 24 and 25 of the Organised Crime Convention 2000, the TIP Protocol 2000 provides for a discretionary obligation on the states parties to “endeavour” to provide physical safety of the victims and witnesses mostly in relation to retaliation, intimidation and even revictimisation, a common occurrence in trafficking cases.89 In addition, states parties in which the victims of trafficking are found shall ensure that their domestic legal systems allow victims of trafficking the possibility to obtain compensation resulting from their suffered damage.90 The nature of the compensation considered is not specified in the TIP Protocol 2000. In fact, the original provision which required states parties to take necessary and appropriate measures allowing for the seizure and confiscation of the profits obtained by the organised criminal organisations from the prohibited offences to be used to defray the costs of assisting the victims was deleted. The rationale was that the provisions of the Organised Crime Convention 2000 applicable to compensation will, mutatis mutandis, apply to the TIP Protocol 2000 and the effect of this process has been to obscure states parties’ obligation as regards victims’ compensation.91 The Legislative Guide suggests some of the potential sources of compensation schemes as including the enactment of the provisions or the taking of measures that: allow victims to sue offenders or others for civil damages; allow criminal courts to award criminal damages; order compensation to be paid by offenders or impose orders for compensation or restitution against convicted persons; and/or establish special funds whereby victims obtain compensation from the state party for the damages suffered.92 When implementing these provisions, states parties have to take into consideration the gender, age and special needs of the victims of trafficking in persons.93 As discussed earlier on, these provisions should be considered and implemented in conjunction with articles 25 (assistance to and protection of victims) and 24 (protection of witnesses) of the Organised Crime Convention 2000, especially where victims of trafficking become witnesses.94 It seems that the provisions of the TIP Protocol 2000, while mandatory

86 Aronowitz

2011, pp. 122–123; Duger 2015, p. 114; Helton 2016, pp. 450–452. Legislative Guide 2004, para 62, p. 288. 88 Article 6(5). 89 UNODC Legislative Guide 2004, paras 57–59, p. 285. See as well Stoyanova 2011, p. 779. 90 Article 6(6). 91 Gallagher 2010, pp. 82–83. 92 UNODC Legislative Guide 2004, para 60, pp. 285–286. 93 Article 6(4). 94 UNODC Legislative Guide 2004, para 51, pp. 282–283. 87 UNODC

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on victims’ procedural and basic safeguards, are optional and discretionary as regards victims’ assistance and support.95

3.1.2.3

Trafficked Children Protection Regime

While the TIP Protocol 2000 aims to combat trafficking, especially of women and children, the protection of trafficked children, defined as persons under the age of 18,96 is not emphasised in the TIP Protocol 200097 and only one subparagraph contains an emphasis on the measures states have to take concerning the child victims of trafficking.98 The Legislative Guide, however, has tried to supplement the TIP Protocol 2000’s shortcomings and expand the special protections for trafficked children. The Legislative Guide advises states parties to adopt the Convention on the Rights of the Child’s provisions to protect and assist trafficked children. States parties may decide, taking into account the best interests of the trafficked children and the child rights approach,99 to: offer them protections even in situations where their ages are uncertain but they are children nevertheless, pending verification of their ages; appoint the children’s guardians to help them in the course of finding a durable solution for them; remove the children from coming into direct contact with their suspected offenders in the course of the investigation and proceedings, including offering them special protections when they opt to testify in the proceedings; provide them with special shelters to avoid their revictimisation; ensure that those who guide and deal with the trafficked children are well trained and qualified; and take prudent considerations and measures as regards their repatriation.100

3.1.2.4

Status of Victims of Trafficking in the Receiving States

The TIP Protocol 2000 encourages states parties to consider the adoption of legislative and other appropriate measures to allow victims of trafficking to remain in their

95 UNODC

Legislative Guide 2004, para 52, p. 283. On the TIP Protocol 2000’s basic protection guidelines, see also Thomson 2016, pp. 64–73. 96 TIP Protocol 2000, Article 3(d). 97 As regards discussions and submissions in this matter, see UNGA 1999a, b, pp. 13–14; UNGA (2000a, b) Note by the Office of the United Nations High Commissioner for Human Rights, the United Nations Children’s Fund and the International Organisation for Migration on the Draft Protocols Concerning Migrant Smuggling and Trafficking in Persons. UN Doc. A/AC.254/27, 8 February 2000, pp. 5–7 (UNHCHR, UNICEF and IOM Submission 2000); UNODC Travaux Préparatoires 2006, p. 324. 98 Article 6(4): “Each State Party shall take into account, in applying the provisions of this article, the age, gender and special needs of victims of trafficking in persons, in particular the special needs of children, including appropriate housing, education and care.” 99 Rigby and Ishola 2016, pp. 86, 91. 100 UNODC Legislative Guide 2004, paras 65–67, pp. 289–291.

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territories temporarily or permanently.101 However, the duty is not mandatory as states can implement this provision only in appropriate cases and in consideration of the victims’ humanitarian and compassionate factors.102 The formulation of this obligation in optional terms emanates from the concerns the drafters had that the TIP Protocol 2000 should not, by mandatorily requiring states parties to allow victims of trafficking to remain in their territories, be inadvertently used to facilitate illicit migration.103 However, states also knew that there were, in certain cases, legitimate reasons demanding victims to remain in their territories for humanitarian or compassionate reasons. On the one hand, compassionate factors were understood to mean “personal circumstances of the victim such as family situation, age, common-law marital relationship and other factors to be considered on an individual and case-bycase basis”. On the other hand, humanitarian factors were understood to entail rights established in the human rights instruments applicable to all persons.104

3.1.2.5

Repatriation of Victims of Trafficking

Article 8 of the TIP Protocol 2000 governs the repatriation of the victims of trafficking. The state party to which the victims to be repatriated are its nationals or permanent residents has the duty to receive them.105 The duty to receive them is to be discharged without undue or unreasonable delay and it enjoins also: the obligation to verify the nationality or residence status of the trafficked victims when requested by the receiving state party; and the duty to issue proper documentation such as travel documents and other authorisations allowing the trafficking victims to return.106 The receiving state, however, is encouraged, while repatriating the victims of trafficking, to take into consideration their safety, the status of any proceedings in relation to their being victims of trafficking and as far as possible, the voluntariness of their repatriation,107 with an understanding that the voluntary nature of repatriation does not impose any legal obligation on the part of the receiving state party.108 These considerations on the part of the receiving state are without prejudice to its domestic law conferring rights to victims of trafficking109 and also without prejudice to any bilateral or multilateral agreement or arrangement as well as customary international law governing, in part or in whole, the repatriation of the victims of trafficking and

101 Article

7(1). 7(2). See also Tomasi 2017, p. 816. 103 UNODC Travaux Préparatoires 2006, footnote 13, p. 380. 104 UNODC Travaux Préparatoires 2006, footnote 14, p. 380. 105 Article 8(1). 106 Article 8(3), 8(4). 107 Article 8(2). 108 UNODC Travaux Préparatoires 2006, p. 388. 109 Article 8(5). 102 Article

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the return of migrants.110 Flowing from these provisions, therefore, is the realisation that repatriation is a burden the states parties concerned have to share.111

3.1.2.6

Prevention of Trafficking in Persons

The TIP Protocol 2000 urges states parties to establish comprehensive policies, programmes and other measures to prevent and combat trafficking and protect its victims from revictimisation. These policies, programmes and other measures include: research, information, mass media campaigns and social and economic initiatives; co-operation with NGOs, interested organisations and other elements of civil society; alleviation of factors of vulnerability to trafficking, including through bilateral and multilateral co-operation, legislative and other measures; and adoption of measures such as educational, social or cultural that discourage the demand fostering all forms of human exploitation leading to trafficking.112 These preventive and protective measures supplement those of the Organised Crime Convention 2000 on the prevention of organised crime and trafficking in persons as well.113 In the course of negotiating this provision, it was the submission of the Special Rapporteur on violence against women, its causes and consequences that the TIP Protocol 2000 should use a stronger language requiring states parties to undertake information campaigns and programmes to promote awareness and prevent trafficking in persons.114 The concern of the United Nations High Commissioner for Human Rights (UNCHR) and other relevant UN bodies, that measures to prevent trafficking in persons should not discriminatorily result or be used to infringe the rights of people to legally migrate from their countries to another, was not included in article 9 of the TIP Protocol 2000.115 However, the situation was partly rectified by article 14(2) of the TIP Protocol 2000 requiring that the application of these measures be “consistent with internationally recognised principles of non-discrimination”.116 In this connection also, it was agreed that the obligations, responsibilities and rights of the states parties and individuals under international law, especially international humanitarian law, international human rights law and the refugee law, should not be affected by the states parties’ implementation of the TIP Protocol 2000’s provisions.117

110 Article

8(6); UNODC Travaux Préparatoires 2006, p. 389. Travaux Préparatoires 2006, pp. 383–389. 112 Article 9(1)–9(5). 113 Organised Crime Convention 2000, Article 31(5), 31(7). 114 UNODC Travaux Préparatoires 2006, p. 392. 115 The UNHCHR, UNICEF and IOM Submission 2000, p. 13. 116 Gallagher 2010, pp. 87–88. 117 Article 14(2); UNODC Travaux Préparatoires 2006, p. 421; Gallagher 2017a, pp. 8–9. 111 UNODC

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Other Preventive Measures and Co-operation

The TIP Protocol 2000 urges states parties to co-operate in several other measures in the prevention and combating of trafficking.118 These provisions in the TIP Protocol 2000 supplement the similar extensive provisions in the Organised Crime Convention 2000.119 Article 10 of the TIP Protocol 2000 urges states parties to co-operate together by the exchange of information through their law enforcement, immigration and other relevant authorities.120 Co-operation in the exchange of information among these authorities is intended to determine: the identity, whether as perpetrators or victims of trafficking, of individuals crossing or attempting to cross an international border with travel documents of other persons or without travel documents; the types of travel documents used by individuals in the trafficking of persons when crossing or attempting to cross an international border; and the means and methods the organised criminal groups use in trafficking, especially how they recruit and transport victims, their routes and links and how to detect them.121 Also, states parties have to provide training to these authorities on how best to prevent trafficking in persons by focusing on methods used by traffickers, prosecution of traffickers, identification and protection of the victims of trafficking themselves and from the traffickers.122 Such training, however, shall take into consideration human rights and child and gender-sensitive issues while also encouraging the participation of NGOs, interested organisations and other elements of civil society.123 States parties are also required to fulfil their obligation to exchange information under Article 10 following their domestic law as well as the restrictions placed on its use by the transmitting state party.124 The drafters also considered border measures to be an important area in the prevention and detection of trafficking in persons.125 In discharging this obligation, states parties are required to: prevent the means of transport operated by commercial carriers from being used in the commission of offences proscribed under article 5 of the TIP Protocol 2000,126 especially by obligating them and other similar travel agencies and operators to ascertain that all their passengers have the valid travel documents 118 Articles

10–13. Crime Convention 2000, Articles 27–29. 120 UNODC Legislative Guide 2004, paras 84, 89, pp. 307, 309; Buckley 2018, p. 184. 121 Article 10(1)(a)–10(1)(c). 122 European Commission Victim Identification Guidelines 2013, p. 3; Human Rights Council 2012, para 34. 123 Article 10(2). See also UNODC Legislative Guide 2004, paras 88, 95, pp. 309, 313. 124 Article 10(1), 10(3). See also Organised Crime Convention 2000, Article 18(5), 18(9); UNODC Legislative Guide 2004, para 84, p. 307. 125 See UNODC Legislative Guide 2004, paras 86–87, 93, pp. 309–310, 312. Regarding border control’s effectiveness, role and how better can states parties implement article 11 of the TIP Protocol 2000 to prevent trafficking in persons, see articles by Molland 2013, pp. 3–13; Miller and Baumeister 2013, pp. 15–32; McAdam 2013, pp. 33–49. 126 Article 11(2). 119 Organised

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required to enter into the territory of the receiving state party;127 imposition of sanctions where commercial carriers and similar operators violate the obligations;128 denial of entry or revocation of visas of persons implicated in the commission of the TIP Protocol 2000’s proscribed offences;129 and the establishment and maintenance of direct channels of communication of the states parties’ border control agencies in a manner that does not prejudice article 27130 of the Organised Crime Convention 2000.131 Generally, when fulfilling the obligations under article 11, states parties are required to implement them to the extent possible, taking into account international commitments in relation to the free movement of people and other relevant international conventions.132 Furthermore, states parties have a duty to take measures within their available means to ensure that travel or identity documents they issue: cannot be easily misused and falsified or unlawfully replicated, altered or issued;133 ensuring the documents’ integrity and security while also preventing their unlawful creation, issuance and use;134 and when requested by other states parties and while observing their domestic laws, states parties are to verify, within a reasonable time, the legitimacy and validity of travel or identity documents purported to have been issued in their names and suspected of being used for trafficking in persons.135 The application of these provisions is considered in a detailed discussion of states’ anti-trafficking obligations in Chap. 5.

3.1.3 Migrant Smuggling Protocol Although the United States took national and international efforts against the smuggling of aliens since the mid-1990s,136 the origin of the Migrant Smuggling Protocol 2000 is also traced back to the desire of Austria to fight the increasing incidents in the involvement of organised crime groups in the smuggling of migrants to its territory as well as the new policies that Italy was establishing in response to the influx

127 Article

11(3). As to the limits of this requirement on the commercial carriers and other travel agencies and operators, see UNODC Travaux Préparatoires 2006, p. 409. 128 Article 11(4). See also UNODC Travaux Préparatoires 2006, p. 409. 129 Article 11(5). 130 On law enforcement co-operation. 131 Article 11(6). 132 Article 11(1), 11(2), 11(3). As regards the concerns and submissions of some of the United Nations’ affiliate organisations on the impact of border measures on the protection of human rights, see the UNHCHR, UNICEF and IOM Submission 2000, para 10. 133 Article 12(a). 134 Article 12(b). 135 Article 13. See also UNODC Legislative Guide 2004, para 94, p. 312. 136 Gallagher and David 2014, pp. 26–32.

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of migrants transported by organised crime groups from Albania.137 The result was Austria’s proposal for a convention to deal with migrant smuggling in 1997 and Italy’s proposal for a protocol to deal with trafficking of migrants by sea.138 These efforts resulted in the Ad Hoc Committee, in late 1998, being mandated to also elaborate an international instrument addressing illegal trafficking in and transporting of migrants, including by sea.139 As with the TIP Protocol 2000, the legal regime governing the smuggling of migrants is transnational criminal law, with the Migrant Smuggling Protocol 2000 being the principal international instrument to deal with the smuggling of migrants. Convinced that the absence of a universal treaty on migrant smuggling has far-reaching ramifications and that the involvement of organised criminal groups jeopardises the lives and security of the smuggled migrants,140 the international community adopted the Migrant Smuggling Protocol 2000 to promote international co-operation among the states parties to prevent and combat the smuggling of migrants and protect their human rights.141 The Migrant Smuggling Protocol 2000 defines smuggling of migrants to mean: The procurement, in order to obtain directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national or a permanent resident.142

The actus reus or action element of migrant smuggling is the procurement of the illegal entry of a person into a state party of which the said person is not a national or a permanent resident. The purpose element or the mens rea of the smuggling of migrants is the obtaining of or the intention to obtain financial or other material benefits (profit) and such intention or purpose can be gathered from objective factual circumstances.143 Legally, therefore, the crime of migrant smuggling is different from that of trafficking in persons.144 While migrant smuggling has as its actus reus the facilitation of illegal entry of migrants to countries they are not 137 Vlassis

2002c, p. 492; Schloenhardt 2016, pp. 171–172. 2010, pp. 89–90; Gallagher 2015b, pp. 190–191. 139 UNGA (1999a, b) Transnational Organised Crime. UN Doc. A/RES/53/11, 20 January 1999, para 10. 140 The Preamble to the Migrant Smuggling Protocol 2000. 141 Migrant Smuggling Protocol 2000, Article2; Gallagher 2001, p. 996. For a brief but considered exposition of how states have negatively fulfilled their obligations under the Migrant Smuggling Protocol 2000 and the consequence of such a step, see Gallagher 2017b. 142 Article 3(a). On the comprehensive analysis of the elements of this definition, its weaknesses and recommendations for states parties to effectively combat and prevent the smuggling of migrants, see, Aljehani 2015, pp. 122–137. Similarly, see Ali 2014, pp. 13–44. 143 Di Nicola 2014, p. 145; Schloenhardt 2016, pp. 174, 178; Carling et al. 2015, p. 4. 144 Iroanya argues that the difference lies in the four basic elements, namely, exploitation, consent, source of profit and transnationality, see Iroanya 2018, p. 2. A more expansive view is, however, suggested by Batsyukova who suggests that trafficking in persons can be differentiated from smuggling in migrants on the basis of the characteristics of recruited people, type of crime, push factors, relationship “recruiter–recruited”, illegal entry into the country of destination, control over the situation, use of violence, profit and services that trafficked and smuggled persons are entitled to upon detection, Batsyukova 2012, pp. 41–42. 138 Gallagher

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nationals, that of trafficking in persons consists of several composite acts carried through consent-nullifying means which might not necessarily lead into facilitation of illegal entry into another state.145 While the purpose of trafficking is the ultimate continuous exploitation of persons in several exploitative forms, the purpose element of migrant smuggling is to obtain directly or indirectly financial or other material benefits.146 In addition, trafficking in persons does not, in many situations, involve illegal entry into another state. However, the facilitation of and the illegal entry itself is the very defining characteristic of migrant smuggling.147 In this sense, while smuggled migrants will always be foreign nationals, trafficked persons can be foreign nationals or domestic citizens of the country in which trafficking takes place in cases of internal trafficking.148 While trafficking in persons requires the presence of the three elements (action, means and purpose) for the crime to be committed, migrant smuggling requires only the presence of facilitation of illegal entry (action) and the intention to obtain benefits from the facilitation (purpose).149 Furthermore, the word “facilitation” indicates that the smuggled migrant participates willingly and with a valid consent, while this is not the case with a trafficked person who, due to the use of consent-nullifying means element, has his consent vitiated.150 The difference between the two crimes has collapsed into one consideration that while trafficking is both a criminal offence and a violation of human rights of the victims of trafficking, migrant smuggling is essentially a criminal offence involving the violation of national immigration laws and state sovereignty.151 Nevertheless, the two crimes are interrelated and overlapped. For example, a smuggled person can end up being a trafficked victim in the country he illegally enters, especially in situations where he fails to pay the smuggler’s costs of facilitation or due to his vulnerability in the country of destination.152 Likewise, a victim of trafficking can solicit the assistance of the smuggler to enter into the territory of another state or he can also be detained as a smuggled migrant and consequently have his right to recognition as a victim of

145 Gallagher

2015a, p. 61; Lelliott 2017, p. 244. See as well Warren 2007, p. 246. 2018, p. 2; Madsen 2016, p. 8; Di Nicola 2014, p. 145; Schloenhardt 2016, p. 176; Gallagher 2015a, p. 61; Aronowitz 2011, pp. 119–120. 147 Schloenhardt 2016, p. 173; Dandurand 2012, p. 216; Scarpa 2008, p. 68; Parreñas et al. 2012, pp. 1015–1016; Holmes 2010a, b, p. 2; Aronowitz 2009, p. 3; Jones 2012, p. 493. 148 Winterdyk et al. 2012b, p. 5; Obokata 2005b, p. 447; Leman and Janssens 2015, p. 6; Martin 2014, p. 204; Stoyanova 2011, pp. 781–782. 149 Smith and Kangaspunta 2012, p. 26; Di Nicola 2014, p. 145; Obokata 2005a, pp. 396–397; Martin 2014, p. 154. 150 Parreñas et al. 2012, pp. 1015–1016; Obokata 2006, p. 21; Morehouse 2009, p. 20; Williams 2008, pp. 128–129; Schloenhardt 2016, p. 176; Stoyanova 2011, p. 781; Moser 2018, p. 22; Jones 2012, p. 493. 151 Obokata 2005b, p. 448; Scarpa 2008, p. 68; Obokata 2006, p. 21; Lee 2007a, p. 11; Corrin 2005, pp. 548–549; Schloenhardt 2016, p. 176; Lesser 2010, p. 143. 152 Cameron 2008, p. 81; Wylie 2016, p. 6; Scarpa 2008, p. 69; Secretary-General of the Organisation for Economic Co-operation and Development 2016, pp. 12–13; Coso 2011, p. 202; Gallagher 2001, p. 1001; Schloenhardt 2016, p. 176; Jones 2012, p. 494. 146 Iroanya

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trafficking denied.153 Besides, although migrant smuggling is voluntary, it still has several incidences in which the human rights of those smuggled are violated as is the case with trafficking in persons.154 Financial or other material benefits clause was inserted to cover only persons and organised criminal groups that smuggle migrants for profits.155 The words “other material benefit” also indicate that the benefits expected extend beyond financial, monetary or equivalent benefits to include also other personal benefits such as sexual gratification.156 The phrase can also include non-financial inducements, bribe, payments, rewards, privilege, advantage and services whether sexual or others.157 Its inclusion also serves to exclude from liability the activities of those who provide support and assistance to migrants based on close family ties or humanitarian grounds.158 The Migrant Smuggling Protocol 2000 focuses only on the third parties, those who procure or facilitate to smuggle the migrants. Therefore, the Migrant Smuggling Protocol 2000 does not deal with the mere illegal entry and its position is neutral as regards how states parties treat those who migrate within their territories illegally.159 The Migrant Smuggling Protocol 2000 focuses on the following main areas which are explained herein below.

3.1.3.1

Scope of Application

Being an instrument of international co-operation, the Migrant Smuggling Protocol 2000 applies to the prevention, investigation and prosecution of the offences established and criminalised under Article 6 of the Protocol and to the protection of the rights of persons who have been the object of such offences. The Protocol applies where the offences are transnational in nature and involve an organised criminal group.160 The use of the phrase “the object of such offences” indicates that the Migrant Smuggling Protocol 2000 does not regard as victims the smuggled migrants and other persons over whom the offences in Article 6 are committed against.161 The Protocol takes the approach that migrants consent to be smuggled and as such,

153 Chuang

2006, pp. 149–150; Lelliott 2017, p. 240. See as well Simon 2010, pp. 640–641. 2006, pp. 21–22, 26; Martin and Miller 2000, p. 975; Lee 2007a, p.11; Hauck and Peterke 2010, p. 425; Obokata 2005a, pp. 400–401; Martin 2014, pp. 154, 203. 155 Gallagher 2017b, pp. 2–3. Regarding a detailed analysis of how states have incorporated this clause in their domestic legislation and the impact, Gallagher 2017c. 156 UNODC Legislative Guide 2004, para 26, p. 13, para 20, pp. 333–334; UNODC Model Law against Migrant Smuggling 2010, p. 13; Schloenhardt 2016, p. 175. 157 UNODC Model Law against Migrant Smuggling 2010, p. 13; Lelliott 2017, p. 424. 158 Gallagher 2015a, p. 58; UNODC Travaux Préparatoires 2006, p. 469; Zhang 2007, p. 1; Gallagher 2017b, pp. 2–3; Leman and Janssens 2015, p. 1; Gallagher 2001, p. 996. 159 Gallagher and David 2014, p. 47. See also Migrant Smuggling Protocol 2000, Article 6(3). 160 Article 4. 161 Schloenhardt 2016, p. 176. 154 Obokata

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they cannot become victims but objects.162 The Model Law, however, recognises that migrants can become victims only of other crimes committed in the course of their being smuggled.163 Also, the use of the phrase “offences established in accordance with article 6 of this Protocol” operates to explain that offences criminalised by the Migrant Smuggling Protocol 2000 extend beyond the narrow confines of the offence of migrant smuggling defined in Article 3(a) and criminalised in Article 6(1)(a). Article 6 contains other offences to be criminalised by states parties and for which the Migrant Smuggling Protocol 2000 still applies.164 Further, the phrase “where the offences are transnational in nature and involve an organised criminal group” indicates that naturally, the offence of migrant smuggling transcends across borders with the involvement of organised criminal groups in the course of smuggling. However, as the Protocol criminalises the smuggling of migrants, it, too, recognises that there are other migrant smuggling offences that can occur within the frontiers of a single state party.165 These are also within the ambits of the Protocol. The Legislative Guide clarifies that at the domestic level, states parties can prosecute and should actually criminalise migrant smuggling offences, even when the transnationality and/or organised crime elements are missing.166

3.1.3.2

Criminal Liability of Migrants

The Migrant Smuggling Protocol 2000 provides that where migrants are the objects of the Article 6 offences, they should not face criminal prosecutions.167 Due to concern that the Migrant Smuggling Protocol 2000 might be used to grant immunity to illegal migrants, especially where they commit other crimes such as the smuggling of other migrants,168 the Protocol reserves the sovereign right of the states parties to take legal measures against any persons whose conducts constitute criminal offences under their domestic laws.169 Therefore, states parties have the authority to criminalise illegal stay, illegal entry, possession of fraudulent travel documents and similar other offences.170 This is premised on the understanding that the Protocol’s focus is the criminalisation of the smuggling of migrants as perpetrated by organised criminal groups, not the smuggled migrants themselves, even when they procure 162 UNODC

Model Law against Migrant Smuggling 2010, pp. 19–20; Hauck and Peterke 2010, p. 425. 163 UNODC Model Law against Migrant Smuggling 2010, pp. 19–20. See also Piotrowicz and Redpath-Cross 2012, pp. 247–249; Gallagher 2015a, p. 59; Hauck and Peterke 2010, p. 425. 164 UNODC Model Law against Migrant Smuggling 2010, p. 19. 165 Gallagher and David 2014, p. 49. 166 UNODC Legislative Guide 2004, para 20, pp. 333–334. See also Lasocik 2010, p. 21. 167 Article 5. See also Schloenhardt and Hickson 2013, pp. 40–50; Schloenhardt 2016, p. 188; Brolan 2003, p. 591. 168 UNODC Travaux Préparatoires 2006, p 482. 169 Article 6(4). See as well Mitsilegas 2015, p. 52; Schloenhardt 2016, p. 176. Generally on state responsibility in relation to migrant smuggling see Gallagher and David 2014, pp. 276–352. 170 Gallagher and David 2014, pp. 49–50; Schloenhardt 2016, p. 176; Mitsilegas 2015, p. 52.

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themselves.171 For that matter, the Migrant Smuggling Protocol 2000 does not criminalise or deal with mere migration even where it is illegal under domestic law,172 as this might have broader implications where the status of refugees or asylum seekers is concerned.173

3.1.3.3

Criminalisation

The Migrant Smuggling Protocol 2000 obliges each state party to criminalise: the smuggling of migrants; enabling migrant smuggling through the production, procurement, provision or possession of the fraudulent travel or identity documents; enabling a non-national or non-permanent resident to remain in the concerned state party without complying with the legal requirements to remain or reside in such a state party through the means proscribed under Article 6(1)(b) or any other illegal means; attempting to commit offences proscribed in Article 6(1) but subject to the basic concepts of its legal system; participating as an accomplice in the offences criminalised in Articles 6(1)(a), 6(1)(b)(i), and subject to the basic concepts of its legal system, participating as an accomplice in the offence criminalised under Article 6(1)(b)(ii); as well as organising or directing other persons to commit offences under Article 6(1).174 Each state party is to criminalise these offences when committed intentionally and in order to obtain financial or other material benefits, whether directly or indirectly.175 When criminalising these offences, a state party shall adopt legislative and other measures necessary to recognise the following conditions as aggravating circumstances for the proscribed crimes: circumstances endangering or likely to endanger the lives or safety of the concerned migrants; or circumstances that entail inhuman or degrading treatment, including the exploitation of such migrants.176 It seems, therefore, that the Migrant Smuggling Protocol 2000 criminalises three principal offences when committed intentionally and in order to obtain a financial or other material benefit, directly or indirectly, namely, the smuggling of migrants, enabling illegal residence and offences relating to travel or identity documents.177 The Protocol then extends criminal liability to attempts, participation as an accomplice and organising or directing others to commit the proscribed offences. Offences relating to enabling illegal residence require the elements of intent to commit any of the acts to enable illegal residence and the intention to obtain financial or other material benefits.178 The offence intends to prosecute those persons who harbour

171 Schloenhardt

2016, p. 188. and Redpath-Cross 2012, p. 250. 173 UNODC Model Law against Migrant Smuggling 2010, pp. 56–57; Schloenhardt 2016, p. 188. 174 Article 6(1)(a)–6(1)(c), 6(2)(a)–6(2)(c). 175 Article 6(1). 176 Article 3(a), 3(b). See Schloenhardt 2016, pp. 182–186. 177 Schloenhardt 2016, pp. 177–178; Gallagher 2017b, p. 2; Martin 2014, p. 204. 178 UNODC Legislative Guide 2004, paras 36–38, pp. 342–343. 172 Piotrowicz

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and conceal persons who illegally reside in the destination country.179 Offences relating to travel or identity documents entail the proof of three different elements, namely: intention to produce, procure, provide or possess such documents; intention to obtain a financial or other material benefit; and the intention to enable the smuggling of migrants.180 The third element operates to exclude those migrants who smuggle themselves.181 Offences of attempting, participating as an accomplice and organising or directing others extend the forms of liability relating to the principal offences but are mostly subject to the basic concepts of the states parties’ legal systems.182 These criminalisation provisions are elaborated further in several other interpretative materials issued by the UNODC as well as the practice of states parties themselves.183 Besides, as explained previously, several of the criminal and international co-operation provisions of the Organised Crime Convention 2000 apply, mutatis mutandis, to the Migrant Smuggling Protocol 2000.184

3.1.3.4

Establishment of Jurisdiction

The provision on jurisdiction and how to resolve cases of competing jurisdictions does not appear in the Migrant Smuggling Protocol 2000 as it was deleted from the draft text. Although the official explanation is lacking,185 the understanding of the drafters was that the provisions of the Organised Crime Convention 2000 on areas of jurisdiction, mutual legal assistance, extradition and other forms of international cooperation will, mutatis mutandis, apply to the Migrant Smuggling Protocol 2000.186 Thus, according to Article 15, states parties are to establish as mandatory territorial and flag state jurisdiction. In the context of migrant smuggling, a reference to territory includes also the territorial sea of the state party.187 States parties may also establish

179 Schloenhardt

2016, p. 180. reason for criminalising this offence is that “The Protocol seeks to ensure that countries comprehensively proscribe and criminalize any form of fraud affecting travel and identity documents, ranging from creating new documents, via altering existing documents, to using another person’s document, and obtain documents fraudulently, corruptly, or coercively”, Schloenhardt 2016, p. 179. 181 UNODC Legislative Guide 2004, paras 39–42, pp. 343–345. 182 UNODC Legislative Guide 2004, paras 43–44, 1–53, pp. 345–346, 347–349. See also Schloenhardt 2016, p. 181. 183 UNODC Legislative Guide 2004, paras 25–61, pp. 339–357; UNODC Model Law against Migrant Smuggling 2010, pp. 27–56; Gallagher and David 2014, pp. 355–402. 184 Gallagher and David 2014, pp. 50–53. 185 Gallagher and David 2014, p. 53. 186 UNODC Travaux Préparatoires 2006, p. 575. 187 See the extensive provisions in the United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (1982), entered into force 16 November 1994, and the commentary in the UNODC Model Law against Migrant Smuggling 2010, pp. 20–25. 180 The

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active and passive personality jurisdiction as well as the protective jurisdiction and the extended form of objective territoriality jurisdiction.188

3.1.3.5

Smuggling of Migrants by Sea

As a rule, states parties are mandatorily required to co-operate in the prevention and suppression of the smuggling of migrants by sea, following the international law of the sea, to the fullest extent possible.189 The relevant provisions of the Migrant Smuggling Protocol 2000 do not create a new regime to govern smuggling by sea. Most of its provisions operate to affirm the basic norms of the international law of the sea as codified in the United Nations Convention on the Law of the Sea, other international legal instruments as well as the customary international law.190 In this area, a state party desires to co-operate with other states parties concerning “its own flagged vessels; vessels flying the flag of other states parties; vessels without nationality; or a vessel assimilated to a vessel without nationality” when involved in the smuggling of migrants by sea.191 In fulfilling this obligation, states parties are obliged to take the following measures: requesting the assistance of other states parties is suppressing vessels suspected of being used in the smuggling of migrants; obtaining confirmation of registration and the authorisations from the flag states to board and search the vessels and in case there is evidence of engagement in criminality,192 to take appropriate measures as authorised; requesting states parties to notify promptly the flag states of the measures they have pursued; expeditious response from the requested or flag states as regards the vessels’ registry and the authorisation to board, search and even take appropriate measures; compliance by the requesting states parties with the conditions relating to authorisations as given by the flag states parties, including not taking additional measures without express authorisation unless doing so is necessary to relieve imminent danger to the lives of persons and other measures derived from relevant bilateral or multilateral agreements; designating authorities to discharge cooperation duties with regard to the smuggling of migrants by sea; and taking appropriate measures by the requesting states parties, including boarding and searching suspect vessels without nationality or those assimilated to vessels without nationality

188 UNODC

Model Law against Migrant Smuggling 2010, pp. 24–25; Fichtelberg 2014, pp. 356– 357. On some critical perspectives rendering passive personality jurisdiction optional, see Echle 2013, pp. 60–61. 189 Migrant Smuggling Protocol 2000, Article 7. 190 UNODC Travaux Préparatoires 2006, pp. 493–494. Generally, see Gallagher and David 2014, pp. 55–56, 79–86, 403–489; Mallia 2015, pp. 288–297, 299–307; Zagaris 2015, pp. 319–350. 191 UNODC Model Law against Migrant Smuggling 2010, p. 83. Generally, see UNODC Legislative Guide 2004, paras 91–101, pp. 383–388. 192 UNODC Travaux Préparatoires 2006, p. 86.

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according their domestic and international law.193 These actions, however, are to be discharged in accordance with the safeguard measures provided in article 9.194

3.1.3.6

Prevention of Migrant Smuggling and Co-operation

The provisions of the Migrant Smuggling Protocol 2000 are read together with similar provisions in the Organised Crime Convention 2000.195 Like the TIP Protocol 2000, the Migrant Smuggling Protocol 2000 contains extensive provisions on the prevention of migrant smuggling, co-operation and other measures. In this respect, the Protocol envisages information exchange on matters relating to the offences of migrant smuggling; several border control measures intending to intercept migrant smuggling offences while also taking into account states parties’ international obligations not to interfere with the free movement of persons; security and control of travel and identity documents as well as their legitimacy and validity; training and technical co-operation in the prevention and suppression of migrant smuggling; co-operation in the return of smuggled migrants; conclusion of other bilateral and multilateral agreements, understandings and arrangements to prevent and combat the smuggling of migrants as well as enhancing the provisions of the Protocol; and the taking of other preventive measures such as dissemination of information to create public awareness about migrant smuggling, promotion and strengthening of development programmes and aspiration to address the socio-economic conditions that render people vulnerable to migrant smuggling.196

3.1.3.7

Protection and Assistance

Unlike the TIP Protocol 2000, the Migrant Smuggling Protocol 2000 contains less protection and assistance provisions relating to the human rights of smuggled migrants and this is despite concerns expressed by some stakeholders.197 These concerns ranged from recognition and protection of rights of the asylum seekers, refugees, migrants and the smuggled migrants themselves against being penalised or prosecuted, specific recognition and protection of the smuggled children, inclusion of specific savings clauses obligating states parties to respect and comply with their

193 Article

8(1)–8(7). and David 2014, p. 59. See also UNODC Model Law against Migrant Smuggling 2010, pp. 91–98. 195 Organised Crime Convention 2000, Articles 13–14, 16–21, 27–31; UNODC Legislative Guide 2004, paras. 95–111, pp. 386–391; and for a general analysis see also Gallagher and David 2014, pp. 60–61, 490–551. 196 Articles 10–15, 17–18. See as well Sharapov 2016, p. 21. 197 The UNHCHR, UNICEF and IOM Submission 2000, part C, paras 15–22; Economic and Social Council 2000, para 18; Schloenhardt 2016, pp. 191–192; Lelliott 2017, p. 247. 194 Gallagher

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obligations under international law and ensuring that border control measures do not undermine the rights of persons to free movement.198 The Migrant Smuggling Protocol 2000, however, enshrines the basic rights of smuggled migrants against the worst forms of exploitation in the course of their smuggling.199 It also has a savings clause to the effect that the Protocol does not affect the rights, obligations and responsibilities of states parties and individuals under international law, especially international humanitarian law and international human rights law, with particular focus on the refugee law and the principles of nonrefoulement and non-discrimination.200 The Protocol protects smuggled migrants from being held criminally liable by virtue of their being smuggled, creates aggravating circumstances that demand additional measures to protect and assist smuggled migrants while also prosecuting the smugglers, and emphasises that the measures taken under the Protocol should consider the humane treatment of the smuggled migrants and protection of their human rights.201 But due to the Protocol’s shortcomings on the legal action and remedies against the smugglers, Gallagher and David note that the absence of the “victim” status from smuggled migrants “means that the provisions relating to compensation and restitution set out in Article 25 of the Organised Crime Convention 2000 could not be relied on in this instance”.202 In the end, a set of limited assistance and protection measures are provided for in Article 16 of the Protocol.203 Article 16 enjoins states parties to: take all appropriate measures to preserve and protect the rights of persons who are the object of the offences under Article 6 of the Protocol, especially protection of the rights to life and not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment; protection against violence; assistance to migrants whose lives or safety are endangered; and compliance with the Vienna Convention on Consular Relations204 concerning detained smuggled migrants, where applicable.205 These

198 Schloenhardt

2016, pp. 191–192; Lelliott 2017, pp. 240–241.

199 As to the indispensability of human rights in the case of migrant smuggling, see Obokata 2005a,

pp. 293–330. 200 Migrant Smuggling Protocol 2000, Article19. See also Gallagher and David 2014, pp. 125–201;

Papastavridis 2015, pp. 239–245. 5, 6(3), 14(1). 202 Gallagher and David 2014, p. 64. See also Gallagher 2015a, p. 60. 203 On the general discussion about these measures see Gallagher and David 2014, pp. 552–598. 204 Opened for Signature 24 April 1963, 596 UNTS 261 (1961), entered into force 19 March 1967. See also Schloenhardt 2016, p. 192. 205 Article 16(1)–16(3), 16(5). On this legal obligation and its implementation by states see Gallagher and David 2014, pp. 599–663; Conference of the Parties to the United Nations Convention against Transnational Organized Crime (2008) Implementation of the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime: Consolidated Information Received from States for the Second Reporting Cycle. UN Doc. CTOC/COP/2006/7/Rev.1, 18 August 2008, paras 3–11. 201 Articles

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measures, however, shall take into account the special needs of women and children.206 Concerning the return of smuggled migrants,207 although most of the obligations under article 18 of the Protocol are the same as those in the TIP Protocol 2000,208 there is no general obligation to consider allowing migrants to remain in the states parties’ territories, whether temporary or permanent.209 Even the recommendation that the return of the smuggled migrants should be a willing return, with a guarantee on the protection of their due process rights, was not accepted.210

3.2 Regional Anti-trafficking Legal Frameworks The EU, CoE, OAS, SAARC and the ASEAN have all adopted anti-trafficking specific legal instruments. Without going to the historical development of the antitrafficking frameworks in these regions, this section briefly analyses these instruments in relation to the TIP Protocol 2000. The study, however, will not examine the Inter-American Convention on International Traffic in Minors211 because in the course of discussing the international legal definition of trafficking in persons in Chap. 2, the basic features of this Convention’s definition of child trafficking were considered. Furthermore, the ASEAN Convention 2015, whose provisions mostly incorporate or contain similar provisions as those of the TIP Protocol 2000 and the Organised Crime Convention 2000, in some areas, although with some slight changes, is also not discussed in this part.212 However, in the course of examining states’ antitrafficking obligations in Chap. 5, the provisions of the ASEAN Convention 2015 have been extensively referred to and their weaknesses and strengths pointed out.

206 Article

16(4). and David 2014, pp. 664–734. 208 TIP Protocol 2000, Article 8. 209 Compare TIP Protocol 2000, Article 7 with Migrant Smuggling Protocol 2000, Article 18. 210 Gallagher and David 2014, pp. 65 quoting the UNODC Travaux Préparatoires 2006 Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Transnational Organised Crime and the Protocols Thereto.Sales No.E.06.V.5, 2006, pp. 548–549. For some other critical comments, see Kneebone 2010, pp. 156–157. 211 Inter-American Convention on International Traffic in Minors, opened for signature 18 March 1994, OAS Doc. OEA/Ser.K/XXI.5, 79 OASTS, reprinted in (1994) 33 ILM 721, entered into force 15 August 1997. 212 The ASEAN Convention Against Trafficking in Persons, Especially Women and Children, opened for signature 21 November 2015, entered into force 8 March 2016 (ASEAN Convention 2015). 207 Gallagher

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3.2.1 SAARC Convention Intending to emphasise that trafficking is, in essence, a violation of human rights and is incompatible with the dignity and honour of human beings,213 the SAARC member states adopted the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (SAARC Convention 2002) as an instrument of regional co-operation to effectively prevent, interdict and suppress trafficking in women and children; repatriate and rehabilitate victims of trafficking; and prevent the use of women and children in international prostitution networks.214 The SAARC Convention 2002 obligates member states to criminalise trafficking as an offence in any form with punishment and penalties taking into account its grave nature. Member states are also to criminalise the intentional keeping, maintaining, financing or taking part in the financing of a place used for trafficking and the letting or renting of a building or any premises used for trafficking. Attempting or abetting to commit the crime of trafficking under Article III(1) and keeping, managing or financing premises for trafficking under Article III(2) are also criminalised offences.215 The SAARC Convention 2002 considers an offence as trafficking the moving, selling or buying of women and children for prostitution by traffickers so as to obtain monetary or other considerations, regardless of whether the persons subjected to trafficking consented or not and irrespective of whether such trafficking happens within or outside the territory of any of the member states.216 Factors that aggravate the offence of trafficking include: involvement of organised criminal group to which the offender belongs; offender’s involvement in other international organised criminal activities; use of violence or arms by the offender; offender’s misuse of his public office in trafficking; victimisation or trafficking of children; commission of trafficking in a custodial or educational institution or social facility or other facilities and vicinities used by children and students; and previous conviction.217 The SAARC Convention 2002 also has provisions on judicial proceedings that protect the confidentiality of the victims of trafficking, with a provision on appropriate counselling and legal assistance;218 mutual legal assistance in the investigation, inquiries, trials

213 SAARC

Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, opened for signature 5 January 2002, entered into force 15 November 2005, para 1 to the Preamble (SAARC Convention 2002). Briefly, see Van Heeswijk 2003, pp. 83–85. For Asianregion specific legal and policy measures against trafficking in persons, see UNHCR Refugee Protection and Human Trafficking 2008, pp. 227–258. 214 SAARC Convention 2002, Article II. SAARC has a total of eight member states, namely, Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. https://saarcsec.org/about-saarc. Accessed 2 October 2018. 215 Article III(1)–III(3). 216 Article I(3). 217 Article IV. 218 Article V.

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and other proceedings relating to trafficking offences;219 and extradition in relation to trafficking offences.220 Concerning prevention and interdiction of trafficking, the SAARC Convention 2002 obligates states parties to sufficiently empower their authorities to deal with trafficking offences; train their law enforcement agencies and the judiciary on trafficking offences and on the factors that encourage women and children trafficking; establish a Regional Task Force to facilitate the SAARC Convention 2002’s implementation and to conduct periodic reviews concerning its implementation; forming bilateral mechanisms to implement the provisions of the SAARC Convention 2002 and appropriate mechanisms to co-operate in the interdiction of trafficking; exchange of information regularly with respect to the institutions, agencies and individuals involved in trafficking offences and the ways and means they use in trafficking and their criminal records; consider taking measures to supervise employment agencies that might involve themselves in trafficking offences; endeavour focusing preventive and development strategies in areas considered as sources of trafficking; and promote awareness through the use of channels such as the media on the problem of trafficking, its underlying causes, including the projection of negative images of women.221 On assistance and support for victims of trafficking, the SAARC Convention 2002 conditions measures to assist and protect the victims of trafficking in the context of pending modalities for repatriation in the country of origin.222 In this connection, member states are to make appropriate provisions for their care and maintenance, legal advice and health care facilities for victims;223 establish protective homes or shelters for victims’ rehabilitation, with suitable provisions for granting them legal advice, counselling and job training;224 and consider authorising and encouraging recognised NGOs to help and participate in providing assistance and care for victims of trafficking.225 The SAARC Convention 2002 has a specific savings clause to the effect that “the measures provided in the Convention are without prejudice to higher measures of enforcement and protection accorded by relevant national laws and international agreements”.226 Thus, the SAARC Convention 2002 clearly indicates 219 Article

VI. More elaborative provisions are contained in the SAARC Convention on Mutual Legal Assistance in Criminal Matters, opened for signature 3 August 2008. The Convention has not yet entered into force at the time of writing. 220 Article VII. 221 Article VIII(1)–VIII(8). The SAARC Convention 2002 defines traffickers to include persons, agencies and institutions in Article I(4). 222 Article IX(1) and IX(2): “The State Parties to the Convention shall work out modalities for repatriation of the victims to the country of origin. (2) Pending the completion of arrangements for the repatriation of victims of cross-border trafficking, the State Parties to the Convention shall make suitable provisions for their care and maintenance. 223 Article IX(2). This duty originates from the understanding that trafficking in persons has serious health implications to the victims of trafficking, see Helton 2016, pp. 450–452. 224 Article IX(3). 225 Article IX(4) and IX(5). 226 Article XI.

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that any measures of its domestic implementation should take into consideration the higher measures as provided in the domestic legal frameworks and international law. The savings clause greatly ameliorates the many shortcomings of the SAARC Convention 2002 by permitting member states to consider international legal frameworks in the implementation of the anti-trafficking obligations of the SAARC Convention 2002. The SAARC Convention 2002 has several good provisions, especially on assistance, care and protection of victims of trafficking. The SAARC Convention 2002, however, falls short in several major areas of concern. For example, as reflected in the title and the substantive provisions, the SAARC Convention 2002 deals only with trafficking for the purpose of prostitution. This position, regardless of the regional autonomy of the SAARC member states, does not reflect the actual position of international law, considering that at the time of the Convention’s adoption, the TIP Protocol 2000 had already been adopted. It is an actual retreat as the SAARC Convention 2002 does not consider that trafficking includes other manifestations such as slavery, forced labour, servitude and the removal of organs. These other manifestations or end results of trafficking are equally prevalent in the SAARC member states.227 In the SAARC’s Social Charter, however, member states reaffirmed their commitment to suppress not only trafficking of women and children for prostitution but also to combat and suppress all forms of trafficking in women and their exploitation.228 This is an expansive understanding of the trafficking dimension, albeit limited to women to the exclusion of men. Its definition of trafficking is also weak. It considers that trafficking can occur with or without the consent of women, a position rejected by the current international legal regime on trafficking. In trying to protect women, the SAARC Convention 2002 actually has ended up denying women their autonomy to decide and make choices concerning their own sexuality.229 Potentially, the SAARC Convention 2002 appears to conflate between the offence of trafficking and the right of women to voluntary migration.230 The definition of trafficking also does not contain the means element unless one reads the definition of “persons subjected to trafficking”.231 While making trafficking of children for prostitution a criminal offence and an aggravating circumstance, there are no clear provisions in the SAARC Convention 2002 specifically dedicated to the child victims of trafficking. The SAARC Convention 2002, therefore, missed the opportunity to rectify the shortcomings of the TIP Protocol 2000 in this area and several others. Compared to the Organised Crime Convention 2000, the provisions on mutual legal assistance and extradition in the SAARC Convention

227 Kumar

2015, pp. 17–21. VI(5), Social Charter of the South Asian Association for Regional Cooperation, opened for signature 4 January 2004. 229 Van Heeswijk Jan 2003, pp. 74–75. 230 Farhana and Easin 2015, p. 69. 231 Article I(5). 228 Article

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2002 are not detailed or elaborative enough.232 Further, the SAARC Convention 2002 has premised measures to assist and support victims of trafficking in the context of repatriation in the countries of origin, thus failing to realise that, in addition to repatriation, there are several other options available to victims of trafficking while in the destination countries that better protect their human rights and offer them a chance to pursue their choices. It goes without saying that under the SAARC Convention 2002, men and boy children are not considered as “persons subjected to trafficking”.

3.2.2 CoE Anti-trafficking Convention The prevention and combating of trafficking in persons in the CoE is governed by the Council of Europe Convention on Action against Trafficking in Human Beings.233 Premised more on the protection of the human rights of the victims of trafficking and a specially designated monitoring mechanism,234 the CoE Anti-Trafficking Convention 2005 was adopted with a purpose of preventing and combating trafficking, protecting and assisting victims of trafficking and witnesses, with a focus on guaranteeing gender equality,235 ensuring capable investigation and prosecution as well as promoting international co-operation against trafficking.236 The CoE AntiTrafficking Convention 2005 applies to all forms of trafficking both national and transnational, whether or not connected to organised crime, and member states are called upon to implement its provisions on the protection and promotion of the human rights of trafficked victims without discrimination and in cases of transnational trafficking, regardless of whether they are legally or illegally present in the territories of the states parties.237 Regarding the definition of trafficking, issues relating to consent in trafficking and the trafficking of children, the CoE Anti-Trafficking Convention 2005 is similar to the TIP Protocol 2000.238 Unlike the TIP Protocol 2000, however,

232 More elaborative provisions are contained in the SAARC Convention on Mutual Legal Assistance

in Criminal Matters 2008. of Europe Convention on Action against Trafficking in Human Beings, opened for signature 16 May 2005, CETS-No. 197, Warsaw 16.V.2005, entered into force 1 February 2008 (CoE Anti-Trafficking Convention 2005). On the earlier review of this Convention, see Gallagher 2006, pp. 163–189. 234 CoE Anti-Trafficking Convention 2005, para 13 of the Preamble. 235 Council of Europe (2005) Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings. Council of Europe Treaty Series No. 197, Warsaw, 16.V.2005, para 54. (CoE Anti-Trafficking Convention Explanatory Report 2005). 236 Article 1. As to the specific inclusion of the term “Action” in the definition, see CoE AntiTrafficking Convention Explanatory Report 2005, para 39. 237 Articles 2–3; CoE Anti-Trafficking Convention Explanatory Report 2005, para 62. On discrimination specifically, refer to paras 63–69. See as well Malloch and Rigby 2016a, b, pp. 3–4; Stoyanova 2017, p. 28. 238 Article 4; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 70–98. 233 Council

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the CoE Anti-Trafficking Convention 2005 defines a victim. A victim is any natural person who has been subjected to trafficking in persons.239 On prevention, co-operation and other measures, states parties are obligated to prevent trafficking by establishing or strengthening domestic co-ordination between their various anti-trafficking bodies; establishing and/or strengthening effective policies and programmes against trafficking; promoting the use of a human rights-basedapproach, gender mainstreaming and a child-sensitive approach; disseminating accurate information enabling migration to take places legally; taking specific measures to reduce children’s vulnerability to trafficking; and involving anti-trafficking NGOs, stakeholders and other elements of civil society.240 States parties are also called upon to take measures that discourage the demand that fosters trafficking, protect borders to prevent trafficking, ensure security and control of travel and identity documents and their validity.241 Concerning protection and promotion of victims’ rights and guarantees of gender equality, the CoE Anti-Trafficking Convention 2005 requires states parties, through their competent authorities with well trained and qualified anti-trafficking personnel, to collaborate in the identification of the victims of trafficking and giving them special protection and assistance, including by ensuring that trafficked persons are not removed in their territories until identified as victims.242 States parties also have the obligation to protect child victims even when their ages are uncertain and where the child victims include also unaccompanied children. States parties have to provide them with a representation to act in their best interests, take steps to establish their identity, nationality and locate their families.243 The CoE Anti-Trafficking Convention 2005 obligates states parties to protect the private life and identities of the victims of trafficking from being known publicly, save in exceptional circumstances and according to law.244 Like other anti-trafficking instruments, the CoE Anti-Trafficking Convention 2005 obliges states to take measures to assist victims in their physical, psychological and social recovery.245 Under this Convention, states parties are to make a legal provision in their domestic laws allowing for a recovery and reflection period of at least 30 days to victims of trafficking. Its purpose is to give sufficient time to the victims to recover and escape the influence of traffickers so as to make an informed decision on whether they will co-operate with a state party’s competent authorities.246 During the recovery and reflection period, a state party cannot make an order expelling the victims. Where the victim status is improperly claimed or there 239 Article

4(e). See also Piotrowicz 2018, pp. 41–42; Malloch and Rigby 2016a, b, p. 3. 5; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 101–107. 241 Articles 6–9; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 108–123. 242 Article 10(1), 10(2). See also CoE Anti-Trafficking Convention Explanatory Report 2005, paras 127–135. 243 Article 10(3), 10(4). See also CoE Anti-Trafficking Convention Explanatory Report 2005, paras 136–137; United Nations Children’s Fund 2017, pp. 45–51; Lelliott 2017, pp. 253–260. 244 Article 11; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 138–145. 245 Article 12; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 146–171. 246 Copi´ ´ c and Simeunovi´c-Pati´c 2012, pp. 274–275; Weiss 2016, pp. 48–49. 240 Article

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are justifiable grounds of public order, this Convention allows states parties not to recognise the recovery and reflection period.247 The CoE Anti-Trafficking Convention 2005 mandates states parties to issue residence permits to victims of trafficking where doing so is necessary owing to their personal circumstances or where their stay is crucial to facilitate investigation or criminal proceedings. The domestic law of states parties regulates the granting, renewal, non-renewal or withdrawal of the residence permits. In the case of child victims, their residence permits should be issued based upon a consideration of the best interests of the child. The Convention provides that granting residence permits to victims does not prejudice or affect their right to seek and enjoy asylum in the territories of the states parties.248 The CoE Anti-Trafficking Convention 2005 directs states parties to grant victims the right to claim compensation from the perpetrators as well as ensuring them access to information on relevant administrative and judicial proceedings, including the right to legal assistance and free legal aid based on the conditions stipulated in their internal law.249 Concerning repatriation and return of victims, the CoE Anti-Trafficking Convention 2005 has similar provisions as those of the TIP Protocol 2000.250 There are, however, minor differences. For example, a destination country is mandatorily required to consider the “rights, safety and dignity of the person and for the status of any legal proceedings related to the fact that the person is a victim, and repatriation shall preferably be voluntary”.251 The Convention also obligates states parties to adopt several measures establishing repatriation programmes which also involve relevant national or international institutions and NGOs. The overarching aim of the repatriation programmes is to avoid revictimisation and purposively encourage reintegration. Concerning child victims, repatriation programmes should include the enjoyment of the right to education, securing their adequate care or reception by their family members and where there is an indication, following a risk and security assessment, that the return of the child victims will not be in the best interests of the child, child victims should not be returned but should remain in the destination states.252 The CoE Anti-Trafficking Convention 2005 greatly emphasises that all measures concerning the promotion and protection of the victims’ rights as well as their development, implementation and assessment must aim to “promote gender equality and use gender mainstreaming”.253 Chapter IV of the CoE Anti-Trafficking Convention 2005 contains the substantive provisions on criminal law. The Convention criminalises intentional trafficking

247 Article 248 Article

13; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 172–179. 14 together with the CoE Anti-Trafficking Convention Explanatory Report 2005, paras

180–190. 249 Article

15; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 191–199. Anti-Trafficking Convention Explanatory Report 2005, paras 200–207. 251 Article 16. 252 Article 16. 253 Article 17; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 208–215. 250 CoE

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in persons and the knowingly use of services of the victim of trafficking.254 The Convention also criminalises acts relating to identity or travel documents as well as attempting and aiding or abetting trafficking or criminal acts relating to identity or travel documents.255 Both natural and legal persons are held criminally liable for commission of the Convention’s proscribed offences and their punishments must be effective, proportionate and dissuasive with penalties and sanctions imposed respectively and taking into account the aggravating circumstances.256 The CoE Anti-Trafficking Convention 2005 also has a non-punishment clause in favour of the victims of trafficking for the offences they have been compelled to commit as a result of their being trafficked.257 On investigation, prosecution and procedural law, the CoE Anti-Trafficking Convention 2005 allows ex parte and ex officio applications where a state party is required to investigate or prosecute trafficking offences, irrespective of the complaint made by a victim of trafficking.258 The Convention aims to ensure that states parties’ competent authorities can investigate and prosecute trafficking offences even where victims of trafficking do not make complaints when deterred or threatened by traffickers.259 The Convention also allows states parties to co-operate in ensuring that victims of trafficking are allowed logging a complaint to the competent authorities of their states of residence while in other territories. Where the state of residence lacks competence, it shall transmit such information to the competent authorities of the state in which the crime was committed and that state shall deal with the situation based on its internal law.260 States have to ensure that anti-trafficking NGOs or other stakeholders are allowed to assist and/or support victims of trafficking, with their consent, during criminal proceedings.261 The CoE Anti-Trafficking Convention 2005 also mandates states parties to provide effective and appropriate protection against potential retaliation or intimidation to victims of trafficking and witnesses, including, when necessary, members of their families who participate and co-operate in the investigation or prosecution of trafficking offences.262 Taking into account the special protection measures for child victims, states can provide various forms of protection such as physical protection, identity change, relocation and assistance in getting jobs.263 Where necessary, 254 Articles

18–19. See also CoE Anti-Trafficking Convention Explanatory Report 2005, paras 222–236. 255 Articles 20–21; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 237–246. 256 Articles 22–24 together with the CoE Anti-Trafficking Convention Explanatory Report 2005, paras 247–264. 257 Article 26. See as well Jørgensen 2009, pp. 213–214. 258 Article 27(1). 259 CoE Anti-Trafficking Convention Explanatory Report 2005, para 277. 260 Article 27(1), 27(2). 261 Article 27(3). 262 Articles 28(1); 30. Refer also to CoE Anti-Trafficking Convention Explanatory Report 2005, paras 280–291, 299–326. 263 Article 28(2), 28(3).

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other collaborators such as members of NGOs and other bodies under Article 27(3) should also be protected.264 To better investigate trafficking offences, prosecute traffickers, protect victims and prevent trafficking, states parties have obligations to establish specialised anti-trafficking authorities and co-ordinating bodies within their jurisdictions. Each state should also consider establishing National Rapporteurs or other mechanisms to monitor anti-trafficking activities of states’ institutions and the implementation of national anti-trafficking legal obligations.265 Regarding jurisdiction, states parties are required to establish territorial jurisdiction, flag jurisdiction, active nationality jurisdiction, including where the trafficking offence is committed by stateless persons who are habitual residents in their territories as well as passive personality jurisdiction.266 The Convention obligates states to establish jurisdiction based on the principle of aut dedere aut judicare when they deny extraditing persons present in their territories on the ground of nationality. In cases of competing jurisdictions, states parties shall consult each other to establish the most appropriate jurisdiction for prosecution.267 About anti-trafficking co-operation, the CoE Anti-Trafficking Convention 2005 establishes the general principle of international co-operation by requiring states to accord to each other the widest extent forms of co-operation based on this Convention, other relevant international and regional instruments and other arrangements on trafficking in persons.268 States are also supposed to co-operate in information sharing as well as in protecting the endangered victims of trafficking and missing persons, especially missing children who are believed to be victims.269 Each state party is admonished to encourage its state authorities and public officials to co-operate with the NGOs, other relevant organisations and members of CSOs in creating strategic partnerships to achieve the purposes of the Convention.270 The CoE Anti-Trafficking Convention 2005 establishes the monitoring mechanism, the Group of Experts on Action against Trafficking in Human Beings (GRETA).271 GRETA monitors the CoE member states’ implementation of the Convention’s obligations and also issues country reports that evaluate the measures taken by the states parties to prevent and combat trafficking.272 GRETA’s reports are considered by the Committee of the Parties that may adopt recommendations addressed to the states parties concerning measures that need to be taken to implement GRETA’s observations and conclusions.273 Additionally, GRETA publishes general

264 Article

28(4). 29; CoE Anti-Trafficking Convention Explanatory Report 2005; paras 292–298. 266 Article 31(1). See further Echle 2013, pp. 60–61. 267 Article 31(3) and 31(4). 268 Article 32; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 338–345. 269 Articles 33, 34; CoE Anti-Trafficking Convention Explanatory Report 2005, paras 346–351. 270 Article 35. 271 Article 36(1). See as well Piotrowicz 2018, p. 46; Pati 2011, pp. 122–124. 272 Articles 36 and 38. See as well Stoyanova 2017, p. 9. 273 Article 38(7). 265 Article

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reports concerning its anti-trafficking activities274 and since February 2009, GRETA has been issuing its general reports.275 The official website of GRETA contains more resourceful information regarding the activities falling under its mandate.276 Unlike the TIP Protocol 2000, the CoE Anti-Trafficking Convention 2005 has a more certain and expansive savings clause. Article 39 stipulates that the CoE AntiTrafficking Convention 2005 does not affect the rights and obligations of the states parties as derived in the TIP Protocol 2000. Instead, the Convention enhances the protection given under the TIP Protocol 2000 and further develops the standards set therein.277 Furthermore, the Convention does not affect the rights and obligations states parties have or will have from other international instruments on matters governed by the Convention and which offer greater protection and assistance to the victims of trafficking.278 The Convention also allows states parties to enter into bilateral and multilateral agreements with one another to supplement or strengthen the Convention’s provisions or facilitate the application of its principles.279 Finally, the same clause assures that states parties’ and individuals’ rights, responsibilities and obligations under the Convention do not affect those under international law, including international humanitarian law and international human rights law, with emphasis on the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees and the principle of non-refoulement.280

3.2.3 Directive 2011/36/EU Although the EU has established a comprehensive legal framework on trafficking through Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims, and Replacing Council Framework Decision 2002/629/JHA,281 there have been several legal measures the EU has taken before 274 GRETA,

information available at https://www.coe.int/en/web/anti-human-trafficking/greta. Accessed 18 October 2018. 275 For example, GRETA’s First General Report on GRETA’s activities covering the period from February 2009 to July 2011, GRETA (2011) 11, 1 September 2011 and Second General Report on GRETA’s activities covering the period from 1 August 2011 to 31 July 2012, GRETA (2012) 13, 4 October 2012. On the General Reports on GRETA’s activities, see https://www.coe.int/en/web/ anti-human-trafficking/general-reports. Accessed 18 October 2018. 276 Action against Trafficking in Human Beings, available at https://www.coe.int/en/web/antihuman-trafficking. Accessed 18 October 2018. See as well Raffaelli 2009, pp. 211–212. 277 Raffaelli has thus remarked that “the Convention is one of the few international documents on trafficking focusing more on victims’ protection than on traffickers’ prosecution”, Raffaelli 2009, pp. 205–206. 278 Article 40(1), 40(3). 279 Article 40(2). 280 Article 40(4). 281 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims, and Replacing

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against trafficking.282 This section, however, concerns itself with the legal analysis of Directive 2011/36/EU. With respect to criminalisation, Directive 2011/36/EU obligates member states to criminalise and punish intentional trafficking in persons. Its definition of trafficking is the same as that of article 3(a) of the TIP Protocol 2000, save that in the action element, it adds “including the exchange or transfer of control over those persons”.283 The purpose element of trafficking includes two new additions, namely, “begging” as a form of forced labour, and “exploitation of criminal activities” which means “the exploitation of a person to commit, inter alia, pick-pocketing, shoplifting, drug trafficking and other similar activities which are subject to penalties and imply financial gain”.284 Thus, the purpose element and consequently the parameters of trafficking under Directive 2011/36/EU are more broadly expanded. Like the TIP Protocol 2000, consent to exploitation “whether intended or actual” is immaterial where consent-nullifying means have been used.285 In the case of children, Directive 2011/36/EU follows the TIP Protocol 2000—the means element needs not to be established.286 Directive 2011/36/EU also obligates member states to criminalise and punish inciting, aiding and abetting or attempting to commit the offence of trafficking.287 On penalties, member states should set a maximum penalty of five years of imprisonment for the crime of trafficking, unless where there are aggravating circumstances. In such cases, a maximum penalty shall be at least ten years of imprisonment. These Council Framework Decision 2000/629/JHA, opened for signature 5 April 2011, OJ L 101, 15.4.2011, P.1 entered into force 15 April 2011 (Directive 2011/36/EU). 282 See for example, Council of the European Union, Council Framework Decision of 19 July 2002 on Combating Trafficking in Human Beings: 2002/629/2002, opened for signature 19 July 2002, OJ L 203, 1.8.2002, p. 1 (no longer in force); Council Directive 2004/81/EC/ of 29 April 2004 on the Residence Permit Issued to Third-Country Nationals Who Are Victims of Trafficking in Human Beings or Who Have Been the Subject of an Action to Facilitate Illegal Immigration, Who Cooperate with the Competent Authorities, opened for signature 29 April 2004, OJ L 261, 6.8.2004, p. 19, entered into force 6 August 2004; EU Plan on Best Practices, Standards and Procedures for Combating and Preventing Trafficking in Human Beings, OJ C 311, 9.12.2005, p. 1; Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 Providing for Minimum Standards on Sanctions and Measures against Employers of Illegally Staying ThirdCountry Nationals, opened for signature 18 June 2009, OJ L 168, 30.6.2009, p. 24, entered into force 30 June 2009; Stockholm Programme—An Open and Secure Europe Serving and Protecting Citizens, opened for signature 2 December 2009, OJ C 115, 4.5.2010, p. 1, entered into force 4 May 2010; Charter of Fundamental Rights of the European Union, opened for signature 7 December 2000, OJ C 364, 26.10.2012, p. 391, entered into force 26 October 2010, Article 5(3). See also Stoyanova 2017, pp. 29–30. 283 Article 2(1): “The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat…” 284 Article 2(3); Recital 11 of the Preamble. See as well Thomson 2016, p. 66; Jovanovic 2017b, p. 45. 285 Article 2(4). See also Piotrowicz 2018, p. 42; Heintze and Lülf 2016, p. 158; Abramson 2003, p. 447; Bakirci 2009, p. 161; Jones 2012, p. 486. 286 Article 2(5). 287 Article 3.

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circumstances include where the offence of trafficking: is committed against a particularly vulnerable person such as child victims; is committed in the framework of a criminal organisation; endangers the victim’s life deliberately or by gross negligence; is committed by use of serious violence or causes the victim particularly serious harm; and where the offence is committed by a public official. For offences of attempt, aiding and abetting or incitement to commit trafficking, member states shall administer effective, proportionate and dissuasive penalties, which also entail surrender.288 Member states are required to establish the liability of legal persons where crimes under Article 2 on offences concerning trafficking and Article 3 on offences of incitement, aiding and abetting and attempt are committed for their benefits by any person acting individually or as part of an organ of the legal person and such a person is in a leading position of the legal person.289 Member states are to hold legal persons responsible even when the offences that benefit legal persons are the consequences of lack of supervision on the part of the leading persons.290 According to Directive 2011/36/EU, the liability of legal persons does not affect the individual criminal liability of natural persons as perpetrators, inciters or accessories.291 Sanctions imposed on legal persons, criminal or non-criminal fines, must be effective, proportionate and dissuasive. Additional sanctions include (a) exclusion from public benefits or aid entitlement, (b) disqualification whether permanently or temporarily to engage in commercial activities, (c) placement under judicial supervision, (d) judicial winding-up and (e) closing an establishment temporarily or permanently for its involvement in the commission of trafficking offences.292 Member states are also required to authorise their competent authorities to seize and confiscate all instrumentalities and proceeds from the offences of trafficking.293 Where victims of trafficking are compelled to commit criminal offences due to their being trafficked, member states, based on the basic principles of their legal systems, shall not entitle their competent national authorities to prosecute or impose penalties on the victims.294 This seems to suggest that victims of trafficking can be criminally liable where they voluntarily commit or participate in the commission of criminal offences in any of the member states of the EU.295 About investigation and prosecution, member states have to ensure that investigation or prosecution of trafficking offences is not premised on the victim’s reporting or accusation, with a possibility of continuation of the criminal proceedings even where 288 Article

4(1)-4(4). Article 2(6) defines a child as any person below the age of 18. 2017, pp. 443 et seq. 290 Article 5(2). A legal person is defined to mean “any entity having legal personality under the applicable law, except for States or public bodies in the exercise of State authority and for public international organisations”, Article 5(4). 291 Article 5(3). 292 Article 6. 293 Article 7. 294 Article 8. 295 Recital 14 to the Preamble. 289 Article 5(1). See also Rodríguez-López 2017, pp. 98–100; Muskat-Gorska

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the victim has withdrawn his or her statement.296 In cases where child victims of trafficking are concerned and in the interest of justice it appears better to have them involved, Directive 2011/36/EU empowers member states’ prosecution authorities to wait until the victim has attained the age of majority.297 To make prosecution of trafficking offences effective, especially where organised criminal groups are involved or where other serious crimes have been committed, member states are to ensure that persons, units or services responsible are well trained with knowledge and skills and sufficiently equipped with investigative tools.298 On jurisdiction, member states are obligated to establish territorial and active personality or nationality jurisdiction over trafficking offences.299 Additionally, member states can establish criminal jurisdiction where trafficking offences are committed extraterritorially. In such situations, a member state is required to inform the EC that it intends to establish jurisdiction based on passive personality, the commission of an offence for the benefit of a legal person established within its territory and/or jurisdiction based on the offender’s habitual residence in its territory.300 Where the member state bases its jurisdiction over Article 10(1)(a) on territoriality principle or article 10(2) on extraterritoriality jurisdiction, that member state’s jurisdiction should not be conditioned on acts being criminal at the place of commission, initiation of prosecution based on the victim’s report at the place of commission or a state’s denunciation at the place of commission.301 Concerning victims’ assistance and support, Directive 2011/36/EU obligates states parties, as soon as their competent authorities have reasonable grounds indication that a person might be a victim of trafficking offences, to provide victims with assistance and support before, during and for some time after the conclusion of criminal proceedings so that they enjoy and exercise their rights as provided in the Directive 2011/36/EU and the Directive 2012/29/EU.302 Without prejudice to Directive 2004/81/EC on the residence permit issued to third-country nationals, the protection and assistance given to victims of trafficking should not be premised on their willingness to participate in criminal proceedings and neither should protection in criminal investigation and proceedings.303 The assistance and supportive measures should include mechanisms for early identification of victims in co-operation with 296 Article

9(1). 9(2). 298 Article 9(3), 9(4). See also Fichtelberg 2014, pp. 354–356. 299 Article 10(1). 300 Article 10(2). 301 Article 10(3). 302 Article 11(1) and 11(2). Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 on Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and Replacing Council Framework Decision 2011/220/JHA, opened for signature 25 October 2012, OJ L 315, 14.11.2012, p. 57, entered into force 14 November 2012. The replaced framework decision is Council Framework Decision 2011/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings, opened for signature 15 March 2001, OJ L 82, 22.3.2001, p. 1, entered into force 22 March 2001. 303 Article 11(3); Article 12. 297 Article

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relevant support organisations and should be provided on a consensual and informed basis.304 Such supportive and assistance measures should include the basic standards of living such as the provision of suitable accommodation and material assistance, medical treatment that includes psychological assistance, counselling and information, translation and interpretation services where appropriate as well as attendance of the victims’ special needs related to or derived from pregnancy, health, disability, mental or psychological disorder or a serious form of psychological, physical or sexual violence they have gone through.305 Information under Article 11(5) shall include also information on a reflection and recovery period, information on a possibility of granting international protection, information on minimum standards on procedures for granting and withdrawing refugee status.306 Directive 2011/36/EU supplements Directive 2012/29/EU on the protection of victims in criminal investigation and proceedings.307 Directive 2011/36/EU obligates member states to provide victims with access without delay to legal counselling, legal representation free of charge where the victims lack sufficient financial resources and appropriate protection-based on individual risk assessment.308 Member states are called upon to grant specific treatment to protect victims of trafficking from secondary victimisation by avoiding (a) unnecessary repetition of interviews during criminal investigation and proceedings, (b) visual contact between victims and defendants during the giving of evidence by encouraging the use of appropriate modern communication technologies, (c) giving of evidence in open court, and (d) unnecessary questions on the victim’s private life.309 In protecting victims against secondary victimisation, member states have to take into account the rights of the defence and the individual assessment of the personal circumstances of the victims.310 The Directive contains special protective measures dedicated to children who are victims of trafficking. It directs that the duty to provide child victims with assistance and support is a mandatory duty discharged according to the best interests of the child and that, where the child’s age is uncertain but reasonable grounds exist to believe that one is a child, presumption of being a child shall be upheld to entitle them to protection and assistance measures.311 The measures member states take must be premised on the individual assessment of the special conditions of each child victim, taking into account the child’s views, concerns and needs so as to find a durable solution.312 To realise their short and long term measures for the physical and psycho-social recovery, child victims, including children of victims of trafficking, should be provided with the education and legal guardians or representatives based 304 Article

11(4), 11(5). 11(5), 11(7). See also Yen 2008, p. 660. 306 Article 11(6). 307 Article 11(1). 308 Article 12(2), 12(3). 309 Article 12(4). 310 Article 12(4). 311 Article 13(1), 13(2); Rigby and Ishola 2016, p. 86. 312 Article 14 (1). 305 Article

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on the national legal requirements.313 The family of trafficked children also should be provided with assistance and support when present in the territory of the member state.314 Where child victims are involved in criminal investigations and proceedings and where necessary, based on their legal systems, competent authorities shall appoint a representative for a child and should give free access without delay to legal representation and legal counselling.315 In the course of criminal investigations and proceedings for trafficking offences and without prejudice to the rights of the defence, member states shall ensure that: (a) interviews with the child victims take place without unjustified delay; (b) interviews take place in the designated or adapted premises; (c) interviews are carried out where necessary by or through trained professionals; (d) the number of interviews is limited and carried out where necessary; and (e) child victims are accompanied by a representative or an adult of the child’s choice unless reasonably decided otherwise.316 Member states are obligated to use modern facilities of communication technologies, where appropriate and based on the rules in the national law, in interviewing children and to use such recorded interviews for evidence in court proceedings.317 Where possible, member states should take such measures as to make court proceedings for trafficking offences concerning child victims take place either in camera or those child victims are heard in a courtroom in absentia through the use of suitable communication technologies.318 Regarding unaccompanied child victims of trafficking, member states shall take specific actions to protect and support them, taking into account their best interests.319 In addition to providing them with support and assistance given to other child victims of trafficking, member states are to appoint guardians for unaccompanied child victims and ensure that in criminal proceedings, as based on their rules under national judicial systems, unaccompanied child victims have their own representatives.320 In all supportive and protective measures for adult and child victims of trafficking, member states shall ensure that they have access to existing schemes of compensation.321 Further, the rights and entitlements of the child and adult victims of trafficking are greatly explained, elaborated and provided for in the Directive

313 Article

14(1), (2). See also United Nations Children’s Fund 2006, p. 16. 14(3). 315 Article 15(1), 15(2). 316 Article 15(3). 317 Article 15(4). 318 Article 15(5). 319 Article 16(1), 16(2). See also United Nations Children’s Fund 2017, pp. 45–51; Lelliott 2017, pp. 253–260. 320 Article 16(3), 16(4), 16(5); United Nations Children’s Fund 2006, p. 16. To the extent the EU protects the unaccompanied children against trafficking, see Raidma 2016, pp. 21–26. 321 Article 15(2), Article 16. 314 Article

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2012/29/EU. Thus, provisions of Directive 2011/36/EU on the assistance and protective measures for child and adult victims of trafficking during criminal investigations and proceedings are to be read together with those in Directive 2012/29/EU.322 On prevention, member states are required to take several measures to prevent trafficking, including through education programmes, research initiatives and training for officials likely to come into account with victims of trafficking, discouraging the demand that fosters trafficking, information-awareness raising campaigns and co-operation with relevant CSOs and other stakeholders.323 To prevent and combat trafficking effectively, member states are called to criminalise the use of the services which are the objects of the end results of trafficking where the person using such services knows that the person providing the services is a victim of trafficking.324 Member states are also obligated to establish national rapporteurs or equivalent mechanisms to assess the trends in trafficking, evaluate the results of anti-trafficking measures and gather statistics relating to trafficking in co-operation with relevant civil society organisations as well reporting on matters related to trafficking.325 The national rapporteurs or such similar mechanisms shall co-operate with the EU AntiTrafficking Co-ordinator so as to co-ordinate the EU’s strategy against trafficking in persons.326 Several observations can be made concerning Directive 2011/36/EU. The Directive greatly expands the definition of trafficking. This expansion agrees with the TIP Protocol 2000’s standards which are set “at a minimum” threshold and allows regional organisations and states to go beyond its confines to consider the specific circumstances and exploitative forms of trafficking prevalent in their respective jurisdictions. The Directive not only criminalises the liability of legal persons through their leading persons but even goes further to provide for factors and criteria to be considered in the attribution of liability to legal persons. Following the TIP Protocol 2000, the Directive calls upon states parties to consider the EU legal frameworks and the international law in taking wider measures to seize and confiscate instrumentalities and proceeds of trafficking offences. The Directive takes a gender-specific and human rights-based approach to explain and combat trafficking.327 This means that under the Directive, the EU member states do not accept “inequalities and differences in experience” between men and women as a natural phenomenon.328 Rather, they recognise that while trafficking affects men

322 On

the elaboration of Directive 2012/29/EU, see European Commission DG Justice Guidance Documents 2013. 323 Article 18(1), 18(2), 18(3). 324 Article 18(4). 325 Article 19. 326 Article 20. 327 Article 1. See also Meriläinen and Vos 2015, pp. 26–27; Scherrer and Werner 2016, p. 6. But on the brief and yet considered critical argument on the limitation of a human rights-based approach in human trafficking, see Ikeora 2018, pp. 34–36. 328 OHCHR, UNHCR, UNICEF, UNODC, UN Women and ILO 2011, p. 30.

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and women, women are the primary victims and,329 therefore, measures taken by member states to prevent trafficking have to consider this view. While the Directive recognises that trafficking is a criminal offence, it equally emphasises on its human rights dimension. Rightly stated, the Directive premises the fight against trafficking in the human rights-based foundation, unlike the TIP Protocol 2000 that premises that fight on the criminal law footing. Directive 2011/36/EU has the most expansive provisions on the protection of the rights of victims of trafficking. It obligates member states to protect adult victims of trafficking irrespective of their willingness to participate in the criminal proceedings. It recognises and accords them certain inherent rights and even goes further to refer to other EU legal frameworks that provide protection in the context of criminal investigations and proceedings. The Directive has well elaborate provisions on the protection of children and unaccompanied child victims of trafficking. Based on its respect on the principle non-refoulement, one can arguably say that under this Directive, member states of the EU are obligated to consider, as a matter of priority, the offering of assistance and support to victims of trafficking than to embark on their legal status, repatriation or deportation.330 In addition, the Directive premises itself within the wider framework of international anti-trafficking law, thereby inviting the applicability of the international legal and other measures against trafficking in persons within the EU region. Furthermore, the EU has adopted the EU Strategy 2012–2016 to supplement the Directive measures in the eradication of trafficking.331 European Commission Trafficking Eradication Strategy 2012 seeks to support member states of the EU in their transposition and implementation of Directive 2011/36/EU and adds impetus by complementing the work done by the EU member states and other international stakeholders in the fight against trafficking.332 The implementation of the EU Strategy in the member states is overseen and monitored by the EU Anti-Trafficking Coordinator.333 The Strategy identifies five key priority areas to eradicating trafficking, namely: (a) victims’ identification, protection and assistance; (b) speeding up the prevention of trafficking; (c) increased prosecution of traffickers; (d) enhancing coordination and co-operation among key actors and policy coherence; and (e) increased knowledge of and effective response to emerging issues relating to all forms of trafficking.334 Following the Strategy, the EU has taken a considerable number of measures, actions and initiatives to ensure complete eradication of trafficking in

329 Ruivo

2015, p. 22. 10 of the Preamble. 331 European Commission (2012) The EU Strategy Towards the Eradication of Trafficking in Human Beings 2012–2016. European Commission, Brussels (European Commission Trafficking Eradication Strategy 2012). 332 European Commission Trafficking Eradication Strategy 2012, p. 5. 333 EUROPOL 2016, p. 35. 334 European Commission Trafficking Eradication Strategy 2012, p. 5. 330 Para

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persons.335 While effective implementation by member states and its supervision by the EU might be slightly challenging, Directive 2011/36/EU represents “a solid basis” to effectively prevent and combat trafficking in the EU and for all other countries and regional integrations that would like to follow its example.336

3.2.4 Fragmented Legal Framework of the AU Trafficking in persons in Africa, especially Sub-Saharan Africa (SSA) is well documented.337 Like in many other countries and continents, trafficking has occurred nationally and in the context of transnational organised crime groups operating on the web of networks extending well beyond the African continent.338 Coupled with factors such as poverty, political instability and bad governance, porous borders, famine, violence against women and children and unemployment,339 the African continent has witnessed people being trafficked and smuggled to Western Europe and other affluent countries on the North and the Middle East in search of better living conditions.340 Notwithstanding the menace of trafficking on the African continent, the AU lacks a clear and specific legal instrument to fight trafficking.341 Some of its legal instruments, however, contain provisions which, directly or indirectly, outlaw trafficking. The African Charter on Human and Peoples’ Rights (the African Charter), obligates states parties to protect the right to the respect of the dignity of every individual in their jurisdictions. In achieving this end, member states are to prohibit all forms of human exploitation, especially slavery, slave trade and torture, cruel, inhuman or degrading punishment or treatment.342 Since the TIP Protocol 2000 recognises that slavery is a form of human exploitation and one of the end purposes of the crime of trafficking, indirectly, the African Charter prohibits trafficking. In like manner, the African Charter on the Rights and Welfare of the Child (African 335 See

for example, European Commission 2017; Together Against Trafficking in Human Beings, information available in the EU. https://ec.europa.eu/anti-trafficking/. Accessed 5 October 2018. 336 Chaudary 2011, p. 99. 337 Grant 2007, pp. 113–117, 123–125; Roelofse 2013, pp. 143–160; Shelley 2009, pp. 265–293; Onuoha 2011, pp. 149–166; Njoh and Ayuku-Etang 2012, pp. 30–52; Mazzitelli 2007, pp. 1078– 1082; Adepoju 2005, pp. 76–92; Iroanya 2018, pp. 100–104; Aronowitz 2009, pp. 78–82; UNICEF Innocent Research Centre 2005; Shu-Acquaye 2012, pp. 1–32; SADC Secretariat Trafficking Baseline Report 2016. 338 Roelofse 2013, pp. 149, 154–155; UNODC 2009, pp. 5–7; Obokata 2019, pp. 529–530. 339 Onuoha 2011, p. 150; Nsereko 1997, p. 192; Adepoju 2005, pp. 80–84; Koen 2004, p. 87; Iroanya 2018, pp. 104–109; Britton and Dean 2014, pp. 307–311; Shu-Acquaye 2012, pp. 13–15. 340 Ezeilo 2018, p. 52; Roelofse 2013, pp. 150–154; Obokata 2019e, p. 529. 341 For a brief summary of the piecemeal measures the AU and AU sub-regional blocks (RECs) have taken to combat trafficking see Ezeilo 2018, pp. 58–59. See also the African Union Statement by Dr. Mustapha Kaloko 2012, para 14. 342 African Charter on Human and Peoples’ Rights, opened for signature, 27 June 1981, 1520 UNTS 217 (1981), entered into force 21 October 1986, Article 5.

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Child Welfare Charter) protects children from “all forms of economic exploitation” and “all forms of sexual exploitation and sexual abuse” and obligates states parties to the Charter to protect and guarantee these rights in their jurisdictions.343 It can be argued that indirectly the African Child Welfare Charter prohibits the trafficking of children as the TIP Protocol 2000 similarly prohibits sexual and economic exploitation of children. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa has a clear provision prohibiting trafficking in women.344 The Protocol considers trafficking as a conduct that violates the respect of every woman’s life, her integrity and security as well as a conduct amounting to a form of exploitation and/or cruel, inhuman or degrading treatment or punishment against every woman.345 The Protocol calls on states parties to take concrete measures to “prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk”.346 Note that the Protocol considers trafficking of women to be a form of exploitation and/or cruel, inhuman or degrading treatment or punishment and this similar language is employed in the African Charter under its Article 5.347 Considering that the Protocol is read together with and supplements the African Charter, it is legally clear that the AU has in place an anti-trafficking legal framework even though it lacks an anti-trafficking specialty instrument or framework. While the Protocol refers to women being protected from trafficking, the consideration of trafficking as amounting to cruel, inhuman or degrading treatment or punishment in the said Protocol, a language similarly employed by the African Charter, means that the African legal framework also protects men from trafficking, albeit narrowly. The AU substantive centrepiece instrument against trafficking in persons, however, is the 2006 African Union and European Union Ouagadougou Action Plan to Combat Trafficking in Human Beings Especially Women and Children.348 The Ouagadougou Action Plan 2006 is premised on the four major principles, namely: (i) an understanding that trafficking is a scourge to be addressed; (ii) measures against trafficking have to respect human rights without adversely affecting the rights of 343 African

Charter on the Rights and Welfare of the Child, opened for signature 1 July 1990, OAU Doc. CAB/LEG/2.49/49 (1990), entered into force 29 November 1999, Articles 3, 15, 27. 344 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, opened for signature 1 July 2003, CAB/LEG/66.6 (2003), entered into force 25 November 2005. Article 4(2)(g) reads “States Parties shall take appropriate and effective measures to: (g) prevent and condemn trafficking in women, prosecute perpetrators of such trafficking and protect those women most at risk.” 345 Article 4(1): “Everyone shall be entitled to respect for her life and the integrity and security of her person. All forms of exploitation, cruel, inhuman or degrading punishment and treatment shall be prohibited.” 346 Article 4(2)(g). 347 For the endorsement of this position, Human Rights Council 2010, paras 195, 200; Waismann 2010, p. 401. 348 African Union and European Union Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women and Children as Adopted by the Ministerial Conference on Migration and Development, Tripoli, 22–23 November 2006, EX.CL/313 (X) Annex IV (The Ouagadougou Action Plan 2006).

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the victims and where children are concerned, at all times the best interests of the child must be paramount; (iii) application of the gender perspective in the adoption and implementation of anti-trafficking measures; and (iv) addressing the root causes of trafficking.349 The Ouagadougou Action Plan 2006 has four main purposes, namely, (a) to prevent and raise awareness, (b) to protect and assist victims, (c) to call upon states to take legislative, policy development and law enforcement measures, and (d) to co-operate and co-ordinate in anti-trafficking activities, programmes and measures.350 On prevention and awareness-raising, the Ouagadougou Action Plan 2006 encourages states parties to: provide education and training as well as suitable employment and other livelihood opportunities to youth, especially young women from trafficking source regions; empower women and girls in national policies; adopt children rights specific promotion and protection measures; raise anti-trafficking awareness through mass media and information campaigns; train officials in key positions, especially in the police and law enforcement authorities; improve registration of births and provision of identity documents; improve the economic and living conditions of families; mobilise the support of families, NGOs, local communities and members of the civil society and businesses; establish centres of rehabilitation to protect trafficking victims’ safety so as to facilitate their recovery and social reintegration; take measures to eliminate the root causes of trafficking; eliminate harmful practices, customs and cultural stereotypes; commission further anti-trafficking research and information; and encourage anti-trafficking knowledge exchange.351 Regarding assistance and protection of victims, states parties are encouraged to: (i) base their anti-trafficking measures on international human rights instruments; (ii) institute early victims identification strategies so as to easily assist and protect them; (iii) take measures ensuring protection and assistance of victims and their families, taking into account the rural and urban divide; (iv) provide victims with information on their legal and other rights while in destination countries and in the countries of origin in cases of repatriation; (v) encourage victims to testify in criminal investigation and prosecution, taking into account their security and safety; (vi) adopt measures on non-criminalisation of trafficking victims and which also avoid their stigmatisation and re-victimisation; (vii) provide victims with short and long term psychological, medical and social assistance appropriate to promote their recovery; (viii) take measures permitting victims to remain in destination countries whether permanently or temporarily on the consideration of their humanitarian and compassionate factors; (ix) address the plight of children-headed households, especially girls; and (x) promote an HIV/AIDS sensitive approach so as to protect the dignity and human rights of the HIV/AIDS victims, especially children.352 In terms of legislative measures, African States are admonished to sign, ratify and implement, in their national legislation and other domestic measures, the Organised 349 The

Ouagadougou Action Plan 2006, 2. Ouagadougou Action Plan 2006, pp. 3–7. 351 The Ouagadougou Action Plan 2006, Part I. 352 The Ouagadougou Action Plan 2006, Part II. 350 The

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Crime Convention 2000, the TIP Protocol 2000 and other anti-trafficking international and regional legal instruments, enact anti-trafficking legislation that criminalises trafficking even when committed by legal persons or their representatives, practices covered by the definition of trafficking as well as prosecute traffickers and impose deterrent and severe penalties for those found guilty, take legislative measures to confiscate instruments and proceeds of trafficking and related offences, allow victims to claim compensation and adopt policies that protect and support victims, institute measures to provide victims with information about the status of relevant criminal and other proceedings and their consideration prior to repatriation, and adopt legislation to prevent the recruitment and use of children in armed conflicts as well as helping those who have been victims but bellow the age of 18.353 On policy development, governments are called to initiate and expand efforts to gather and analyse data on trafficking. This is achieved through the use of systematic research and effective methodologies, development of anti-trafficking National Action Plans and establishment of a Multi-disciplinary anti-trafficking National Task Force to formulate and implement National Action Plans. This goes together also with co-ordinating the anti-trafficking activities of various governmental and nongovernmental institutions within and outside the country and includes anti-trafficking measures in poverty reduction strategies at the national level, with the allocation of sufficient budget to combat trafficking in persons.354 About law enforcement, states should consider establishing special antitrafficking units within existing law enforcement structures, instituting direct channels of communication between states’ competent authorities, agencies and services and where possible, having joint border patrol units trained in anti-trafficking prevention. States should also establish joint investigation units and enact laws for extradition and train law enforcement, immigration, customs, judicial and other relevant personnel on the prevention of trafficking in co-operation with civil societies and NGOs.355 On co-operation and co-ordination, states are supposed to enhance multidisciplinary co-ordination and co-operation at the national, regional, sub-regional and international level in collaboration with governmental and non-governmental organisations and the civil society in the exchange and enhancement of documentation of experiences and lessons learned on asset recovery, repatriation and reintegration of victims, assistance and support of victims, institution of focal points at a national and regional level to collect, analyse and distribute anti-trafficking information, development of anti-trafficking Regional Action Plans, and establishment of a mechanism to implement the Action Plans.356 In this connection, the AU has equally adopted various frameworks with a bearing on trafficking. These include the AU Plan of Action on Drug Control and Crime Prevention (2007–2012), Migration Policy Framework for Africa, the African Common Position on Migration and 353 The

Ouagadougou Action Plan 2006, Part III on Legislative Framework. Ouagadougou Action Plan 2006, part III on Policy Development. 355 The Ouagadougou Action Plan 2006, Part III on Law Enforcement. 356 The Ouagadougou Action Plan 2006, Part IV on Co-operation and Co-ordination. 354 The

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Development and the Joint Africa-EU Declaration on Migration and Development which all emphasise on migration management and the fight against trafficking in persons, especially women and children.357 To oversee the co-ordination and implementation of the Ouagadougou Action Plan 2006, the African Union’s Department of Social Affairs launched the AU Commission Initiative against Trafficking (AU.COMMIT) Campaign in June 2009.358 The AU.COMMIT Campaign encourages the AU member states, Regional Economic Communities (RECs) as well as the NGOs and CSOs to take measures against trafficking in the light of the Ouagadougou Action Plan 2006. Since its establishment, the AU.COMMIT has taken various measures against trafficking premised on the “Three P Strategies” of prevention of trafficking, protection of victims of trafficking and prosecution of traffickers involved in trafficking and related forms of abuse.359 Additionally, other international organisations and governments such as the EU,360 United Nations Children Fund (UNICEF),361 UNODC,362 United States of America,363 ILO364 and the IOM365 have all been at the forefront in helping the AU and its sub-regional blocks (RECs) to fight trafficking. Further, the various subregional groupings (RECs) such as the Southern African Development Community (SADC),366 East African Community (EAC)367 and the Economic Community of

357 AU.COMMIT

Campaign on Combating Human Trafficking 2009–2012, 3. https://europafrica. files.wordpress.com/2008/10/au-commit-campaign-on-combating-human-trafficking-2009-2012. pdf. Accessed 8 October 2018. Further see, Ezeilo 2018, pp. 58–60. 358 Consultative Workshop on Operationalising the Ouagadougou Action Plan to Combat Trafficking in Human Beings & Launching of the African Union (AU) Commission Campaign against Trafficking in Persons. https://www.unodc.org/documents/southernafrica/press/Media_Advisory-AU_ COMMIT-29-30_November_2011.pdf. Accessed 8 October 2018. 359 AU.COMMIT Campaign on Combating Human Trafficking 2009–2012, 4. 360 The EU Emergency Trust Fund for Africa. https://ec.europa.eu/trustfundforafrica/region_en. Accessed 8 October 2018. 361 Child Trafficking in West Africa: Policy Responses. https://www.unicef-irc.org/publications/ pdf/insight7.pdf. Accessed 8 October 2018. 362 See for example, UNODC 2016 Global Report on Trafficking in Persons which also includes specific reference to Africa. https://www.unodc.org/documents/data-and-analysis/glotip/2016_G lobal_Report_on_Trafficking_in_Persons.pdf. Accessed 8 October 2018. 363 Anti-Trafficking in Persons Report. https://www.state.gov/j/tip/rls/tiprpt/. Accessed 8 October 2018. 364 ILO in Africa. https://www.ilo.org/addisababa/lang--en/index.htm. Accessed 8 October 2018. See also ILO (2012) Forced Labour and Human Trafficking: A Toolkit for Trade Unions in Nigeria. ILO, Abuja. 365 Africa and the Middle East. https://www.iom.int/africa-and-middle-east. Accessed 8 October 2018. 366 SADC Secretariat Trafficking Baseline Report 2016. 367 Assembly enacts Anti-Trafficking in Persons Bill. https://www.eac.int/press-releases/574-1003488-assembly-enacts-anti-trafficking-in-persons-bill. Accessed 8 October 2018.

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Western African States (ECOWAS)368 have taken anti-trafficking measures in their respective areas of jurisdiction. A more notable legal development at the level of the AU has been the criminalisation of the crime of trafficking in persons in the Protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights of 27 June 2014.369 The 2014 Protocol, otherwise referred to as the Malabo Protocol and whose adoption amended the Protocol on the Statute of the African Court of Justice and Human Rights of 1 July 2008 which had the Statute of the African Court of Justice and Human Rights of 1 July 2008 annexed to it, confers criminal jurisdiction to the yet to be established African Court of Justice and Human and Peoples’ Rights (ACJHPR).370 The ACJHPR, which has yet to come into existence due to lack of enough ratifications,371 is a merger court of the current African Court on Human and Peoples’ Rights with the proposed Court of Justice of the AU whose Protocol has already entered into force on 11 February 2009.372 Initially, the ACJHPR was given jurisdiction on human rights matters and overall the legal affairs of the AU and its member states. The Malabo Protocol gives criminal jurisdiction to the ACJHPR over a list of 14 crimes,373 including the crime of trafficking in persons.374 The crime of trafficking in Article 28J of the Malabo Protocol is similar to the crime of trafficking in persons under Article 3 of the TIP Protocol 2000. While the Malabo Protocol represents a very positive development in the prosecution of transnational and international crimes in the African continent, lack of ratifications of the Malabo Protocol for it to enter into force means that the AU continues to lack the jurisdictional and criminal capacity to prosecute the crime of trafficking at the regional level.375 A critical look at the anti-trafficking legal and institutional framework in Africa reveals several outcomes. While the Ouagadougou Action Plan 2006 best encapsulates the duties of states under international law in the fight against trafficking, the document is only an Action Plan which, under international law, creates no binding 368 See for example, ECOWAS Declaration on the Fight against Trafficking in Persons. https://www. unodc.org/pdf/crime/trafficking/Declarationr_CEDEAO.pdf. Accessed 8 October 2018. 369 On the extensive and comprehensive analysis of the major features of this Protocol, see Werle and Vormbaum 2017; Jalloh et al. 2019. 370 Min/Legal/ACJHR-PAP/3/(II) Rev. 1.5. See further Abass 2013, pp. 933–946. 371 The Protocol has 32 signatures and 7 ratifications and it needs at least 15 ratifications to enter into force. https://au.int/sites/default/files/treaties/36396-sl-protocol_on_the_statute_of_the_ african_court_of_justice_and_human_rights.pdf. Accessed 5 June 2019. 372 The Protocol of the Court of Justice of the African Union has a total of 18 ratifications as 7 August 2019. https://au.int/sites/default/files/treaties/36395-sl-protocol_of_the_court_of_jus tice_of_the_african_union_1.pdf. Accessed 7 August 2019. 373 These crimes are provided under Article 28. They include genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources and the crime of aggression. 374 The crime of trafficking in persons is criminalised in Article 28A(1)(10); Article 28J. 375 On the ratification status, the Malabo Protocol has only 11 signatures without a single ratification. https://au.int/sites/default/files/treaties/36398-sl-protocol_on_amendments_to_the_protocol_ on_the_statute_of_the_african_court_of_justice_and_human_rights_5.pdf. Accessed 5 June 2019.

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obligations for any of the AU member states.376 Even then, the Ouagadougou Action Plan 2006 is framed in non-mandatory terms. Furthermore, although the Malabo Protocol is a legally promising step, the AU currently lacks a designated legally binding instrument against trafficking and therefore, what is there against trafficking is imprecise, fragmented and poorly co-ordinated. Due to lack of resources both financial and human, political will and several other shortcomings, the AU, despite being one of the source continents of victims of trafficking, shows less active efforts to eradicate trafficking. It remains to be seen how the AU will fight trafficking in the years and decades to come in the wake of increasing migrant smuggling and trafficking in persons which have witnessed people moving from the African continent to the European nations across the Mediterranean Sea.377

3.3 Human Rights Instruments While trafficking can be internal, with trafficked persons moved from one location or region to another within the same country, trafficking is also transnational in nature.378 People are unlawfully recruited, transported and finally exploited in the destination countries. While present within the destination countries and, in addition to being exploited, trafficked persons are mistreated, their human rights violated and their identity and/or travel documents taken from them, with a great possibility of the documents being destroyed or even lost.379 As such, trafficked persons mostly end up becoming non-nationals or non-citizens in destination countries. Consequently, trafficked persons would find themselves being asylum seekers, migrant workers, refugees or even stateless persons.380 These special statuses in which trafficked persons find themselves demand recognition of entitlement to certain protections and treatment while in these states based on the national and international human rights legal obligations placed on the host states.381 As used in this study, an alien, a non-national or non-citizen means “any individual who is not a national of the State

376 Notwithstanding,

Scarpa argues that “Even if soft law instruments are not binding on States they are, in many cases, a fundamental source of aspiration for those willing to make their national laws conform to the principles they promote. Moreover, it should be kept in mind that if broadly implemented, soft law principles could even become an international customary norm that would, in the future, bind all the States of the world”, Scarpa 2008, p. 73; Kranrattanasuit 2014, p. 54. 377 Aronowitz 2009, p. 4; Carling et al. 2015, p. 3; Malloch and Rigby 2016a, b, p. 1. 378 Gallagher and Skrivankova 2015, p. 22; EUROPOL 2016, p. 5; Askola 2007, p. 4. 379 Spapens 2018, p. 540; Gallagher and Skrivankova 2015, p. 8; Sigmon 2008, pp. 254–255; Piotrowicz 2012, p. 184; Chapkis 2003, p. 931; Global Financial Integrity 2017, pp. 23–24; Gallagher 2015a, pp. 61–62. 380 Weissbrodt 2007, p. 222; International Organization for Migration 2017, p. 25; Piotrowicz 2010, p. 109; United Nations High Commissioner for Human Rights 2006, p. 5. 381 Heintze and Lülf 2016, p. 163; United Nations High Commissioner for Human Rights 2006, pp. 16, 22.

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in which he or she is present”382 and a stateless person means “a person who is not considered as a national by any State under the operation of its law”.383 Traditionally, the international law of state responsibility imposes certain duties on the host states to recognise and protect the rights of aliens or non-citizens present within their territories.384 Customary international law recognises also that the host state will be held responsible for the injury or mistreatment of aliens or non-nationals within its territory.385 Disputed, however, is whether the host state has to protect and provide the non-nationals with the minimum standards recognised under international law as applicable to them or to provide them with the same treatment as that which pertains to its own citizens.386 International human rights law partly answers this question. The international regime of human rights, while not modifying or replacing the traditional doctrine of state responsibility and the host state’s sovereign right to control who enters its territory or the terms of the aliens’ stay,387 sets out an array of standards applicable to non-nationals present in the host state by virtue of being humans and this is despite them lacking the legal status or clear manner in which they happened to be in the territory of the host state.388 Thus, trafficked persons are entitled to a set of minimum human rights under international human rights law, which recognises that the rights it enshrines are to be enjoyed by all persons present in the territory of the host state irrespective of citizenship or nationality.389 Equally also, it is recognised that the host state is empowered to place restrictions on how non-nationals within its territory enjoy certain rights and entitlements provided that such restrictions to their public or private life are proportionate, reasonable, do not amount to discrimination and are legitimate.390 The ensuing discussion considers the various human rights instruments and how certain of their protections and entitlements apply to all people without discrimination or distinction, especially to aliens found in the host states, including when such aliens are victims of trafficking in persons or other vulnerable groups.391

382 UNGA 1985, Article 1. See as well United Nations High Commissioner for Human Rights 2006,

p. 5. 383 Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954,

360 UNTS 117 (1954), entered into force 6 June 1960, Article 1(1). 384 Elles 1980, para 44; McDougal et al. 1976, p. 451. See as well Hathaway and Neve 1997, p. 150. 385 Opeskin

2009, paras 57–58. 1980, paras 21–23; Opeskin 2009, paras 59–60; Crawford 2012, pp. 614–615; McDougal et al. 1976, pp. 443–447; Martin 2006, p. 71. 387 Crawford 2012, pp. 608–609; Opeskin 2009, paras 5, 26–27; Di Pascale 2015, pp. 201–202. 388 Gallagher 2010, p. 146. See also Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (1969), entered into force 27 January 1980, Article 29. 389 Opeskin 2009, para 66. 390 Weissbrodt 2003, paras 1, 6. 391 See Hathaway and Neve 1997, p. 150. For an extensive and considered elaboration on the human rights, criminal and labour law provisions governing trafficked persons, including special procedures with a bearing on trafficking in persons, see Scarpa 2008, pp. 83–134. 386 Elles

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3.3.1 Universal Declaration of Human Rights (UDHR) The UDHR recognises that human rights are inherent, equal and inalienable to all human beings due to their sense of belongingness to the human family.392 As such, all human beings are entitled to the enjoyment of the rights it sets out from Articles 3–29 “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.393 Although the UDHR is not a binding international instrument, its provisions on human rights have been a foundational stone of the national and international human rights law. It urges all nations to respect and protect the human rights of “everyone”, even where such persons include trafficked persons in their territories. This is a recognition that states are responsible to protect the rights of all persons within their territories and that under international law, they will be held responsible not only when they breach these rights against their subjects but also when they fail to protect all persons in their territories when their rights are violated by other actors.394

3.3.2 ICCPR Covenant The International Covenant on Civil and Political Rights (ICCPR) obligates states parties to respect and ensure that the civil and political rights it provides are accorded to “all individuals” within their territories “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.395 The UN Human Rights Committee has stressed that the rights under the ICCPR are “not limited to citizens of States parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party”396 and these rights must be given to them even “irrespective of reciprocity” and “must be guaranteed without discrimination between citizens and aliens”.397 This clearly indicates that should trafficked persons be found within the territories of the states parties, they are entitled to certain Covenant rights that relate to their situation as 392 UNGA (1948) Universal Declaration of Human Rights, UNGA Res. 217A (III). UN Doc. A/810

at 71, 10 December 1948, para 1 to the Preamble. 2. 394 Human Rights Committee (General Comment No. 31) 2004, para 10; ICAT 2016, pp. 3–4; Duffy 2017, p. 104. 395 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (1966), entered into force 23 March 1976, Article 2(1). As regards the justification for removing “nationality” from the list of the non-discrimination elements, see Nowak 2005, pp. 99–100 quoted by Gallagher 2010, p. 148. 396 Human Rights Committee (General Comment No. 31) 2004, para 10. 397 Human Rights Committee (General Comment No. 15) 2004, paras 1–2; Weissbrodt 2007, p. 223. 393 Article

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trafficked persons.398 States are, however, allowed to impose certain restrictions on the enjoyment of rights between citizens and non-citizens in manners that do not defeat the purposes of the ICCPR or other established rules of human rights so as not to amount to discrimination.399

3.3.3 ICESCR Covenant The International Covenant on Economic, Social and Cultural Rights (ICESCR), like the ICCPR, has a non-discrimination clause which provides to the effect that the rights it recognises shall be guaranteed by the states parties “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.400 Unlike the ICCPR, however, the progressive nature of the human rights under the ICESCR has resulted in the ICESCR allowing developing countries to determine the extent to which they will be able to guarantee the Covenant economic rights to non-nationals based on the state of their national economies.401 In addition, the ICESCR also does not contain a specific provision that extends the Covenant’s rights to “everyone” within the jurisdictions or territories of the states parties.402 The ICESCR recognises also that states parties, under certain circumstances, may limit the extent to which the people within their territories enjoy the Covenant rights, provided that such limitations are determined by law (national and international), compatible with the Covenant rights and their limitation is to secure the general welfare in the states parties.403 In essence, the effect of the limitation clause (Article 4) is “primarily intended to protect the rights of individuals than to permit the imposition of limitations by States”.404 Despite these limitations, the UN Committee on Economic, Social and Cultural Rights has stressed that based on Articles 2 and 3 of the ICESCR, states parties are required to guarantee the enjoyment of Covenant rights to “all without discrimination”, entailing that under the ICESCR all the people, whether as citizens or non-citizens, are entitled to enjoyment and protection of the Covenant rights.405 The Committee has equally stressed that nationality or citizenship is not a ground for one not to enjoy the Covenant rights. For that matter, the Covenant rights apply 398 Human

Rights Committee (General Comment No. 15) 2004, para 7. See also Weissbrodt and Collins 2006, p. 250. 399 Human Rights Committee (General Comment No. 18) 1989, para 13; Hathaway 2005, p. 131. 400 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (1966), entered into force 3 January 1976, Article 2(2). 401 ICESCR, Article 2(1), 2(3). 402 Gallagher 2010, p. 150. 403 ICESCR, Article 4. 404 Committee on Economic, Social and Cultural Rights (General Comment No. 14) 2000, paras 28–29. 405 Committee on Economic, Social and Cultural Rights (General Comment No. 24) 2017, para 7.

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to “everyone including non-nationals, such as refugees, asylum seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation”.406 This approach of the Committee is reinforced greatly by the fact that some of the ICESCR’s provisions employ the term “everyone” to indicate that the Covenant rights are accorded to all persons. The term “everyone” has been used in connection with Articles 6 and 7 (right to work and favourable conditions of work),407 Article 8 (right to form or join trade unions), Article 9 (right to social security),408 Article 11 (right to adequate standard of living),409 Article 12 (right to health),410 Article 13 (right to education)411 and Article 15 (right to take part in cultural life, enjoyment of the benefits of science and benefiting from one’s scientific, literary or artistic productions).412 Although the Committee on Economic, Social and Cultural Rights has emphasised on the equality of persons to the enjoyment of the Covenant rights without distinction, Gallagher writes that, based on some of the practices as observed in some of the Concluding Observations, the Committee seems to somehow align its views to the states parties’ obligations that accord the enjoyment of rights-based on individuals being lawfully present in their territories or jurisdictions. Some of these persons include, for example, refugees, asylum seekers and stateless persons. Nevertheless, Gallagher, although cautious of this position, cites that a convincing argument can be made to the effect that even other non-nationals can enjoy equal protection.413

3.3.4 CEDAW Convention The Convention on the Elimination of All Forms of Discrimination Against Women or the CEDAW Convention was adopted to ensure equal enjoyment of human rights

406 Committee on Economic, Social and Cultural Rights (General Comment No. 20)

2009, para 30.

407 Committee on Economic, Social and Cultural Rights (General Comment No. 18) 2006, paras 18,

23; Committee on Economic, Social and Cultural Rights (General Comment No. 23) 2016, paras 5, 26, 47, 57, 73, 78. 408 Committee on Economic, Social and Cultural Rights (General Comment No. 19) 2008, paras 36–38. 409 Committee on Economic, Social and Cultural Rights (General Comment No. 15) 2002, paras 12(c), 13–14, 16(f); Committee on Economic, Social and Cultural Rights (General Comment No. 12) 1999, paras 1, 13–14, 18, 21, 32. 410 Committee on Economic, Social and Cultural Rights (General Comment No. 14) 2000, paras 12(b), 18–19, 34; Committee on Economic, Social and Cultural Rights (General Comment No. 22) 2016, paras 9, 30–31. 411 Committee on Economic, Social and Cultural Rights (General Comment No. 13) 1999, paras 6(b)(i), 30, 34. 412 Committee on Economic, Social and Cultural Rights (General Comment No. 21) 2009, paras 34–35; Committee on Economic, Social and Cultural Rights (General Comment No. 17) 2006. 413 Gallagher 2010, p. 151, especially footnote 36.

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for women by taking all necessary measures to end all forms of their discrimination and to encourage states to eradicate situations and circumstances that engender discrimination.414 In fact, the CEDAW Convention has a specific provision prohibiting “all forms of traffic in women and exploitation of prostitution of women”, exploitation of the prostitution being one of the end purposes of trafficking in persons recognised and prohibited in the TIP Protocol 2000.415 The CEDAW Convention, however, unlike the ICCPR Covenant, does not possess a non-discrimination clause that guarantees all the rights under the Convention to all women without distinction. Nevertheless, the UN Committee on the Elimination of Discrimination against Women, through its Concluding Observations on various countries as well as through its General Recommendation No. 26 on Women Migrant Workers, has broadly interpreted its mandate to address issues of trafficked and smuggled women and women as migrant workers, refugees, asylum seekers, migrant domestic workers as well as undocumented girl children and children of non-citizen parents.416 The Committee has urged states parties to respect and protect foreign women’s human rights by taking all necessary legal and other measures to end all forms of discrimination that risk the equal enjoyment of their rights, including informing them about their rights and effective access to justice in case of violations.417 Therefore, the CEDAW Convention presents several possibilities through which trafficked persons, especially women, can be protected even where they are aliens in the destination countries.

3.3.5 CERD Convention The international community adopted the International Convention on the Elimination of All Forms of Racial Discrimination or the CERD Convention to obliterate all forms of discrimination. This move was based on, among other considerations, a conviction that racial discrimination and the doctrine of racial superiority “is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, everywhere”.418 The CERD Convention goes on to define racial discrimination to mean: 414 Convention

on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13 (1979), entered into force 3 September 1981, the preamble; Articles 2–6. 415 CEDAW Convention, Article 6; TIP Protocol 2000, Article 3(a). 416 Committee on the Elimination of Discrimination against Women 2008a, para 4, footnote 4; Committee on the Elimination of Discrimination against Women, paras 24, 25; Committee on the Elimination of Discrimination against Women 2008b, paras 26–27, 30; Committee on the Elimination of Discrimination against Women 2017, paras 47–48; Committee on the Elimination of Discrimination against Women 2015, paras 15–16, 43–44; Committee on the Elimination of Discrimination against Women 2006, paras 33–34. 417 Gallagher 2010, pp. 153–154. 418 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (1965), entered into force 4 January 1969, para 5.

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Any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.419

This definition of discrimination, in effect, recognises that unjustifiable distinctions, exclusions, restrictions and unjustifiable preferences as well amount to discrimination, whether done directly or indirectly.420 The CERD Convention, however, does not consider as racial discrimination, “any distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens”.421 Therefore, while the CERD Convention guarantees the enjoyment of “right to everyone without distinction as to race, colour, or national or ethnic origin”422 when in the territory of the state party, it equally recognises the inherent sovereign right of states to take certain legal or special measures that differentiate between non-citizens and citizens in circumstances that do not amount to racial discrimination. Such measures might relate, among others, to nationality, citizenship or naturalisation and special measures to secure the advancement and protection of certain marginalised racial or ethnic groups or individuals so as to secure their equal enjoyment or exercise of human rights.423 This provision is based upon an understanding that non-discrimination does not entail uniform treatment when significant differences in situations exist between one person or group of persons from the other and that non-recognition of this reality might itself amount to discrimination just like differential treatment to persons who are objectively the same.424 Concerned that groups of undocumented non-citizens and stateless persons other than migrants, refugees and asylum seekers might negatively be affected by the states parties’ implementation of Article 1(2), the Committee on the Elimination of Racial Discrimination issued General Recommendation No. 30 to clarify that Article 1(2) does not undermine the basic prohibitions against discrimination nor the rights enshrined in the Universal Bill of Human Rights.425 According to the Committee, differential treatment under the CERD Convention will amount to discrimination only where the criteria of differentiation between citizens and non-citizens are not legitimate or proportional to the aim to be achieved.426 In this connection, the Committee has also interpreted its mandate to deal with issues relating to trafficked persons, asylum seekers, refugees, treatment of non-citizen, migrant and domestic workers as 419 CERD

Convention, Article 1(1). on the Elimination of Racial Discrimination (General Recommendation No. 32) 2009, para 7. 421 CERD Convention, Article 1(2). 422 CERD Convention, Article 5. 423 CERD Convention, Article 1(3), 1(4). 424 Committee on the Elimination of Racial Discrimination (General Recommendation No. 32) 2009, para 8. 425 Committee on the Elimination of Racial Discrimination (General Recommendation No. 30) 2004, para 3 to the Preamble; para 2 of the General Recommendation. 426 Para 4. 420 Committee

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well as minorities.427 This clearly indicates that under the CERD Convention, states parties are enjoined to respect specific rights of the non-citizens, including trafficked persons, against all forms of discrimination when present in their territories.

3.3.6 CRC Convention The Convention on the Rights of the Child or the CRC Convention provides the most comprehensive and unambiguous provision on the enjoyment of the rights it provides to “each child” within the territories of the states parties.428 The CRC Convention thus states: States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.429

Thus, states parties are duty-bound to protect all the children in their jurisdiction regardless of any factor whatsoever. The rights under the CRC Convention include both civil and political rights as well as economic, social and cultural rights. While the duty to realise the former is an immediate one, the obligation to realise the latter is premised on the “maximum extent” of the states parties’ available resources.430 The Committee on the Rights of the Child, through its separate and joint general comments as well as concluding observations, has greatly expanded and interpreted the basic provisions of the CRC Convention and their all-embracing applicability to all children in the jurisdiction of the states parties irrespective of any factor.431 The Committee has stressed that the rights under the Convention should be granted to all children without discrimination and regardless of their parents’, family members’ or legal guardians’ any factors whatsoever that would otherwise have operated to deny them equal enjoyment and protection whether they are accompanied, separated or unaccompanied, settled or on the move, documented or undocumented, trafficked, street children, diseased, stateless, refugees, regular or irregular migrants

427 Committee on the Elimination of Racial Discrimination 2017a, paras. 24–25; Committee on the

Elimination of Racial Discrimination 2017b, paras 31–32; Committee on the Elimination of Racial Discrimination 2016c, para 54; Committee on the Elimination of Racial Discrimination 2016d, paras. 15–24. 428 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (1989), entered into force 2 September 1990. 429 CRC Convention, Article 2(1). 430 Committee on the Rights of the Child (General Comment No. 19) 2016, para 25. 431 Briefly on concluding observations, see Gallagher 2010, p. 155.

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in international migration, returned or deported and/or asylum seekers.432 The obligation to take the legislative, administrative, policy and other measures433 to respect these rights and guarantee them to all children is imposed equally on the origin, transit, destination and return countries,434 taking into account also the child rights approach and the best interests of the child.435 Specific to trafficking in persons, the CRC Convention prohibits economic and sexual exploitation of children and obligates states parties to take steps to obliterate such acts which endanger the ability of the children to enjoy their rights. Both economic and sexual exploitation are some of the end purposes of trafficking in persons prohibited in the TIP Protocol 2000.436

3.3.7 CoE Human Rights Convention Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms or the CoE Human Rights Convention provides that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.437 At least theoretically, the CoE Human Rights Convention guarantees universal human rights and fundamental freedoms to all individuals within member states’ jurisdiction, whether they be nationals, aliens or non-nationals and that residence, domicile or nationality are irrelevant defences for a claim against a member state’s failure to honour its obligations under the CoE Human Rights Convention against individuals in its territory.438 432 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families

(General Comment No. 3) 2017, paras 9, 21; Committee on the Elimination of Discrimination against Women and Committee on the Rights of the Child (Joint General Recommendation No. 31/General Comment No. 18) 2014, para 24; Committee on the Rights of the Child (General Comment No. 6) 2005; Committee on the Rights of the Child (General Comment No. 3) 2003. See also United Nations Children’s Fund 2006, p. 9. 433 On the nature of these duties as based on Article 4 and several other provisions of the CRC Convention, see Committee on the Rights of the Child (General Comment No. 19) 2016, paras 18–39; Committee on the Rights of the Child (General Comment No. 5) 2003. 434 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (Joint General Comment No. 4) 2017, paras. 1, 34, 37, 39, 64–65; United Nations Children’s Fund 2006, 13; Rantsev v. Cyprus and Russia 2010, para. 289. 435 Committee on the Rights of the Child (General Comment No. 21) 2017, pp. 10–11; Committee on the Rights of the Child (General Comment No. 14) 2013. 436 CRC Convention, Articles 32, 34, 36, 39; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature 25 May 2000, 2171 UNTS 227 (2000), entered into force 18 January 2002, Articles 2, 3(1). For a brief discussion of these provisions, see Müller 2016, pp. 292–294. 437 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (1950), entered into force 3 September 1953. 438 Lambert 2007, pp. 9, 19; United Nations High Commissioner for Human Rights, The European Union and International Human Rights Law 2011, pp. 12–13, 20. https://europe.ohchr.org/Docume nts/Publications/EU_and_International_Law.pdf. Accessed 1 October 2018.

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This duty is to be discharged by member states “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.439 This non-exhaustive and non-discrimination clause contains both negative and positive obligations such as the member states’ obligation not to discriminate and obligation to take measures to prevent discrimination even when done between private actors,440 including traffickers and the victims of trafficking. The non-discrimination clause, however, is not a human rights provision on its own and it can only be invoked in relation to the violation of the substantive rights protected under the CoE Human Rights Convention.441 The only express limitation to equal protection of everyone’s human rights under Article 14 is Article 16 which allows the Council of Europe member states to limit the political activity of aliens or non-nationals residing within their jurisdiction with respect to freedom of expression,442 freedom of assembly and association443 and the prohibition of discrimination.444 The purpose of the restriction appears to be the desire to balance the protection between human rights and the democratic society. The fact that the CoE Human Rights Convention has inserted an express provision allowing member states to restrict the political activity of aliens in their jurisdiction argues affirmatively that the rest of the rights are to be accorded to all, including aliens, non-nationals, trafficked persons, migrants, stateless persons, refugees and asylum seekers without any discrimination.445

3.3.8 African Human Rights Charter The African Charter on Human and Peoples’ Rights or the African Human Rights Charter guarantees human rights and freedoms to “every individual… without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other

439 CoE

Human Rights Convention, Article 14. 2007, pp. 21–22. Generally on the positive obligations flowing from the CoE Human Rights Convention, see Mowbray 2004; Ashworth 2013, pp. 196 et seq. See also European Court of Human Rights, Case of Osman v The United Kingdom, Human Rights Judgment, 28 October 1998, Application No. 87/1997/871/1038, para 115. 441 Gerads 2013, pp. 99, 104. 442 Article 10. 443 Article 11. 444 Article 14. See also Lambert 2007, p. 26. 445 As to the case law of the European Court of Human Rights in connection to the rights of aliens and their limitations, see Lambert 2007, pp. 41–82; Mole and Meredith 2010, pp. 19, 61, 92–94, 186–189, 204–205, 218; European Court of Human Rights First Section, The Case of Hoti v. Croatia, Human Rights Judgment, 26 April 2018, Application no. 63311/14. See also Hathaway and Neve 1997, p. 150. 440 Lambert

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status”.446 While Article 13 contemplates the rights as enjoyable only by citizens of the particular member states of the AU, the use of “every individual” in almost all the rights enumerated under the African Human Rights Charter clearly indicates that the rights and freedoms apply to all persons in the territories of the states parties without discrimination. In fact, the African Commission on Human and Peoples’ Rights has held that “Rights under the African Charter are to be enjoyed by all, without discrimination, by citizens and non-national residents alike. Although some rights, like the right to vote and to stand for election, are reserved for citizens of the particular State, human rights, in principle, are to be enjoyed by all persons.”447 Concerning children, the African Charter on the Rights and Welfare of the Child contains the same non-discrimination clause under Article 3.448 The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa contains neither a clear provision banning all forms of discrimination against women nor a single provision on the applicability of all the rights in the Protocol to all the women within the states parties to the Protocol.449 The Protocol, however, refers to the non-discrimination clause of the African Human Rights Charter in its Preamble.450 The Protocol also has a clear provision on trafficking in persons. The Protocol considers trafficking in persons as a conduct that violates the respect of every woman’s life, her integrity and security as well as a conduct amounting to a form of exploitation and/or cruel, inhuman or degrading treatment or punishment against every woman.451 The Protocol calls on states parties to take concrete measures to “prevent and condemn trafficking in women, prosecute the perpetrators of such trafficking and protect those women most at risk”.452 The African Commission has also dealt with issues touching on trafficking in persons, non-nationals, refugees and asylum seekers through its Concluding Observations.453

446 African Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 1520 UNTS

217 (1981), entered into force 21 October 1986, Article 2. See as well Naldi and D’Orsi 2014, p. 57. Commission on Human and Peoples’ Rights, Institute for Human Rights and Development in Africa v. Republic of Angola, Human Rights Judgment, 22 May 2008, Communication No. 292/04, para 80. 448 “Every child shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status”, African Charter on the Rights and Welfare of the Child, opened for signature 1 July 1990, OAU Doc. CAB/LEG/2.49/49 (1990), entered into force 29 November 1999. 449 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, opened for signature 1 July 2003, CAB/LEG/66.6, entered into force 25 November 2005. 450 Preamble, para 2. 451 Article 4(1). 452 Article 4(2)(g). 453 African Commission on Human and Peoples’ Rights 2013c, pp. 12, 31; African Commission on Human and Peoples’ Rights 2012a, paras 52, 81; African Commission on Human and Peoples’ Rights 2012b, paras 75–85, 135. 447 African

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3.3.9 American Convention on Human Rights The American Convention on Human Rights obligates all the states parties to the Convention “to respect the rights and freedoms recognised herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition”.454 The American Convention guarantees the rights and freedoms to “every human being” residing in the territory of any of the states parties without any discrimination.455 The effect of Article 1 is to protect the rights and freedoms of every human being regardless of their nationality “against the State of their nationality and all other contracting states”.456 In a very bold but questionable step, the Inter-American Court on Human Rights has held that the prohibition on non-discrimination clause and the clause on equality of persons have attained the status of a jus cogens norm.457 The American Convention also has a provision specifically outlawing traffic in women.458 In the various reports that the Inter-American Commission on Human Rights has issued, it has considered issues of trafficking in persons, migrants, stateless persons, refugees and internally displaced persons.459 It can be correctly and convincingly argued that with the few exceptions,460 the American Convention on Human Rights protects both nationals and non-nationals of the states parties to the Convention, regardless of their legal status.461

3.3.10 Migrant Workers Convention There is a close relationship between trafficking in persons and migration for work. Oftentimes, trafficking is transnational in nature and therefore, involves the movement of persons from one country to another.462 In cases of trafficking and smuggling of migrants, people move to other countries, among others, in search of better living 454 American

Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (1969), entered into force 18 July 1978, Article 1(1). 455 Article 1(2) defines a person to mean “every human being”. 456 Inter-American Commission on Human Rights 2015a, para 89. 457 Inter-American Commission on Human Rights 2017d, para 187. 458 Article 6(1). 459 Inter-American Commission on Human Rights 2018f, para 326; Inter-American Commission on Human Rights 2015a, paras 79–141; Inter-American Commission on Human Rights 2017, paras 207–248; Inter-American Commission on Human Rights 2015b. 460 For example, Article 23 of the American Convention on Human Rights limits the right to participate in Government only to “every citizen” of the states parties to the American Convention on Human Rights, thereby excluding stateless persons, non-citizens and aliens, including persons who have been trafficked, in the exercise of this right. 461 Inter-American Commission on Human Rights 2016c, para 74. 462 Gallagher and Skrivankova 2015, p. 22; EUROPOL 2016, p. 5.

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conditions. Sometimes a movement can start as smuggling with migrants illegally entering into the destination country only to end up being trafficked.463 Trafficked persons found in destination countries—in countries other than their own—tend to be considered as aliens or non-citizens. Trafficked persons might, therefore, end up becoming migrant workers in irregular situations. This puts them in vulnerable positions as they might be subjected to prosecution, deportation, humiliation, discrimination, mistreatment, torture and other forms of abuse and exploitation of their fundamental human rights.464 This situation is particularly reinforced by an understanding that although people might have the right to leave their countries, enter into the territories of other states and return to their own countries of origin, as part of the right to freedom of movement,465 states, to a large extent, within certain bounds of international and national law, retain the sovereign right to decide who leaves from, enters in or returns to their territories.466 While even in countries of origin one’s right to freedom of movement can unreasonably be curtailed,467 this part examines how trafficked persons can be protected in the destination countries under the international legal regime of migrant workers due to their unique but vulnerable position in which they find themselves in the employment states.468 Although the ILO played an important role in the protection of the rights of migrant workers, including by adopting several important ILO legal instruments,469 the International Convention on the Protection of All Migrant Workers and Members of the Their Families or the Migrant Workers Convention, adopted under the auspices of the UN, is so far the most comprehensive instrument on the protection of migrants

463 Yousaf

2018, p. 211; Cameron 2008, p. 81; Wylie 2016, p. 6; Scarpa 2008, p. 69; SecretaryGeneral of the Organisation for Economic Co-operation and Development 2016, pp. 12–13; Coso 2011, p. 202; Gallagher 2001, p. 1001; Schloenhardt 2016, p. 176. 464 Gallagher and Skrivankova 2015, p. 8; Sigmon 2008, pp. 254–255; Piotrowicz 2012, p. 184; Chapkis 2003, p. 931; Global Financial Integrity 2017, pp. 23–24; Gallagher 2015a, pp. 61–62; McDougal et al. 1976, pp. 433–437. 465 This idea itself reinforces the fact that not all overseas migrant workers are trafficked persons, Briones 2010, p. 62. See further Kochenov 2015, pp. 146–147, 161; United Nations Human Rights Committee (1999) CCPR General Comment No. 27: Article 12 (Freedom of Movement). UN Doc. CCPR/C/21/Rev.1/Add.9, 2 November 1999, para 1; Aust 2005, p. 181. 466 Gallagher 2010, pp. 160–165; Harvey and Barnidge 2007, p. 2; Vohran 2007, p. 50; Plender 2015a, pp. 1–2; Cholewinski 2015, pp. 27–28; Kochenov 2015, pp. 168–170; Goodwin-Gill 2008, p. 3. 467 The right to freedom of movement, otherwise known as the “right to leave” by Harvey and Barnidge 2007, p. 3, is enshrined, for example, in the provisions the International Convention on the Elimination of All Forms of Racial Discrimination, Article 5; Universal Declaration of Human Rights, Article 13; International Covenant on Civil and Political Rights, Article 12; Convention on the Rights of the Child, Article 10; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 8. See also Kochenov 2015, pp. 149–150; GAATW 2017, 2. 468 De Guchteneire and Pécoud 2009, pp. 2–6; Lesser 2010, p. 142. 469 Gallagher 2010, pp. 166–169; Taran 2009, pp. 153–156; Cholewinski 2015, pp. 27 et seq.; Pécoud 2017, pp. 58–59.

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rights both in regular and irregular situations.470 The Preamble to the Migrant Workers Convention reiterates, among others, the plight and vulnerability in which migrants in irregular situations find themselves, including their vulnerability to international trafficking clandestine movements and the desire to protect them under the Convention.471 The Migrant Workers Convention applies to migrant workers without discrimination and irrespective of whether one is documented (regular) or undocumented (irregular), save that it does not apply to refugees and stateless persons.472 The exclusion of refugees and stateless persons is premised on the understanding that their special statuses are already protected under international law. While trafficking in relation to refugee law is discussed separately in this work, it is important to note here that trafficking relates to statelessness as well. Trafficking can result into statelessness, especially where the trafficked persons’ identity and travel documents are destroyed, making their identification impossible.473 A stateless person is always in imminent vulnerability and might be vulnerable to trafficking and other forms of exploitation as it might be difficult for them to claim the protection of any state under the operation of its laws. Nevertheless, the international human rights law and the interpretations given to its provisions by respective monitoring committees as discussed above as well as the specific conventions on statelessness and its reduction operate to protect the rights of stateless persons.474 The Migrant Workers Convention obligates states parties to ensure that the Convention’s rights are accorded to all migrants within their jurisdiction without distinction.475 The Convention recognises that migrant workers and members of their family possess the right to leave any state, including their own state as well as the right to return and remain in their state of origin. The right to leave can only be derogated from for national security, public order (ordre public), public health or morals or protection of the rights and freedoms of other people and provided that such derogations are consistent with the other rights accorded to them in the Convention.476

470 International

Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened for signature 18 December 1990, 2220 UNTS 3 (1990), entered into force 1 July 2003. See also De Guchteneire and Pécoud 2009, p. 1; United Nations High Commissioner for Human Rights 2005, p. 2. 471 Paras 12–14. 472 Articles 1(1), 3(d), 5. See as well United Nations High Commissioner for Human Rights 2005, p. 5. 473 Spapens 2018, p. 540; Piotrowicz 2010, p. 405; Weissbrodt and Collins 2006, pp. 263–264. 474 Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (1954), entered into force 6 June 1960; Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (1961), entered into force 13 December 1975. See also Gallagher 2010, pp. 158–159. Generally on the human rights of stateless persons, see Weissbrodt and Collins 2006, pp. 245–276. 475 Article 7. 476 Article 8. See Kochenov 2015, pp. 168–170; Di Pascale 2015, pp. 201–202; Martin 2014, p. 187.

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The Migrant Workers Convention grants the following rights to all categories of migrant workers and members of their families: the right to life protected by law; right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment; the right not to be held in slavery or servitude or being required to perform forced or compulsory labour; right to freedom of thought, conscience and religion; right to hold opinions and freedom of expression without interference; right to privacy; right to property; right to liberty and security of person; right to be treated with humanity and respect when liberty is deprived; right to equality with nationals of destination states parties in certain rights; right to the principles of nullum crimen sine lege and nulla poena sine lege; right not to be imprisoned, right not to be deprived of authorisation of residence or work permit or expelled for merely failing to fulfil a contractual obligation; right to have migrants’ documents protected; right not to be collectively expelled; right to consular or diplomatic protection and assistance; right to recognition; right to participate in the trades unions activities; right to social security;477 right to medical care; right to a name, birth registration and nationality to the migrants’ children; right to the respect of cultural identities; right to transfer earnings and savings; and right to be informed of their rights and obligations under the Convention and national laws in destination countries.478 These rights are, however, subjected to several exceptions and are to be interpreted in a way that does not imply regularisation of the situation of migrant workers in irregular situations nor as relieving all categories of migrant workers from the duty to respect and comply with the laws and regulations of the states they are found in whether transit or destination as well as respect to the cultural identity of their inhabitants.479 The Migrant Workers Convention equally imposes legal obligations on the states parties to protect and give effect to its provisions.480 Based on Article 81(1),481 states parties are also required to consider other international legal frameworks, especially international human rights legal instruments that also protect the rights of migrant workers of both categories and members of their families. This is a reasonable obligation considering that historically, the relationship between migrants and the protection of their human rights has been uneasy.482 Articles 36–56 provide more rights to migrants who are documented and are in regular situations and to members of their families, in addition to those under Articles 8–34 which are accorded to all migrant workers whether in regular or irregular situations. Furthermore, Articles 57–63 enumerate specified rights to be 477 Briefly on the legal issues regarding the right of migrants, especially those in irregular situations,

to social security, see Vonk 2015, pp. 81–90. 8–33. Briefly on the content, see De Guchteneire and Pécoud 2009, pp. 8–11; Cholewinski 2007, pp. 259–265. 479 Articles 35, 34. 480 Articles 80–84. 481 “Nothing in the present Convention shall affect more favourable rights or freedoms granted to migrant workers and members of their families by virtue of: (a) the law or practice of a State Party; or (b) any bilateral or multilateral treaty in force for the State Party concerned.” 482 Battistella 2009, p. 47. As to how the UN human rights instruments protect human rights, see Slinckx 2009, pp. 122–149. 478 Articles

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given to special categories of documented migrant workers. These special categories of migrant workers include self-employed workers, specified-employment workers, project-tied workers, itinerant workers, seasonal workers and frontier workers.483 The Migrant Workers Convention obligates states parties to promote sound, equitable, human and lawful conditions in relation to the international migration of workers and members of their families. In doing so, states parties are required to consult and co-operate with each other; maintain appropriate services and designate public authorities and bodies to deal with their recruitment; co-operate to facilitate their orderly return; collaborate to prevent and eliminate illegal or clandestine movements and employment of migrant workers in irregular situations, including the taking of measures to stop the persistence of such a situation in their territories; provide favourable living and working conditions; and co-operate in the repatriation of the deceased bodies of migrant workers.484 The provisions of the Convention should, in no way, be interpreted as limiting the right of each state to establish conditions to govern the admission of migrant workers and members of their families in their territories. In actual sense, states are empowered to put limitations relating to their legal situation and treatment in accordance with the limitations stipulated in the Convention.485 The Committee on the Protection of the Rights of All Migrant Workers and Members of the Their Families (Migrant Workers Committee) through its General Comment No. 2 has considered that a migrant in an irregular situation is that migrant who has entered into the state of employment “in an unauthorised way” and as such is not permitted to stay, reside or work by law, or has overstayed the period of his or her authorisation or otherwise violates the conditions under which he or she was authorised to stay or work.486 Indirectly, the Migrant Workers Committee has interpreted the migrants in an irregular situation to include victims and witnesses of trafficking as they are non-nationals and their rights are to be protected without discrimination.487 This idea is reinforced by footnote 9 to the General Comment No. 1 (2011) on Migrant Domestic Workers where the Migrant Workers Committee cites the ICESCR as an authority that states of employment have also the duty to apply the Migrant Workers Convention to all persons in their territories regardless of their immigration, 483 Article 2(2). For some critical comments on how the Migrant Workers Convention has, somehow,

curtailed the rights of these groups in comparison to other international human rights and labour instruments, see Cholewinski 2015, p. 54. 484 Articles 64–71. 485 Article 79. See also Cholewinski 2015, p. 53. 486 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (General Comment No. 2) 2013, para 5. On the role of the Migrant Workers Committee on the implementation of the Migrant workers Convention, see Edelenbos 2009, pp. 100–121. 487 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (General Comment No. 2) 2013, paras 34, 18. Somehow concurring, Vonk defines irregular (im)migrants as including “all non-citizens migrants who have not been given a positive decision as to their right to stay or reside by the authorities of the host state. This means that not only groups without any status and those who must leave immediately, but also other categories such as immigrants who are awaiting the outcome of a request for a residence permit or over stayers, are included in the definition”, Vonk 2015, pp. 81–82.

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including trafficked persons.488 In the General Comment No. 1 (2011), the Migrant Workers Committee considers that access to regular channels of migration in the employment countries is one of the protective measures for migrants not to resort to trafficking and smuggling,489 thus realising that due to states’ repressive measures, migrants in irregular situations include also smuggled migrants and victims of trafficking. Further, even as early as 2005, the UNCHR recognised that Article 68490 of the Migrant Workers Convention mandates states parties to prevent and eliminate trafficking and smuggling of migrants through collaborative measures.491 Lastly, the Migrant Workers Committee, through its Concluding Observations on states parties, has largely dealt with a number of issues, including trafficking and migrant smuggling in the context of migrant workers in irregular situations.492 Therefore, there is a robust and substantive legal framework in the Migrant Workers Convention to protect also victims of trafficking. Despite the Migrant Workers Convention’s expansive provisions, which have been interpreted by the Migrant Workers Committee as protecting also trafficked persons, the Convention has been subjected to several shortcomings and criticisms. It has been criticised as lacking gender perspective, its reference to trafficking brief and preambular, its position not clarified in the international human rights legal framework and that the concept of the “remunerated activity” in the migrant worker’s legal definition might operate to exclude trafficking end purposes of prostitution, forced marriage and even begging or lessen their exploitative nature.493 The Migrant Workers Convention also suffers from “marked indifference” about its ratification.494 The Convention was adopted in 1990 and entered into force on 1 July 2003, however, in 2018, 15 years later, it only has 53 states parties.495 Out of the 53 states parties, the migrantreceiving nations of West Europe, North America and the Middle East have not ratified the Convention. Although this indicates that migrants’ rights are still ignored or even violated,496 the low level of ratification might be explained by the lack of 488 Committee

on the Protection of the Rights of All Migrant Workers and Members of Their Families (General Comment No. 1) 2011, para 44. 489 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (General Comment No. 1) 2011, para 51. 490 Which partly provides: “(1) States Parties, including of transit, shall collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in irregular situation.” 491 United Nations High Commissioner for Human Rights 2005, p. 9. 492 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families 2016a, paras 26, 60–61; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families 2016b, paras 63–64; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families 2016c, paras 58–59. 493 Gallagher 2010, pp. 171, 173–174. 494 De Guchteneire and Pécoud 2009, p. 1; Pécoud 2017, pp. 61–62. 495 United Nations Treaty Collection. https://treaties.un.org/pages/ViewDetails.aspx?src=IND& mtdsg_no=IV-13&chapter=4&clang=_en. Accessed 9 October 2018. Generally on the reasons for non-ratification, see Iredale and Piper 2003, pp. 1–68. 496 De Guchteneire and Pécoud 2009, pp. 1–2.

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resources and capacity by states, presence of several political and legal obstacles, the Convention’s misapprehension and low awareness, and also that from a “cost-benefit analysis”, their rights might be more difficult to reconcile with market logistics of the wealthier countries.497 De Guchteneire and Pécoud summarise these obstacles as the problems of “market forces, sovereignty and security”.498 It has equally been argued that the Convention’s indirect protection of migrants in irregular situations presents a positive encouragement of people to migrate to countries of employment because they know their rights will be protected. Although the provisions of the Convention are explicitly clear in this regard, the drafting history heightens this fear among the wealthier states, considering the many rights the Convention grants compared to other international conventions.499 Others have equally argued that the TIP Protocol 2000 and the Migrant Smuggling Protocol 2000 have “attracted much attention that could have gone to the Migrant Workers Convention”.500

3.3.11 Refugee Convention The international refugee law offers legal protection to refugees and defines a refugee as anyone who: Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.501

The TIP Protocol 2000 and several other instruments make an explicit reference to international refugee law, with an emphasis that obligations and rights they impose do not prejudice states’ obligations and rights as provided for in the international law relating to refugees.502 Thus, there exists a close and even direct relationship 497 Pécoud

2017, p. 58; De Guchteneire and Pécoud 2009, pp. 14–19; McDonald and Cholewinski 2009, pp. 360–392 quoted in De Guchteneire and Pécoud 2009, pp. 362–365. 498 De Guchteneire and Pécoud 2009, pp. 30–33. Nonetheless, Cholewinski has argued that a closer look at the Migrant Workers Convention with other instruments of the International Labour Organization on the protection of the rights of migrant workers, when read together, renders as “somewhat of a myth” the negative criticisms labelled against the Convention because of its fewer ratifications, Cholewinski 2015, p. 55. 499 De Guchteneire and Pécoud 2009, pp. 22–23. 500 Taran 2009, p. 160 quoted in De Guchteneire and Pécoud 2009, p. 24. 501 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (1951) entered into force 22 April 1954, as Amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 666 UNTS 267 (1967), entered into force 4 October 1967, Article1A(2). 502 TIP Protocol 2000, Article14(1); Migrant Smuggling Protocol 2000, Article 19; CoE AntiTrafficking Convention 2005, Article 40(4). See as well Kneebone 2010, p. 142; Atak and Simeon 2014, p. 1025.

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between the law relating trafficking in persons and the refugee law.503 Put otherwise, victims of trafficking will, where they fulfil the Article 1A(2) legal requirements of the Refugee Convention, qualify also to receive protection and enjoyment of the rights accorded to refugees.504 A clear exposition of this relationship lies in responding to the following two issues, namely: whether victims of trafficking have the right to seek and receive asylum; and whether trafficking on its own qualifies as a basis to claim the status of a refugee.505 On the first issue, Article 14 of the UDHR provides to everyone the right to seek and enjoy asylum in other countries from persecution.506 The Refugee Convention also has several provisions dealing with the question of asylum.507 The CoE AntiTrafficking Convention Explanatory Report 2005 clearly indicates that: The fact of being a victim of trafficking in human beings cannot preclude the right to seek and enjoy asylum and Parties shall ensure that victims of trafficking have appropriate access to fair and efficient asylum seeking procedures.508

Taking these provisions in their totality, it can affirmatively be stated that under international law, victims of trafficking, including smuggled migrants, have a right to seek and claim asylum. This is reinforced further by the fact that Article 31 of the Refugee Convention prohibits states parties from denying protection to refugees or imposing penalties on them when they enter or are present in their countries illegally or without authorisation.509 Therefore, international law imposes an obligation on the states parties to consider victims of trafficking, smuggled migrants, refugees and asylum seekers’ substantive merits of their applications and not the nature of the means of entry which is oftentimes illegal.510 According to the UNCHR, states have to ensure that their anti-trafficking measures do not impact, among others, “trafficked persons to seek and enjoy asylum from persecution in accordance with international refugee law”511 and therefore, should institute procedures and processes “for receipt and consideration of asylum claims from both trafficked persons and smuggled asylum seekers and that the principle of non-refoulement is respected and 503 Kneebone 2010, pp. 139–140. However, as cautioned by McClean, the fact that the TIP Protocol

2000 makes references to refugee law does not mean that it covers or protects the refugee status, McClean 2007, pp. 368, 440. 504 Atak and Simeon 2014, p. 1025; European Migration Network 2014, p. 13; Atak and Simeon 2014, p. 1025; Moser 2018, p. 6. 505 Gallagher 2010, p. 197. See also Simon 2010, pp. 650–651; Piotrowicz 2005, p. 164. 506 Article 14. 507 Para 4; Article 31. 508 CoE Anti-Trafficking Convention Explanatory Report 2005, para 377. See also Atak and Simeon 2014, p. 1025. 509 Goodwin-Gill 2015, p. 116; Hathaway 2005, pp. 386–388; Brolan 2003, p. 563; Petcharamesree 2013, p. 277; Hathaway and Neve 1997, p. 160. 510 Goodwin-Gill 2003, pp. 187, 196, 217; Hathaway 2005, pp. 406–412; Malloch 2016, p. 176. 511 Office of the United Nations High Commissioner for Human Rights (2002) Recommended Principles and Guidelines on Human Rights and Human Trafficking. UN Doc. E/2002/68/Add.1, 20 May 2002, Guideline 1(6), p. 3. (UN Human Rights and Trafficking Principles and Guidelines 2002). See as well Türk 2013, p. 47.

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upheld at all times”.512 Conclusively, trafficked persons, irrespective of the manner of entry into destination countries, have a right to apply for and enjoy asylum. The second issue requires a consideration of several aspects. For a trafficked person, and in fact any person, to be considered a refugee and therefore, entitled to international protection, the Refugee Convention grounds need to be established. It must be shown that a trafficked person or he who fears to be trafficked has a well-founded fear of being persecuted for one or more of the Convention grounds of race, religion, nationality, membership of a particular social group or political opinion and that being outside the country of his nationality or habitual residence is unable or owing to such fear is unwilling to obtain its protection.513 As indicated by the savings clauses of the TIP Protocol 2000 and the Migrant Smuggling Protocol 2000, this possibility is not an abstract assumption but a certain legal reality that trafficked persons can become refugees.514 The UNHCR Guidelines are clear on this point: a victim or potential victim of trafficking can claim international protection if, for example, (i) a victim who has been trafficked abroad escapes his/her traffickers to seek protection in the destination state, (ii) an internationally trafficked victim escapes his/her traffickers and seeks international protection abroad and (iii) a fear of becoming a victim of trafficking causes him/her to flee in search of international protection.515 Where any of these situations is linked to any of the Convention grounds, a trafficked person is to be recognised as a refugee. There must be a well-founded fear of persecution. While the term “fear” introduces the subjective element to be gathered from the applicant’s statement, the use of “well-founded” qualification introduces an objective element such that the fear should be based as well on objective circumstances in the country of nationality or habitual residence of the applicant.516 According to UNHCR Guidelines on Trafficking 2007, a well-founded fear of persecution is based on and includes serious human rights violations such as the threat to life or freedom and other kinds of serious harm or intolerable predicament, persecutions suffered during the previous trafficking experiences with ongoing health effects, fear of reprisals and retrafficking, ostracism, discrimination or punishment by the family and/or the local community or even authorities upon return, and in cases of women and children, deceptive and 512 UN

Human Rights and Trafficking Principles and Guidelines 2002, Guideline 2, p. 5. See as well Goodwin-Gill 2015, p. 117; Brolan 2003, pp. 563–564. 513 Simic 2004, p. 15; Novak-Irons 2018, p. 204. See as well Waismann 2010, pp. 399–400; Martin 2010, p. 17. 514 United Nations High Commissioner for Refugees (UNHCR) (2007) Guidelines on International Protection: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked. UN Doc. HCR/GIP/06/07, 7 April 2006, para. 5 (UNHCR Guidelines on Trafficking 2007). 515 UNHCR Guidelines on Trafficking 2007, para 13. See also Novak-Irons 2018, pp. 199–200; Simon 2010, p. 652. 516 Simic 2004, p. 15; Moser 2018, pp. 10–11. See further United Nations High Commissioner for Refugees 1992 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. UN Doc. HCR/IP/4/Eng/REV.1 Reedited, January 1992, paras 37–42 (UNHCR Handbook Refugee Determination 1992); United Nations High Commissioner for Refugees 2015, para 13.

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coercive recruitment for purposes of forced sexual exploitation or forced prostitution.517 Furthermore, the whole experience of trafficking which includes painful circumstances such as abduction, rape, forced labour, sexual enslavement, incarceration, removal of organs, starvation, beatings and other extreme forms of exploitation entail grave violations of human rights that amount to persecution.518 Where child victims are concerned, the threshold of establishing a well-founded fear, and for that matter, even the proof of other elements entitling one to refugee status must be lowered to take into account children’s peculiar statuses and vulnerabilities.519 As regards the agents of persecution, the scope of application of the Refugee Convention recognises that state and non-state actors can become agents of persecution.520 Similarly, while trafficking is mostly committed by private or non-state actors, it does not wholly exclude state actors. Where the state authorities knowingly tolerate acts of persecution or trafficking perpetrated by individuals, or where authorities refuse to offer protection or are unable to actually provide effective protection, state authorities and individuals can become agents of persecution.521 On the side of the state, this depends on the measures the government has taken to combat and prevent trafficking, punish traffickers and protect the victims of trafficking or those at risk of being trafficked and the ability of the state to implement such measures.522 Failure of the state to demonstrate this ability justifies the well-founded fear in the victims of trafficking or those at risk that they cannot obtain protection from their countries of origin. Regarding the place of persecution , a person does not need to have left his country due to a well-founded fear of being persecuted. In other words, the fear of being persecuted and the inability to avail oneself with the protection of the state of origin can also arise after one has left the country.523 In most trafficking cases, for example, a trafficked person leaves his country deceptively to his or her own exploitation and upon realising his or her plight on the destination country, he or she might develop a well-founded fear as to what happens to him or her upon return as one can be subjected to retrafficking, punishment or ostracism.524 Equally also, 517 UNHCR

Guidelines on Trafficking 2007, paras. 14, 16–19; Saito 2007, pp. 7, 10–17; Foster 2007, p. 27; Brolan 2003, p. 564; Moser 2018, pp. 8–10. As to the gender-related dimension of this definition especially in relation to persecution, see generally, United Nations High Commissioner for Refugees 2002a; Rodger Haines 2003, pp. 319 et seq.; Atak and Simeon 2014, pp. 1025–1026. 518 UNHCR Guidelines on Trafficking 2007, para 15; Yen 2008, pp. 659–660; Connell 2013, pp. 40– 45; Novak-Irons2018, pp. 201–202; Foster 2007, p. 243. See as well Blake 2013, p. 116; Jayasinghe and Baglay 2011, pp. 494, 496. 519 Lelliott 2017, pp. 262–263; Javeherian 2012, p. 452. 520 Byrne 2007, p. 165; Edwards 2003, pp. 59–60; Brolan 2003, p. 565; Den Heijer 2017, p. 488; Martin 2014, p. 59. 521 Edwards 2003, pp. 60–61; UNHCR Guidelines on Trafficking 2007, para. 21; Simic 2004, pp. 18–19; Den Heijer 2017, pp. 488–489; Novak-Irons 2018, p. 203; Martin 2014, p. 59. 522 Gallagher 2010, p. 202; Novak-Irons 2018, pp. 203–204; Den Heijer 2017, p. 489; Moser 2018, p. 13; Simon 2010, pp. 655–656; Piotrowicz 2005, pp. 165–166. 523 UNHCR Guidelines on Trafficking 2007, para 25. 524 UNHCR Guidelines on Trafficking 2007, para 28.

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an internally trafficked person or he that fears of being internally trafficked and who flees to another country for international protection clearly establishes a link between his flight from a well-founded fear of being persecuted in his country and the unwillingness to return. This operates to indicate that an assessment for the refugee claim can either be based on the well-founded fear developed before or after one has left his or her own country of nationality or habitual residence, and that in the absence of the well-founded fear in relation to the country of origin, a claim for refugee status has to be rejected.525 Refugee status will only be accorded to a trafficked person upon him showing that his well-founded fear of being persecuted is based on the reasons of race, religion, nationality, membership of a particular social group or political opinion.526 Any of these Convention grounds should be relevant but not the main factor contributing to persecution, considering also that these grounds are not mutually exclusive.527 Although trafficking always has as its motivation the exploitation of human beings for economic gain and other advantages, these grounds of persecution can put persons in positions of vulnerability to the advantage of the traffickers.528 Race, which includes also “all kinds of ethnic groups” in a given country, might be a reason for persecution through the trafficking of members of a certain race. For this reason, racial discrimination is an important factor to determine the existence of persecution.529 During armed conflicts,530 certain racial groups might deliberately be exploited, prosecuted or victimised because of their race. Even where there is no armed conflict, people belonging to a certain race such as women and girls can be trafficked for prostitution or sexual exploitation.531 Belonging to a certain religious group that is considered vulnerable as well as suspiciously looked upon by other religions or sections in a country and to which the state does not render sufficient protection might also result in subjecting members of that religion or faith to persecution through trafficking.532 Trafficking can also be used to persecute members of particular national groups where such groups enjoy lesser assurance of state protection and while the motive in trafficking is always exploitation, belonging to such national groups increases one’s vulnerability to trafficking.533 The same would apply to membership of a particular social group. Such a group should demonstrate characteristics that are “innate, unchangeable or otherwise fundamental 525 UNHCR

Guidelines on Trafficking 2007, para 26. 2007, pp. 19–25; Novak-Irons 2018, p. 204; Moser 2018, p. 14; Javeherian 2012, pp. 432, 436–437. 527 UNHCR Guidelines on Trafficking 2007, para 29; Juss 2006, p. 188. See also Javeherian 2012, pp. 437–439. 528 Gallagher 2010, p. 204; Atak and Simeon 2014, p. 1027; Javeherian 2012, p. 440. 529 UNHCR Handbook Refugee Determination 1992, para 68. 530 On the role of armed conflict in refugee situations, see United Nations High Commissioner for Human Rights 2016. 531 UNHCR Guidelines on Trafficking 2007, paras 34. 532 UNHCR Guidelines on Trafficking 2007, para 35. See further, United Nations High Commissioner for Refugees 2004. 533 UNHCR Guidelines on Trafficking 2007, para. 36. See also Moser 2018, p. 18. 526 Saito

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to identity, conscience or the exercise of one’s human rights or such a group be perceived as such by society”.534 The UNHCR has broadly interpreted this category to include women, children and former victims of trafficking as forming a particular social group that can be persecuted through trafficking due to their vulnerability.535 Despite its expansive nature and evolutionary manner and the fact that this category is not a “closed list” of the groups to be included, the UNHCR has cautioned that this category should not be interpreted as to render superfluous the other Convention grounds and also should not be taken as a “catch-all” phrase to include all people fearing persecution.536 Similarly, individuals might be victims of targeted persecution because of the political views they hold against or in relation to the government, especially where such views cannot be tolerated by the government.537 This analysis serves to indicate that trafficking on its own does not accord the victims of trafficking the refugee status as such. It is only when the conditions as outlined in the Refugee Convention are fulfilled that trafficking in persons can result into one being accorded refugee status. Despite these expansive interpretations of the provisions of the 1951 Refugee Convention and the 1967 Protocol, commentators have cautioned that much still needs to be done to overcome the reluctance of states to recognise and enforce these rights of trafficked persons or those at fear of being trafficked who qualify to claim the refugee status.538 There is, however, a growing state practice recognising that trafficking on its own can be a ground to offer a person the international refugee protection as evidenced in the European Migration Network Synthesis Report 2014.539 The European Migration Network Synthesis Report 2014 found that a total of twelve European Member states do provide for an avenue of according refugee status to trafficking victims solely on the grounds of being victims of trafficking in persons.540 International refugee status has been granted to trafficking victims on the basis of gender-based persecution by the German courts where gender was considered to constitute a social group. It was granted based on repetitive nature of the serious violations of the rights of the victims of trafficking amounting to persecution as recognised by Belgium Council for Alien Law Litigation and where such persecution was based on victims’ “membership in the social group ‘women’”; and it was also granted where trafficking victims were judged as persecuted by their traffickers because of belonging to a particular social group and there was “a recognised risk of future persecution from traffickers” as found

534 Byrne

2007, p. 168; Jayasinghe and Baglay 2011, pp. 500–501; Hathaway and Foster 2002, pp. 478–480; Foster 2012, pp. 6–12; Moser 2018, pp. 14–17. 535 UNHCR Guidelines on Trafficking 2007, paras 38–39; Aleinikoff 2003, pp. 267–268; Obokata 2006, pp. 156–157; Simic 2004, pp. 21–23; Waismann 2010, pp. 399–400; Piotrowicz 2005, pp. 168– 170. 536 United Nations High Commissioner for Refugees 2002, paras 2–3. 537 UNHCR Handbook Refugee Determination 1992, para 80. See as well Dörig 2013, p. 151. 538 Gallagher 2010, pp. 205–208; Byrne 2007, pp. 168–170. 539 European Migration Network Synthesis Report 2014. 540 European Migration Network Synthesis Report 2014, p. 13.

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in Estonia, Finland, Ireland, Poland, Norway and the United States of America.541 Notwithstanding this positive development, state practice in this area is still uncertain and lacks uniformity.542

3.4 Conclusion This chapter has examined the primary international legal regime on the crime of trafficking in persons. This work has established that the Organised Crime 2000 through the TIP Protocol 2000 provides the international legal benchmark on the crime of trafficking in persons—its definition, criminalisation, prevention and protection, assistance and support of the victims. Furthermore, this work has analysed the anti-trafficking legal frameworks of the CoE, EU, AU and SAARC. Because the ASEAN Convention 2015 contains provisions mostly similar to the TIP Protocol 2000, with some slight differences, the analysis of the ASEAN Convention 2015s provisions has been reserved for the discussion in the context of the states antitrafficking obligations in Chap. 5. This chapter also has considered the crime of migrant smuggling as catered for in the Migrant Smuggling Protocol 2000. This work has pointed out the essential features of this legal instrument and its main legal differences from the crime of human trafficking. Finally, the study has examined the relationship between human trafficking and the international human rights legal framework. It elaborated circumstances upon which victims of trafficking in persons will be entitled to assistance, protection and support when present in the destination countries based on the universal applicability of the fundamental principles of the international human rights law.

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Chapter 4

State Responsibility for Trafficking

Contents 4.1 State Responsibility in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Attribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Breach of an International Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Special Considerations on State Responsibility for Trafficking . . . . . . . . . . . . . . . . . . . . . 4.5 Legal Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Invoking International Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7 Countermeasures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter provides a considered encapsulation of the international law principle of state responsibility. Its purpose is to show that although trafficking in persons is factually a crime committed by private persons or non-state actors, circumstances exist, under international law, upon which states can be held accountable nonetheless. These circumstances and the rules upon which a conduct becomes attributed to the state for the purpose of international responsibility are discussed in this chapter based on the work of the International Law Commission (2001) Draft Articles on the Responsibility of States for Internationally Wrongful Acts. Furthermore, this chapter uses the international human rights law principle of due diligence to argue for clear applicability of the principles of international state responsibility for acts of trafficking in persons, especially in circumstances where such acts result from non-state actors. The examination of the doctrine of state responsibility is also premised on the understanding that ordinarily, only states contain such means as to enforce and give effect to obligations emanating from customary and treaty law to which states are the chief subjects. Keywords State Responsibility · International Law · ILC · ILC Draft Articles · ICJ · ICTY · Negative Obligations · Positive Obligations · Attribution · Breach · Legal Consequences · Due Diligence

© t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_4

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4.1 State Responsibility in International Law This chapter examines the responsibility of states from the perspectives of international law and their obligations as they relate to trafficking. The chapter encapsulates the essential features of the doctrine of state responsibility as recognised in international law. The justification for this requirement is self-evident—international law, together with its obligations and responsibilities, to a great extent revolves around state interactions, responsibilities and rights.1 Important to note also is the fact that trafficked persons and victims of gross violations of human rights can only get protection and assistance through the states. Only states have the means and ability to prevent and investigate trafficking, prosecute traffickers and protect and assist victims of trafficking and other vulnerable groups in compliance with their international obligations. Based on the objectives of this book, the responsibility of non-state actors such as corporations and international organisations,2 criminal groups3 as well as individuals4 does not form part of this discussion. This, in no way 1 Warbrick 2003, p. 206; Sucharitkul 1996, p. 823; Weiss 2002, p. 798; Obokata 2005, p. 403; Parlett

2011, pp. 32, 36–37; Mugerwa 1968, p. 249. the international responsibility of international organisations, including that of international peacekeeping units see generally the International Law Commission (ILC) (2011) Draft Articles on Responsibility of International Organisations, with Commentaries. Report of the International Law Commission on the Work of its Sixty-Third Session, 26 April to June and 4 July to 12 August 2011 (A/66/10 and Add.1); Murphy and Wills 2017, pp. 585–612; Cole and Vermeltfoort 2018; Möldner 2012, pp. 281–328; Daugirdas 2014, pp. 991–1018; Gaja 2014, pp. 1–10; Suzuki 2005, pp. 177–225; Boon 2011, pp. 1–10; D’Aspremont 2012; Darrow and Arbour 2009, pp. 446–501; Clapham 2006, pp. 110 et seq.; Chirwa 2004, pp. 1–36. Specifically on the responsibility of international organisations with respect to trafficking in persons, see Smith and Smith 2011, pp. 125–145; Aronowitz 2009, pp. 137–141; McCorquodale and Simons 2007, pp. 598–625. 3 While the involvement of organised criminal groups in trafficking in persons is beyond question, there is no international enforcement mechanism for the same. Thus, most of the anti-trafficking instruments have included provisions urging on states to establish criminal responsibility of organised criminal groups through criminalisation, prosecution and confiscation of their proceeds of crime domestically. In this connection see, Organised Crime Convention 2000, Articles 5, 13; TIP Protocol 2000, Articles 1, 4; Migrant Smuggling Protocol 2000, Articles 1, 4; CoE Anti-Trafficking Convention 2005, Articles. 22, 24; Directive 2011/36/EU, Articles 5–7. See further, Thielbörger 2016, pp. 361–380; Peterke and Wolf 2016, pp. 381–405; Kleffner 2009, pp. 238–269. 4 International criminal law has extensive provisions and jurisprudence on the individual criminal responsibility for international crimes committed by individual persons regardless of their positions. With respect to trafficking in persons, where it is established that individuals have committed trafficking in persons according to the requirement of the crimes against humanity and war crimes, they will no doubt be individually responsible under international criminal law. However, since trafficking in persons is both a human rights violation and a criminal offence, most states parties to the TIP Protocol 2000 and other anti-trafficking instruments have domestically criminalised trafficking in persons and as a result, individuals are held criminally liable at the national level. See for example, Directive 2011/36/EU, Articles 2–4; CoE Anti-Trafficking Convention 2005, Articles 18–21; Migrant Smuggling Protocol 2000, Article 6; TIP Protocol 2000, Article 5. On the exposition of international criminal responsibility of individuals for international crimes, see generally, Werle and Jessberger 2014, pp. 192, Marg No. 508 et seq.; Ambos 2013, pp. 102 et seq.; Bonafé 2009, pp. 12–17. 2 On

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waters down the fact that non-state actors such as individuals and criminal groups have increasingly been involved and implicated in acts that grossly violate the human rights of other persons. This stems from an understanding that human rights are not only violated by states alone but equally also by non-state actors who must be held accountable as well.5 Their liability is discussed in the context of Chap. 7 on the criminalisation provisions of the Anti-Trafficking in Persons Act 2008 of Tanzania. The first part of this discussion is premised on the understanding that, ordinarily, trafficking in persons is a crime committed by private actors such as individuals and organised crime groups6 and, as such, it does not attract state responsibility. However, as will be pointed out in this chapter, since anti-trafficking obligations are addressed to states as the ultimate guardians and guarantors of the human rights of everyone present within their jurisdictions, there must be circumstances upon which states will nevertheless be held responsible for conducts committed by private individuals and criminal groups.7 Additionally, the international human rights’ standard of due diligence is specifically employed to link the principles of state responsibility for human trafficking committed by non-state actors. This part does not intend to provide an entire understanding of the doctrine of state responsibility under international law. Rather, its purpose is to state those basic principles of the doctrine as would apply to the responsibility of states for the crime of trafficking. The International Law Commission (ILC), an expert body established by the UNGA to work on the progressive development and codification of international law,8 has dealt with the question of state responsibility and issued, in 2001, the Draft Articles on state responsibility with the commentaries.9 However, before embarking on analysing the content of the ILC Draft Articles 2001, brief regard needs to be had on the legal nature of the ILC Draft Articles 2001 under international and customary law. The ILC Draft Articles 2001, legally speaking, are a non-binding legal text. Although there have been suggestions to operationalise the ILC Draft Articles 2001

5 Clapham

2006, p. 28. Noortmann and Sedman urge this point succinctly well when they state that “the activities of a variety of non-state actors have ‘horizontalized’ human rights, i.e. human rights violations can be attributed to such non-state actors as businesses, armed opposition groups, non-governmental organisations”, Noortmann and Sedman 2016, p. 406. 6 Sigmon 2008, p. 249. 7 ICAT 2016, pp. 3–4; Duffy 2017, p. 104. 8 Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS 16 (1945), entered into force 24 October 1945, Article 13(1)(a). See as well Gibney 2015, p. 91. 9 International Law Commission 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the Work of Its 53rd Session. UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. 1/56/10 (2001). Hereinafter: ILC Draft Articles 2001; ILC Draft Articles Commentary 2001. The ILC Draft Articles 2001 were subsequently noted by the United Nations General Assembly during its Fifty-Sixth Session and were appended as an annex to the resolution adopted by UNGA, see UNGA 2002, para 3. On the summarised comments and the text of the Articles, see Crawford and Olleson 2003, pp. 445–471; its form and authority, see Caron 2002, pp. 861 et seq.; and on the evolution of the doctrine of state responsibility generally, Dupuy 1989, pp. 105–128.

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into a legally binding Convention,10 this has not yet materialised in reality.11 The ILC Draft Articles 2001 have been referred to as non-legislative codifications because “they have not been enacted by the official lawmaking entities established by the political community”.12 As such, they are not the source of international law but its evidence.13 They represent, based on the ILC’s composition and ascertainment of the sources of law by the International Court of Justice (ICJ), “a subsidiary means for the determination of the rules of law” due to their status as “the teachings of the most highly qualified publicists of the various nations”.14 Despite their being a non-binding legal text with no binding obligations on the states, since their adoption, the ILC Draft Articles 2001 have been very influential in national, regional and international settings. They have been cited by arbitral and judicial institutions both at the national and regional levels and by international organisations and governments.15 They have been recognised as a restatement or reflection of the legal status of the customary international law secondary principles governing the responsibility

10 UNGA

2016a, para 74; UNGA (Sixth Committee) 2016c, paras 28–73. Concerning the legal implication and the debate surrounding the suggestion to have a Convention on the ILC Draft Articles 2001, see Crawford and Olleson 2005, pp. 959–971. 11 According to Pellet, such a move is not good at the moment as “there is therefore hardly any doubt that a convention would pose a strong risk to the ‘fragile balance contained in the articles’, the result of a long maturation period and delicate compromises”, Pellet 2010, p. 87. Similar views have been expressed by Crawford et al. 2001, pp. 969–970; Caron 2002, pp. 861 et seq. Furthermore, according to the Oral Report of the Chair of the Working Group on Responsibility of States for Internationally Wrongful Acts, “some delegations had argued that there was no need for a convention on the subject, noting, inter alia, that the articles were already widely accepted and had gained sufficient authority, that the secondary norms might not be suitable for codification, and that the articles would be more valuable in their current form. It had also been acknowledged that it would be premature to consider all the articles as settled customary international law and that State practice itself should be allowed to develop”, UNGA (Sixth Committee) 2016b, para 5. 12 Jansen 2010, pp. 7–8 quoted also by Bordin 2014, p. 536; Scobbie 2009, p. 273. 13 Caron 2002, p. 867: “An ILC study, although written in the form of articles, is not a ‘source’ of law. The ILC articles and commentary instead are evidence of a source of law. In the wording of Article 38(1) of the Statute of the International Court of Justice, the articles are a subsidiary means for the determination of rules of law. That is, the work of the ILC is similar in authority to the writings of highly qualified publicists.” 14 Statute of the International Court of Justice, opened for signature 26 June 1945, 33 UNTS 933 (1945), entered into force 24 October 1945, Article 38(1)(d). See also Bordin 2014, p. 537. 15 By resolution 59/35, the UNGA requested the UN Secretary General to prepare an initial compilation of decisions of international courts, tribunals and other bodies referring to the articles and to invite the Governments to submit information on their practice in this regard, UNGA 2004, para 3. In the reports submitted to the UNGA by the UN Secretary General, it was found that the ILC Draft Articles 2001 have been referred to, for example, by the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea, World Trade Organisation Appellate Body (WTO), international arbitral tribunals, the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, the European Court of Human Rights, the Inter-American Court of Human Rights and the Special Tribunal for Lebanon, UNGA 2016c, para 5; UNGA (Sixth Committee) 2016a, para 1. For further complied decisions see, UNGA 2007a, b,

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of states for their internationally wrongful acts.16 According to Bordin, not only is the inherent uncertainty characterising the identification and application of the rules of customary international law by various legal architects which has made the ILC Draft Articles 2001 highly authoritative and influential, but also that other factors such as the authorship and representation of the ILC itself, the ILC Draft Articles 2001’ procedure for adoption and their textual qualities and prescriptive form have altogether played a very pivotal role in making them legally persuasive.17 In this work, the ILC Draft Articles 2001 are, therefore, used with this prior legal understanding—that while not legally binding, they largely represent the development and crystallisation of customary international law rules on the international responsibility of states for their internationally wrongful acts in relation to other states and individuals. The ILC Draft Articles 2001 deal only with the secondary rules of state responsibility—rules containing the general conditions under international law of the responsibility of states for internationally wrongful actions or omissions and the legal consequences of that responsibility.18 Thus, the ILC Draft Articles 2001 are not concerned with the primary rules, understood as rules that define the content of the international obligations as expressed in conventional and customary international law.19 According to the ILC Draft Articles 2001, a state is internationally responsible for its every internationally wrongful act.20 The scope of its international responsibility extends beyond bilateral to encompass also “several or many states or even towards the international community as a whole” and as such, expands to cover other c. Specifically on the comments received from Governments on their practice with respect to the ILC Draft Articles 2001 see, UNGA 2007d, e. 16 Scobbie 2009, p. 273; International Centre for Settlement of Investment Disputes (ICSID), Archer Daniels Midland Company and Tate & Ingredients Americas, Inc v the United Mexican States, Award Judgment, 21 November 2007, Case No. ARB (AF)/04/05, para 116; International Court of Justice, Case Concerning the Gabˇcíkovo–Nagymaros (Hungary/Slovakia), 25 September 1997, (1997) ICJ Reports 7, paras 51–52; International Court of Justice, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia-Herzegovina v Serbia-Montenegro, 26 February 2007, (2007) ICJ Reports 43, paras 585, 398, 420, 431. 17 Bordin 2014, pp. 547, 549–558. But on the nature of the ILC Draft Articles 2001 themselves and their description, partly see Linderfalk 2009, pp. 53–72. 18 The ILC Draft Articles Commentary 2001, p. 31. See further Nollkaemper and Plakokefalos 2017b, pp. 5–6; Zyberi 2017, pp. 247–248; Nollkaemper and Jacobs 2013, p. 408; Scobbie 2009, p. 272. 19 The ILC Draft Articles Commentary 2001, p. 31. See also Aust 2005, p. 410; Nollkaemper and Plakokefalos 2017b, pp. 5–6; Linderfalk 2009, p. 55. On the distinction between the primary and secondary rules and the approach taken by the ILC, see Crawford 2002a, pp. 876–879; Gallagher 2017, p. 9. 20 The ILC Draft Articles 2001, Article 1. Such an internationally wrongful act includes also “an omission and extends to conduct consisting of several actions or omissions which together amount to an internationally wrongful act”, the ILC Draft Articles Commentary 2001, p. 31, footnote 33. The ILC Draft Articles 2001 excludes the responsibility of international organisations for the internationally wrongful act. However, it is generally also agreed that a state can be held liable by virtue of its membership in an international organisation that commits an internationally wrongful act. See generally Ryngaert and Buchanan 2011, pp. 131–146; Strauss 2017, p. 72.

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subjects of international law beyond the injured state.21 An internationally wrongful act of the state exists upon one establishing two conditions, namely: the attribution of an act or omission to the wrongdoing state; and the amounting to a breach of that international obligation by means of such an act or omission.22 Conversely, an international obligation of the state not amounting to the breach of that obligation under international law does not attract state responsibility. Equally also, a breach of an international obligation owed to a state but which cannot be attributed to that state does not bring that state into responsibility.23 Note that intent to commit an internationally wrongful act does not form part of the international legal regime of state responsibility in the ILC Draft Articles 2001 and, therefore, objective responsibility forms the basic recognised form of state responsibility under international law.24 Regarding attribution, it must be shown that the act or omission is an act of the state. Although the state is the primary subject of international law with its own independent existence and juridical personality, it exists abstractly and cannot act on its own. It can only act through human instrumentalities, otherwise referred to as agents, organs or representatives of the state.25 The purpose of attribution, therefore, is to ascertain in what situations and circumstances can the acts or omissions of those acting on behalf of the state amount to actions or omissions of the state for the purpose of international responsibility.26 Pertaining to the second condition, a breach of an international obligation occurs when a wrongdoing state commits an act or omission contrary to the recognised international right of another subject or subjects of international law or even the international community as a whole, regardless any discernible damage or injury.27 The ILC Draft Articles 2001 and the Commentary provide instances upon which acts can be characterised as acts of the state for the purpose of international responsibility.28 Such characterisation is governed by international law, regardless of whether the wrongdoing state’s internal law would consider the same conduct as legally permissible.29 This means also that a state will be precluded from adducing as a defence its 21 The

ILC Draft Articles Commentary 2001, Article 1, para 4, 5. See also Crawford 2012, p. 541. ILC Draft Articles Commentary 2001, Article 2, para 5, 7. See also Dupuy 1999, p. 372; Shaw 2008, p. 781; Weatherall 2015, p. 12; Crawford and Watkins 2010, p. 286. 23 Spinedi 2002, pp. 898–899. 24 Crawford 2002b, p. 12; Shaw 2008, pp. 783–784. 25 The ILC Draft Articles Commentary 2001, Article 2, paras 6–7. See also International Military Tribunal, The United States of America et al. v. Hermann Wilhelm Goring et al., Criminal Judgment, 14 November 1945 to 1 October 1946 (The Trial of Major War Criminals Before the International Military Tribunal at Nuremberg, Germany), p. 447 quoted by Werle and Jessberger 2014, Marg. No. 15; Noortmann and Sedman 2016, p. 416. 26 Crawford 2013, p. 113. See as well McCorquodale and Simons 2007, p. 601. 27 Crawford 2013, p. 113; Jiménez de Aréchaga 1968, p. 534; Wyler 2002, p. 1150. For a critical comment on the non-requirement of resulting damage or injury following the breach of an international obligation by a wrongful state, see Wyler 2002, pp. 1151–1153; Dupuy 1999, pp. 373 et seq. 28 The ILC Draft Articles 2001, Articles 4–11. 29 The ILC Draft Articles 2001, Article 3. A similar rule is expressed at Article 27 of the Vienna Convention on Law of Treaties, “A party may not invoke the provisions of its internal law as 22 The

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constitutional provisions to defeat its international obligation as against another state or states when its conduct is considered to be internationally wrongful.30 Internal law, however, is relevant in determining, for instance, the structure of the state and its functions as well as the constitution of its organs and their subdivisions.

4.2 Attribution The ILC Draft Articles 2001 recognise several forms of attribution. The conduct carried on by any organ of the state, whether that organ performs judicial, executive, legislative or any other functions and irrespective of its position or character, is considered an act of that state in international law.31 It is recognised that state organ comprises not only of federated entities but of any person or entity with the status of an organ of the state as stipulated in the internal law of the concerned state.32 A person here includes natural and legal persons such as individual officials, commissions or departments and other similar bodies. Based on the principle of the unity of the state, international law does not recognise any distinction with respect to which state organ is capable or incapable of committing an internationally wrongful act for the purpose of responsibility.33 The same Article covers also superior and subordinate officials acting in their official capacities or “in apparently official capacity”, or “under colour of authority” and irrespective of their motive.34 While internal law might be relevant in determining a state organ’s status, the state is prohibited from denying the responsibility of one of its organs on the claim that its internal law does

justification for its failure to perform a treaty.” See further the ILC Draft Articles Commentary 2001, Article 3, paras 1–9. 30 Permanent Court of International Justice, Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 4 February 1932, (1932) PCIJ, Series A/B, No. 44, pp. 24–25. 31 The ILC Drat Articles 2001, Article 4. See further McGregor 2018, p. 262; Benninger-Budel 2008a, b, pp. 11–12; Duffy 2008, pp. 11–12; International Court of Justice, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 29 April 1999, (1999) ICJ Reports 87, paras. 62–66 quoted in Shaw 2008, p. 786; Nollkaemper 2003, pp. 616–617. 32 The ILC Draft Articles 2001, Article 4; Hernández 2017, pp. 50–52; Duffy 2017, p. 111; Weatherall 2015, p. 391. See also Mugerwa 1968, p. 251; Luban 2011, pp. 78–79. 33 The ILC Draft Articles Commentary 2001, Article 4, para 5; Hernández 2017, pp. 50–52. See further Orakhelashvili 2015, p. 173; Deak 1968, p. 383; International Court of Justice, LaGrand Case (Germany v. United States of America), Request for the Indication of Provisional Measures, Court Order, 3 March 1999, (1999) ICJ Reports 9, para 28; Wee 2008, p. 22. 34 The ILC Draft Articles Commentary 2001, Article 4, para 13; International Covenant on Civil and Political Rights, Article 2(3)(a). See as well Obokata 2017, p. 52; Taylor 2008, p. 103; McCorquodale and Simons 2007, pp. 601–602.

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not recognise that organ as such, if by practice and based on international law, such a conduct is attributable to the state.35 Therefore, when a state, its organs and officials take any decision or measure, whether legal or administrative, whose effect is to defeat the anti-trafficking international obligations of a state, the international responsibility of that state is engaged.36 Equally also, where police or immigration officials are found to be directly involved in trafficking or smuggling of persons or encourage or permit such conducts to occur, their acts will be attributable to the state concerned.37 The fact that the actions of these officials are contrary to internal law does not exonerate that state from responsibility where such conducts were only possible through the official capacity they possess.38 Flowing from Article 4 also is the fact that where judicial authorities such as courts pass decisions or judgments whose effect is to violate the anti-trafficking obligations of the state concerned, their actions will be attributed to the state. Further, where there is a general failure of the judicial system such that victims of trafficking, whether as aliens or returned citizens, are unable or even denied access to judicial remedies or their access is unreasonably curtailed to amount to the denial of their rights under international law, their actions will be attributed to the state.39 In similar circumstances, the state incurs international responsibility where its legislative organ either enacts a law with provisions inconsistent with its anti-trafficking obligations or fails to enact a law to that effect.40 The same holds true where the domestic legal and institutional mechanisms in place do operate to hinder the state in the performance of its international anti-trafficking obligations. Where a person or entity other than the state organ is empowered by law to exercise some forms of governmental authority, its conduct shall be considered an act of the state when acting in that capacity.41 Such organs include also parastatal entities and other corporations.42 Where the government hires private security firms to act as security guards in its prisons or of its borders or where it delegates some of its 35 The ILC Draft Articles Commentary 2001, Article 4 at para 11. See also Jiménez de Aréchaga 1968, pp. 534–535; Wee 2008, pp. 22–23. 36 Human Rights Committee (General Comment No. 31) 2004, para 4; Gallagher 2010b, pp. 3–4; Seck 2011, p. 161. 37 Gallagher 2010b, pp. 3–4; McGregor 2018, p. 262. 38 Taylor 2008, p. 103; Nollkaemper 2003, p. 620. See also Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Furundžija, Trial Judgment, 10 December 1998, Case No. IT-95-17/1-T, para 142 in which the ICTY noted: “Under current international humanitarian law, in addition to individual criminal liability, State responsibility may ensue as a result of State officials engaging in torture or failing to prevent torture or to punish torturers.” 39 Greenwood argues that there is an international responsibility of the state for the wrongful acts of its courts and judicial institutions, see Greenwood 2004, pp. 55–74; Duffy 2008, pp. 11–12. 40 Jiménez de Aréchaga 1968, p. 545. By enacting a legislation giving effect to its international obligation, the state evidences its respect and adherence to its obligation, as expressed by Bossuyt 2016, p. 104. 41 The ILC Draft Articles 2001, Article 5; ILC Draft Articles Commentary 2001, Article 5, paras 1–7. See also Shaw 2008, p. 787; Taylor 2008, p. 104; Gammeltoft-Hansen 2017, p. 542. 42 Wee 2008, pp. 23–24. Regarding the imputation of liability of such entities to the states for cases falling under the European Convention on Human Rights, see Augestein 2011, paras 24–29.

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governmental duties to airline companies to exercise certain immigration functions, the actions of these organs or agencies will be attributable to the government where they result in the violation of that state’s anti-trafficking obligations.43 Where a state allows one of its organs to be used by another state such that the organ exercises forms of governmental authority of the second state, the conduct of that organ shall be considered an act of the second state.44 Where an organ of the state or a person or entity authorised to perform some governmental functions exercises such functions in that capacity or exceeds its authority or even contravenes instructions, its conduct shall nevertheless be that of the state.45 The rule in Article 7 is basically a restatement of the rule in Article 3 as a state cannot shun away from its international responsibility on the ground that its responsible agents or organs have acted ultra vires or in excess of their authority or even contrary to given instructions where they carried such acts by virtue of their official capacity. Excluded from this rule are only those unauthorised conducts “so removed from the scope of their official functions that it should be assimilated to that of private individuals, not attributable to the state”.46 The principle is well encapsulated in the case of Velásquez Rodriguez such that: “under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law”.47 In this connection, the private actions of a police officer or any other state official who knowingly operates an agricultural establishment, a factory or any business which uses the services of trafficked persons will be attributable to the state where his investment was protected only because of the official capacity or apparent authority with which the officer was clothed with.48 In cases where a person or group of persons act under the instruction, direction or control of a state, the conduct of that person or group of persons is attributable to that state even when such persons or group of persons are not the de jure or de facto organs 43 This legal possibility is already envisaged under the TIP Protocol 2000, Article 11(3), 11(4). In European Court of Human Rights, Costello-Roberts v the United Kingdom, Chamber Judgment, 25 March 1993, Application No. 13134/87, para 27, the European Court of Human Rights partly observed that: “… the State cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals.” According to the Human Rights Committee report on the United Kingdom of Great Britain, “the Committee is concerned that the practice of the State party in contracting out to the private commercial sector core State activities which involve the use of force and the detention of persons weakens the protection of rights under the Covenant. The Committee stresses that the State party remains responsible in all circumstances for adherence to all articles of the Covenant”, Report of the Human Rights Committee (1996) General Assembly Official Records Fiftieth Session Supplement. Volume I, No. 40 (A/50/40), 4 February 1996, para 423. See further Gammeltoft-Hansen 2017, pp. 543–544. 44 The ILC Draft Articles 2001, Article 6. 45 The ILC Draft Articles 2001, Article 7. See as well Saul 2017, pp. 27–28; Crawford and Watkins 2010, p. 287. 46 The ILC Draft Articles Commentary 2001, Article 7, para 7. 47 Inter-American Court of Human Rights, Velásquez Rodriguez v. Honduras, Merits Judgment, 29 July 1988, Series C, No. 4 (1988), para 170. 48 In support of this argument from a related proposition, see Gallagher 2010b, pp. 3–4.

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of the state giving instruction, direction or control according to its internal law.49 Article 8 deviates from the general rule that the state is not responsible for the conduct of private persons or entities. Thus, a state cannot escape responsibility simply by claiming that detaining trafficked persons unlawfully in a private shelter is a private act where the unlawful detention results from its instructions or direction or control.50 Disputed, however, is the nature or extent of control. In the case of Military and Paramilitary Activities in and against Nicaragua,51 Nicaragua complained before the ICJ that the United States, by “recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua” not only acted against general and customary international law but also that the United States, by exercising military and financial control over and rendering the support to the military and paramilitary forces operating in Nicaragua against the Government of Nicaragua, has itself actually carried out the complained acts of violation by attribution.52 In the opinion of the ICJ, for Nicaragua’s claim to be sustained, it had a legal obligation to determine “whether or not the relationship of the contras to the United States Government was so much one of dependence on the one side and control on the other that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government”.53 While the ICJ noted as an established fact that the United States supported the activities of the contras against the Government of Nicaragua, it, notwithstanding, found the evidence insufficient to attribute the actions of the contras to the United States, as such actions would in any way been carried by the contras even in the absence of the direct support.54 The ICJ required Nicaragua to prove the presence of “effective control” on the activities of the contras on the part of the United States such that by means of that control the contras “are subject to the United States to such an extent that any acts they

49 The

ILC Draft Articles 2001, Article 8; Wee 2008, pp. 27–30. See also International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) 2007, paras 396–397; International Court of Justice, Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Merits Judgment, 24 May 1980, (1980) ICJ Reports 3, para 74 in which the ICJ considered whether the Government of Iran will be responsible for the acts of the militants who were not part of the organs of the Islamic State of Iran according to its internal law but who invaded the Embassy of the United States in Tehran and took hostages of its consular and diplomatic personnel and its premises, with the Government of Iran failing to take measures to rectify the situation and subsequently showing some form of endorsement. At para 74, the ICJ noted “the approval given to these facts by the Ayatollah Khomeini and other organs of the Iranian State, and the decision to perpetuate them, translated continuing occupation of the Embassy and detention of the hostages into acts of that state.” 50 Gallagher 2010a, p. 227; Jinks 2003, pp. 88–89; Duffy 2017, p. 104. 51 International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits Judgment, 27 June 1986, (1986) ICJ Report 14. 52 Paras 15, 20, 21. See also Messineo 2014, pp. 65–66. 53 Para 109. 54 Para 115.

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have committed are imputable to that State”.55 Nicaragua was required to show not only that the United States controlled the contras but also that the control the United States exercised was with respect to the conduct of specific operations in the course of which the violations complained of by Nicaragua were committed.56 The ICJ’s reasoning on the test of “effective control” was not accepted by the ICTY Appeals Chamber. In the Prosecutor v Duško Tadi´c decision,57 a similar issue arose on the first ground of appeal raised by the prosecution alleging that the Trial Chamber of the ICTY erred in not recognising that victims of the crimes committed by the appellant did not enjoy the protection of the grave breaches regime of the Geneva Conventions of 12 August 1949 as recognised by Article 2 of the Statute of the International Tribunal.58 In fact, the prosecution contended that the Trial Chamber error arose as the result of applying the “effective control” test of the ICJ decision in Military and Paramilitary Activities in and against Nicaragua in order to determine the applicability of the grave breaches of the Geneva Conventions.59 In resolving the issue, the Appeals Chamber had to examine and establish the nature of control the Federal Republic of Yugoslavia (Serbia and Montenegro) and its Army had over the Army of the Serbian Republic of Bosnia and Herzegovina/Republika Srpska and whether the latter was controlled as an organ of the former to act on its behalf.60 The Appeals Chamber of the ICTY rejected the “effective control” test of the ICJ and as applied by the ICTY Trial Chamber, arguing that such a test required a high degree of control which not only could not be applied in all circumstances for the purpose of attribution of private acts to the state but also that its applicability was only limited to individuals or unorganised groups acting under instructions or direction or control of another state.61 With respect to military and paramilitary organised groups who were not agents or organs of the state, the ICTY Appeals Chamber propounded the use of the “overall control” test,62 submitting that for the acts of an organised group to be attributable to another state, it must be shown only that the activities of such an organised group were “under the overall control of a State… whether or not each of

55 Paras

115, 116. 2016, pp. 369–371. 57 International Criminal Tribunal for the Former Yugoslavia Appeals Chamber, Prosecutor v Duško Tadi´c, Appeal Judgment, 15 July 1999, Case No. IT-94-1-A. 58 Para 22. 59 Para 69. See the International Criminal Tribunal for the Former Yugoslavia Trial Chamber, Prosecutor v Duško Tadi´c Trial Judgment, 7 May 1997, Case No. IT-94-1-T, paras 585–608. 60 Paras 81, 87, 91, 98, 104. 61 Paras 100, 117, 119, 124. At para 124 the Appeals Chamber noted that “the effective control test propounded by the International Court of Justice as an exclusive and all-embracing test is at variance with international judicial and State practice: such practice has envisaged State responsibility in circumstances where a lower degree of control than that demanded by the Nicaragua test was exercised. In short, as shall be seen, this practice has upheld the Nicaragua test with regard to individuals or unorganised groups of individuals acting on behalf of States. By contrast, it has applied a different test with regard to military and paramilitary groups.” 62 Paras 120, 128. 56 Thielbörger

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them was specifically imposed, requested or directed by the State”.63 By applying this test, the Appeals Chamber found acts of the Bosnia Serb Army attributable to the Former Yugoslavia. Notwithstanding this position of the ICTY Appeals’ Chamber, the “effective control” test was affirmed again in the ICJ Judgment of 19 December 2005 in the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).64 In that case, the Democratic Republic of the Congo (DRC) submitted before the ICJ, among other claims, that Uganda “by engaging in military and paramilitary activities against the Democratic Republic of the Congo, by occupying its territory and by actively extending military, logistic, economic and financial support to irregular forces operating there” has violated conventional and customary international law on the prohibition of non-use of force in international relations, including the prohibition of aggression.65 In the end, the ICJ found Uganda not responsible for the creation of the armed group MLC in the DRC which was involved in military and paramilitary activities against the Government of the DRC. The ICJ went to rule that the support provided by Uganda did not result in the control of how such assistance was put to use, the conduct of the MLC armed group did not amount to “an organ” of Uganda under Article 4 of the ILC Draft Articles 2001 nor did the MLC armed group itself amount to an entity exercising elements of governmental authority on the behalf of Uganda according to Article 5 of the ILC Draft Articles 2001. The Court found probative evidence lacking to establish that the MLC armed group acted “on the instructions of, or under the direction or control of” Uganda under Article 8 of the ILC Draft Articles 2001.66 The Court was clear that “the requisite tests… for sufficiency of control of paramilitaries” established in the case of Military and Paramilitary Activities in and against Nicaragua were not met.67 In other words, the “effective control” on the part of Uganda was not proved by the DRC in its allegations. Nevertheless, it was the ICJ’s 2007 judgment that settled the question of the necessary control required for attribution. In the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),68 the ICJ dealt again with the issue of attribution of responsibility to the state that instructs, directs or controls the conduct of a person or group of persons in the territory of 63 Para 122. In para 131, the Appeals Chamber went further to define the parameters of the overall control test holding that “in order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its activity. Only then can the State be held internationally accountable for any misconduct of the group.” 64 International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), 19 December 2005, (2005) ICJ Reports 168. 65 Para 24(1). 66 Para 160. 67 Para 160. 68 International Criminal Court, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment Case, 26 February 2007, (2007) ICJ Reports 43.

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another state under Article 8 of the ILC Draft Articles 2001. Not only did the ICJ upheld the “effective control” test established in the case of Military and Paramilitary Activities in and against Nicaragua, it went on to reject as unpersuasive the “overall control” test advocated by the decision of the ICTY Appeals Chamber in the Prosecutor v Duško Tadi´c, arguing that that test overstretches and broadens the scope of state responsibility beyond its confines as stipulated by international law.69 On that finding, it established that the Former Yugoslavia was not responsible for acts of genocide in Srebrenica. The ILC Draft Articles 2001 and its Commentary follow the ICJ’s approach on the test of “effective control”.70 Strictly establishing the “overall control” or the “effective control” tests to find one state responsible for the activities of organised crime groups, military and paramilitary groups or individuals who commit trafficking in another state might be challenging. Nonetheless, there is a two-fold clear responsibility. First, to the state in which these groups and individuals commit acts of trafficking for its failure to fulfil its obligation to prevent trafficking from occurring and for its failure to investigate or prosecute such cases. Second, for the second state when it effectively instructs, directs or controls or effectively fails to stop or actually encourage, permit or condone the actions of these groups in the territory of the state in which trafficking is ultimately committed as a result.71 Thus, the degree of control, direction or instruction required for attribution of state responsibility for violation of anti-trafficking obligations might be less or even different than that advocated by the overall control or effective control tests.72 Notwithstanding these observations, it also is understood that the operation of these organised crime groups in several states might result into a shared responsibility of the responsible states to investigate and prosecute the traffickers and individuals involved.73 The Organised Crime Convention 2000’s definition of a crime which is 69 According to the ICJ, the “overall control test” of the ICTY Appeals Chamber needs to be rejected because the “test has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility: a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf…. In this regard the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility”, at para 406. 70 The ILC Draft Articles Commentary 2001, Article 8, para 3. See further, Shaw 2008, pp. 790–791. 71 Somehow in support of this position see Piotrowicz 2012, pp. 186–189; Simic 2004, pp. 18–19. See as well Lang 2011, p. 106. 72 This legal possibility is already contemplated in the ICJ Judgment of 26 February 2007, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) with respect to the prevention of the crime of genocide whose reasoning can equally be applicable in the cases of preventing trafficking. The ICJ noted at para 116 that “Secondly, it follows from the expressly stated obligation to prevent the commission of acts of genocide. That obligation requires the States parties, inter alia, to employ the means at their disposal … to prevent persons or groups not directly under their authority from committing an act of genocide or any of the other acts mentioned in Article III.” See as well Gammeltoft-Hansen 2017, p. 544. 73 For comprehensive discussion on the concept of shared responsibility, see Nollkaemper and Plakokefalos 2017b.

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transnational and organised in nature, including the crime of trafficking in persons by extension, renders clear legal support to this understanding.

4.3 Breach of an International Obligation The second condition of breach occurs when the state acts contrary to the requirement of its international obligation, regardless of its origin or character.74 In identifying the breach, one needs to consult the primary rules containing obligations whose nonperformance or observance would amount to a breach enforceable by the injured state or individual against the wrongful state.75 Regardless of its “origin” indicates all possible sources from which international obligations originate whether a treaty, rule of customary international law, a unilateral act of the state or their combination.76 Thus, in determining the responsibility and its breach one has to consult the regional and international regimes such as international criminal law, human rights law, humanitarian law, labour law, refugee law and other sources of international obligations that set out the primary rules.77 These sources set both the negative and positive obligations of states. In terms of trafficking, for example, the TIP Protocol 2000 sets out the primary rules in terms of conduct expected of states in compliance with their anti-trafficking obligations. Where the state acts inconsistently of its antitrafficking obligations contained in the TIP Protocol 2000 and other specialty antitrafficking instruments, the wrongful state breaches its international anti-trafficking obligations, thereby incurring its international responsibility based on the principles elucidated in the secondary rules.78 The conduct of the wrongdoing state will constitute a breach of its international obligation only if at the time of its commission, the wrongdoing state was bound by it.79 Thus, international law does not leave room for the retrospective application of the law. In the context of trafficking, a state will incur international responsibility following its ratification of the Organised Crime Convention 2000 and the TIP Protocol 2000 as well as other specialty anti-trafficking instruments to which it is a party. This operates to exclude from the state’s liability those trafficking violations done by the state before it ratified the legal instruments containing the primary rules which set out the obligations to be complied with by the state. However, this principle would have been discarded where trafficking was to be considered as part of the rules of peremptory norms on the prohibition of slavery and the slave trade. In such 74 The ILC Draft Articles 2001, Article 12. See also Gattini 2014, pp. 26 et seq.; Maftei 2015, p. 44. 75 This is also one of the features of the suppression conventions such as the TIP Protocol 2000. See Clapham 2016, pp. 21–22; Clark 2016, pp. 214–215; Gallagher 2017, p. 9. 76 The ILC Draft Articles Commentary 2001, Article 12, para 2. 77 Gallagher 2017, pp. 8–9; Gallagher and Skrivankova 2015, p. 26. 78 McGoldrick 2004, p. 168. See as well Nollkaemper and Plakokefalos 2017b, pp. 5–6. 79 The ILC Draft Articles 2001, Article 13; The ILC Draft Articles Commentary 2001, Article 13, para 1.

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cases, the concerned state would have had an international obligation irrespective of the absence of ratification and consequently incurred international responsibility for the breach.80 Once the wrongdoing state is found to be in breach of its international obligation, its international responsibility continues irrespective of the coming to an end of that obligation whether by “termination of the treaty which has been breached or of a change in international law”.81 The ILC Draft Articles 2001 provide further that when a state breaches its international obligation by means of an act not of a continuing character, the breach occurs when that act is performed irrespective of the continuing nature of its effect. However, where the act is of a continuing nature, its breach continues over the entire period the act continues and remains in violation of international obligation. Where the specific international obligation is that of prevention, its breach transpires the entire period in which the event continues and remains to violate the international obligation.82 The crime of trafficking is recognised to be a crime whose violations are of a continuing character.83 In such situations, a state incurs international responsibility of a continuing nature where it fails to take preventive measures as required or passes legislation whose effect is to discriminate or affect the rights of trafficked persons contrary to that state’s international obligation or fails to investigate and prosecute allegations that trafficking has been and is being committed in its territory or fails to provide adequate support, assistance and protection measures to victims of trafficking.84 Since most of the anti-trafficking obligations are of a continuing character, these provisions of the ILC Draft Articles 2001 are highly relevant. From the time a victim is, by unlawful means, recruited, transported and received to be exploited, there are continuing violations of the anti-trafficking obligations by source, transit and destination countries. Because of this, in taking anti-trafficking measures, the TIP Protocol 2000 and other instruments call upon states of origin, transit and destination to co-operate together to successfully prevent trafficking, investigate and prosecute trafficking cases and protect the victims.85 In cases where the state breaches its international obligation through a series of actions or omissions defined in aggregate as wrongful, their composite nature can suffice to determine an internationally wrongful act of the state. Such a breach extends over the entire period when the actions and omissions started and lasts as far as the actions or omissions are repeated and remain in violation of the international obligation.86 Examples of composite obligations include international obligations 80 In support of this proposition, see Schmahl 2006, p. 48; Zyberi 2017, p. 245; Talmon 2006, p. 109;

International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, (1996) ICJ Reports 226, para 79; 81 The ILC Draft Articles Commentary 2001, Article 13, para 7. 82 The ILC Draft Articles 2001, Article 14. See as well Gattini 2014, pp. 28–29. 83 Inter-American Commission on Human Rights 2015, para 222. 84 McGregor 2018, p. 263; ICAT 2016, pp. 3–4; Simic 2004, p. 18; Case of Osman v The United Kingdom 1998, para 115. 85 TIP Protocol 2000, para 1 to the Preamble. See also Farrugia 2012, pp. 142–152, 150; United Nations Children’s Fund 2006, p. 13; Rantsev v. Cyprus and Russia 2010, para 289. 86 The ILC Draft Articles 2001, Article 15.

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in relation to the crimes against humanity, apartheid, genocide and systematic acts of racial discrimination.87 These provisions make sense in the context of trafficking where trafficking and its prohibition can be considered an internationally wrongful act of a composite nature composed of a series of acts and omissions which are actionable.88

4.4 Special Considerations on State Responsibility for Trafficking Flowing from the principles established and discussed above, international law envisages situations upon which the state can be responsible for private actions. This section makes use of international human rights law as a point to indicate state obligations for human rights violations emanating from trafficking. The reference to international human rights law is important in this area because it provides both a framework of analysis of the principles and norms applying to trafficking generally and a framework of action detailing obligations and norms states have with respect to trafficking.89 In the context of this book, this work takes the approach that human rights refer to universal, inalienable and equal entitlements that every person has by virtue of being a human being where such entitlements precede the existence of any state or any legal order and that states, as well as national and international law, exist not to create them but rather to enforce, legislate, protect and accord them to every human being within states’ jurisdiction.90 Generally, under international human rights law, it is recognised that states will be responsible not only for violation or infringement of human rights and fundamental freedoms perpetrated by their responsible officials but equally responsible for failure to take appropriate measures to protect persons within their territories against actions of private persons that violate their fundamental rights and freedoms.91 In other words, I mean, states have the human rights obligations to implement, not the human rights, and individual persons within states’ jurisdictions have the human rights to be protected, not the human rights obligations to protect. It is in this sense that a state can be responsible with respect to the crime of trafficking. If the state, through its responsible agents fails or does not take concrete steps to criminalise trafficking, investigate cases of trafficking, prosecute traffickers, protect and assist victims of trafficking and take decisive measures to prevent trafficking, it must be held responsible even 87 The

ILC Draft Articles Commentary 2001, Article 15, para 2. See as well Zyberi 2017, p. 244. 2010a, p. 234. 89 Obokata 2006, p. 35; Lasocik 2010, p. 29; Gallagher and Pearson 2010, p. 84. See also Safari 2014, p. 234. 90 Dickinson 2012, p. 175; Donnelly 2003, p. 10 quoted by Goodale 2007, p. 7; Parlett 2011, p. 278; Katselli 2012, p. 131. 91 United Nations Human Rights Committee General Comment No. 31, para 8; Piotrowicz 2012, p. 192; Simic 2004, pp. 18–19; Gallagher 2010b, pp. 3–4; Waismann 2010, p. 406. 88 Gallagher

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though trafficking is mostly and factually a private act.92 Such a state fails to fulfil its positive obligations and cannot shield itself based on the negative obligations it has implemented. Scholars have referred to these positive obligations emanating from the primary rules as obligations to protect, respect, fulfil and promote.93 It has been stated equally that every right contains three obligations, namely, obligation to respect, where the state and its officials are prohibited from violating the rights, obligation to protect, requiring the state and its officials to protect owners of the rights against interference from third parties and to punish perpetrators, and the obligation to implement, entailing the taking of certain specific measures giving full effect and realisation of the right.94 These have otherwise been referred to as the two-pronged approach of negative and positive obligations of states.95 It is upon this understanding that private conducts such as trafficking can trigger the international responsibility of the state. In the discharge of this obligation, states have obligations to “prevent violations, investigate violations, punish violators, provide victims with equal and effective access to justice and provide for or facilitate reparation to victims”.96 In the case of Siliadin v France, the applicant brought an action against France for its failure to protect her from slavery, servitude and forced labour from its violation by a private individual. The European Court of Human Rights observed that: In those circumstances, the Court considers that limiting compliance with Article 4 of the Convention only to direct action by the State authorities would be inconsistent with the international instruments specifically concerned with this issue and would amount to rendering it ineffective. Accordingly, it necessarily follows from this provision that States have positive obligations, in the same way as under Article 3 for example, to adopt criminal law provisions which penalise the practices referred to in Article 4 and to apply them in practice.97

Many decisions of a similar nature have followed from the European Court of Human Rights (ECtHR) and other jurisdictions as well. This operates to confirm that the passivity of the state or its agents to take appropriate measures to give effect to their positive obligations for private acts such as trafficking will entail the international

92 Scanlan 2008, pp. 203–208; Gallagher 2010b, pp. 3–4. According to Piotrowicz, “the human rights obligation lies with the state; not the individual. Acts by individuals, such as enslavement, only breach the victim’s human rights in that the state has failed to prevent it or failed to take appropriate action against it”, Piotrowicz 2012, p. 193. 93 Benninger-Budel 2008a, b, p. 11; Gallagher 2010a, p. 238. See also Committee on Economic, Social and Cultural Rights (General Comment No. 24) 2017, para 16; Gattini 2007, p. 701; Conforti 2004, p. 129; Pati 2011, pp. 131–137. 94 Renzikowiski 2018, p. 18; Akandji-Kombe 2007, p. 5. See also Hakimi 2010, pp. 342–344; Ewing 2012, p. 53; Sax 2018, p. 254. 95 Sax 2018, p. 254. 96 Bassiouni 2006, p. 204. 97 Case of Siliadin v France 2005, para 89. In this case, the Article 4 prohibition on slavery, servitude and forced labour was interpreted broadly as also including a prohibition on trafficking in persons, see further Ikeora 2018, p. 31; Spataru-Negura 2017, p. 97; Shaver and Zwaak 2011, pp. 119–123; Malloch and Rigby 2016a, b, p. 4.

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responsibility of the concerned state.98 The decisions of the various national, regional and international courts and tribunals have been cited and consistently used in this work to enumerate that there exists states’ international responsibility for acts of private and non-state actors as stated in the ILC Draft Articles 2001.99 This confirms and establishes that states, including Tanzania, have international responsibility for the crime of trafficking, requiring them to take certain positive measures in their domestic frameworks to discharge their anti-trafficking obligations. The standard of due diligence has come to be accepted in international human rights law as a benchmark, a measure and a tool to be used when assessing whether the state has complied with its negative and positive obligations in relation to the conduct and human rights interference by private individuals.100 The standard of due diligence has been defined as an autonomous obligation on the part of the states parties to “prevent violence or violations of human rights, protect victims and witnesses from violations, investigate and punish those responsible, including private actors, and provide access to redress for human rights violations”.101 Even more succinct is the standard’s definitional elements offered by Bonnitcha and McCorquodale. They explain due diligence as “a standard of conduct to discharge an obligation” and as a standard “relevant in defining the extent of states’ obligations in relation to the conduct of private actors that is not attributable to the state”.102 Although the due diligence standard has a long history in international law tracing back into the seventeenth-century writings and used in several instances well up to the nineteenth century,103 its present-day applicability in gauging states’ responsibility in meeting their human rights obligations, especially for private violations under international human rights law, was well articulated in the case of Velásquez Rodriguez already

98 European Court of Human Rights 2019, paras 8–10; Case of Osman v The United Kingdom 1998, para 115; Gallagher 2010b, pp. 3–4; Kartusch 2001, pp. 13–14; Inter-American Commission on Human Rights 2015, para 156. 99 ICAT 2016, pp. 3–4; Gallagher 2010b, pp. 3–4; Kartusch 2001, pp. 13–14; Waismann 2010, p. 406. 100 Simic 2004, pp. 18–19; Benninger-Budel 2008a, b, p. 1; Cook 1994, p. 143. See also Human Rights Committee General Comment No. 31, para 8; Committee on the Elimination of Discrimination against Women (General Recommendation No. 28) 2010, para 13. For a brief but concise development of the principle of due diligence, see Bourke-Martignoni 2008, pp. 48–52. 101 Committee on the Elimination of Discrimination against Women and Committee on the Rights of the Child (Joint General Recommendation No. 31) 2014, para 11 footnote 6. See also Women’s Link Worldwide 2008, para 12. See also Benninger-Budel 2008a, b, p. 13. 102 Bonnitcha and McCorquodale 2017, pp. 900, 903, 906. Based on their definition, they consider due diligence to be an obligation of a continuous nature, Bonnitcha and McCorquodale 2017, pp. 904–905. 103 Bourke-Martignoni 2008, pp. 48–49; Commission on Human Rights 2006, paras 19–29; Waismann 2010, p. 409. Generally see Hessbruegge 2004, pp. 265–306. Bonnitcha and McCorquodale have argued that the concept of due diligence, before introduced to international law in the writings of Grotius in the seventeenth Century, was already contained in the Roman Law, Bonnitcha and Corquodale 2017, p. 902.

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cited.104 Manfredo Velásquez, a student at the National Autonomous University of Honduras, was detained by members of the National Office of Investigations and the G-2 of the Armed Forces of Honduras without a warrant of arrest for alleged political crimes. He was subjected to harsh methods of interrogation, cruelly tortured and was disappeared. A charge was brought against Honduras in that it has violated Article 4 on the right to life, Article 5 on the right for respect of the human person and Article 7 on the right to personal liberty under the American Convention of Human Rights. The Inter-American Court of Human Rights (IACtHR) found out that the systematic and selective practices of kidnappings and disappearances in Honduras from 1981 to 1984 were carried out with the assistance, acquiescence or toleration or under orders from the officials of the government of Honduras105 and that this involved a violation of the obligation to respect and ensure the enjoyment of human rights under Article 1(1) of the American Convention on Human Rights.106 Based on these two obligations, “states must prevent, investigate and punish any violation of the rights recognised by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation”.107 The Court, however, did not stop at attributing to the state the actions of its agents alone which violated the provisions of the American Convention on Human Rights as was the case at hand. The IACtHR went on to state that the state incurs also international responsibility emanating from private acts where the state fails to take the due diligence measure to prevent the alleged human rights violations or respond to the said violations. It stated: Thus, in principle, any violation of rights recognised by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State. However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations, nor all the cases in which the State might be found responsible for an infringement of those rights. An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.108

The Inter-American Court, therefore, submitted that the due diligence standard applies as against the state not on the basis of the private act of human rights violation which it did not carry out, but on the basis of the failure or non-action or inaction to prevent the violation or take the necessary measures to rectify the breach.109 104 Weatherall 2015, pp. 385–387; Ertürk 2008, p. 37; Abi-Mershed 2008, pp. 129–131. See further

Obokata 2006, p. 150; Simic 2004, pp. 18–19; Gammeltoft-Hansen 2017, p. 545; UNGA 2015, para 11. 105 Para 119(a), 126, 147(c), 148. 106 Para 164–166. 107 Para 166; quoted also in Martin et al. 2006, p. 81. 108 Para 172. See also McGregor 2018, p. 263. 109 See Singh 2007, p. 188; Prosecutor v Anto Furundžija 1998, para 142; Gallagher 2010a, b, pp. 3–4; Evans 2004, pp. 150–151.

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This duty on the part of the state is irrespective of the motive of the person who violated the rights and regardless of whether the identity of the individual perpetrator is unknown.110 The state has to take all reasonable steps at its disposal to prevent and investigate every situation of violations, identify and punish perpetrators and ensure protection to the victims by employing all means at its disposal whether administrative, political, cultural or legal.111 According to the Court, the responsibility of the state is effective because, by allowing or permitting private individuals or armed groups to freely act with impunity in violating the rights of other persons, the state is actually aiding such violations.112 The principles elucidated in this case equally apply to trafficking in persons. The state that fails, acquiesces, allows or, by its inaction, passivity, acquiescence or non-action, creates a conducive environment for trafficking to continue in its jurisdiction incurs international responsibility, and based on the standard of due diligence, it is not a defence for that state to claim the private nature of the acts in question.113 Since then, the principle of due diligence has found wide acceptance in several international bodies. The UN Human Rights Committee, through its General Comment No. 36 (2018) on the right to life, has observed that: States parties are thus under a due diligence obligation to undertake reasonable positive measures which do not impose on them disproportionate burdens, in response to reasonably foreseeable threats to life originating from private persons and entities, whose conduct is not attributable to the state. Hence, State parties are obliged to take adequate preventive measures in order to protect individuals against reasonably foreseen threats of being murdered or killed by criminals and organised crime or militia groups, including armed or terrorist groups.... States parties must further take adequate measures of protection, including continuous supervision, in order to prevent, investigate, punish and remedy arbitrary deprivation of life by private entities, such as private transportation companies, private hospitals and private security firms.114

The Human Rights Committee further observed that the duty to protect the right to life means that states parties must take special measures to protect persons in situations of vulnerability and whose lives have been placed at particular risk because of special threats or pre-existing patterns of violence, including victims of domestic and gender-based violence and human trafficking.115 The Committee on Economic, Social and Cultural Rights has equally, through General Comment No. 16 (2005), submitted to the states that they have a legal obligation to take “appropriate measures to eliminate violence against men and women and act with due diligence to prevent, investigate, mediate, punish and redress acts of violence” and that failure to take such measures will constitute a violation of those rights and the responsibility of 110 Para

173. See also Gallagher and Karlebach 2011, p. 9; Weatherall 2015, pp. 386–387. 174–175. See further Weatherall 2015, pp. 386–387; Safari 2014, pp. 236–237. 112 Para 176–177. See also Hakimi 2010, p. 353; Simic 2004, p. 19. 113 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and Committee on the Rights of the Child (Joint General Comment No. 3) 2017, para 46. See also Ikeora 2018, p. 30; Gallagher 2010b, pp. 3–4; McGregor 2018, p. 262. 114 Human Rights Committee (General Comment No. 36) 2018, paras 21, 7. 115 Para 23. 111 Para

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the state.116 The Committee further observed that states have an obligation to adopt legislation eliminating discrimination and preventing third parties from direct or indirect interference with the enjoyment of the right to non-discrimination.117 Likewise, the Committee on the Elimination of Discrimination against Women has also recognised that states have duties to protect human rights against violations from private actors.118 States have duties, for example, to protect the rights of all migrant women workers under their jurisdictions against human rights violations whether perpetrated by public or private actors.119 Failure to discharge such an obligation creates a resulting international responsibility of the wrongful state.120 Concerning gender-based violence, trafficking in persons being considered a form of genderbased violence or a form of violence against women,121 the Committee has stated categorically that states parties will incur international responsibility for failure to take due diligence measures of prevention, investigation, punishment and protection.122 Despite its limitations,123 the standard provides a means upon which the conduct of the state and its international responsibility could be assessed in relation to the conduct of private actors.124 In the context of trafficking in persons, this standard provides avenues upon which states would incur responsibility under international law for trafficking committed by private persons and organised crime groups in situations where, otherwise, the state would have claimed the defence of the private nature of the acts.125 Important to note also is the fact that the due diligence standard does not operate to mean that states are responsible for private acts as such a position is against international law. The standard rather operates to confirm that the rule of non-attribution to the state of the private conduct stands validly on higher ground.126

116 Committee

on Economic, Social and Cultural Rights (General Comment No. 16) 2005, paras 27, 41, 42. 117 Clapham 2006, p. 324. 118 Committee on the Elimination of Discrimination against Women (General Recommendation No. 28), para 37(b). See also Oliver and Fedtke 2007a, b, p. 6; Declaration on the Elimination of Violence against Women. UN Doc Res. 48/104, 20 December 1993, Article 4(c). 119 Committee on the Elimination of Discrimination against Women (General Recommendation No. 26) 2008, para 25(b). See as well Duffy 2017, p. 104. 120 Committee on the Elimination of Discrimination against Women (General Recommendation No. 25) 2004, para 29. 121 Gallagher 2010a, pp. 191–197; Watson and Silkstone 2006, pp. 112–116; UNGA 2016b, para III(60); Mattar 2008, pp. 1–20. 122 Committee on the Elimination of Discrimination against Women (General Comment No. 19) 1992. On the application of the standard of due diligence in this respect, see Commission on Human Rights 2006. See also Hasselbacher 2010, p. 193. 123 Gallagher 2010a, pp. 247–251. 124 Duffy 2008, p. 12; Thomson 2016, p. 65; Duffy 2017, p. 104. 125 ICAT 2016, pp. 3–4. See as well Duffy 2017, p. 104. See as well Lang 2011, p. 106; UNGA 2015, para 12. 126 Martin et al. 2006, p. 72.

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4.5 Legal Consequences Once it is established that a state has committed an internationally wrongful act, there commences an automatic international responsibility or legal consequences for that state against another state or towards several states or to the international community as a whole.127 The international responsibility, considered as an objective concept, comprises of the new international obligations or legal consequences imposed upon the offending state.128 Implicitly, Article 28 covers also the legal consequences of the wrongful state’s internationally wrongful act to other entities and persons other than states.129 The responsibility of the state here extends to include “human rights violations and other breaches of international law where the primary beneficiary of the obligation breached is not a state”.130 This is an important aspect of international responsibility because as the practice has shown, individuals can bring cases against their own governments on the ground that by their failure to act or take measures in violation of states’ international obligations, the enjoyment of their human rights has been interfered.131 Most of the anti-trafficking obligations of the states are owed vis-à-vis private persons in their territories as based on the primary rules contained in transnational criminal and international law.132 Therefore, the flexibility of these rules operates to the benefit of the victims of trafficking in persons. The first obligation of the wrongful state is to cease the wrongful act in question. The state is required to provide appropriate assurances and guarantees of nonrepetition of the breach so as to restore confidence in the broken legal relationship.133 While assurances may be given verbally, guarantees of non-repetition require a state to do more such as taking preventive measures against the breach.134 The use of the phrase “where circumstances so require” intends to protect the wrongful state against excessive or abusive claims in which the injured state might demand as assurances and guarantees. Equally, the wrongful state is required to continue performing its

127 ILC

Draft Articles 2001, Article 33(1). See also Gallagher 2010b, p. 2; Jiménez de Aréchaga 1968, p. 533; Gallagher 2017, pp. 9–10. 128 ILC Draft Articles 2001, Article 28; Tams 2015, p. 290. 129 ILC Draft Articles 2001, Article 33(2). 130 The ILC Draft Articles Commentary 2001, Article 28, para 3. 131 See, for example, Committee on the Rights of Persons with Disabilities 2018, paras 8.5–8.10, in which the CRPD Committee found Tanzania to have violated its international obligations to protect persons with albinism from violation of their fundamental rights, including protection from being trafficked. The CRPD Committee reached a similar finding in its earlier determination in the Committee on the Rights of Persons with Disabilities 2017, paras 8.4–9. 132 Gallagher 2017, pp. 9–10; Duffy 2017, p. 104. 133 ILC Draft Articles 2001, Article 30. See also Scobbie 2009, pp. 283–284; Tams 2015, p. 291; Crawford and Watkins 2010, p. 285; International Court of Justice, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, (2012) ICJ Reports 422, para 121. 134 The ILC Draft Articles Commentary 2001, Article 30, para 12. See further Zimmermann and Teichmann 2009, pp. 299–301.

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international responsibility despite the breach of the obligation.135 In other words, the breach of the international obligation of the state does not justify the continual non-performance of the breached obligation by the wrongful state. Thus, a state which through its border officials allows vulnerable persons to be trafficked will nevertheless be required to perform its international obligation to investigate and prevent trafficking even after it has taken disciplinary, legal or other measures against its border officials.136 The obligation to cease the internationally wrongful act while also continuing to perform the wrongful state’s international obligation despite the breach encompasses also an obligation of prevention. The wrongful state has to take “all reasonable measures to prevent a given event from occurring”.137 In the trafficking situation, this obligation requires the state to tackle the root causes of trafficking by addressing factors of vulnerability which create the demand for trafficking services and other forms of exploitation and which allow traffickers to act with impunity.138 The next important obligation for the wrongful state under international law is the provision of full reparation for the injury resulting from its internationally wrongful act.139 The injury can be any damage, whether moral or material and the forms of such reparation can include restitution (Article 35), compensation (Article 36) and satisfaction (Article 37), whether given singly or in combination and according to the stipulated conditions.140 The principle was succinctly stated by the Permanent Court of International Justice (PCIJ) in the Factory at Chorzów Case that: “It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation, therefore, is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.”141 The intention of reparation is “to wipe out all the consequences of the illegal act and reestablish the situation which would, in all

135 ILC

Draft Articles 2001, Article 29. See also Crawford et al. 2000, p. 667. a related argument but with respect to international crimes, see further Zimmermann and Teichmann 2009, pp. 302–206. 137 Ikeora 2018, p. 145 quoting Article 14(3) of the ILC Draft Articles 2001. 138 This is because, according to Chuang “the problem of trafficking begins not with the traffickers themselves, but with the conditions that caused their victims to migrate under circumstances rendering them vulnerable to exploitation”, Chuang 2006a, p. 140. 139 On the articulation of this obligation in international human rights instruments, see Universal Declaration of Human Rights, Article 2; European Convention on Human Rights, Article 13; American Convention on Human Rights, Article 25; African Charter on Human and Peoples’ Rights, Article 7; Convention on the Elimination of All Forms of Racial Discrimination, Article 6; Convention against Torture, Article 39; Rome Statute of the International Criminal Court, Article 73. Further see UNGA 1985; UNGA 2006. See as well Hisashi 2015, p. 255; Ibanda-Nahamya 2016, pp. 187–188. 140 The ILC Draft Article 2001, Article 34. On the extensive discussion on restitution and compensation see Shelton 2015, pp. 298 et seq.; Shelton 2002, pp. 833–856; ICAT 2016, p. 2. 141 Permanent Court of International Justice, Case Concerning the Factory at Chorzów (Germany v. Poland), (Claim for Indemnity) (Jurisdiction), 26 July 1927, PCIJ Series A.—No. 9, 21. See also Crawford and Olleson 2005, p. 969; Higgins 2004, p. 3; Bassiouni 2006, pp. 230–231. 136 For

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probability, have existed if that act had not been committed”.142 The wrongful state is prohibited from relying on its internal law as a justification not to comply with its obligation of cessation and reparation.143 Where the injured state or any other person or entity has contributed to the injury by the wilful or negligent action or omission, that contribution shall be taken into account in the determination of the reparation.144 Where these obligations are owed against persons within the state’s jurisdiction, reparation following gross violations of human rights entails guarantees of non-repetition, restitution, compensation, rehabilitation, satisfaction and the right to effective and equal access to justice and the right to truth.145 This is but a recognition that reparation does not need to accrue to the advantage of the state. Reparation will, in this context, operate in favour of private persons, including victims of gross violations of human rights such as the crime of trafficking, who, being recognised also as subjects in international law, hold certain fundamental and inherent rights with the entitlement to reparation.146 Their experience of trafficking and the entire process from recruitment to exploitation which involves gross violations of their basic internationally protected rights in the source, transit and destination countries,147 would entail the need for serious, effective and appropriate measures on the part of the responsible states with respect to reparation and the provision of available and effective remedies to restore their basic human rights.148 Where the state has breached its international obligation arising under a peremptory norm of general international law by gross or systematic failure to fulfil the obligation,149 states are called upon not to recognise as lawful such a situation, not to provide any assistance or aid150 in maintaining the situation but rather to

142 The

ILC Draft Articles Commentary 2001, Article 31, para 3. See also Shelton 2015, p. 33; Ibanda-Nahamya 2016, pp. 187–188. 143 The ILC Draft Articles 2001, Article 32. See also McGoldrick 2004, pp. 169–170. 144 The ILC Draft Articles 2001, Article 39. 145 UNGA 2006, para. 18. See also Human Rights Committee General Comment No. 31, para. 16; Shelton 2015, pp. 394 et seq.; Aust 2009, pp. 25–25; Gallagher 2010b, p. 2. 146 Gallagher and Ezeilo 2015, pp. 924–925; Bruch 2004, p. 32; Gallagher 2010b, p. 2; Parlett 2011, pp. 37, 96; Gallagher 2010a, p. 253. 147 Copi´ ´ c and Simeunovi´c-Pati´c 2012, p. 270; Obokata 2006, pp. 124–127. 148 Gallagher 2010b, p. 2; Gallagher and Ezeilo 2015, pp. 924–925. 149 The ILC Draft Articles 2001, Article 40. Further analysis on this, see Scobbie 2009, pp. 274–276. 150 Further on this principle see, Zimmermann and Teichmann 2009, pp. 307–310. As to the meaning of aiding or assisting in the commission and maintenance of an internationally wrongful act or situation on the basis of Article 16 of the ILC Draft Articles 2001, see Aust 2011, pp. 195–266. See also Gattini 2014, p. 34.

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co-operate in bringing the situation to an end through lawful means.151 The justification for having these principles in relation to peremptory norms (jus cogens) emanates from an understanding that because certain obligations to uphold certain fundamental rights are obligations erga omnes, in other words, owed to the international community as a whole, all states have a legal interest to prevent, punish and protect them against any breach or violation.152 The international community has obligation erga omnes to fight and prevent genocide, slavery, slave trade, apartheid, the crime of aggression, torture and other cruel, inhuman or degrading treatment or punishment as well as racial discrimination and that these prohibitions flow from the rules of peremptory norms (jus cogens) from which no derogation is permitted.153 The use of the phrase gross or systematic failure indicates that such violations of the peremptory norms must have been organised deliberately and carried on flagrantly to amount to a direct and outright assault on the values protected by the rule.154 For trafficking in persons to qualify in these criteria, several legal conundrums have to be overcome. It must be shown that a particular case of trafficking has been conducted in such a way that it clearly manifests the presence of some or all of the powers attaching to the right of ownership, thereby becoming slavery or slave trade. Where trafficking to be considered in the context of war crimes or crimes against humanity, the criteria established in the Rome Statute and under international law need to be fulfilled.155 This duty, while possible, is not an easy one. According to the Protocol on the Right of Women in Africa, trafficking of women qualifies as “torture and other cruel, inhuman or degrading treatment or punishment”.156 Thus, the African

151 The

ILC Draft Articles 2001, Article 41; Bonafé 2009, p. 20; Frowein 2009, p. 50; Duffy 2008, p. 9; Wyler 2002, p. 1151. See also International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, (2004) ICJ Reports 136, para 159 where the Court noted that “all states are under an obligation not to recognize the illegal situation resulting in the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.” 152 The ILC Draft Articles Commentary 2001, pp. 110–111, para 2. See also Gattini 2007, pp. 697, 702; Katselli 2012, pp. 140–141; Sicilianos 2002, pp. 1136–1137; International Court of Justice, Case Concerning the Barcelona Traction, Light and Power Company, Limited Second Phase (Belgium v Spain), 5 February 1970, (1970) ICJ Reports 1970, paras 33–34. 153 The ILC Draft Articles Commentary 2001, Article 40, paras 4–5. See also Darrow and Arbour 2009, pp. 470–471; Lepard 2010, pp. 261–262; Weatherall 2015, pp. 8–9; Duffy 2008, p. 9; Cole 2006, p. 803; Atak and Simeon 2014, p. 1033. For some decisions touching on this aspect, see Prosecutor v Anto Furundžija 1998, para 144; Martin et al. 2006, pp. 34–35; International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), New Application Judgment, 3 February 2006, (2006) ICJ Reports 6, para 64; International Court of Justice, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951, (1951) ICJ Reports 15, 23. 154 The ILC Draft Articles Commentary 2001, Article 40, para 8. 155 See the contextual elements of the war crimes and crimes against humanity, Rome Statute, Articles 7(1), 8(1). 156 Article 4(1).

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legal framework seems to elevate the crime of trafficking to the level of the prohibitions flowing from the rules of peremptory norms. Reports by other transnational organisations have explored this subject further, submitting that certain aspects of trafficking can amount to torture and other cruel, inhuman or degrading treatment or punishment, thereby engaging the international responsibility of states for violation of the peremptory norms prohibiting torture.157 How that features in practice, however, the African jurisprudence is yet to determine.

4.6 Invoking International Responsibility Although the international responsibility of the wrongful state is framed as obligations that a state has to perform rather than as a right accruing to an injured state, the ILC Draft Articles 2001 provide for rules of invocation of responsibility by the injured state or states against the wrongful state(s).158 The idea of invocation here means taking some form of measures such as presenting a claim against another state or commencing proceedings before an international court.159 The injured state has the right to invoke the responsibility of the wrongful state where the breach concerns: that state individually; or group of states to which the injured state belongs; or to the international community as a whole.160 Regarding the second criterion pertaining to the invocation of responsibility by a group of states to which the injured state belongs, there is a proviso that the breach should either have a specific effect on the injured state or affect every other state equally to which the obligation is owed.161 The invoking state needs to give notice of its claim to the wrongful state and in particular, the notice has to specify the conduct the wrongful state has to pursue for 157 Office

of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings 2013, pp. 13, 20–27. See also Human Rights Council Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak (2008) Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development. UN Doc. A/HRC/7/315 January 2008, para 56; Human Rights Council Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak (2010) Study on the Phenomena of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in the World, Including an Assessment of Conditions of Detention. UN Doc. A/HRC/13/39/Add.5, 5 February 2010, paras 195, 200. 158 Weiss 2002, pp. 800 et seq. Generally on the operation of these principles, especially from the concept of shared responsibility, see an extensive exposition by Nollkaemper and Jacobs 2013, pp. 359–438; Nollkaemper and Plakokefalos 2014. 159 The ILC Draft Articles Commentary 2001, Article 42, para 2. See also Weiss 2002, p. 800. 160 Weiss 2002, p. 801. See also Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) Second Phase 1970, para 33: “In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States.” 161 The ILC Draft Articles 2001, Article 42. See generally on the practice of shared responsibility the work by Nollkaemper and Jacobs 2013, pp. 359–438.

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the cessation of any continuing wrongful act and the form of reparation to be paid.162 Such notice of claim will only be admitted when filed according to the rule of the nationality of claims and exhaustion of local remedies.163 For such local remedies to be exhausted, however, they must be available and effective. The injured or interested state party loses its right to invoke the responsibility of the wrongful state when it validly waives the claim with respect to the breach itself or its consequences or acquiesces in the lapse of the claim.164 The Draft Articles also recognise that several injured states can separately invoke the responsibility of the wrongful state for the same wrongful act and that, under certain conditions, several states can be responsible for the same internationally wrongful act and claims can be invoked against each one of them.165 The right to invoke the responsibility of the wrongful state is given also to an interested state which is not the injured state. The right exists provided that: the breached obligation is owed to the group of states to which the interested state belongs; and/or the breached obligation is owed to the international community as a whole. The interested state can claim cessation and assurances and guarantees of non-repetition or performance of an obligation of reparation.166 These provisions might operate in the situations of trafficking where antitrafficking obligations are owed to several states together as is the case with the Organised Crime Convention 2000 and the TIP Protocol 2000 as well as other specialty instruments. In international trafficking, several states might be implicated (source, transit and destination countries). Where their failure to act results in the breach of their international obligations as contained in the primary rules, for example, with respect to particular groups of trafficked persons such as migrant women and young children, issues of repatriation and the treatment of trafficking victims generally, another state or states can invoke the responsibility of the wrongful state or states.167 An interested state can claim that the obligation breached is owed to the group of states to which it belongs. For example, an interested state can bring a claim that failure by the wrongful state to protect its citizens against violation of their human rights by traffickers, places into jeopardy the enforcement of the international human rights and anti-trafficking obligations and that such a conduct might have a spill-over effect to other states, including within its own territory.168 A case can also be brought by the injured state claiming that trafficking resulting from the failure to prevent or absence of adequate anti-trafficking measures in the jurisdiction of the wrongful states have resulted into people within its jurisdiction being injured, affected, placed 162 The

ILC Draft Articles 2001, Article 43. ILC Draft Articles 2001, Article 44. Briefly regarding claims for breach of international obligations, see Okowa 2003, pp. 473–502. 164 The ILC Draft Articles 2001, Article 45. See also The ILC Draft Articles Commentary 2001, Article 45, paras 2, 6; Crawford et al. 2000, p. 669. 165 The ILC Draft Articles 2001, Articles 46, 47. See as well Saul 2017, p. 20; Messineo 2014, pp. 80–83; Fry 2014, p. 98. 166 The ILC Draft Articles 2001, Article 68. See also Human Rights Committee General Comment No. 31, para 15. Further see, Scobbie 2009, pp. 277–283. 167 Cho and Vadlamannati 2012, p. 250. See also Lang 2011, p. 106. 168 Ikeora 2018, p. 14. 163 The

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at a greater risk of trafficking or even be involved in trafficking. All these possibilities will largely depend on the regional and international nature of the legal systems involved, their obligations and enforcement mechanisms.169 For example, certain human rights, labour and even criminal law treaties, allow other states to bring claims of violations of basic human rights against another state and such claims can result in attributing responsibility to the wrongful state party.170 Their limitation is that such provisions are rarely employed by states against states. For example, for the first time in the history of treaty-monitoring bodies, the Committee on the Elimination of Racial Discrimination received three inter-state communications under Article 11 of its Instrument. The State of Qatar on 8 March 2018, submitted a communication against the Kingdom of Saudi Arabia and another against the United Arab Emirates. On 23 April 2018, the State of Palestine also submitted a communication against the State of Israel.171 In regimes where individuals are allowed to bring claims against their own states or those in which they find themselves to have their rights violated,172 some positive outcomes have been observed.173 There has been, however, the reluctance of the states to invoke the international responsibility of other states. This means that there is slow progress towards effective enforcement of the international obligations and their breach with respect to human rights and cases of trafficking.

169 Gallagher

2010a, pp. 261–263. against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (1984), entered into force 26 June 1987, Article 21. Torture Convention; Migrant Workers Convention, art 74; International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006, 2716 UNTS 3, entered into force 23 December 2010, Article 32; Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, opened for signature 10 December 2008, UN Doc. A/63/435, C.N. 869.2009.TREATIES-34 (2009), entered into force 5 May 2013, Article 10; Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, opened for signature 19 December 2011, UN Doc. A/RES/66/138, entered into force 14 April 2014, Article 12. 171 CERD Information Note on Inter-state Communications 2018. https://www.ohchr.org/EN/New sEvents/Pages/DisplayNews.aspx?NewsID=23566&LangID=E. Accessed 2 November 2018. 172 For instance, African Charter on Human and Peoples’ Rights, Articles 55–56; American Convention on Human Rights, Article 44; Torture Convention, Article 22; European Convention on Human Rights, Article 34. 173 See the various individual complaint mechanisms setup by various monitoring bodies of the international human rights instruments, Human Rights Bodies–Complaints Procedures. https://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx#individualcomm. Accessed 2 November 2018. See also the European Court of Human Rights and the various cases individuals have brought against their own states for violations of human rights. https://hudoc.echr. coe.int/eng#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER% 22]}. Accessed 2 November 2018. 170 Convention

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4.7 Countermeasures The ILC Draft Articles 2001 also contain specific provisions governing countermeasures. These are measures the injured state takes which would otherwise be internationally wrongful in relation to the wrongful state to vindicate its rights and restore the broken legal relationship with the wrongful state through cessation or reparation.174 The injured state can take countermeasures against the wrongful state and where these measures are temporary and do not interfere with the resumption of performance of the international obligation once the breach is rectified.175 Thus, countermeasures do not affect the injured state’s obligations with respect to refraining from the use of force, resorting to reprisals, protecting the fundamental human rights and upholding obligations under peremptory norms of general international law.176 In enforcing the countermeasures, the injured state has to respect dispute settlement procedures applicable vis-à-vis the wrongful state and the inviolability of diplomatic or consular agents, premises, archives and documents.177 Not only are countermeasures required to be proportional,178 but the injured state also has an obligation, before taking action, to file a notice of claim under Article 43 and notify the wrongful state about the decision to take countermeasures and the offer of negotiations, unless the urgency of the circumstances otherwise requires.179 The injured state is precluded from taking countermeasures where the internationally wrongful act has ceased and where there is a pending dispute with the effect of providing a binding decision between the parties.180 The ILC Draft Articles 2001 also contemplate a possibility where an interested state can take measures against the wrongful state to ensure cessation and reparation for the benefit of the injured state or other beneficiaries of the breached obligation.181 While countermeasures can be relevant to trafficking, their legality and applicability is subject to scrutiny. A destination country which rejects to admit into its territory trafficked persons as a countermeasure on the ground that the source or transit countries have failed to diligently discharge the obligation to prevent, investigate and punish traffickers, its conduct may nevertheless be questionable if it violates the international obligation of that state with respect to the principles of non-refoulement and the right to seek asylum, especially where the trafficked people

174 The

ILC Draft Articles Commentary 2001, p. 128, para 2. Briefly on their applicability, see White and Abass 2003, pp. 505–528. 175 The ILC Draft Articles 2001, Articles 49, 53. 176 The ILC Draft Articles 2001, Article 49(1). For other conditions, see International Court of Justice, Case Concerning the Gabˇcíkovo–Nagymaros Project (Hungary/Slovakia), 25 September 1997, (1997) ICJ Reports 7, paras 83–87. 177 The ILC Draft Articles 2001, Article 49(2). 178 The ILC Draft Articles 2001, Article 51. 179 The ILC Draft Articles 2001, Article 52(1), 52(2). 180 The ILC Draft Articles 2001, Article 52(3). 181 The ILC Draft Articles 2001, Article 54.

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fear persecution should they be involuntarily returned.182 The practice by the United States of America with respect to preventing and combating trafficking in the world is also subject to scrutiny.183 The United States imposes sanctions, withholds financial and other humanitarian assistance or even blocks other states’ access to international financial institutions for loans and other financial undertakings where these states fail to demonstrate seriousness and commitment in their implementation of the antitrafficking measures according to the minimum standards set under the US domestic anti-trafficking law.184 Although some US officials have considered these as forms of countermeasures, strictly speaking, they do not qualify as such under the terms of the ILC Draft Articles 2001.185 Factually also, these sanctions of the US do not amount to breaches of international obligation the US has. They rather amount to retorsions and therefore, beyond the ambit of international responsibility of a state.186 There is, therefore, a need to point out the difference between retorsions and countermeasures. On the one hand, countermeasures can be legally justifiable but wrongful actions in the law of state responsibility which the injured state takes against a wrongful state with the function of causing that other state to return to the legality of its actions.187 Retorsions, on the other hand, are self-help and unfriendly lawful actions a state takes against the internationally wrongful act of another state without necessarily being internationally wrongful actions in themselves.188 As such, while countermeasures require a legal justification and are regulated by the law of state responsibility, retorsions do not require a legal justification for being taken and fall outside the

182 Notwithstanding this position, it is recognised that the principle of non-refoulement is not an absolute right and therefore, states are allowed, in certain and very limited circumstances under international law relating to refugees, to disregard its strict application, see Haines 2008, pp. 63, 65; Mathew 2008, p. 21; Hathaway 2005, pp. 342–343; Naldi and D’Orsi 2014, p. 60; Martin 2014, p. 187. 183 For the reasons by and practices of the United States as the global anti-trafficking sheriff, including also as a moral entrepreneur, see Wylie 2016, pp. 77–93; Chuang 2006b, pp. 437–494. See also Friman 2010, pp. 91–107. 184 Ikeora 2018, p. 86; Bravo 2015, p. 16. For an archive of the US trafficking in persons reports and its supervisory role on the implementation of the anti-trafficking obligations on the rest of the world based on its domestic law, see its official website https://www.state.gov/j/tip/rls/tiprpt/. Accessed 30 November 2018. See also Zheng 2010a, b, p. 4; Cullen-DuPont 2009, pp. 58–60; Shoaps 2013, pp. 959–965. 185 In actual sense, the anti-trafficking global watchdog approach of the US has increasingly caused scholars to consider that the discourse on trafficking in persons is political, linked to power relations. See, for example, Lobasz 2019, pp. 12–13; Dauvergne 2008, pp. 75 et seq. Still others such as Gregoriou and Ras 2018, p. 3 have argued that trafficking in persons is sustained by global structures of “gender and wealth inequality, and the geopolitical power balance that primarily benefits the global West”. 186 The ILC Draft Articles Commentary 2001, p. 128 Chapter II, para 3. However, as regards the fundamental importance of the US role against trafficking in persons in the world and how, despite its shortcomings, has helped to influence the global anti-trafficking interventions, see Bailey 2018, pp. 607–644; Gallagher 2011, pp. 381–400. 187 Tomuschat 2001, pp. 369–370; Crawford 2013, p. 675. 188 Coppen 2017, p. 64; NATO Cooperative Cyber Defence Centre of Excellence 2013, p. 40.

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law of state responsibility.189 Acts of retorsions include, for example, reduction in economic support, the severing of diplomatic relations or imposition of trade restrictions.190 It is in this sense that the anti-trafficking measures the US takes against other states which fall short in fulfilling their anti-trafficking obligations cannot, legally speaking, be called countermeasures but acts of retorsions. They merely amount to diplomatic pressure and a little bit of a “threat of coercion in the form of economic sanctions for nations that do not comply with U.S.-defined standards”.191

4.8 Conclusion This chapter has provided a critical elucidation of the basic principles of the international law doctrine of state responsibility as they relate to trafficking in persons. The work has shown that naturally, international law precludes the attribution of private actions to the state. Nonetheless, the secondary rules of international responsibility of the state provide a set of rules and circumstances upon which acts that are committed by private persons, including most cases of trafficking in persons, can be attributed to the state when the principles established in the primary rules are violated. Thus, this chapter has made a critical examination of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts of 2001 which, as shown in this work, are recognised as an international restatement of the customary and international law rules on the doctrine of state responsibility. The chapter has also considered several judgments of the international tribunals and courts that render this book’s position tenable. In cementing this position, the chapter has also examined the principle of due diligence as generally applied in international human rights law. It has considered its applicability in holding states accountable for trafficking in persons due to their failure to discharge their positive obligations where trafficking is committed by private persons or non-state actors.

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Chapter 5

Anti-trafficking Obligations

Contents 5.1 Obligation of a Criminal Justice Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Obligation to Criminalise Trafficking in Persons . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 Criminalisation of Trafficking Related Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.3 Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.4 Investigation, Prosecution and Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.5 Sanctions and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.6 Asset Confiscation, Recovery and Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.7 International Co-operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Obligation to Prevent Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Preventing Trafficking through Addressing Vulnerability . . . . . . . . . . . . . . . . . . . 5.2.2 Preventing Trafficking by Addressing Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.3 Preventing Trafficking Lawfully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Obligation of Protection, Assistance, Support and Remedies . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Obligation to Identify Victims of Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Obligation not to Punish Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.3 Protection from Further Harm and of Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.4 Physical and Psychological Care and Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.5 Obligation Relating to Legal Assistance and Protection . . . . . . . . . . . . . . . . . . . . 5.3.6 Obligations Relating to Repatriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.7 Obligation of Effective and Appropriate Remedies . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter examines states’ international anti-trafficking obligations. These obligations are the obligation of a criminal justice response, the obligation to prevent and combat trafficking and the obligation to assist, support, protect and provide remedies for victims of trafficking. This chapter interrogates states’ antitrafficking obligations as provided in the international anti-trafficking and human rights instruments as well as policy documents. Comparatively, the chapter points out the strengths and weaknesses of the anti-trafficking legal regime in relation to how it encapsulates and elucidates the anti-trafficking obligations. Thus, this chapter is premised on Chap. 4, which has discussed the doctrine of state responsibility for trafficking by setting out circumstances upon which states incur responsibility for trafficking under international law, and Chap. 3 on the international legal regime, which provided a considered exposition of the international anti-trafficking legal © t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_5

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regime. Even more importantly, the present chapter lays a strong foundation for examining Tanzania’s implementation of its domestic and international anti-trafficking obligations in Chaps. 7 and 8 of this book. Keywords Demand · Extradition · Prevention · Remedies · Repatriation · Mutual legal assistance · Investigation · Criminalisation · Evidence · Sanctions · Confiscation · Adjudication

5.1 Obligation of a Criminal Justice Response The obligation of an adequate, effective and appropriate criminal justice response is a composite obligation.1 The obligation requires states parties to respond to trafficking in persons by adopting and implementing criminal justice measures that are satisfactory or acceptable in terms of their quality and quantity, successful in the realisation of the anti-trafficking aspirations and suitable or proper based on each state party’s circumstances.2 This obligation rests on a strong national legal framework which acts as a foundation upon which other anti-trafficking measures are also based.3 Such a criminal justice response encompasses several composite obligations which are further explained and analysed below.

5.1.1 Obligation to Criminalise Trafficking in Persons International law mandatorily requires states parties to criminalise the criminal offence of trafficking in persons in their domestic legal systems.4 States parties have to consistently criminalise all aspects of the crime of trafficking according to its internationally agreed-upon definition.5 This means states parties must criminalise trafficking as a crime that affects men, women and children and as a crime 1 In fact, this tripartite nature of the international anti-trafficking obligations is implicit, for example,

in UNGA 2017, para 1; Gallagher 2017, p. 10; Rantsev v. Cyprus and Russia 2010, para 284. In examining and discussing the substance of these obligations, this chapter takes a substantive structure similar to that of Gallagher 2010b, pp. 370–412, 414–456, 337–368, 276–336. 2 On the advantages of an effective, adequate and appropriate criminal justice response, see ICAT 2016a, p. 43. 3 United Nations Office of the High Commissioner for Human Rights 2010, Commentary on the Recommended Principles and Guidelines on Human Rights and Human Trafficking. R/PUB/10/2, United Nations Publication Sales No. 3.10.XIV.1, 30 November 2010, p. 183. Commentary on the UN Recommended Principles and Guidelines 2010. 4 TIP Protocol 2000, Article 5; CoE Anti-Trafficking Convention 2005, Article 18; Directive 2011/36/EU, Article 2; ASEAN Convention 2015, Article 5; CEDAW Convention, Article 6; CRC Convention, Articles 34–36. 5 TIP Protocol 2000, Article 3; CoE Anti-Trafficking Convention 2005, Article 4; ASEAN Convention 2015, Article 2. See also Conference of the Parties to the United Nations Convention against Transnational Organised Crime 2017, para 35(b); United Nations Economic and Social Council,

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that occurs for other end purposes extending beyond prostitution and other forms of sexual exploitation. Equally important, the obligation to criminalise means that states have to make a clear-cut difference between trafficking in adults and children as provided for in international law.6 Thus, a state which criminalises trafficking of women and children only, or of all persons but without recognising the special circumstances of children and just for the purpose of prostitution alone, breaches its mandatory international obligation of criminalisation.7 This is because persons trafficked for other purposes such as forced labour, slavery, practices similar to slavery or servitude and the removal of organs will not be protected. Such a framework fails to protect victims of trafficking and cannot prosecute traffickers perpetrating such acts of grave human rights violations. Therefore, failure by the state to criminalise trafficking effectively and comprehensively entails grave implications with respect to meeting its anti-trafficking obligations. Such a failure curtails the state’s ability to protect and assist victims of trafficking, prevent and prosecute trafficking and combat trafficking generally.8 Conversely, a state that meets its criminalisation obligation effectively forms a scaffolding to end impunity for traffickers, guarantee justice for victims and promote international anti-trafficking co-operation through investigation and prosecution.9 International law does not call upon states parties to criminalise the composite elements of the crime of trafficking in persons. States are not required to make as an offence the action or means elements on their own. Rather, states’ obligation consists of the criminalisation of trafficking as a single crime.10 It is a practice, however, that in certain jurisdictions, the constituent components of the means element such as fraud, deception, abduction and the use of force or coercion are criminal offences in the penal codes.11 This will render the work of prosecution and adjudication easier. While there is no direct international obligation in the TIP Protocol 2000 to criminalise the end purposes of trafficking, it is generally agreed that these offences should also be recognised as criminal offences in national jurisdictions. Slavery, practices similar to slavery or servitude, forced labour, sexual exploitation, the removal of organs and several other exploitative end purposes should be criminalised.12 This is because they Office of the United Nations High Commissioner for Human Rights 2002, Recommended Principles and Guidelines on Human Rights and Human Trafficking. UN Doc. E/2002/68/Add.1, 20 May 2002, guideline 3(1). UN Recommended Principles and Guidelines 2002; UNGA 2010, para 43(a). 6 Directive 2011/36/EU, Article 2(5); CoE Anti-Trafficking Convention 2005, Article 4(c); TIP Protocol 2000, Article 3(c). 7 Gallagher and Holmes 2008, p. 322; Gallagher 2010b, p. 374. 8 Commentary on the UN Recommended Principles and Guidelines 2010, pp. 185; Gallagher 2010b, p. 371. See as well Zyberi 2017, pp. 242–243. 9 UNODC Legislative Guide 2004, para 35, p. 269. 10 UNODC Legislative Guide 2004, paras 31, 33, pp. 267–268; UN Recommended Principles and Guidelines 2002, guideline 4(1). 11 United Nations Office on Drugs and Crime (UNODC)/Inter-Parliamentary Union (IPU) 2009, Trafficking in Persons: A Handbook for Parliamentarians. Sales No. E.09.V.5, p. 14. See UNODC and IPU 2009. 12 UNGA 2017, para 26.

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represent some of the most degrading and egregious forms of human exploitation condemned by treaty and general international law. Their criminalisation serves a two-fold purpose, namely: that of helping to clarify the third element of trafficking in persons, the purpose element; and making it easier for states to investigate and prosecute these forms of human exploitation in situations where investigation and prosecution of trafficking becomes relatively complex due to insufficient evidence to sustain a charge of trafficking. This, however, does not lessen the obligation of states to investigate and prosecute the crime of trafficking. Unlike these other crimes, there are obvious advantages in prosecuting the crime of trafficking. For instance, victims of trafficking are entitled to several remedies that are only accorded to them under national and international law by virtue of their being recognised as such.13 Furthermore, appropriate criminalisation of trafficking means that states parties have to consider their peculiar circumstances and the various forms of trafficking prevalent in their jurisdictions. States can, therefore, consider begging, child adoption, forced and sham marriages and the exploitation of the criminal activities as possible end purposes of trafficking. This is premised on the understanding that the duty to criminalise trafficking in persons does not encompass the verbatim production of its international definition into national legislation. Rather, states have to consider the meaning, intention and aspirations the drafters had in mind when framing the international anti-trafficking legal framework.14 This is in accord with states’ international criminalisation obligation which sets “minimum” forms of exploitation for which states have to expand them based on their peculiar national circumstances.15 Exploitative practices such as online sexual exploitation, private household exploitation, exploitation in the public and private care sectors, exploitation for forced criminality and in forced begging, exploitation for witchcraft purposes and sexual and gender-based violence as well as trafficking for ransom have been identified as new forms of exploitation in various jurisdictions.16 This also signifies that when criminalising trafficking, states should provide definitions that are clear, simple and precise to make its application easy.17 Thus, it is ambiguous and even legally complicated and misleading, for instance, to define trafficking to mean the same thing as human smuggling. Such an approach complicates the definition of trafficking and is also 13 Commentary on the UN Recommended Principles and Guidelines 2010, pp. 188–189. See also UNODC and IPU 2009, pp. 48–62. 14 UNODC Legislative Guide 2004, para 36, p. 270; Cole and Vermeltfoort 2018, p. 18. 15 For that matter, the approach taken by Lobasz 2019, p. 7 in which the author questions the various forms of trafficking by arguing that they “reflect political judgments rather than objective classifications” is questionable because it fails to take into account that the TIP Protocol 2000 sets minimum forms of exploitation to which states have to expand them based on their national circumstances. See as well UNODC and IPU 2009, p. 19; MacLean 2012, pp. 69, 74. 16 Van Reisen et al. 2018, pp. 146–156; OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings 2015, p. 20. See further, Conference of the Parties to the United Nations Convention against Transnational organised Crime 2013; United Nations Security Council 2016, Security Council Resolution 2331(2016), Adopted by the Security Council at Its 7847th Meeting on 20 December 2016. UN Doc. S(RES/2331 (2016), 20 December 2016; Ikeora 2018, pp. 8–9; EUROPOL 2016, pp. 27–30. 17 Gallagher and Holmes 2008, p. 323.

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a misconception of international law which has a different legal framework against human smuggling. Based on international law, the criminalisation obligation also requires states to state in their penal laws that trafficking occurs even when actual exploitation has not taken place.18 In this connection, states have to criminalise trafficking as an intentional crime.19 The obligation is optional where states opt to include the lesser forms of intention such as negligence or adopting a more severe threshold.20 The objective factual circumstances where the person was recruited through any of the established means play a decisive factor in determining the trafficker’s intention. The duty also obliges states to clearly indicate that consent of the victim of trafficking to the intended exploitation does not change the accused’s criminal liability. According to the Organised Crime Convention 2000, the criminalisation of trafficking domestically does not depend on the involvement of organised crime and the transnationality nature of trafficking.21 The offence is to be criminalised independent of the two factors.22 Finally, states have a duty to criminalise and recognise the liability of natural and legal persons, attempting23 , aiding and abetting,24 complicity25 and organising or directing other persons to commit trafficking.26 Regarding the criminalisation of the knowingly using the services of trafficked persons, while several anti-trafficking instruments have adopted this approach,27 it does not yet appear to

18 EUROPOL

2016, p. 5. Protocol 2000, Article 5(1); CoE Anti-Trafficking Convention 2005, Article 8; Directive 2011/36/EU, Article 2(1); ASEAN Convention 2015, Article 5(1). 20 Organised Crime Convention 2000, Article 34(3). 21 Organised Crime Convention 2000, Article 34(2). 22 UNODC Legislative Guide 2004, para 45(a), 45(b), pp. 275–276; UNODC Travaux Préparatoires 2006, p. 285; Human Rights Council 2012b, para 4(a). 23 Organised Crime Convention 2000, Article 10; CoE Anti-Trafficking Convention 2005, Article 22; Directive 2011/36/EU, Article 5. See also UN Recommended Principles and Guidelines 2002, guideline 4(2). Legal persons here include commercial companies and corporations operating in a range of different sectors such as tourism, entertainment, hospitality, labour recruitment, adoption and the provision of medical services and carriers such as airlines, see Commentary on the UN Recommended Principles and Guidelines 2010, p. 187. 24 TIP Protocol 2000, Article 5(2)(a); CoE Anti-Trafficking Convention 2005, Article 21; Directive 2011/36/EU, Article 3; ASEAN Convention 2015, Article 5(2)(a). 25 Complicity here encompasses both private and public sectors. The state incurs international responsibility when its public officials and responsible state organs, through their inaction, acquiescence or failure to respond to trafficking become complicity in the trafficking. Thus, in criminalising complicity, the state is required to not only criminalise complicity as for private individuals but also for public officials who by their inaction or failure create a thriving environment for trafficking and should take serious measures to investigate and prosecute such complicity. To buttress this argument further, see Gallagher 2010b, pp. 442–449; Ikeora 2018, pp. 150–151; Human Rights Committee General Comment No. 31, para 18. 26 TIP Protocol 2000, Article 5(2)(b), 5(2)(c); ASEAN Convention 2015, Article 5(2)(b), 5(2)(c). 27 CoE Anti-Trafficking Convention 2005, Article 19; Directive 2011/36/EU, Article 18(4). 19 TIP

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be a mandatory anti-trafficking international obligation for states parties, despite its obvious advantages.28

5.1.2 Criminalisation of Trafficking Related Crimes In order to make investigation and prosecution of trafficking more efficient, states are also called to outlaw crimes of money laundering, corruption, obstruction of justice and participation in organised crime as these are interrelated with trafficking.29 Concerning corruption, studies have indicated that a link exists between corruption and trafficking in persons.30 Several studies, including the OECD 2016 study, have indicated that countries perceived corrupt by Transparency International’s Corruption Perception Index are also countries ranking higher in trafficking.31 Corruption of the public officials, whether in the judiciary, law enforcement or immigration departments, has been identified as a thriving factor for trafficking. Corruption results in making trafficking invisible, facilitates the culture of impunity and even exacerbates the danger of revictimisation.32 To effectively criminalise and even prevent trafficking from occurring, states should criminalise both active and passive bribery in the public sector and other corruption-related offences.33 They should also consider criminalising corruption in the private sectors as well. This also calls for taking serious steps to prosecute state officials involved in trafficking through corruption as

28 Gallagher

2010b, pp. 441–442. But as has been shown later on in this study in chapter seven, the 2008 Anti-Trafficking in Persons Act of Tanzania criminalises this as a crime under Section 8. 29 ASEAN Convention 2015, Articles 6–9, 16(2); Organised Crime Convention 2000, Articles 6–9, 23; Directive 2011/36/EU, recital 13 of the Preamble; UNODC Legislative Guide 2004, para. 29, p. 266; UNODC 2009, Model Law against Trafficking in Persons, pp. 29. See also Kruger 2016, p. 59. 30 For example, UNODC 2011; Aronowitz 2009, pp. 62–63; Agbu 2003, pp. 1–13; UN.GIFT 2008, pp. 3 et seq. See also Ikeora 2018, pp. 150–152. 31 Organisation for Economic Co-operation and Development Secretary-General 2016, Trafficking in Persons and Corruption: Breaking the Chain. OECD Public Governance Reviews, OECD Publishing, Paris, pp. 34–35. OECD Secretary General 2016; UNODC 2011, p. 9. 32 International Bar Association 2016, p. 15; OECD Secretary General 2016, p. 34. 33 See for example, United Nations Convention against Corruption, opened for signature 31 October 2003, 2349 UNTS 41 (2003), entered into force 14 December 2005, Article 15–25; African Union Convention on Preventing and Combating Corruption, opened for signature 1 July 2003, 43 ILM 5 (2003), entered into force 5 August 2006, Articles 4, 6–8; Inter-American Convention against Corruption, opened for signature 29 March 1996, OAS Treaties Register B-58, 35 ILM 724 (1997), entered into force 6 March 1997, Article VI; Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, opened for signature 17 December 1997, 37 ILM 1 (1997), entered into force 15 February 1999, Article 1; Criminal Law Convention on Corruption, opened for signature 27 January 1999, 2216 UNTS 225, ETS No. 173 (1999), entered into force 1 January 2002, Article 2–13.

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they can incur international responsibility for actions of their officials or organs and for private persons based on the standard of due diligence.34 Regarding money laundering, traffickers and those involved in trafficking make huge profits from exploiting those in vulnerable situations.35 The huge chunk of generated wealth is mostly illegal and can only be integrated back into a lawful financial system through money laundering, somehow considered the fourth stage after the exploitation of the victims of trafficking.36 Together with corruption, money laundering criminalisation helps states to co-operate transnationally and internationally in the detection of trafficking, ending impunity of traffickers, confiscation of trafficking assets, ensuring that traffickers find no safe havens and making clear that trafficking is not only expensive but also does not reward those involved in its commission.37 Touching on obstruction of justice, oftentimes traffickers and those involved in trafficking either intimidate or use actual force against law enforcement, judicial officials and a range of other authorities and agencies involved in the investigation and prosecution of trafficking cases. Traffickers and criminals also resort to corruption and other forms of undue influence to compromise an investigation or the giving of testimony and evidence in connection with trafficking proceedings.38 Therefore, the effect of obstruction of justice is to impede the effective implementation of the anti-trafficking obligations of states as pertaining mostly to prevention, investigation and prosecution of trafficking as well as the support of trafficking victims. An effective criminal justice response is that which ensures that crimes such as these do not impede investigation and prosecution of trafficking neither impede the ability of the state to protect and assist trafficking victims.39 Thus, criminalising obstruction of justice and crimes of money laundering and corruption complements states’ obligations to criminalise and investigate trafficking and prevent it from occurring while also protecting victims. 34 Gallagher

2010b, pp. 442–449; Duffy 2017, p. 104. See also European Parliament 2016, The Fight against Trafficking in Human Beings in the EU’s External Relations: European Parliament Resolution of 5 July 2016 on the Fight against Trafficking in Human Beings in the EU’s External Relations (2015/2340(INI). 2014–2019, P8_TA (2016) 0300, para 20; Case of Osman v The United Kingdom 1998, para 115; Stoyanova 2017, p. 320. See also Xenos 2012, pp. 28 et seq. 35 Kigbu and Hassan 2015, p. 90. For discussion of the relationship between trafficking and money laundering see FATF-APG (2018) Financial Flows from Human Trafficking. FATF, Paris, France; Lake 2015; Sarkar 2015, pp. 114–125. 36 OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings/OSCE Office of the Co-ordinator for Economic and Environmental Activities/ OSCE Transnational Threats Department –Strategic Police Matters Unit 2014, p. 12; Sarkar 2015, pp. 114–125; Reback 2015, p. 2. 37 OSCE Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings/OSCE Office of the Co-ordinator for Economic and Environmental Activities/ OSCE Transnational Threats Department –Strategic Police Matters Unit 2014, p. 15. 38 UNODC and UN.GIFT 2009, pp. 5–6; Canada Department of Justice Working Group on Trafficking in Persons 2015, pp. 11–12, 106. 39 This is already noted by the UNODC Model Legislative Provisions 2012, p. 43 that “states parties are under an obligation to criminalize conduct that involves obstructing justice in the trial phase, but also in the pretrial phase, which could include obstructing an investigation”.

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5.1.3 Criminal Jurisdiction States have the international obligation to establish criminal jurisdiction over the crime of trafficking. Only by establishing criminal jurisdiction can states have authority over a trafficking situation. Forms of jurisdiction for trafficking offences are complicated due to the nature of trafficking itself—it is a crime of a continuing nature committed in several countries and involving offenders operating across borders with a close connection to other crimes such as corruption and money laundering. The major anti-trafficking instruments spell out the anti-trafficking rules governing issues of jurisdiction with a view to eliminating safe havens for traffickers through prosecution of any part of the crime irrespective of the jurisdiction in which the crime was committed.40 Because of the continuing nature of the crime of trafficking41 and its transnational element, the rules on the jurisdiction also intend to provide co-ordination mechanisms in situations where several states would claim jurisdiction over the same case. The rules provide an avenue for states to co-operate when exercising jurisdiction over trafficking cases.42 In the case of the TIP Protocol 2000, which is silent with respect to jurisdiction, the provisions of the Organised Crime Convention 2000 on jurisdiction will mutatis mutandis apply to the TIP Protocol 2000. However, the obligation to establish jurisdiction over a trafficking crime is not premised on the transnationality or the involvement of the organised criminal group.43 States have a mandatory obligation to establish territorial jurisdiction in all situations where the crime is committed within their territories.44 Territorial jurisdiction here encompasses also jurisdiction over trafficking offences committed on board a vessel flying the flag of that territorial state party or an aircraft registered according to the laws of the territorial state.45 A mandatory obligation is also placed upon states to establish jurisdiction to prosecute their own nationals alleged for the commission of trafficking crimes who cannot be extradited on the grounds of nationality based on the principle of aut dedere aut judicare.46 International law places the optional 40 United

Nations Office of the High Commissioner for Human Rights 2014, pp. 35–36. Commission on Human Rights 2015, para 22; The Court of Bosnia and Herzegovina (BiH), No. KŽ-45/06 of 25 October 2006 quoted in MarkoviC´ 2015, p. 12. 42 Commentary on the UN Recommended Principles and Guidelines 2010, p. 190. 43 UNODC Legislative Guide 2004, para 222, p. 107. 44 Organised Crime Convention 2000, Article 15(1)(a); CoE Anti-Trafficking Convention 2005, Article 31(1)(a); Directive 2011/36/EU, Article 10(1)(a); ASEAN Convention 2015, Article 10(1)(a). Directive 2011/36/EU is even clear to the point that even when the crime is committed partly in the territory of the state party, the territorial jurisdiction is triggered. 45 ASEAN Convention, 2015, Article 10(1)(b); CoE Anti-Trafficking Convention 2005, Article 31(1)(b), 31(1)(c); Organised Crime Convention 2000, Article 15(1)(b). 46 Organised Crime Convention 2000, Articles 15(3), 16(10); CoE Anti-Trafficking Convention 2005, Article 31(3); ASEAN Convention 2015, Articles 10(3), 19(4). While Directive 2011/36/EU does not contain a similar provision, it goes further than other instruments by recognising in Article 10(2)(b) that states may have jurisdiction in situations where the crime of trafficking is committed for the benefit of legal persons established within their territories. See also Akehurst 1999, p. 36. 41 Inter-American

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obligation on the states parties to establish jurisdiction based on: the commission of the crime of trafficking outside their territories by their own nationals or habitual residents;47 victimisation of one of their nationals (passive personality principle);48 and in situations linked to or connected with serious crimes and money laundering planned to be committed in their territories.49 In situations where states claim concurrent jurisdiction, international law places an obligation on the states concerned to consult each other to avoid the risk of improper, overlapping exercise of jurisdiction.50 The purpose of the consultation is to determine the jurisdiction most appropriate or suitable for prosecution and this also helps to eliminate any jurisdictional gaps.51 Consequently, this might result in one state deferring to the investigation and prosecution of another state, the sharing of information gathered or even ending in some states investigating and prosecuting certain aspects of trafficking and others investigating and prosecuting the other aspects.52 In implementing this obligation, states are supposed to take into account issues such as the location of witnesses, nationality, resource availability, the applicable legal framework and the location of the suspects.53 This duty, however, is premised on the presence of “appropriate” circumstances. This indicates the possibility that a state might avoid consulting other states in situations where consulting them will jeopardise its ability to investigate, prosecute or conduct judicial proceedings over a trafficking conduct.54 Finally, states parties are allowed to establish other bases of jurisdiction, in addition to the ones already provided for by the major anti-trafficking

47 Organised Crime Convention 2000, Article 15(2)(b); Directive 2011/36/EU, Article 10(2)(c); ASEAN Convention 2015, Article 10(2)(b). Note, however, that under Article 31(1)(d) of the CoE Anti-Trafficking Convention 2005 and Article 10(1)(b) of Directive 2011/36/EU, the establishment of jurisdiction for offences committed by nationals even when outside the territories is a mandatory obligation. This obligation is optional based on Article 15(4) of the Organised Crime Convention 2000, and Article 10(4) of the ASEAN Convention 2015. See also Fichtelberg 2014, pp. 354–356. 48 Directive 2011/36/EU, Article 10(2)(a); CoE Anti-Trafficking Convention 2005, Article 31(1)(e); ASEAN Convention 2015, Article 10(2)(a); Organised Crime Convention 2000, Article 15(2)(a). This obligation is mandatory according to the CoE Anti-Trafficking Convention 2005, Article 31(1)(e) and as argued by Jovanovic 2018, pp. 34–35. 49 Organised Crime Convention 2000, Article 15(2)(c); ASEAN Convention 2015, Article 10(2)(c). 50 Organised Crime Convention 2000, Article 15(5); CoE Anti-Trafficking Convention 2005, Article 31(4); ASEAN Convention 2015, Article 10(5). See also UNODC 2004 Legislative Guide, para. 213, p. 105. 51 Commentary on the UN Recommended Principles and Guidelines 2010, p. 191. 52 ASEAN Secretariat 2010, pp. 20–21. See also UNODC Legislative Guide 2004, para 231, pp. 108–109; ASEAN Ad-Hoc Working Group on Trafficking in Persons 2007, Criminal Justice Responses to Trafficking in Persons: ASEAN Practitioner Guidelines, 25 June 2007, at part two (c) point 3. https://www.aaptip.org/resource/criminal-justice-responses-to-trafficking-in-personsasean-practitioner-guidelines/. Accessed 14 November 2018. ASEAN Practitioner Guidelines 2007. 53 Commentary on the UN Recommended Principles and Guidelines 2010, p. 191. 54 UNODC Legislative Guide 2004, para. 232 p. 109; CoE Anti-Trafficking Convention Explanatory Report 2005, para. 333.

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instruments, without prejudicing the norms of general international law relating to jurisdiction.55

5.1.4 Investigation, Prosecution and Adjudication As part of an effective criminal justice response, states have an international obligation to effectively investigate, prosecute and adjudicate trafficking cases. This international obligation is implicit in the major anti-trafficking instruments. These instruments differently reiterate this obligation through expressions such as preventing, investigating and prosecuting trafficking offences, ensuring effective investigation and prosecution of trafficking cases, interdicting and suppressing trafficking and ensuring just and effective punishment of traffickers.56 The mandatory nature of this duty is premised on the fact that the absence of an effective investigation, prosecution and adjudication means practical ineffectiveness in rendering justice for victims of trafficking, creating safe havens for traffickers by enabling them to act with impunity as well as diminishing public confidence in the functioning of the state’s criminal justice mechanism. Only by carrying out an official investigation, prosecution and adjudication can a state fully implement its domestic and international anti-trafficking legal obligations. Failure on the part of the state to discharge this duty means a violation of its anti-trafficking obligations justifying the invocation of its international responsibility. The state has to carry investigation, prosecution and adjudication according to the international standard of due diligence in all situations of trafficking irrespective of whether the crime was committed by state or non-state actors.57 The state has an obligation to act promptly and thoroughly by making serious attempts and taking all reasonable steps to find out what happened in a particular trafficking situation and establish evidence. The obligation must be discharged in such a way as to be capable of leading to the establishment of facts, identification of the perpetrators and their appropriate punishments. In discharging this duty, while individual complaints by those who have been trafficked or placed at its risk as such might be useful, states’ criminal justice machinery has to act on its own motion as soon as the matter comes to its attention. For that matter, this obligation has been termed an obligation of result, not of means.58 55 Organised Crime Convention 2000, Article 15(6); CoE Anti-Trafficking Convention 2005, Article 31(5); ASEAN Convention 2015, Article 10(6). 56 ASEAN Convention 2015, Articles 1(a), 3; CoE Anti-Trafficking Convention 2005, Article 1(b); SAARC Convention 2002, Article II; TIP Protocol 2000, Article 4. 57 UN Recommended Principles and Guidelines 2002, principles 2, 6; Commentary to the UN Recommended Principles and Guidelines 2010, p. 193; ICAT 2016b, pp. 3–4; Thomson 2016, p. 65. 58 These principles are well stated in the European Court of Human Rights Fourth Section Case of Finucane v The United Kingdom, Human Rights Judgment, 1 July 2003, Application No. 29178/95, paras 67, 69, 70; European Court of Human Rights Fifth Section, Case of El-Masri v The Former

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In discharging the obligation to effectively investigate, prosecute and adjudicate trafficking cases, several related duties need to be implemented as well. Since trafficking also depends on the co-operation of the victims, responsible authorities and agencies need to incorporate the participation of victims in the whole process.59 This duty and its importance are confirmed by treaty law.60 Incentives and circumstances must be put in place to encourage trafficking victims to be willing to participate. These incentives might include the possibility of obtaining a resident permit, temporary or permanent residence, provision of reflection or recovery period and guaranteed protection for trafficking victims or members of their families against intimidation and retaliation from the traffickers. In general, it also means that their rights must be fully respected, including the rights to protection and support, non-criminalisation and non-detention and participation in legal proceedings.61 Regarding police and investigators, they should be able to act on their own—going to investigate once a situation of trafficking has been reported or came to their notice. Therefore, police and investigators need to conduct a proactive investigation, in addition to being reactive following the reporting of trafficking cases.62 The purpose of this approach is “to avoid traffickers’ subjecting victims to pressure and threats in attempts to deter them from complaining to the authorities.63 Magistrates, judges and other judicial practitioners need to be conscientised about the crime of trafficking and how it is prosecuted and adjudicated as well as on how the national anti-trafficking legal framework operates. This means that there must be present a real and effective co-operation between the various agencies involved in the investigation, prosecution and adjudication of trafficking.64 All responsible agencies and authorities must take obligations seriously as their effectiveness means more risk for traffickers to engage in trafficking and more avenues for justice to be given to trafficking victims. Equally important is the equipment of the criminal justice officials. There should be deliberate efforts to build co-operation and capacities of the various criminal Yugoslav Republic of Macedonia, Human Rights Judgment, 13 December 2012, Application No. 39630/09, paras 182–185; European Court of Human Rights Grand Chamber, Case of Jeronoviˇcs v Latvia, Chamber Judgment, 5 July 2016, Application No. 44898/10, para 103; Case of Rantsev v Cyprus and Russia 2010, paras 231–232 and for the elaborate impact of this case and the principles emanating therefrom, see Pati 2011, pp. 79–142. 59 Gallagher 2010b, pp. 383–384. 60 TIP Protocol 2000, Article 6(1), 6(2); SAARC Convention 2002, Article V; CoE Anti-Trafficking Convention 2005, Articles 13–15, 30; Directive 2011/36/EU, Articles 11–12; ASEAN Convention 2015, Article 14(6), 14(8). 61 Generally, see TIP Protocol 2000, part II on the protection of victims of trafficking; CoE AntiTrafficking Convention 2005, chapter III on measures to protect and promote the rights of victims and guaranteeing gender equality; UN Recommended Principles and Guidelines 2002, principles 711; Directive 2011/36/EU, Articles 8, 11–17; ASEAN Convention 2015, Chapter IV on protection; SAARC Convention, Article IX on care, treatment, rehabilitation and repatriation of the victims. 62 Directive 2011/36/EU, Article 9; CoE Anti-Trafficking Convention 2005, Article 27. See also UNODC 2009, p. 10. 63 CoE Anti-Trafficking Convention Explanatory Report 2005, para 277. 64 TIP Protocol 2000, Article 10(1); UN Recommended Principles and Guidelines 2002, guideline 2(3); ASEAN Convention 2015, Article 16(4).

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justice agencies involved in the issue of trafficking. Officials of these agencies should be trained to make them competent to co-operate in dealing with trafficking cases. Training and co-operation should focus on the provision of technical skills and collaboration in issues such as: identification, investigation, prosecution and adjudication of trafficking cases; the use of human rights, child-sensitive and gender-based approaches to trafficking cases; co-operation between the criminal agencies themselves and with similar international and regional agencies, including co-operation with NGOs; specialised investigatory capacity to the anti-trafficking agencies as well as the monitoring, evaluation and assessment of the performance resulting from training and equipment.65 Finally, the obligation to effectively investigate, prosecute and adjudicate trafficking cases should take into account the rights of trafficking suspects and the guarantees of a fair trial.66 Through these duties, one can gauge whether or not the state actually fulfils its obligation to effectively investigate, prosecute and adjudicate cases of trafficking reported or known to happen within its jurisdiction.

5.1.5 Sanctions and Penalties International law imposes on the states an obligation to provide effective, proportionate and dissuasive sanctions for those implicated for the commission of trafficking and the criminal offences associated with trafficking.67 States must impose sanctions to both natural and legal persons, although with legal persons sanctions or penalties imposed include also civil, criminal, administrative or monetary.68 Some specialty anti-trafficking instruments require that such sanctions on legal persons must be effective, proportionate and dissuasive.69 Generally, sanctions or penalties imposed must be commensurate and consistent with the crime committed and the harm inflicted.70 The aim of their imposition must be to deter traffickers from a further commission by denying them the profit of their crimes to make them realise that trafficking does not pay.71 From the point of view of the trafficking victims, the imposition of sanctions and penalties means that the crime of trafficking does not go 65 SAARC Convention 2002, Article VIII; ASEAN Convention 2015, Article 16; Directive 2011/36/EU, Articles 9(3), 9(4), 18(3); CoE Anti-Trafficking Convention 2005, Articles 29, 32, 35; TIP Protocol 2000, Articles 9(3), 9(4), 10; Organised Crime Convention 2000 Articles 19–20, 26–30; UN Recommended Principles and Guidelines 2002, principles 1–3, guidelines 1(1)–(4), 2(1)–(3), 3(5), 3(7), 5. 66 Commentary to the UN Recommended Principles and Guidelines 2010, pp. 201–202. 67 CoE Anti-Trafficking Convention 2005, Article 23; Directive 2011/36/EU, Articles 4, 6; Organised Crime Convention 2000, Article 11; TIP Protocol 2000, Article 11(4); SAARC Convention 2002, Article III(1). 68 CoE Anti-Trafficking Convention Explanatory Report 2005, para 250. 69 CoE Anti-Trafficking Convention 2005, Article 23(2); Directive 2011/36/EU, Article 6. 70 UNODC Legislative Guide 2004, para 261, p. 130. 71 UNODC Legislative Guide 2004, para 262, p. 130.

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unpunished and that it is worthy reporting the trafficking incidents. From the state responsibility point of view, the imposition of effective and proportionate sanctions complements the state’s obligation to effectively criminalise, investigate, prosecute and adjudicate trafficking cases.72 In imposing sanctions, states have to consider trafficking as a serious crime entailing serious punishment which, in appropriate international co-operation legal framework, would make extradition possible.73 In imposing sanctions or penalties, the seriousness or severity or gravity of a particular trafficking offence needs to be taken into consideration.74 Thus, where certain aggravating circumstances are present, the punishment for trafficking in persons must be harsher. Although the Organised Crime Convention 2000 and the TIP Protocol 2000 are silent on the nature of these circumstances, specialty anti-trafficking instruments have categorically mentioned these aggravating grounds.75 The concept of aggravating circumstances also serves to regulate the nature of the punishment and sentences a judicial body can provide. They must not be lenient such as to cause traffickers to think that crime pays and should not be draconian or too severe to intimidate victims from reporting trafficking incidents or violating the proportionality between the crime and punishment imposed. The imposition of effective and proportionate sanctions means also that states should enact long statutes of limitations for the commencement of proceedings and with respect to criminal proceedings against those suspected of trafficking, and conditions imposed with regard to early release pending trial or appeal should operate to ensure the suspects’ appearance at subsequent criminal proceedings.76 Considering that trafficking is an offence which also transcends borders of one state, previous convictions relating to trafficking in other countries should be considered by courts when imposing sanctions and penalties on those accused of trafficking. In other words, states are called upon to consider applying the concept of international recidivism in imposing sanctions on trafficking cases.77 In all situations, however, the rights of a fair trial of those accused of trafficking offences should be respected and upheld.78 72 European Court of Human Rights First Section, Case of S.M v Croatia, First Section Judgment, 19 July 2018, Application No. 60561/14) (Case referred to the Grand Chamber), para 27; European Court of Human Rights First Section, Case of Chowdury and Others v Greece, First Section Judgment, 30 March 2017, Application No. 21884/15, para 86. 73 Article 23(1). See also Commentary to the UN Recommended Principles and Guidelines 2010, p. 213. 74 Organised Crime Convention 2000, Article 11(1); SAARC Convention 2002, Article III(1). See also UN Recommended Principles and Guidelines 2002, principle 15; ASEAN Practitioner Guidelines 2007, Part One, point 2. 75 CoE Anti-Trafficking Convention 2005, Article 24; Directive 2011/36/EU, Article 4(2); ASEAN Convention 2015, Article 5(3); SAARC Convention 2002, Article IV. See also IOM Caribbean Legislation 2008, Article 9, pp. 20–21. 76 Organised Crime Convention 2000, Article 11; ASEAN Convention 2015, Article 16(8). 77 Organised Crime Convention 2000, Article 22; CoE Anti-Trafficking Convention 2005, Article 25; SAARC Convention 2002, Article IV(1)(g). See also Commentary on UN Recommended Principles and Guidelines 2010, p. 217. 78 Gallagher 2010b, pp. 398–399. The Special Rapporteur highlights on the importance of ensuring and guaranteeing the rights of the accused person when she notes that “The provision of protection

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5.1.6 Asset Confiscation, Recovery and Use An adequate, effective and appropriate criminal justice response against trafficking entails an obligation to institute legal and administrative mechanisms and measures to confiscate and recover the assets generated through trafficking. The institution of these measures can be based on the national, bilateral or multilateral treaties and conventions or their combination. Since trafficking is a lucrative crime that rewards its organisers, financiers and those who benefit from its commission, the obligation to confiscate and recover the assets intends to deny them of their illegal profits.79 The purpose is to retrieve the assets lost to trafficking. The generated assets can be at home where trafficking is internal or national and can be located in other jurisdictions in transnational trafficking. The effective carrying out of this obligation acts as an anti-crime weapon because it will discourage traffickers and those who benefit from trafficking by increasing the risks of being apprehended, it will deny them the benefits of crime as well as eliminating safe havens for them to hide their illegally acquired wealth. This means also that properly utilised, confiscation and asset recovery mechanisms can support the conviction of those suspected of trafficking.80 According to the Organised Crime Convention 2000, the assets to be confiscated and recovered include the proceeds generated from trafficking, stolen assets, all property, equipment or instrumentalities used in the commission of trafficking, the property of trafficking which have been converted, transformed or intermingled and the income or benefits resulting from trafficking.81 All these form the assets liable to confiscation and recovery. The major specialty anti-trafficking treaties have similar provisions obligating states to confiscate the assets generated through trafficking.82 Policy documents, regional organisations and various resolutions of the UNGA have operated also to confirm this position as an obligation incumbent on the states.83 The Organised Crime Convention 2000 goes further to lay down the rules the states might opt to consider in the implementation of this obligation. Some of them include, for example, that bank secrecy should not be a bar to orders of seizure from the courts of law;84 the implementation of the confiscation and recovery provisions should not prejudice the rights of bona fide third parties;85 imposing onus of proof on and support for victims must be balanced against respect for the rights of those accused of trafficking crimes. Failure to provide for the rights of the accused could compromise the integrity of proceedings and undermine trust in the justice process”, Human Rights Council 2012a, para 65. 79 ICAT 2014, p. 11; Morehouse 2009, pp. 65–66. 80 UNODC Legislative Guide 2004, paras 287–288, pp. 140–141; Gallagher 2010b, p. 400. 81 Organised Crime Convention 2000, Article 12(1), 12(3), 12(4), 12(5). 82 CoE Anti-Trafficking Convention 2005, Article 23(3); Directive 2011/36/EU, Article 7; ASEAN Convention 2015, Article 17. The SAARC Convention 2002 is silent with respect to confiscation and recovery of assets lost to trafficking. While the TIP Protocol 2000 is equally silent, the extensive provisions of the Organised Crime Convention 2000 with respect to asset confiscation and recovery apply, mutatis mutandis. 83 Gallagher mentions the documents containing this confirmation. Gallagher 2010b, p. 402. 84 Organised Crime Convention 2000, Article 12(6). 85 Organised Crime Convention 2000, Article 12(8).

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the trafficking offender to indicate the lawful provenance of his proceeds;86 flexibility in the application of the confiscation and recovery provisions according to which reservation is made in favour of domestic law of the states parties.87 The Organised Crime Convention 2000 contains in Article 12 the procedures through which an effective mechanism to confiscate and recover assets of trafficking can be carried out.88 The assets need to be identified and tracked. This is a precourt detective work and might involve forensic investigation by police, prosecutors, law enforcement and other specialised agencies. Mutual legal assistance might be involved where possible in identifying the location of the assets. Following this, the assets must be preserved for confiscation. They can be preserved through freezing and/or seizure. The Organised Crime Convention 2000 defines freezing and seizure to mean the court processes “prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property”.89 The next step is the confiscation of the asset which means the property or assets are permanently deprived of those in possession according to the order of the court or other competent authority.90 Confiscation follows the logical outcome of tracing and preservation and is the basis through which assets will be recovered. Once confiscated, the assets and property or proceeds need to be managed through qualified persons and bodies. Depending on whether the assets are within the territorial state or outside, the recovered asset will be repatriated. This is the final stage is the chain of confiscation and asset recovery procedures. The Organised Crime Convention 2000 recognises the transnationality of confiscation and asset recovery process and through its Article 13, sets out mechanisms through which confiscation and recovery can be accomplished transnationally and internationally. The Organised Crime Convention 2000 stresses out that for confiscation and asset recovery mechanisms to work, states have a duty to empower their courts and competent authorities to give effect to these provisions and to offer each other the widest forms of cooperation, including by concluding bilateral or multilateral treaties, arrangements or agreements.91 Mutual legal assistance plays an important role in the transnational confiscation and recovery of assets. Therefore, the duty to transnationally co-operate in the confiscation and recovery of assets implies also that states will have instituted also mutual legal assistance mechanisms. Similar national laws on money 86 Organised

Crime Convention 2000, Article 12(7). Crime Convention 2000, Article 12(9). 88 These steps in the Organised Crime Convention 2000 are found in other instruments of a transnational character like those on the prevention and combating of corruption. See for example, the United Nations Convention against Corruption which contains similar but detailed provisions from which the stages and modalities of confiscation and asset recovery and disposal can be used for guidance by states in the discharge of their duty to confiscate and recover the proceeds generated through trafficking. See United Nations Convention against Corruption, Articles 2, 31, 51, 53, 54, 55, 56, 57. For an elaborate discussion of these steps and their implications see ASEAN Secretariat 2010, pp. 90–106. 89 Organised Crime Convention 2000, Article 2(f). 90 Organised Crime Convention 2000, Article 2(g). 91 Organised Crime Convention 2000, Article 13. 87 Organised

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laundering, corruption and extradition treaties might also play a role here. This is explicitly referred to, for example, in some of the anti-trafficking instruments.92 The final question is how the confiscated and recovered assets are going to be used. The Organised Crime Convention 2000 provides that priority should be given to returning the confiscated proceeds or property to the state party which in turn will give compensation to the trafficking victims or even returning such proceeds or property to their legitimate owners.93 This is logical considering that the proceeds were obtained because the trafficking victims were exploited. In other words, the proceeds would not have been generated if not for victims’ exploitation. Therefore, it makes sense that compensation of the trafficking victims from the proceeds of trafficking forms the chief consideration, among others.94 The Organised Crime Convention 2000 goes further to provide that states might consider making regular voluntary contributions to the United Nations funding mechanism which will be used to compensate victims.95 Also, states that have confiscated and recovered trafficking assets are advised to consider donating or contributing a certain percentage of the value to the fund and the intergovernmental organisations specialised in the fight against trafficking and organised crime.96 This makes sense considering that oftentimes states are reluctant or even non-compliant in the implementation of their duties to compensate victims of trafficking.

92 For example, the Organised Crime Convention 2000 obligates states parties to criminalise and take measures to fight corruption and money laundering in its Articles 6–9, with detailed rules on mutual legal assistance and extradition in Articles 16 and 18. The ASEAN Convention 2015, too, mandates its states parties to criminalise money laundering and corruption in its Articles 7–8 and contains provisions on mutual legal assistance and extradition on its Articles 18 and 19. Similar provisions in the SAARC Convention 2002 are found at Articles VI and VII. The CoE AntiTrafficking Convention Explanatory Report 2005, para 275, states that with respect to confiscation and recovery of assets in the Convention, reference should be made to the convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS No. 141). See also UNGA 2017, Trafficking in Human Beings. UN Doc. A/RES/71/76, 2 February 2017, para 25. 93 Article 14(2). For a similar hortatory provision, see CoE Anti-Trafficking Convention 2005, Article 15(4). Article 17 of Directive 2011/36/EU only obligates states parties to give access to trafficking victims to “existing schemes of compensation” without specifying where the funds for such compensation comes from. 94 See also UN Recommended Principles and Guidelines 2002, principle 15, guideline 4(4); Commentary to the UN Recommended Principles and Guidelines 2010, pp. 219–222; ASEAN Practitioner Guidelines 2007, Part One A(4); European Parliament 2016, The Fight against Trafficking in Human Beings in the EU’s External Relations: European Parliament Resolution of 5 July 2016 on the Fight against Trafficking in Human Beings in the EU’s External Relations (2015/2340(INI). 2014-2019, P8_TA (2016) 0300, para 19. 95 Article 30(2)(c). 96 Article 14(3)(a).

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5.1.7 International Co-operation Preventing and combating trafficking and the concomitant obligations of investigation, prosecution, adjudication, victim support and assistance all entail that antitrafficking obligations are shared responsibilities for states requiring international co-operation. International co-operation here envisages the international obligation states have to co-operate in situations where trafficking is transnational. In transnational trafficking, trafficking suspects, victims and even evidence might be found in several countries which can give rise to a criminal investigation, prosecution and adjudication in several jurisdictions. Therefore, there is an incumbent duty on states to co-operate together bilaterally and multilaterally.97 The discussion of this obligation centres specifically on extradition and mutual legal assistance.

5.1.7.1

Extradition Obligation

Extradition is a formal legal process through which the requesting state asks or requests the requested state to surrender a fugitive or an extraditee who is within its territory to face prosecution or punishment in the jurisdiction of the requesting state.98 Certain offences such as trafficking are transnational and even involve organised criminal groups. A trafficking suspect might have fled or gone to a certain jurisdiction to avoid prosecution or punishment demanded by his or another state. The purpose of international co-operation in extradition is to ensure that there are no safe shelters for those involved in the commission of trafficking so that they can be prosecuted or punished irrespective of where they hide themselves.99 Since the TIP Protocol 2000 does not contain extradition provisions, those of the Organised Crime Convention 2000 will apply mutatis mutandis. Article 16 of the Organised Crime Convention 2000 imposes extradition obligation on the states with respect to trafficking and its related offences. The obligation to extradite has been recognised also in several anti-trafficking specialty instruments100 and general

97 Ikeora

2018, pp. 11, 85; Rantsev v. Cyprus and Russia 2010, para 289; Joutsen 2002, p. 364.

98 Przetacznik 1983, p. 135; Bassiouni 2008, p. 269; Nicholls et al. 2013, p. 3; Andritoi and Nicolae

2014, p. 224; Joutsen 2014, p. 307; Cryer et al. 2010, p. 93; Constantinides 2017, p. 128. 99 UNODC Legislative Guide 2004, para 395, p. 196. See also International Law Commission 2014,

p. 92; Bassiouni 2014, p. 2; European Court of Human Rights Court (Plenary) The Case of Soering v The United Kingdom, Human Rights Judgment, 7 July 1989, Application No. 14038/88, para 86; Cryer et al. 2010, p. 93. 100 ASEAN Convention 2015, Article 19; SAARC Convention 2002, Article VII; CoE AntiTrafficking Convention 2005, Article 23(1).

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regional legal treaties.101 Some policy documents have also recognised that trafficking must be an extraditable offence.102 In implementing the extradition obligation, there are several conditions and principles to be taken into consideration. States have a mandatory obligation to make and recognise trafficking and its related offences as extraditable offences, including in the subsequent extradition treaties.103 The extradition obligation should be carried out according to the principle of double or dual criminality—the offence for which extradition is sought must be a criminal conduct in both the requesting state and the requested state.104 The offence subject to which extradition is sought must be punishable with a penalty above a certain defined threshold such a deprivation of liberty for one year so as to indicate the severity of the crime.105 Also, based on the international human rights law, a requested state cannot extradite a person on the same charges for which it has prosecuted, punished or even acquitted the person who has been subjected to the extradition request.106 This is according to the principle of double jeopardy or ne bis in idem.107 The principle of double jeopardy goes together with the principle of speciality or specialty according to which the requesting state is prohibited from punishing or trying the suspect for an offence which was not referred to in the extradition request for which there is an allegation that the offence in question was committed before the person was extradited.108 These conditions and principles which make international co-operation for extradition possible operate to confirm that states should define and provide the essential elements of the crime of trafficking according to international law in order to meet these criteria.109 101 For

example, the Inter-American Convention on Extradition, opened for signature 25 February 1981, 49 Stat. 3111 Treaty Series 883, entered into force 28 March 1992; Economic Community of West African States Convention A/P.1/8/94 on Extradition 6 August 1994. ECOWAS Convention on Extradition; European Convention on Extradition, opened for signature 13 December 1957, Paris, 13.XII.1957, ETS No. 024, entered into force 18 April 1960. 102 UN Recommended Principles and Guidelines 2002, principle 14; ASEAN Practitioner Guidelines 2007, Part one(A)(4); OSCE Permanent Council 2003, para 1.6, p. 3; Ouagadougou Action Plan 2006, p. 6. 103 Organised Crime Convention 2000, Article 16(3); ASEAN Convention 2015, Article 19(1); SAARC Convention 2002, Article VII(1). See also Chakraborty 2019, pp. 31, 46. 104 Organised Crime Convention 2000, Article 16(1); Inter-American Convention on Extradition, Article 1(b); European Convention on Extradition, Article 2(1). See also Joutsen 2014, pp. 307–308; Joutsen 2002, p. 366. 105 European Convention on Extradition, Article 2(1); ECOWAS Convention on Extradition, Article 3(1); Inter-American Convention on Extradition, Article 1(b). See further Joutsen 2014, pp. 307– 308. 106 ICCPR, Article 14(7); ECOWAS Convention on Extradition, Article 13; European Convention on Extradition, Article 9. 107 See also Rome Statute of the International Criminal Court, Article 20. As to the domestic and international justification of this principle, see Van den Wyngaert and Stessens 1999, pp. 780–782; Constantinides 2017, p. 141. 108 European Convention on Extradition, Article 14; ECOWAS Convention on Extradition, Article 20; Inter-American Convention on Extradition, Article 17(a). See also Dugard and Van den Wyngaert 1998, p. 188; Joutsen 2014, p. 308; Joutsen 2002, p. 368. 109 Fredette 2009, pp. 113–114.

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Where a state party denies extraditing a person on the grounds of nationality, it must prosecute him domestically.110 The domestic prosecution must be conducted seriously and effectively in a similar manner as in all situations where the requested state would prosecute other serious crimes under its domestic law.111 The requested state might consider co-operating with the requesting state on matters relating to evidence and this presupposes that the requested state must have instituted the mutual legal assistance legal regime to co-operate with other states in obtaining evidence.112 The principle is otherwise referred to as the principle of aut dedere aut judicare or either extradite or prosecute—that is a state refusing to extradite a person to another state must itself prosecute based on presence of the fugitive in its territory.113 While the principle of aut dedere aut judicare would in practice apply to states based on the agreements entered among themselves, it is recognised that with respect to international crimes, the duty is automatic even in the absence of an extradition treaty or agreement as a matter of customary international law which imposes obligation erga omnes.114 The refusal to surrender a person and opting to prosecute domestically is time-consuming, complicated and financially demanding, considering that the trafficking might have been committed abroad and therefore, the evidence for such prosecution is also without the jurisdiction of the requested state party. Due to that, the requested state can opt for conditional surrender. By conditional surrender, the requested state surrenders its national to face prosecution in the jurisdiction of the requesting state party but agrees with the requesting state that once prosecuted, the offender will serve the sentence or punishment in the jurisdiction of the requested state party.115 Based on the principle of aut dedere aut punire, either extradite or punish, the requested state has a duty to consider either extraditing a person to face criminal prosecution in the requesting state or enforce the sentence of punishment of the requesting state party to the accused person where it does not extradite on the grounds of nationality.116 In addition to nationality ground, the requested state can refuse extradition where it has substantial grounds to believe that the extraditee will not be prosecuted by the requesting state but rather will be persecuted for the reasons of race, nationality, sex, political opinions, ethnic origin, religion or where the surrendering

110 Joutsen

2014, p. 309. Crime Convention 2000, Article 16(10); Inter-American Convention on Extradition, Article 2; ECOWAS Convention on Extradition, Article 10; European Convention on Extradition, Article 6; ASEAN Convention 2015, Article 19(4); SAARC Convention 2002, Article VII(4) and VII(5). 112 Rantsev v. Cyprus and Russia 2010, para 289. 113 Fish 2017, pp. 543–545; Constantinides 2017, p. 128. Generally on the principle of either extradite or prosecute, see International Law Commission 2014; Enache-Brown and Fried 1998, pp. 613–633. 114 Zanotti 2006, p. 56; Gallagher 2010b, p. 409. 115 Organised Crime Convention 2000, Article 11; ECOWAS Convention on Extradition, Article 25(2); European Convention on Extradition, Article 19(2). 116 Organised Crime Convention 2000, Article 16(12). 111 Organised

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of the extraditee would prejudice his position for any of the conventional reasons.117 Equally, the requested state is permitted to refuse extradition where the extraditee might face capital punishment upon conviction or where he will be subjected to inhuman or degrading treatment or punishment in the territory of the requesting state, especially in the situation where the requested state party itself has outlawed such practices.118 Like the United Nations Convention against Corruption,119 the Organised Crime Convention 2000 prohibits the denial of extradition for fiscal offences.120 The Organised Crime Convention 2000, however, is silent on political crimes. Nevertheless, it is generally argued that political crimes cannot be a defence for the commission of international crimes or violations of the basic elementary principles of international humanitarian law such as the grave breaches of the four Geneva Conventions.121 Throughout the extradition proceedings, the human rights of the trafficking suspect must be protected and guaranteed.122 States are admonished to expedite extradition process as well as to simplify evidentiary requirements.123 Although this obligation is optional, it is well understood that extradition is a very complex and lengthy process which can only work effectively upon the co-operation of the states through, among others, expediting extradition procedures and simplifying evidentiary requirements. Finally, in implementing extradition obligation, states are urged to pursue consultation before the refusal of extradition and the conclusion of new arrangements and agreements to operationalise extradition.124

5.1.7.2

Mutual Legal Assistance Obligation

Mutual legal assistance is a special form of transnational co-operation through which states accord to each other legal assistance in connection with investigations, prosecutions and judicial proceedings in relation to, among other crimes, trafficking in persons.125 International law imposes a mandatory obligation on the states to co-operate by offering each other the widest forms of mutual legal assistance for 117 Organised Crime Convention 2000, Article 16(14); ECOWAS Convention on Extradition, Article

4(2); European Convention on Extradition, Article 3(2). See also Schabas 2015, p. 6; Joutsen 2014, p. 310. For the relationship between extradition and its human rights implications, see Dugard and Van den Wyngaert 1998, pp. 191 et seq. 118 Inter-American Convention on Extradition, Article 17(c); ECOWAS Convention on Extradition, Articles 5, 17; European Convention on Extradition, Article 11. See also Schabas 2015, p. 96; Cryer et al. 2010, p. 98. 119 United Nations Convention against Corruption, Article 16. 120 Organised Crime Convention 2000, Article 16(5). 121 Gallagher 2010b, pp. 408–409. 122 Organised Crime Convention 2000, Article 16(3). 123 Organised Convention 2000, Article 16(8). 124 Organised Crime Convention 2000, Article 16(16), 16(17). 125 ASEAN Secretariat 2010, p. 22; Dandurand 2012, p. 220; Joutsen 2014, p. 311; Van Hoek and Luchtman 2005, p. 13.

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the crime of trafficking.126 Mutual legal assistance, like extradition, provides the appropriate framework upon which states co-operate to investigate and prosecute trafficking.127 The basis for mutual legal assistance can be bilateral or multilateral treaties or domestic law. For the purpose of trafficking, the domestication of the Organised Crime Convention 2000 which contains extensive provisions on mutual legal assistance together with the TIP Protocol 2000 suffices for states seeking to comply with and implement the provisions on mutual legal assistance. In discharging the mutual legal assistance obligation, states are required to take certain important steps. States must designate a mutual legal assistance central authority which will receive and either execute the mutual legal assistance requests or transmit them to competent authorities for execution speedily, properly and with due diligence.128 The implementation of mutual legal assistance must comply with the principles of dual criminality, double jeopardy, specialty and the respecting, protecting and guaranteeing of human rights and fundamental freedoms.129 States, however, have discretion with respect to mutual legal assistance as they can provide mutual legal assistance even in situations where the request does not comply with the dual criminality principle.130 The scope and ambit of the mutual legal assistance encompass: trafficking, its related crimes and those under the Organised Crime Convention 2000; persons both legal and natural, including traffickers, victims and witnesses; law enforcement; as well as co-operation in investigations, prosecutions and judicial proceedings. The investigation covers things such as tracing, gathering of evidence, finding and preparing witnesses.131 The prosecution here envisages also trafficking and related crime trials, confiscation and repatriation. Judicial proceedings cover, among others, pre-trial process, bail and sentencing.132 The Organised Crime Convention 2000 provides for three categories of mutual legal assistance, namely, procedural and evidentiary matters, asset confiscation and recovery and other matters falling outside the first two categories. Article 18(3)

126 Organised Crime Convention 2000, Article 18(1); ASEAN Convention 2015, Article 1; SAARC

Convention 2002, Article VI(1). The CoE Anti-Trafficking Convention 2005 does not contain a provision on Mutual Legal Assistance. According to the CoE Anti-Trafficking Convention Explanatory Report 2005, para 23, this silence on the part of the CoE Anti-Trafficking Convention 2005 is based on the understanding that other legal regimes of the Council of Europe will automatically be applicable to trafficking cases as well. The ASEAN Convention 2015s provision on mutual legal assistance is brief and imprecise. Article 18(2), however, makes reference to the Treaty on Mutual Legal Assistance in Criminal Matters, opened for signature 29 November 2004, 2336 UNTS 273 (2004), entered into force 1 June 2005 which contains extensive provisions on mutual legal assistance in the ASEAN region. See further, Yusran 2018, p. 270. 127 Rantsev v. Cyprus and Russia 2010, para 289. 128 Organised Crime Convention 2000, Article 18(13); ASEAN Treaty on Mutual Legal Assistance in Criminal Matters, Article 4. ASEAN MLA Treaty. 129 Gallagher 2010b, pp. 411–412; ASEAN Secretariat 2010, p. 46. 130 Organised Crime Convention 2000, Article 18(9). 131 Bowen 2018, p. 215. 132 Organised Crime Convention 2000, Article18(1)–18(3). See further Joutsen 2014, p. 313.

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provides for the various procedural and evidentiary matters.133 Mutual legal assistance can be given for confiscation and asset recovery under Articles 12–14 of the Organised Crime Convention 2000.134 Article 18(3)(i) deals with any other types of mutual legal assistance which in this context acts as a default provision to cover other forms of mutual legal assistance not in conflict with the domestic law of the requested state. The Organised Crime Convention 2000 also provides for procedures, content and requirements to be complied with in the mutual legal assistance requests.135 Regarding the execution of mutual legal assistance, the domestic law of the requested state party would generally apply based on the procedure of execution provided for by the requesting state party, provided it is legal and possible.136 Mutual legal assistance can be refused where the request is technically deficient, where there are compelling national interests such as the threat of sovereignty, security, public order or essential interests, where the request violates the domestic laws on mutual legal assistance of the requested state party or, in any other cases, where the request is illegal or violates requested state’s domestic law.137 The requested state, however, is required to give reasons for its refusal which must be reasonable and this excludes bank secrecy and fiscal matters.138 The Organised Crime Convention 2000 also recognises and encourages spontaneous mutual legal assistance which does not follow the strict confines of the formal mutual legal assistance.139 Finally, states are encouraged to conclude bilateral or multilateral arrangements or agreements to operationalise mutual legal assistance for trafficking cases.140

5.2 Obligation to Prevent Trafficking The ILC Draft Articles 2001 recognise that a state has an international obligation to prevent future occurrence of an act consisting of an internationally wrongful act of that state. Where the act or omission in question is of a continuing or composite character, as it is with trafficking, the obligation of the state consists in the taking of all reasonable, necessary and appropriate measures to prevent trafficking from occurring in the future.141 Unless the state takes such measures, it will continue 133 See

also ASEAN MLA Treaty, Article 1(2); Hufnagel 2017, pp. 191–192. Crime Convention 2000, Article18(3)(g). 135 Organised Crime Convention 2000, Article18(14)–18(16); ASEAN MLA Treaty, Article 5–6. 136 ASEAN MLA Treaty, Article 7; Joutsen 2014, p. 315; Van Hoek and Luchtman 2005, p. 14; Hufnagel 2017, p. 192. 137 Organised Crime Convention 2000, Article18(21); ASEAN MLA Treaty, Article 3(1)–3(2). 138 Organised Crime Convention 2000, Article 18(8), 18(22), 18(23), 18(25), 18(26). 139 Organised Crime Convention 2000, Article18(4)–18(5). On brief discussion on the kinds and the importance of informal co-operation for trafficking cases, see Gallagher 2010b, pp. 412–413. 140 Organised Crime Convention 2000, Article18(30). 141 ILC Draft Articles 2001, Articles 14, 15; ILC Draft Articles Commentary 2001, Article 14, para 14. 134 Organised

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to violate its international obligation to prevent the future occurring of trafficking as long as trafficking is occurring in its jurisdiction. Prevention of trafficking in persons means that the state has a tripartite obligation to take measures to prevent trafficking as a crime, lawfully addressing the factors of vulnerability that cause trafficking to occur and continue to eliminate the demand that fosters trafficking and human exploitation.142 The threefold obligation to prevent trafficking is further disaggregated below.

5.2.1 Preventing Trafficking through Addressing Vulnerability International law imposes a mandatory obligation on states to co-operate in taking positive measures to amelsaarc iorate and eliminate factors of vulnerabilities that put persons at risk of being trafficked.143 These factors include but are not limited to poverty and inequality, gender discrimination and violence against women, underdevelopment and other violations of human rights which deprive social and economic advantages to certain groups of individuals, thereby exposing them to trafficking.144 UNGA’s Resolution 71/167 (2017) identifies also as factors of vulnerabilities gender inequality, unemployment, lack of social-economic opportunities, marginalisation and persistent demand for trafficked women and girls.145 It has come to be acknowledged that of all these factors of vulnerability, it is the violation of the human rights which form the core cause and consequence of vulnerability to and the main drive for trafficking in persons.146 Women, children and other endangered groups such as internally displaced persons, refugees, prostitutes and migrants tend to be differently 142 UNODC 2008, pp. 62, 64. See also Gallagher 2010b, p. 414; Gammeltoft-Hansen 2017, pp. 546–

547. 143 Organised Crime Convention 2000, Article31(7); TIP Protocol 2000, Article 9(1), 9(5); Directive

2011/36/EU, Article 18(2); CoE Anti-Trafficking Convention 2005, Articlen5(2); SAARC Convention 2002, Article VIII(2), VIII(7); ASEAN Convention 2015, Article 11(4). See as well Alpert and Chin 2017, p. 383. 144 TIP Protocol 2000, Article9(4); ASEAN Convention 2015, Article 11(4). See also Fish 2017, p. 33; UNODC 2008, pp. 71–75. Shahrokhi argues also that in addition to the substantial role of poverty, “the complexities of cultural values, attitudes and practices” also play a considerable role, Shahrokhi 2010, p. 40. 145 2017, p. 4. See also United Nations Human Rights Committee (General Comment No. 28) 2000, para 5; European Commission (2017) Communication from the Commission to the European Parliament and the Council: Reporting on the Follow-up to the EU Strategy Towards the Eradication of Trafficking in Human Beings and Identifying Further Concrete Actions. European Commission, COM(2017) 728 final, Brussels, 4 December 2017, p. 1. EU Reporting Follow-Up to the EU Anti-Trafficking Strategy 2017. 146 UN Recommended Principles and Guidelines 2002, Guideline 1: “violations of human rights are both a cause and a consequence of trafficking in persons. Accordingly, it is essential to place the protection of all human rights at the centre of any measures taken to prevent and end trafficking.” See further Ikeora 2018, pp. 2, 30; OSCE 2011, Trafficking in Human Beings: Identification of Potential and Presumed Victims: A Community Policing Approach. SPMU Publication Series Vol.

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and disproportionally impacted by these factors of vulnerabilities.147 The obligation requires the taking of comprehensive programmes, policies and other measures that: protect trafficking victims from revictimisation; undertaking research, information and mass media campaigns and social and economic initiatives to prevent trafficking; establishing projects to alleviate the circumstances of vulnerabilities; training programmes, awareness-raising and education campaigns to those at risk of being trafficked; enabling migration to take place legally through, for example, dissemination of accurate information;148 creation of a protective environment for children vulnerable to trafficking; the supervision of employment and other private entities and businesses that might be used as a cover-up for trafficking purposes; and the reviewing and modifying of policies and measures that generally force people to opt for irregular and vulnerable migration routes.149 The UN Recommended Principles and Guidelines 2002 encourage states to develop programmes offering livelihood options, including basic education, skills training and literacy, improving children’s access to educational opportunities, information about migration risks to potential migrants, anti-trafficking awareness promotion, review and modification of policies which force people to resort to irregular and vulnerable labour migration; and increasing opportunities for legal, gainful and non-exploitative labour migration.150 Generally, states are encouraged to co-operate with CSOs, NGOs and governmental organisations to prevent trafficking by providing and guaranteeing economic, social and cultural rights to vulnerable and disadvantaged persons, especially women and children.

5.2.2 Preventing Trafficking by Addressing Demand Specialty anti-trafficking instruments impose an international obligation on states to adopt, take or even strengthen legislative and other measures to discourage and/or reduce the demand that fosters all forms of exploitation of persons that leads to

10, OSCE Secretariat Vienna, p. 25. OSCE Trafficking Identification Report 2011; Obokata 2006, pp. 122–123. 147 Gallagher 2010b, p. 415. 148 UNGA 2017, para 32. See also Chuang 2006, p. 140. 149 SAARC Convention 2002, ArticleVIII; ASEAN Convention 2015, Article 11; CoE AntiTrafficking Convention 2005, Article 5; Directive 2011/36/EU, Article 18; TIP Protocol 2000, Article 9; Organised Crime Convention 2000, Article31(7). See also UN Recommended Principles and Guidelines 2002, guideline 7; European Parliament (2016) Preventing and Combating Trafficking in Human Beings, European Parliament Resolution of 12 May 2016 on Implementation of the Directive 2011/36/EU of 5 April on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims from a Gender Perspective. (2015/2118 (INI)), 2014-2019, P8_ TA (2016) 0227, para 11. 150 UN Recommended Principles and Guidelines 2002, guideline 7. See also ICAT 2016a, p. 28; Nanu 2010, p. 146.

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trafficking.151 The same obligation is reiterated by the UN Recommended Principles and Guidelines 2002 at principle 4 as well as in other policy documents.152 In the context of trafficking, demand, rather than being limited to the demand for sexual exploitation by men,153 widely refers to “the nature and extent of the exploitation of the trafficked persons after their arrival at the point of destination, as well as the social, cultural, political, economic, legal and developmental factors that shape the demand and facilitate the trafficking process”.154 It, therefore, encompasses the demand for exploitable cheap labour by employers (including owners, managers or subcontractors), demand of the cheap and exploitable labour by clients (in the sex industry, manufacturing and domestic work), and the demand generated by third parties involved in trafficking such as recruiters, transporters, agents, brokers and a myriad of other exploiters who generate income through trafficking victims.155 The legislative, administrative and other measures to be taken encompass, among others, educational, cultural or social measures, including by means of bilateral and multilateral co-operation.156 According to Directive 2011/36/EU, the obligation to discourage and reduce the demand fostering exploitation through trafficking requires the conducting of research into new forms of trafficking in order to combat them and prevent further exploitation.157 The CoE Anti-Trafficking Convention 2005 dedicates an entire Article 6 on addressing this obligation. It requires states to adopt measures that include research on best practices, methods and strategies that effectively reduce demand for trafficking, awareness-raising on the important role the 151 TIP

Protocol 2000, Article 9(5): “States shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation, especially of women and children that leads to trafficking.” CoE Anti-Trafficking Convention 2005, Article 6; Directive 2011/36/EU, Article 18; ASEAN Convention 2015, Articles 11(5), 12(a). 152 The same understanding is reiterated by Brussels Declaration on Preventing and Combating Trafficking in Human Beings, C137/2, 12.6.2003, Section 7. Brussels Declaration 2003; OSCE Action Plan to Combat Trafficking in Human Beings, Section 1(3); EU Strategy Towards the Eradication of Trafficking in Human Beings 2012–2016, COM(2012) 286 final, Brussels, 19 June 2012, Priority B, para 2.2(1); UNGA 2017, para 13. 153 Papantoniou-Frangouli and Moritz 2010, pp. 127–130. 154 UNODC (2008) Toolkit to Combat Trafficking in Persons: Global Programme against Trafficking in Human Beings. United Nations Publication, Sales No. E.08.V.14, 457. UNODC Trafficking Toolkit 2008; Nanu 2010, p. 147; Ollus and Jokinen 2018, p. 475. 155 Defining the Concept of Demand. https://www.unodc.org/documents/human-trafficking/Toolkitfiles/08-58296_tool_9-12.pdf. Accessed 21 November 2018. See also the European Commission (2016) Report from the Commission to the European Parliament and the Council Assessing the Impact of Existing National Law, Establishing as a Criminal Offence the Use of Services which are the Objects of Exploitation of Trafficking in Human Beings, on the Prevention of Trafficking in Human Beings, in Accordance with Article 23(2) of the Directive 2011/36/EU, Brussels, 2.12.2016, COM(2016) 719 Final, para 3.1, p. 9. European Commission Demand Report 2016; Davidson 2015, p. 161. 156 ASEAN Convention 2015, Article 11(5); TIP Protocol 2000, Article 9(5); CoE Anti-Trafficking Convention 2005, Article 6; Directive 2011/36/EU, Article 18. 157 Paragraph 25 to the Preamble. See also EU Reporting Follow-Up to the EU Anti-Trafficking Strategy 2017, pp. 7–8.

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media and civil society can play in identifying demand as one of the root causes of trafficking, target information campaigns involving, among others, public authorities and policymakers and taking educational programmes to boys and girls during their schooling on issues regarding sex-based discrimination and its negative consequences, gender equality, dignity and integrity of all persons.158 According to the CoE Anti-Trafficking Convention Explanatory Report 2005, Article 6 imposes a positive obligation on states to take measures discouraging the demand of trafficking and its related crimes, with an understanding that imposing a specific obligation on addressing demand, being one of the root causes of trafficking, is one of the antitrafficking preventive strategies which operates by effective dissuasion.159 Identifying demand as a root cause of trafficking and the measures to reduce it means taking concrete steps to prevent the negative consequences of trafficking from happening by “changing the wider environment so as to reduce incentives for trafficking”.160 The UNODC Legislative Guide and ICAT Issue Paper advance a position that the inclusion of an obligation to discourage and reduce demand on the part of the states emanates from the realisation that trafficking can equally be prevented from the demand and the supply side.161 A study by the Council of Europe in 2016 has indicated that to effectively discourage demand fostering trafficking through labour exploitation, states, business sectors, governmental and non-governmental organisations, civil societies and other stakeholders have a role to play in co-operation with each other.162 Directive 2011/36/EU encourages member states to consider, as a strategy to discourage and reduce demand fostering trafficking, establishing as a criminal offence the knowing use of the services of the trafficking victim.163 The CoE AntiTrafficking Convention 2005 imposes a similar hortatory obligation on its states parties.164 Also, Article 11 of the UNODC Model Law against Trafficking in Persons proposes criminalisation of the knowing use of the labour or services of trafficked persons.165 As noted previously, while imposing an optional duty to criminalise the knowing use of the services of a trafficking victim can form part of a comprehensive strategy to prevent and combat trafficking through addressing demand,166 it cannot be said convincingly now that this hortatory duty has crystallised into an international obligation for states.167 This understanding is partly reinforced by the recent 158 Article

6. Anti-Trafficking Convention Explanatory Report 2005, paras 108–109. 160 The European Commission Demand Report 2016, p. 9. 161 UNODC Legislative Guide 2004, para 72 p. 296; Inter-Agency Coordination Group against Trafficking in Persons 2014, p. 6; Aronowitz 2009, p. 25; Mahmoud and Trebesch 2010, p. 174. 162 Dottridge 2016. 163 Article 18(4). See also Inter-Agency Coordination Group against Trafficking in Persons 2014, p. 5. 164 Article 19. 165 UNODC Model Law 2009, Article 11, pp. 42–44. 166 Matter 2011, p. 116. 167 Gallagher 2010b, pp. 441–442. 159 CoE

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European Commission Demand Report 2016 which has shown that practices by the EU member states on the criminalisation of the knowing use of the services of a trafficking victim reveals diversity, lack of legal uniformity, unclear state practice and even uneven criminalisation of trafficking-related crimes through which demand fostering exploitation and trafficking is perpetrated.168

5.2.3 Preventing Trafficking Lawfully International law imposes a general obligation on states to respond and act lawfully when implementing their anti-trafficking obligations. When responding to prevent and combat trafficking, the obligation requires states not to violate established human rights.169 The impetus for this obligation emanates from the findings by several studies that anti-trafficking responses by states have adversely and disproportionately impacted the enjoyment of rights by trafficked persons by means of the responses taken. This is otherwise referred to as the collateral damage of the anti-trafficking response to victims of trafficking’s human rights.170 Article 14(1) of the TIP Protocol 2000 imposes an obligation on the states to ensure that their antitrafficking measures do not affect rights, obligations and responsibilities of states and individuals derived from international human rights law, international humanitarian law as well as refugee law. Such measures shall not be discriminatory to trafficked persons by virtue of their status as trafficked persons according to the international prohibition of non-discrimination.171 The Migrant Smuggling Protocol 2000 contains a similar clause for smuggled migrants.172 The effect of these provisions, while not creating new obligations to states not parties to the referred instruments, is to indicate that specific human rights provisions under international law prevail over similar ones in the TIP Protocol 2000 when judging or gauging how states prevent and combat trafficking.173 In addition to having a similar savings clause,174 the CoE Anti-Trafficking Convention 2005 goes a step further to provide that states’ obligations emanating from its provisions do not affect those under other treaties to which states are parties or shall become parties and which contain provisions ensuring greater protection

168 The

European Commission Demand Report 2016. 2010, pp. 7–9. 170 Ikeora 2018, p. 13; Maher et al. 2015, p. 102; Ahmed and Seshu 2015, p. 175; Doorninck 2018, p. 419. 171 TIP Protocol 2000, Article 14(2). See also ASEAN Convention 2015, Article 1(2). 172 Migrant Smuggling Protocol 2000, Article 19. 173 “When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail”, Vienna Convention on the Law of Treaties, Article 30(2). See also a comment on this provision by Villiger 2009, pp. 404–405. 174 CoE Anti-Trafficking Convention 2005, Article 40(4). 169 Zheng

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and assistance to victims of trafficking.175 Thus, states are bound not only to effectively enforce international human rights protections in their responses to trafficking but also that they will be bound by existing or any future legal instruments which contain greater protection measures than those in the CoE Anti-Trafficking Convention 2005. Specifically, the CoE Anti-Trafficking Convention 2005 acknowledges that, rather than interfering, it complements and enhances the human rights protections already guaranteed in the TIP Protocol 2000.176 The CoE Anti-Trafficking Convention 2005 seeks, in the words of its Explanatory Report: “the highest level of protection” to trafficking victims.177 Directive 2011/36/EU does not contain a similar savings clause. Its Preamble only recognises that the TIP Protocol 2000 and the CoE Anti-Trafficking Convention 2005 are steps in the enhancement of international cooperation against trafficking and that states have to co-operate with CSOs and other recognised NGOs to, among others, monitor and evaluate the impact of the antitrafficking measures.178 The SAARC Convention 2002 provides, somehow unclear, that the measures it provides do not prejudice the “higher measures of enforcement and protection accorded by relevant national laws and international agreements”.179 The ASEAN Convention 2015 also has a provision to the effect that its provisions do not derogate from states’ obligations derived under international agreements.180 Despite the variations in terms of the language employed by these instruments, it can convincingly be argued that an obligation exists under international law requiring states to act lawfully when fulfilling their international anti-trafficking obligations. Regarding some of the content making up the obligation to respond lawfully, the specialty anti-trafficking instruments seem to indicate that the obligation to respond lawfully to trafficking in persons entails an obligation not to violate established rights and the prohibition on discrimination.181 The previous chapter has discussed the rights to which trafficked persons and other vulnerable groups are entitled to. Concerning discrimination, the previous chapter has presented an exposition indicating that all major human rights instruments impose a mandatory obligation on states to guarantee human rights to all persons in their territories without discrimination based on any of the prohibited grounds.182 It is for this reason that the TIP Protocol 2000 imposes an obligation on states to ensure that their anti-trafficking responses do not result in discriminating persons

175 CoE

Anti-Trafficking Convention 2005, Article 40(1). Anti-Trafficking Convention 2005, Article 39. See also CoE Anti-Trafficking Convention Explanatory Report 2005, para 371. 177 Paragraph 373. 178 Paragraphs 9 and 6 to the Preamble. 179 SAARC Convention 2002, Article XI. 180 ASEAN Convention 2015, Article 26. 181 Obokata 2006, p. 163; Gallagher and Ezeilo 2015, p. 927. 182 Human Rights Committee General (Comment No. 36) 2018, para 61. 176 CoE

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by virtue of their being trafficking victims.183 The CoE Anti-Trafficking Convention 2005 contains a similar provision.184 Discrimination, as used in this context, refers to “any distinction, exclusion, restriction or preference which is based on any grounds…, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms”.185 This discrimination, whether direct or indirect, must be prohibited in law and in fact in any area falling under the mandate of state authorities.186 General Comment No. 18 is, however, explicit that prohibition on discrimination does not entail identical treatment.187 Thus, there are conventional circumstances justifying restrictions and differential treatment on the various groups of people. In this connection, states can take affirmative action to diminish or eliminate conditions causing or perpetuating discrimination.188 Through legitimate differentiation, a state can provide preferential treatment to certain vulnerable groups such as trafficked persons, especially women and children, not in the sense of discriminating other groups, but because such measures address the structural discrimination such as gender violence experienced by women and children in the course of trafficking.189 The United Nations Human Rights Committee has specifically specified that the basis for such differentiation must be clear and transparent as well as reasonable and objective, aiming at achieving a legitimate purpose.190 It is a fact, however, that most of the special groups vulnerable to trafficking such as asylum seekers, refugees, irregular migrants, non-citizens, members of the minority groups and stateless persons are discriminated against because of their statuses and therefore, fail to effectively exercise their human rights.191 Furthermore, antitrafficking measures states take oftentimes perpetuate discrimination or even violate the international legal prohibition against discrimination.192 For example, measures governments have taken with respect to the right to freedom of movement have 183 TIP

Protocol 2000, Article 14(2). For extensive and comprehensive similar provisions in the UN Recommended Principles and Guidelines 2002, see principle 3, guideline 1(1), (4), (5) and (9), guideline 3(5), Guideline 5(5) and 5(6), guideline 6(2), (4) and (6) and guideline 8(3). 184 CoE Anti-Trafficking Convention 2005, Article 3. 185 Human Rights Committee (General Comment No. 18) 1989, para 7. 186 Human Rights Committee (General Comment No. 18) 1989, para 12. See also Committee on the Elimination of Discrimination against Women (General Recommendation No. 28) 2010, para 16. 187 Human Rights Committee (General Comment No. 18) 1989, para 8. 188 Human Rights Committee (General Comment No. 18) 1989, para 10. 189 It is recognised that violence against women amounts to discrimination prohibited under international human rights law as argued by Holtmaat 2008, p. 66. 190 Human Rights Committee (General Comment No. 18), 1989, para 13. See also Human Rights Committee (General Comment No. 34) 2011, para 39; Human Rights Committee (General Comment No. 31) 2004, para 6. 191 Inter-American Commission on Human Rights 2015, para 54. 192 Gallagher 2010b, pp. 456–457. The United Nations Human Rights Committee has observed that certain measures which states take can actually amount to discrimination, see Human Rights Committee (General Comment No. 32) 2007, para 65.

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disproportionately and disadvantageously affected women and children.193 States have established stringent emigration measures to prevent persons from emigrating in search of better living and work. Women and children have been detained in welfare shelters and other facilities in such manners as to interfere with their rights to freedom of movement, protection from discrimination and the general prohibition against unlawful detention.194 While such measures need to be assessed in terms of whether they are provided for by law, consistent with other protected rights and are necessary and proportionate to actually protect the persons concerned,195 Gallagher notes that it is doubtful whether most of the measures taken by governments in this respect would qualify.196 Although women and children require special treatment, as neutral or identical treatment with men might constitute discrimination against women where it results in or has the effect of denying women the exercise of their rights, the response taken by governments to protect women and children from trafficking should not affect the enjoyment of their recognised rights.197

5.3 Obligation of Protection, Assistance, Support and Remedies Various international obligations attach to the states in relation to the victims of trafficking in persons who are entitled to a number of rights and remedies which operate to impose on states obligations to recognise, provide, protect and guarantee those rights and remedies under international law. This part discusses these obligations and the responsibilities attaching to the states.

193 Human

Rights Committee (General Comment No. 28) 2000, para 16. See as well Waismann 2010, pp. 385–386. 194 As regards the content of the obligation not to detain trafficked persons, especially women and children and their right to consular access and support, briefly see Gallagher 2010b, pp. 288– 297, 310–313; and Article 14(8) of the ASEAN Convention 2015 which explicitly urges states not to unreasonably detain persons identified by their competent authorities as trafficked persons. Generally on the states practice with respect to detained trafficked persons and smuggled migrants in the guise of protecting and supporting them, see Gallagher and Pearson 2010, pp. 73–114. 195 Human Rights Committee (General Comment No. 27) 1999, paras 2, 11–16. 196 Gallagher 2010b, p. 460. See also Human Rights Committee (General Comment No. 35) 2014, para 17. 197 Committee on the Elimination of Discrimination against Women (General Recommendation No. 28) 2010, para 5.

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5.3.1 Obligation to Identify Victims of Trafficking To understand the obligation to identify trafficking victims, regard must be had to who is a victim of trafficking first.198 Although the TIP Protocol 2000 does not define who is a victim of trafficking, it is generally accepted that persons who have suffered as the result of being subjected to trafficking have been commonly referred to as victims of trafficking.199 The CoE Anti-Trafficking Convention 2005 defines as a victim of trafficking “any natural person who is subject to trafficking in human beings as defined in this article”.200 The phrase “as defined in this article” refers to Article 4(a) of the CoE Anti-Trafficking Convention 2005 which defines trafficking in persons by producing verbatim the definition contained in the TIP Protocol 2000. ASEAN Convention 2015 employs similar language that a victim of trafficking is “any natural person who is subject to an act of trafficking in persons as defined in this Convention”.201 The phrase “as defined in this Convention” points back to Article 2(a) of the ASEAN Convention 2015 which produces verbatim the TIP Protocol 2000’s definition of trafficking. In addition to taking a similar approach, TRACKS PROJECT further adds that “and can benefit from assistance and protection measures”,202 thereby indicating that a victim is a person not only subjected to trafficking but also as someone who has an entitlement to recognised assistance and protection measures as a result of trafficking. It can, therefore, be argued, by extension, that the understanding and definition of who the trafficking victim is under the CoE Anti-Trafficking Convention 2005 and the ASEAN Convention 2015 apply also to the TIP Protocol 2000. Since trafficking constitutes both a criminal offence in the criminal justice systems of many countries and a violation of the basic human rights recognised in international law,203 it is generally understood that victims of trafficking are both victims of gross violations of international human rights204 and victims of a crime.205 The implication of this position is to show that rights, obligations and responsibilities for trafficking 198 ICAT

2016b, p. 3. SAARC Convention 2002 and Directive 2011/36/EU are also silent on this point. 200 CoE Anti-Trafficking Convention 2005, Article 4(e). 201 ASEAN Convention 2015, Article 2(e). 202 Together Against Trafficking in Human Beings 2016, p. 8. 203 Bachaka 2017, pp. 34–36. See also UNGA 2010, para 1. 204 Such victims are defined to mean “persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependents of the direct victim and persons who have suffered harm in intervening to assist victims in distress or prevent victimisation”, UNGA 2006, para 8. On some reflections on the violations of international human rights law, see Karimova 2014. 205 Victims of a crime means “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power…. A person may be considered a victim… regardless of whether the perpetrator is identified, apprehended, 199 The

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have an extended application to other areas of law beyond the limited confines of the anti-trafficking specialty instruments.206 Thus, a justification exists as to why states should effectively and accurately identify victims of trafficking. Identification of a person as a victim serves to open to the victim the rights, entitlements and remedies accruing to him under domestic, treaty and international law as well as helping competent authorities with effective prosecution of trafficking.207 Correct identification here also entails differentiating trafficked persons from other groups such as illegal or undocumented migrants and smuggled migrants because the rights accruing to trafficking victims are different and other rights do not even exist to other groups.208 Due to this, it is not surprising for states to be reluctant to take active steps to identify trafficking victims or even to incorrectly group them as smuggled migrants or illegal migrants to avoid, evade or lessen their anti-trafficking assistance and protection responsibilities under international law, resulting into victims’ misidentification, detention, prosecution, conviction or even deportation.209 In the report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, it was found that due to lack of proper screening mechanisms for identification, the state of Israel has ended up detaining trafficked women whom it is its obligation to protect and assist.210 Although the TIP Protocol 2000 does not contain a provision imposing an obligation on states to speedily and correctly identify victims of trafficking, an international obligation exists to that effect under international law.211 In fact, this obligation can be implied from the TIP Protocol 2000 itself. It can be argued that states have the obligation to speedily and correctly identify victims of trafficking because only through the identification of their status as such can states effectively and appropriately discharge their international obligation relating to protection, assistance and support. It is also recognised that because the crime of trafficking of children is different from that of adults and that children are in a more precarious position because of their lack of agency and vulnerability,212 states should take special measures to identify child victims of trafficking. The practice has indicated that immigration officers stationed at or between ports of entry and detention or shelter facilities, services providers such prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim”, UNGA 1985, paras 1–2. Further see De Casadevante Romani 2010, pp. 238–241. 206 Gallagher 2010b, p. 278. 207 European Commission 2013, p. 3; Human Rights Council 2012a, para 31; EU Reporting Follow´ c and Simeunovi´c-Pati´c 2012, pp. 273–274; Up to the EU Anti-Trafficking Strategy 2017, p. 5; Copi´ Morehouse 2009, p. 41; ICAT 2016a, p. 52; OSCE Trafficking Identification Report 2011, pp. 18, 21. 208 Together Against Trafficking in Human Beings 2016, p. 5; Odera and Malinowski 2011, p. 17; Malloch and Rigby 2016, p. 5. 209 Gallagher 2010b, pp. 278–280; Malloch and Rigby 2016, p. 5. See also European Commission 2016, p. 10. 210 Human Rights Council 2017, para 49. 211 This has been recognised by member states of the United Nations through UNGA 2016, paras II(35), III(8)(L). 212 Malloch and Rigby 2016, p. 5.

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as educational, medical and social-service providers as well as local law enforcement officials are in a better position to help in identifying child victims of trafficking.213 Failure to take such steps not only denies children their recognised and protected rights but equally engages the international responsibility of the state concerned. Although the TIP Protocol 2000 appears to be silent on this legal obligation in relation to children, the UNODC through its Legislative Guide for the implementation of the TIP Protocol 2000 has interpreted states’ obligation to protect victims under Article 6(4) of the TIP Protocol 2000 as mandating also the taking of special measures by states to identify child victims of trafficking.214 The ASEAN Convention 2015 imposes a mandatory obligation on states to identify victims of trafficking through established national procedures or guidelines. Where feasible, states are encouraged to co-operate with relevant non-governmental victim assistance organisations in the identification of trafficking victims.215 Where trafficking is transnational—involving more than one country—states have a mandatory duty to recognise persons identified as trafficking victims by the competent authorities of the receiving states.216 Although the ASEAN Convention 2015 seems to be expansive than the TIP Protocol 2000 in the identification of trafficking victims, it lacks a clear and specific provision on the rapid and correct identification of children even where their ages are uncertain. The CoE Anti-Trafficking Convention 2005 urges a similar obligation to its member states as that of the ASEAN Convention 2015.217 However, it goes further in two respects: it directs member states to presume as a child a person whose age is uncertain but to whom reasonable grounds exist to believe that he or she has been trafficked; and that if competent authorities have reasons to believe that a certain person has been trafficked, he should not be removed from a party’s territory until identification process has been completed.218 The CoE Anti-Trafficking Convention Explanatory Report 2005 justifies this approach, stating that the various rights given to the trafficking victims “would be purely theoretical and illusory if such people were removed from the country before identification as victims was possible”.219 Directive 2011/36/EU imposes an obligation of early detection and identification of trafficking victims on member states through their authorities and appropriate mechanisms.220 Concerning the identification of children, Directive 2011/36/EU imposes not only the obligation on states to identify and protect child victims but also where the age of a trafficking victim is uncertain and 213 Go´ zdziak

2010, p. 249. See also Elliott 2009, p. 733. Legislative Guide 2004, para 65. 215 ASEAN Convention 2015, Article 14(1). 216 ASEAN Convention 2015, Article 14(2). 217 CoE Anti-Trafficking Convention 2005, Article 10(1), 10(2). 218 CoE Anti-Trafficking Convention 2005, Article 10(2), 10(3) of the. See further, UNICEF Guidelines on the Protection of Child Victims of Trafficking, UNICEF Technical Notes, 2006, para 3.2, p. 15. https://www.unicef.org/protection/Unicef_Victims_Guidelines_en.pdf. Accessed 28 November 2011. UNICEF Trafficking Guidelines for Children 2006. 219 Paragraph 131. 220 Directive 2011/36/EU, Articles 11(4), 18(3). 214 UNODC

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reasons exist to believe the victim is a child, states should presume that the victim is a child so as to receive immediate access to support, assistance and protection rights.221 Note that the UNODC Model Law against Trafficking in Persons proposes a similar provision for the states parties to the TIP Protocol 2000.222 Equally also the UN Recommended Principles and Guidelines 2002 and other policy documents contain similar provisions.223 Presumption of victim status for children and even for adults is important at the initial stage, considering that accurate identification of trafficking victims is a long, complex process.224 It is a means through which states’ assistance and support obligations as well as victims’ access to remedies and protection can be achieved.

5.3.2 Obligation not to Punish Victims The TIP Protocol 2000 is silent on the obligation not to criminalise, prosecute or punish victims of trafficking for status or consequential crimes they have committed in connection to their being trafficked or for criminal offences they have committed because of being compelled.225 Despite the silence, this obligation is implicit in the TIP Protocol 2000. The international obligation of states to protect and assist trafficking victims will be rendered “ineffective and sometimes meaningless” if states will treat victims of trafficking as criminals for the crimes they committed in connection to trafficking or as a consequence of being compelled.226 The UNODC Model Law against Trafficking in Persons reiterates this position as well.227 Article 26 of the CoE Anti-Trafficking Convention 2005 urges states to consider the possibility of not imposing penalties on victims of trafficking for their involvement in the commission of unlawful activities as a result of being compelled. The duty is not binding and is subject to the basic principles of the states’ legal system. The ASEAN Convention 2015 also takes a similar softer approach regarding the non-liability of trafficking victims.228 Directive 2011/36/EU uses a stronger language than the CoE Anti-Trafficking Convention 2005. It requires the competent national authorities “not 221 Directive

2011/36/EU, Article 13(2). See also para 22 of the Preamble to the Directive. Model Law 2009, p. 60. 223 UN Recommended Principles and Guidelines 2002, guideline 8(2); UNODC and IPU 2009, pp. 40–41. 224 OSCE Trafficking Identification Report 2011, p. 26. 225 Jovanovic 2017, p. 46; Weiss 2016, p. 44. Generally on this obligation see Schloenhardt and Markey-Towler 2016, pp. 10–38. 226 Piotrowicz and Sorrentino 2018, p. 171; Working Group on Trafficking in Persons 2009, para 11(b); European Commission (2013) The EU Rights of Victims of Trafficking in Human Beings. Publications Office of the European Union, Luxembourg, para 2.2. European Commission Trafficking Victims Rights 2013; Jovanovic 2017, pp. 41–42. 227 UNODC Model Law 2009, pp. 40–42. See also OSCE Trafficking Identification Report 2011, p. 21; Malloch 2016, p. 180. 228 ASEAN Convention 2015, Article 14(7). 222 UNODC

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to prosecute or impose penalties on victims of trafficking… for their involvement in criminal activities which they have been compelled to commit as a direct consequence…” of being trafficked.229 The UN Recommended Principles and Guidelines 2002 state under principle 7 that: Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked persons.230

Considering the many benefits of non-liability of trafficking victims231 and the support of this position by specialty anti-trafficking instruments as well as policy documents,232 it can convincingly be stated that an obligation exists requiring states not to criminalise, prosecute or punish victims of trafficking for trafficking-related status crimes and for other crimes whose commission is the result of their being compelled.233 This position, however, also stands to enunciate that victims will be criminally responsible for criminal offences they have committed which are not the direct consequence of their trafficking or being compelled.234

5.3.3 Protection from Further Harm and of Privacy Because trafficking victims can be subjected to further harm through retaliation, retrafficking, revictimisation235 and violence, the Organised Crime Convention 2000 requires states to take appropriate measures within their means to protect trafficking witnesses, including victims, their relatives and other persons close to them, from potential retaliation or intimidation by traffickers and exploiters.236 Such measures include physical protection, national and international relocation, non-disclosure or limitation on the disclosure of victims’ identity information and whereabouts and 229 Directive

2011/36/EU, Article 8. Recommended Principles and Guidelines 2002, principle 7. See also Hathaway 2005, pp. 386–388. 231 Recital 14 of Directive 2011/36/EU states that “The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators.” See also Jovanovic 2017, p. 42. 232 UNGA 2017, para 27; Brussels Declaration 2003, para 13; OSCE Ministerial Council Decision No. 1: 2000, para 9; Council of Europe 2015, p. 52; OSCE Permanent Council 2013, para 2.6; Working Group on Trafficking in Persons 2010, para 51. 233 This obligation plays a very pivotal role to protect victims’ rights, considering that in many states victims are routinely prosecuted for crimes such as illegal immigration, prostitution, working without permit and status related offences. All these offences are the result of their being trafficked, see Chacón 2010, pp. 1643–1650. 234 Recital 14 of Directive 2011/36/EU. See as well Weiss 2016, pp. 44–48. 235 International Organization for Migration 2007, p. 3; Raffaelli 2009, pp. 205–206. 236 Organised Crime Convention 2000, Articles 24(1), 24(4), 25(1). 230 UN

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specific undertaking on the giving of evidence.237 The TIP Protocol 2000 contains a weaker provision to the effect that states “shall endeavour to provide for the physical safety” of trafficking victims while they are within its territory. ASEAN238 Convention 2015 retains a similar weaker provision like that of the TIP Protocol 2000.239 The CoE Anti-Trafficking Convention 2005 contains a stronger provision requiring states to “take due account of the victim’s safety and protection needs”.240 Article 28 goes further to detail the nature of these protections as including physical protection, relocation, change of identity, assistance in obtaining jobs and special measures for children.241 Those protected include victims of trafficking, informants, witnesses, members of anti-trafficking groups, foundations, associations or NGOs as well as the family members of the victims, reporters and witnesses.242 Directive 2011/36/EU does not contain detailed provisions as those of the CoE Anti-Trafficking Convention 2005. Rather, the Directive requires states to take necessary measures ensuring assistance and support to trafficking victims to enable them to exercise their rights as well as access victim protection programmes, following a comprehensive risk assessment on the particular needs of the victims.243 The UN Recommended Principles and Guidelines 2002 are specific requiring states to protect victims from further exploitation, harm, threats or intimidation by traffickers and to ensure their access to adequate physical and psychological care.244 In connection with the obligation to protect from further harm is the obligation that states should protect and assist trafficking victims based on their needs and not tying such support and assistance to victims’ co-operation with criminal justice authorities.245 The TIP Protocol 2000 and the ASEAN Convention 2015 are silent on this respect. Its silence, however, does not imply, as suggested by Barbagiannis, that the obligation to protect and assist trafficking victims under Article 6 of the TIP Protocol 2000 is contingent upon them co-operating with the prosecution.246 In fact, international human rights instruments which recognise the rights accruing to trafficked persons without discrimination and the growing state practice as evidenced from several policy documents and other measures operate to confirm that states have an obligation to assist, support and protect trafficking victims regardless of their 237 Organised

Crime Convention 2000, Article 24(2).

238 TIP Protocol 2000, Article 6(5). Gallagher notes that this has been the TIP Protocol 2000’s feature

for most of its anti-trafficking provisions on protection and assistance to victims of trafficking in that its provisions “are more equivocal”, Gallagher 2006, p. 528. 239 ASEAN Convention 2015, Article 14(5). 240 CoE Anti-Trafficking Convention 2005, Article 12(2). 241 CoE Anti-Trafficking Convention 2005, Article 28(2), 28(3). 242 CoE Anti-Trafficking Convention 2005, Article 28(1), 28(4). 243 Directive 2011/36/EU, Articles 11(1), 12(3) of. See also para 19 of the Preamble to Directive 2011/36/EU. 244 UN Recommended Principles and Guidelines 2002, principle 2, guideline 6(6). 245 CoE Anti-Trafficking Convention 2005, Article 12(6); Directive 2011/36/EU, Article 11(3); UN Recommended Principles and Guidelines 2002, guideline 6(1). 246 Barbagiannis 2017, pp. 566–567.

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willingness to co-operate in the criminal investigation and prosecution of trafficking offences.247 Furthermore, the obligation to protect trafficking victims from further harm goes together with an obligation to protect their privacy from intimidation, stigmatisation, retaliation, shame and humiliation associated with trafficking.248 The TIP Protocol 2000 requires states to protect the privacy and identity of trafficking victims mostly in the context of legal and court proceedings where states are encouraged to make such proceedings confidential.249 However, the duty is chained in the language of “in appropriate cases and to the extent possible under its domestic law”.250 The ASEAN Convention 2015 nearly produces verbatim the similar provision as that contained in the TIP Protocol 2000. Like the TIP Protocol 2000, the SAARC Convention 2002 couches its provision on the protection of privacy and confidentiality of the trafficking victims in the context of judicial proceedings.251 The CoE Anti-Trafficking Convention 2005 goes further to differentiate protection of the privacy of trafficking victims in the context of their private life from that of court and legal proceedings. Regarding the protection of their private life, the CoE Anti-Trafficking Convention 2005 imposes an unequivocal mandatory obligation.252 Concerning the former, the CoE Anti-Trafficking Convention 2005 requires member states to protect victims’ private life and identity, including their personal data.253 It requires the taking of special measures to protect the private life and identity of the child victims of trafficking, including through the proactive role of the media.254 In the context of judicial proceedings, their safety, private life and identity should be protected from intimidation, with strong guarantees for special protection measures for child victims.255 Directive 2011/36/EU does not contain an explicit provision on the protection of private life and the identity of the victims of trafficking. Its extensive provisions, however, on the protection and assistance of victims in the context of judicial proceedings, including special provisions on the protection of child victims, can be interpreted broadly as including protection of the private life and identity of the

247 Human

Rights Council 2014, para 58; European Commission Trafficking Victims Rights 2013, para 1.3. 248 Human Rights Council 2012b, para 4(f). See also Gallagher 2010b, pp. 303–304; Corrin 2005, p. 547; Cottingham et al. 2013, pp. 69–70. 249 TIP Protocol 2000, Article 6(1). 250 TIP Protocol 2000, Article 6(1). Augustson notes that the strong language used in other areas of the TIP Protocol 2000 such as criminalisation and prevention of trafficking in persons, “simply did not extend to protecting victims”, Augustson 2016, p. 630. 251 SAARC Convention 2002, Article V. 252 CoE Anti-Trafficking Convention 2005, Article 11(1). 253 CoE Anti-Trafficking Convention 2005, Article 11(1). See as well Uhl 2018, p. 414. 254 CoE Anti-Trafficking Convention 2005, Article 11(2), 11(3). On the role the media has with respect to trafficking in persons, especially through misrepresentation, see Gregoriou 2018; Kinney 2015, pp. 87–108. 255 CoE Anti-Trafficking Convention 2005, Article 30.

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victims of trafficking.256 The UN Recommended Principles and Guidelines 2002 stipulate that there should be no disclosure of the identity of trafficking victims and their privacy.257 Specialty anti-trafficking instruments impose a general obligation that all the assistance, support and protection measures states take for victims should be consensual, given on an informed basis,258 and where judicial proceedings are concerned, should take into account the rights of the accused to a fair trial.259 Specifically to trafficked children, all the assistance, protection and support measures taken must be in accordance with the internationally agreed principle of the best interests of the child.260

5.3.4 Physical and Psychological Care and Support The obligation to provide physical and psychological care and support is an international obligation recognised by specialty anti-trafficking instruments and policy documents, albeit in varying degrees. This obligation is premised on the fact that while trafficking is a violation of human rights and a criminal offence, it is also a social problem entailing detrimental health consequences to the trafficking victims.261 The Organised Crime Convention 2000 provides for a general mandatory obligation on states to provide protection and assistance to victims of crimes, including those subjected to trafficking.262 The TIP Protocol 2000 imposes this obligation under Article 6(3) and 6(4). In co-operation with NGOs, other relevant organisations and elements of civil society, it obligates states to provide for physical, psychological and social recovery of trafficking victims through appropriate housing; counselling and information as regards their rights; medical, psychological and material assistance; and employment, educational and training opportunities.263 These rights shall 256 Directive

2011/36/EU, Articles 12–16. See also European Commission Trafficking Victims Rights 2013, paras 2.22–2.26. 257 UN Recommended Principles and Guidelines 2002, guideline 6(6). 258 Directive 2011/36/EU, Article 11(5); CoE Anti-Trafficking Convention, Article 12(7). Further, see Gallagher 2010b, pp. 313–315; European Commission Trafficking Victims Rights 2013, para 1.4. 259 Organised Crime Convention 2000, Article 25(3); TIP Protocol 2000, Article 6(2)(b); Directive 2011/36/EU, Articles 12(4), 15(3); UN Recommended Principles and Guidelines 2002, guideline 6(6); Human Rights Council 2012a, para 65; UNODC Model Law 2009, pp. 34, 57, 64. 260 Convention on the Rights of the Child, Article 3(1); CEDAW Convention, Article 5(b); African Charter on the Rights and Welfare of the Child, Article 4; CoE Anti-Trafficking Convention 2005, Article 10(4)(a); Directive 2011/36/EU, Article 13(1); UNODC Legislative Guide 2004, paras 66– 67; UNODC Model Law 2009, p. 59; UN Recommended Principles and Guidelines 2002, principle 10, guideline 8, 8(4) and 8(5). See also Committee on the Rights of the Child (General Comment No. 6) 2005, paras 19–22; European Commission Trafficking Victims Rights 2013, para 1.13. 261 Scholte et al. 2018, pp. 291–292; Greenbaum 2017, pp. 1, 4–5; Powell and Bennouna 2017, pp. 43, 50; Perry and McEwing 2013, p. 139; Helton 2016, pp. 450–452. 262 Organised Crime Convention 2000, Article 25(1). 263 TIP Protocol 2000, Article 6(3), 6(4).

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be accorded to trafficking victims while taking into account the age, gender and special needs, with a particular consideration of child victims and their special needs relating to housing, education and care.264 The only shortcoming of the TIP Protocol 2000 in this regard is the nature of the obligation it imposes—states “shall consider implementing”, thereby indicating that states have a level of discretion to implement provisions relating to physical and psychological care and support because the language used indicates that the obligation is not mandatory.265 The ASEAN Convention 2015 contains a similar provision on the protection and assistance measures akin to the TIP Protocol 2000 with slight improvement. Its obligation to provide physical and psychological care and support by states in co-operation with other anti-trafficking organisations and the civil society is mandatory.266 The ASEAN Convention 2015 requires states to communicate to the identified trafficking victims within reasonable period information as regards the nature of protection and support they are entitled to under domestic laws and the Convention.267 The SAARC Convention 2002 imposes an obligation on states to establish protective homes or shelters for rehabilitating trafficking victims, including granting them legal advice, counselling, job training and health care facilities.268 The CoE AntiTrafficking Convention 2005 obligates states to adopt legislative or other measures necessary to assist trafficking victims in their physical, psychological and social recovery in close co-operation with other anti-trafficking organisations and civil society.269 Such assistance measures include standards of living capable of ensuring victims’ subsistence such as through appropriate and secure accommodation, psychological and material assistance; emergency medical treatment, translation and interpretation services; counselling and information as regards their legal rights and available services; assistance in relation to criminal proceedings; and access to education for children.270 The CoE Anti-Trafficking Convention 2005 also requires the provision of additional assistance measures to trafficking victims lawfully residing in the jurisdictions of the member states.271 Of all the anti-trafficking speciality treaties, Directive 2011/36/EU provides the most comprehensive, mandatory and detailed provisions on the states’ obligation of physical and psychological care and support. Where the competent authorities have a reasonable grounds indication for believing that a particular person might have been 264 TIP

Protocol 2000, Article 6(4). Protocol 2000, Article 6(3). Dinan notes that “states parties are asked merely to consider actions that are in fact central to meeting their obligations to trafficked persons under general international human rights law. This language stands in stark contrast to the detailed and mandatory provisions in the protocol and main convention regarding cross-state information-sharing, the criminalization of organized crime groups, the seizure of proceeds from crime and various measures to combat money-laundering and corruption”, see Dinan 2008, p. 76. See also Stoyanova 2011, p. 784. 266 ASEAN Convention 2015, Article 14(10). 267 ASEAN Convention 2015, Article 14(9). 268 SAARC Convention 2002, Article IX(3). 269 CoE Anti-Trafficking Convention 2005, Article 12(1), 12(5). 270 CoE Anti-Trafficking Convention 2005, Article 12(1). 271 CoE Anti-Trafficking Convention 2005, Article 12(3), 12(4). 265 TIP

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subjected to trafficking, member states “shall take” necessary measures to provide assistance and support before, during and for an appropriate period after the close of criminal proceedings.272 The purpose of this approach is to enable victims to access and exercise their rights.273 The assistance and support measures should include standards of living capable of ensuring their subsistence through steps such as the provision of safe and appropriate accommodation and material assistance; necessary medical treatment, including psychological assistance; and counselling and information with translation and interpretation services.274 Information provided has to cover relevant information on a reflection and recovery period and the possibility of granting international refugee protection.275 Directive 2011/36/EU imposes also a mandatory obligation on states to pay particular attention to victims with special needs resulting from pregnancy, health, disability, mental or psychological disorder, serious forms of psychological, physical or sexual violence,276 with akin emphasis on special protection and assistance measures to child victims of trafficking, including unaccompanied children.277 The UN Recommended Principles and Guidelines 2002 and other policy instruments contain similar provisions as those of the specialty anti-trafficking instruments.278

5.3.5 Obligation Relating to Legal Assistance and Protection The obligation of states to provide legal assistance and protection to trafficking victims is an important obligation. Based on the vulnerable and legally disadvantageous position in which trafficked persons find themselves in,279 the provision of legal assistance forms a basis for trafficking victims to access and exercise “other important rights, including the right to protection, the right not to be prosecuted for status-related offences, and the right to participate in the legal proceedings” against traffickers and exploiters.280 Because protection measures to trafficking victims need to be consensual, states must provide trafficking victims with relevant information regarding “the

272 Directive

2011/36/EU, Article 11(1), 11(2). 2011/36/EU, Article 11(1). 274 Directive 2011/36/EU, Article 11(5). 275 Directive 2011/36/EU, Article 11(6). 276 Directive 2011/36/EU, Article 11(7). 277 Directive 2011/36/EU, Articles 13–16. On the acute risks for the children on the move which expose them to trafficking and exploitation, see generally United Nations Children’s Fund (UNICEF) 2017, A Child is a Child: Protecting Children on the Move from Violence, Abuse and Exploitation. UNICEF, New York, pp. 15–44. United Nations Children’s Fund 2017. 278 UN Recommended Principles and Guidelines 2002, principles 8–10, guideline 6; UNGA 2017, para 31. 279 Sigmon 2008, pp. 254–255; Piotrowicz 2012, p. 184; Chapkis 2003, p. 931. 280 Gallagher 2010b, p. 315. See also ASEAN Convention 2015, Article 14(9). 273 Directive

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nature of protection, assistance and support to which they are entitled”.281 The Organised Crime Convention 2000 provides a general right of legal assistance and protection in terms of legal information, support and participation to victims of crimes, and by extension to trafficking victims, the right to have their views and concerns presented and considered at appropriate stages of criminal proceedings.282 Where trafficking victims opt to take part in criminal proceedings as witnesses, they should be protected from potential intimidation or retaliation, including their relatives and close family members against traffickers and exploiters.283 The TIP Protocol 2000, in addition to containing a similar obligation as that of its parent Convention,284 further requires that trafficking victims be supplied with information on relevant court and administrative proceedings.285 To protect the rights of trafficking victims with regard to legal assistance and protection, the TIP Protocol 2000 obligates destination countries to ensure that repatriation of trafficking victims takes into account “the status of any legal proceedings related to the fact that the person is a victim of trafficking and shall preferably be voluntary”.286 This is otherwise referred to as the right to remain the absence of which might operate to put trafficking victims in a legally disadvantageous and precarious condition.287 Its purpose is two-fold: protecting trafficking victims from arbitrary deportation or repatriation contrary to their right to effectively participate in criminal proceedings against their traffickers; and preventing trafficking victims from being denied their rights to assistance, support and protection as well as an effective remedy.288 The right to remain encompasses the granting of a reflection and recovery period, provision of temporary residence permit linked to criminal proceedings or social and humanitarian grounds and, where possible, the granting of permanent residence.289 Although the TIP Protocol 2000 is silent, it is understood that its provisions on legal assistance and protection equally apply to trafficked children, especially in the context of criminal proceedings.290 The SAARC Convention 2002 also requires states to accord to trafficking victims appropriate counselling and legal assistance.291 The obligation the CoE AntiTrafficking Convention 2005 imposes to member states is that of providing victims with counselling and information as regards their legal rights and services available 281 ASEAN

Convention 2015, Article 14(9). See also Rijken 2018, p. 246. Crime Convention 2000, Article 25(3). 283 Organised Crime Convention 2000, Articles24(1), 25(1). See also Simic 2004, p. 9. 284 Article 6(2)(b). 285 TIP Protocol 2000, Article 6(2)(a). 286 TIP Protocol 2000, Article8(2). See CoE Anti-Trafficking Convention 2005, Article16(2); ASEAN Convention 2015, Article 15(2). 287 UN Recommended Principles and Guidelines 2002, guideline 4(7). See also Gallagher 2010b, p. 320; Scarpa 2008, p. 64. 288 Gallagher 2010b, p. 320; ICAT 2016b, pp. 15–17; Gallagher 2010c, pp. 15–16. 289 TIP Protocol 2000, Article 7; CoE Anti-Trafficking Convention 2005, Articles 13–14; Directive 2011/36/EU, Article 11(6); para 14 of the Preamble to the Directive; UN Recommended Principles and Guidelines 2002, principle 9, guideline 4(7). 290 UNODC Legislative Guide 2004, para 65(b). 291 SAARC Convention 2002, Article V. 282 Organised

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to them in a language they understand and of assisting them to have their rights and interests presented and considered in criminal proceedings.292 Where trafficking victims participate in criminal proceedings in their capacity as victims or witnesses, the CoE Anti-Trafficking Convention 2005 urges states to take effective and appropriate measures to protect them from potential intimidation and retaliation during and after investigation and prosecution of perpetrators.293 Where unaccompanied child victims are involved (which also includes normal child victims), states should provide legal representation by a legal guardian, organisation or authority acting in the best interests of the child, including by taking efforts to establish the child’s identity and nationality as well as locating his or her family.294 Directive 2011/36/EU contains more robust provisions in this regard and whose application complements the extensive provisions of the Council Framework Decision on the Standing of Victims in Criminal Proceedings.295 States have a mandatory obligation to provide trafficking victims with access to legal counselling and legal representation, and where possible these should be free of charge and be provided without delay.296 Where victims participate in criminal proceedings, Directive 2011/36/EU requires the provision of specific treatment aimed at preventing secondary victimisation to trafficking victims through avoiding: unnecessary repetition of interviews; visual contact between victims and defendants, including in the giving of evidence such as interviews and cross-examination through the use of appropriate communication technologies; and unnecessary questioning on the victims’ private life.297 This duty, however, is to be carried out in accordance with the “grounds defined by national law as well as rules of judicial discretion, practice or guidance”.298 Where child victims are involved, Directive 2011/36/EU requires member states, in addition to a without delay access to free legal counselling and free legal representation, to appoint a special legal representative for a child where holders of parental responsibility are precluded by law.299 Members states also should ensure that during criminal proceedings where child victims are involved, their interviews: take place without unjustified delay; in appropriate premises designed or adapted for that purpose; are conducted by or through trained professionals; are conducted by the same persons throughout; in a limited number and where it is strictly necessary; may be video recorded and used as evidence; allow the child victim to be

292 CoE

Anti-Trafficking Convention 2005, Article 12(1)(d), 12(1)(e). Anti-Trafficking Convention 2005, Article 28. 294 CoE Anti-Trafficking Convention 2005, Article 10(4). See further Lelliott 2017, pp. 253–260. 295 Directive 2011/36/EU, Article 12(1) which makes reference to Council Framework Decision of 15 March 2001 on the Standing of Victims in Criminal Proceedings, 2001/220/JHA, OJ L 82, 22.3.2001. 296 Directive 2011/36/EU, Article 12(2). 297 Directive 2011/36/EU, Article 12(4). 298 Directive 2011/36/EU, Article 12(4). 299 Directive 2011/36/EU, Article 15(1), 15(2). See also United Nations Children’s Fund 2006, p. 16. 293 CoE

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accompanied by a representative or an adult person of own choice.300 Due to their involvement in criminal proceedings, it can be ordered that proceedings be conducted in camera and by use of appropriate communication technologies and that a child victim be allowed to be heard in the courtroom without being present physically.301 These legal assistance and protection measures apply equally also to unaccompanied child victims as they are seriously vulnerable to trafficking and other forms of crimes.302 Other rights recognised by speciality anti-trafficking instruments and policy documents as applicable to trafficked children include also the right of nondiscrimination,303 right to information, respect of the views of the child where the child is in a position to give own views,304 right to privacy,305 appointment of a guardian or representative,306 special protections in connection to criminal proceedings,307 family tracing and reunification,308 lawful and voluntary repatriation,309 local integration and third-country resettlement.310

5.3.6 Obligations Relating to Repatriation Speciality anti-trafficking instruments as well as policy documents recognise the duties states have with respect to the repatriation obligation. The TIP Protocol 2000 requires states both destination and origin to co-operate together in implementing the repatriation obligation.311 The TIP Protocol 2000 enjoins the state of origin to facilitate and accept a repatriated victim of trafficking who is its national or had the right of permanent residence when he or she entered into the territory of the destination country. States are required to act without undue or unreasonable delay, taking 300 Directive 2011/36/EU, Article 15(3), 15(4). See also United Nations Children’s Fund 2006, p. 16. 301 Directive

2011/36/EU, Article 15(5). 2011/36/EU, Article 16; Crock 2008, pp. 156–157. On the protection measures that unaccompanied children have and all other children for that matter, see generally United Nations Children’s Fund 2017, pp. 45–51. 303 CRC Convention, Article 2. 304 CRC Convention, Article 12; UN Recommended Principles and Guidelines 2002, guideline 8(6). 305 CRC Convention, Article 16; TIP Protocol 2000, Article6(1); CoE Anti-Trafficking Convention 2005, Article 11; Directive 2011/36/EU, Article12(4)(d); ASEAN Convention 2015, Article 14(6). See also UN Recommended Principles and Guidelines 2002, guideline 8(9). 306 CoE Anti-Trafficking Convention 2005, Article 10(4)(a); UNODC Legislative Guide 2004, para 65(a); UNICEF Trafficking Guidelines for Children 2006, paras 4.1, 4.2, pp. 16–17. 307 UNODC Legislative Guide 2004, para 65(b); UNICEF Trafficking Guidelines for Children 2006, para 10, pp. 32–33. 308 CRC Convention, Article 10; CoE Anti-Trafficking Convention 2005, Article 10(4)(c); UNODC Legislative Guide 2004, para 66. 309 CoE Anti-Trafficking Convention 2005, Article 16(7); UNODC Legislative Guide 2004, para 67. 310 Gallagher 2010b, pp. 330–336. Furthermore, on resettlement see Brennan 2010, pp. 1581–1608. 311 TIP Protocol 2000, Article 8. 302 Directive

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into account the victim’s safety and the status of any legal proceedings.312 Facilitation by the origin state includes verifying nationality or residence status of the trafficking victim and the issue of necessary travel and identification documents to enable return.313 The use of the softer phrase “preferably be voluntary” in Article 8(2) of the TIP Protocol 2000, however, has operated to greatly diminish the nature of the required legal obligation. The phrase, as used in the TIP Protocol 2000, exonerates the destination country from a mandatory legal obligation to take into account the rights and entitlements of the trafficking victims in the course of repatriation.314 The phrase in an actual sense allows destination or receiving states parties to involuntarily return trafficked persons regardless of their safety or rights. The phrase has somehow given strength to the argument made by some scholars that the key priority of the TIP Protocol 2000 was to “prosecute traffickers rather than to protect those exploited by traffickers”.315 Further, the TIP Protocol 2000 provides that its provisions on repatriation only supplement the domestic as well as applicable bilateral or multilateral arrangements or agreements governing repatriation between states concerned.316 The UN Recommended Principles and Guidelines 2002 employ a similar language under principle 11 and guideline 6(7). The CoE Anti-Trafficking Convention 2005 imposes a similar obligation on its member states under Article 16, though with important provisions on the measures states can take to facilitate the reintegration of trafficking victims back into the society. The SAARC Convention 2002 obligates responsible states to work on the modalities of repatriating trafficking victims without specifying the details and nature of that modality.317 The ASEAN Convention 2015 contains also a similar provision akin to the TIP Protocol 2000 and the CoE Anti-Trafficking Convention 2005. However, unlike the two instruments, the ASEAN Convention 2015 does not use the phrase “preferably be voluntary”, thereby indicating that the destination states’ obligation to take into account the safety of the trafficking victim and the status of any legal proceedings in the course of repatriation is a mandatory obligation for the states.318 Directive 2011/36/EU does not contain a provision providing any clear understanding concerning the repatriation obligation. Although the phrase “preferably be voluntary” seems to have watered down the nature of the repatriation obligation, it still can be advanced that states at least should try to avoid repatriation that goes against the will of the trafficking victims.319 Furthermore, the requirement that return should be “safe” and also pay a particular regard 312 TIP

Protocol 2000, Article 8(2). Protocol 2000, Article 8(3), 8(4); Gallagher 2017, p. 12. 314 UNODC Travaux Préparatoires 2006, p. 388. See also Obokata 2006, p. 164; Stoyanova 2011, p. 785. 315 Barbagiannis 2017, p. 567. 316 TIP Protocol 2000, Article 8(4), 8(5). See also Ikeora 2018, p. 75. 317 SAARC Convention 2002, Article IX(1). 318 ASEAN Convention 2015, Article 15(2). 319 Gallagher 2010b, p. 343. See further Obokata 2006, pp. 157–158; Smith and Kangaspunta 2012, p. 31; Watson and Silkstone 2006, p. 116; Gallagher 2017, pp. 12–13. 313 TIP

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to the status of any legal proceedings relating to the victims of trafficking limit the nature of the involuntary repatriations in which destination states would otherwise subject the victims.320 Not only is the repatriating state required to take into account the international legal principle of non-refoulement and the prohibition of inhuman or degrading treatment or punishment when repatriating trafficking victims but also should conduct risk and security assessment before returning them where they raise substantial allegations that their life, health or personal liberty or that of their families will be in danger upon their repatriation.321 Because of this consideration, it is recognised that states should even consider other alternatives to repatriation such as local integration, resettlement in a third country, intercountry adoption, temporary visa and even permanent residence in order to protect the safety and well-being of the trafficking victims or members of their families.322 Thus, while the TIP Protocol 2000 and CoE Anti-Trafficking Convention 2005 seem to allow involuntary returns to take place, these considerations operate to limit the extent of their applicability. It has also been argued that by imposing a requirement to consider the “the status of any related legal proceedings”, states’ discretion to involuntarily return trafficking victims is curtailed. This is because the provision operates to confer on the trafficking victims the right to remain in destination countries so as to participate in the criminal proceedings against perpetrators of trafficking, including the exercise of their rights in the course of the proceedings, in the proceedings themselves and access to various remedies they are entitled to.323 It is important to note here that in discharging their repatriation obligation, both states of destination and origin should not interfere with the victim’s right to return to their own country of origin, as this is a right recognised and protected under international law.324 Where trafficked persons are returned, states should co-operate in the reintegration of the repatriated victims to avoid their retrafficking, victimisation or discrimination against their rights by virtue of being trafficking victims.325 320 UNODC

Model Law 2009, p. 79. Model Law 2009, p. 79. For the application of these considerations with respect to repatriation of child victims of trafficking, see Regional Conference on Migration (RCM), 2007, Regional Guidelines for Special Protection in Cases of the Repatriation of Child Victims of Trafficking, guidelines 12–14. https://www.ilo.org/ipec/Informationresources/WCMS_IPEC_ PUB_11457/lang--en/index.htm. Accessed 3 December 2018. 322 CoE Anti-Trafficking Convention 2005, Article 14; UN Recommended Principles and Guidelines 2002, principle 11, guideline 6(7). As to the justification for providing these measures, especially through visa and residence permits, see Barbagiannis 2017, pp. 567–574. 323 Gallagher 2010b, pp. 349–351 quoting also the CoE Anti-Trafficking Convention Explanatory Report 2005, para 202 and UNODC Model Law 2009, p. 75; Obokata 2006, p. 158; Gallagher 2010c, ´ c and Simeunovi´c-Pati´c 2012, p. 279; ICAT Effective Remedies 2016, pp. 15–17. pp. 15–16; Copi´ Stoyanova, however, disagrees with this position, arguing instead that the CoE Anti-Trafficking Convention 2005 in this aspect is “not actually a victim protection scheme, but a witness protection scheme”, Stoyanova 2011, p. 788. 324 Gallagher 2010b, pp. 344–346; Rosand 1998, pp. 1109–1111; Stoyanova 2011, p. 786. 325 CoE Anti-Trafficking Convention 2005, Article 16(6), 16(7); ASEAN Convention 2015, Article 14(11); UN Recommended Principles and Guidelines 2002, guidelines 6(8), 11(11); UNODC Model Law 2009, p. 77. 321 UNODC

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5.3.7 Obligation of Effective and Appropriate Remedies In the context of states’ anti-trafficking obligations is the international obligation to provide effective and appropriate remedies to trafficking victims who are victims of crime and human rights violations.326 This obligation is premised on the understanding that the human rights of trafficked persons can only be meaningful if effective and appropriate remedies are available to redress such violations.327 The obligation to provide effective and appropriate remedies has its purpose to address injustice by assisting trafficking victims to recover from their trafficking experience, reinstate their fundamental human rights and prevent their revictimisation.328 The Organised Crime Convention 2000 requires the establishment of appropriate procedures by states to give access to compensation and restitution for victims of offences, including victims trafficking by extension.329 The TIP Protocol 2000 similarly charges states to ensure that their domestic legal systems have measures offering victims the possibility of obtaining compensation for damage suffered.330 Measures to obtain compensation include also the pursuit of civil or administrative claims against the offenders.331 The ASEAN Convention 2015 produces this same provision verbatim.332 Under the Organised Crime Convention 2000 and the TIP Protocol 2000, states can discharge their obligation to provide access and a “possibility” to compensation and restitution by having: provisions allowing trafficking victims to sue offenders and other responsible persons for civil damages; provisions allowing criminal courts to award criminal damages or impose orders for compensation or restitution against convicted persons; and provisions that establish funds or schemes for compensation claims for injuries or damages suffered as a result of trafficking.333 The victim fund has one advantage: it allows victims to claim for damages “independently of a criminal case and whether or not the offender can be identified, sentenced and punished”.334 In addition to the specialty anti-trafficking mechanisms for claiming remedies, ICAT has submitted that victims can enforce their right to have effective access to remedies for their human rights violations by filing a complaint “either with the UN Treaty Bodies, the constitutional complaints procedures of the 326 Thomson

2016, pp. 67–68; McGregor 2018, p. 264; International Federation for Human Rights 2007, pp. 8–9. On the development of victims’ rights and remedies in international law, see generally Bassiouni 2006, pp. 203–279. 327 Committee on the Rights of the Child (General Comment No. 5) 2003, para 24. It goes on to state that “This requirement (to provide effective remedies) is implicit in the Convention and is consistently referred to in the other six major international human rights treaties.” Emphasis added. 328 ICAT Effective Remedies 2016, p. 2. 329 Organised Crime Convention 2000, Article 25(2). 330 TIP Protocol 2000, Article 6(6). 331 UNODC Model Law 2009, p. 57; Thomson 2016, p. 68. 332 ASEAN Convention 2015, Article 14(13). 333 UNODC Legislative Guide 2004, para 369, p. 170. Court-ordered compensation also includes bringing a claim for benefit or compensation for damages to a labour court, UNODC Model Law 2009, p. 67. 334 UNODC Model Law 2009, p. 69.

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ILO, or with judicial bodies such as the ECtHR which has provided key guidance on state obligations to take positive steps to identify and protect victims”.335 Therefore, victims of trafficking can enforce their rights even through the various regional legal and judicial mechanisms established to protect the human rights of all persons. The CoE Anti-Trafficking Convention 2005 requires competent authorities of the states to provide in their internal law the right of victims to compensation from perpetrators.336 In fact, the CoE Anti-Trafficking Convention 2005 enjoins the states to take legislative or other measures to guarantee the right of victims to compensation through, for example, establishing a special fund for victim compensation or other programmes aimed at social assistance and social integration of victims.337 Directive 2011/EU/36 also imposes a mandatory duty on states to ensure that victims have access to existing schemes of compensation.338 Directive 2011/36/EU also recognises the right to compensation for victims of trafficking in the context of criminal investigation and proceedings.339 The same obligation is succinctly stated by the UN Recommended Principles and Guidelines 2002 that “states shall ensure that trafficked persons are given access to effective and appropriate legal remedies”.340 These remedies can be criminal, civil or administrative in nature and states have a duty to ensure that the right to access these remedies is enforceable.341 States must provide to victims information and legal as well as other forms of assistance enabling them to access these remedies, with procedures for obtaining remedies being explained to them clearly in a language they understand.342 The range of actions required to satisfy the reparation and remedy requirement for victims include the provision of compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition.343 Provision of these remedies, however, depends also on the nature of the violation suffered, the facts and circumstances of each case and the national legal frameworks as well as the relevant treaty-based obligations.344

335 ICAT

Effective Remedies 2016, p. 4. Anti-Trafficking Convention 2005, Article 15(3). 337 CoE Anti-Trafficking Convention 2005, Article 15(4). See also ASEAN Convention 2015, Article 14(15). 338 Directive 2011/36/EU, Article 17. 339 Directive 2011/36/EU, Articles 12(2), 15(2). 340 UN Recommended Principles and Guidelines 2002, principle 17. 341 UN Recommended Principles and Guidelines 2002, guideline 9(1); UNODC Model Law 2009, p. 57; IOM Caribbean Legislation 2008, p. 40. 342 UN Recommended Principles and Guidelines 2002, guideline 9(2). 343 Gallagher 2010b, pp. 365–367. But on the elaborate explanation on the nature of these remedies and their application to victims, see the UNGA 2006, paras 15–23. Note that the Basic Principles and Guidelines on the Right to a Remedy and Reparation do not create new or binding states’ obligations but rather serve as an identification of the norms scattered across a wide spectrum of the norms contained in the international human rights law and international humanitarian law as argued by McCracken 2005, p. 77. 344 ICAT Effective Remedies 2016, p. 10. 336 CoE

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5.4 Conclusion This chapter has attempted to provide a succinct, critical and comparative elucidation of the states’ anti-trafficking obligations as contained in Organised Crime Convention 2000, the TIP Protocol 2000 and several specialty anti-trafficking instruments as well as policy documents. It has been shown that indeed states have duties and obligations emanating from this robust international legal regime. According to this chapter, taking into account also a similar approach taken by several other studies, states’ anti-trafficking obligations are three in substance, namely, the obligation of a criminal justice response, obligation to prevent trafficking, and the obligation to provide victims with protection, support and assistance measures as well as access to remedies. Even these three important obligations contain several duties in order to be realised. In this chapter, these obligations have been presented in a critical, comparative manner in which each obligation and how it is provided is examined in all the international instruments. Features such as whether a certain obligation is mandatory or hortatory, provided in all instruments or not, is express or implied, is an international obligation or is yet to crystallise and what its substance entails in essence, have been well analysed in this chapter. It has shown that a failure to discharge these obligations on the part of the state entails an invocation of their international responsibility. This chapter actually forms the last section of the first part of this book that lays the entire foundation used to examine the Tanzanian legal and institutional framework which forms the second part of this book starting from Chap. 6.

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Part II

Tanzania’s Legal and Institutional Anti-trafficking Framework

Chapter 6

Trafficking in Persons in Tanzania

Contents 6.1 Human Trafficking General Landscape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.1 Legal and Geographical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.2 Trafficking and Its Historical Underpinnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.3 Nature of Trafficking in Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.4 Causes of Trafficking in Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Early Anti-trafficking Legal Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 Sexual Offences Special Provisions Act of 1998 (SOSPA) . . . . . . . . . . . . . . . . . . 6.2.3 Penal Act of Tanzania Zanzibar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Need for a Different Legal Regime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 Domestication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Enactment of the 2008 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.3 Constitution of Tanzania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

288 288 289 291 296 301 302 305 312 313 315 317 322 324 325

Abstract This chapter of the book introduces the problem of trafficking in persons in Tanzania. It provides a general profile of the problem of human trafficking from its historical background of the 1970s, the nature of the trafficking itself that is prevalent in Tanzania, factors that have made the crime of human trafficking to thrive and exist in Tanzania, initial Tanzania’s legal response before 2008 and the legal and other factors that necessitated the adoption of the current anti-trafficking legal and institutional framework. In considering the early pre-2008 legal response, the chapter provides a critical first-hand examination of this legal framework, especially whether it contained actual provisions which criminalised the crime of trafficking in persons. It also points out the strengths and weaknesses of the pre-2008 framework that made the enactment of the current legislation an imperative. The chapter likewise considers some of the arguments that were tabled before the floor of the National Assembly of the Parliament of Tanzania and the impact they bear on the current Anti-Trafficking in Persons Act 2008. Keywords Constitution · Tanzania · National Assembly · Penal Code · SOSPA · Penal Act · Slavery · Slave trade · Sexual exploitation · Adoption · Domestication · Human rights © t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_6

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6.1 Human Trafficking General Landscape This section forms the first part of the chapter. It introduces the legal and geographical background concerning Tanzania, the historical underpinnings of the problem of human trafficking in Tanzania, the nature of trafficking and factors that have exacerbated the crime.

6.1.1 Legal and Geographical Background The United Republic of Tanzania, hereinafter to be referred to as Tanzania, is an East African state formed when two independent nations of Tanganyika and Zanzibar united together in 1964.1 With an area of 942, 600 square kilometres, Tanzania borders the Republics of Uganda and Kenya in the North, Burundi, DRC and Rwanda in the West, Malawi, Mozambique and Zambia in the South and the Indian Ocean in the East.2 Under the Constitution of the United Republic of Tanzania of 1977, the territory previously referred to as Tanganyika is now known as Mainland Tanzania and the territory formerly referred to as Zanzibar is officially called Tanzania Zanzibar.3 The Constitution of Tanzania recognises the existence of two governments, namely: the Government of the United Republic of Tanzania with a two-fold function of acting as both the Government of Tanzania for all “Union Matters” pertaining to Mainland Tanzania and Tanzania Zanzibar as well as the Government dealing with all matters of administration relating to Mainland Tanzania only; and the Revolutionary Government of Zanzibar handling all administrative matters pertaining to Tanzania Zanzibar which are considered “Non-Union Matters”.4 Based on this constitutional arrangement, the Government of Tanzania has its own three organs of the state: Executive with its own President and the Cabinet, Legislature with its own Speaker and the National Assembly and the Judiciary with its own Chief Justice and the Court System. Tanzania Zanzibar has also three organs of Government: Executive with its own President and the Cabinet or the Revolutionary Council, the Judiciary with its own Chief Justice and the Court System and the Legislature or House of Representatives with its own Speaker.5 Since Tanzania Zanzibar is a semi-autonomous territory, it also has its own constitution governing all the “Non-Union Matters” pertaining to Zanzibar. Following this constitutional order, certain laws passed by the Parliament 1 Pinkney 1997, pp. 90–91; Coulson 2013, p. 179; Hunter 2015, pp. 4, 19; Bjerk 2015, pp. 206–220,

220–224; Feingold 2018, p. 190; Haule 2006, pp. 220–221. on the Elimination of Racial Discrimination 2004, para 2; Legal and Human Rights Centre and Zanzibar Legal Services Centre 2016a, pp. 1–2; International Human Rights Instruments 2015, para 1. 3 Constitution of the United Republic of Tanzania, 1977, CAP 2 RE: 2002, Article 2(1). Constitution of Tanzania 1977 or the Constitution. 4 Constitution of Tanzania 1977, Articles 4(1), 4(2), 4(3), 34(1), 102(1). 5 Constitution of Tanzania, Chapters two, three, four and five. 2 Committee

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of Tanzania, for example, the Anti-Trafficking in Persons Act 2008, apply both to Mainland Tanzania and Tanzania Zanzibar.6 However, it is important to stress out that criminal matters or the administration of justice is a “Non-Union Matter”.7 Therefore, while the Penal Code of Tanzania of 1945 caters for all criminal matters on Mainland Tanzania and, with certain few exceptions, applying to the whole of Tanzania, all criminal matters concerning Tanzania Zanzibar are administered according to the Penal Act, Act No. 6 of 2004 of Tanzania Zanzibar and other laws that pertain to Zanzibar alone. This also means that, although the Anti-Trafficking in Persons Act, Act No. 6 of 2008 CAP 433 of Tanzania applies both to Mainland Tanzania and Tanzania Zanzibar, the situation was different prior the year 2008. Before 2008, Mainland Tanzania and Tanzania Zanzibar applied separate penal laws to combat trafficking.

6.1.2 Trafficking and Its Historical Underpinnings Although the report by TAWLA indicates on passing that “trafficking elements” were criminalised and prohibited in Tanzania as early as 1954,8 it is from the late 1970s to the late 1990s that the problem of trafficking in persons or trafficking of persons, as previously known, was articulated in Tanzania, albeit at a piecemeal level and without any focused attention.9 In the report it submitted to the Committee on Civil and Political Rights (CCPR) on 20 August 1979, Tanzania attested that, within its territory, slavery and forced labour were forbidden conducts.10 Forced labour and slavery are recognised as exploitative end purposes of human trafficking in international law and under the laws of Tanzania.11 In its later report to the Committee on Economic, Social and Cultural Rights (CESCR) of 10 September 1979, Tanzania went further to report that although trafficking did exist in Tanzania, especially trafficking of children, young persons and women which impaired and suppressed their economic, social, cultural and other rights, thereby leading to their exploitation and hardship, was a prohibited conduct within its territory according to the labour and employment laws enacted by its Parliament.12 This was an indication that before the advent of the TIP Protocol in 2000, concerns that children, young persons and women were recruited, 6 Anti-Trafficking

in Persons Act, Act No. 6 of 2008, CAP 433 RE: 2002, Section 2(1). AntiTrafficking in Persons Act 2008 or 2008 Act. 7 First Schedule to the Constitution of Tanzania 1977 contains a list of Union Matters and the administration of justice is not specified to be a Union Matter as such. 8 Tanzania Women Lawyers Association 2014, p. 26. 9 It is generally acknowledged, however, that there has been a serious paucity of information during this time, Pearson 2003, p. 33. 10 Human Rights Committee 1979, p. 5. 11 TIP Protocol 2000, Article 3(a); Anti-Trafficking in Persons Act 2008, Section 4(1)(a); Sinn 2016, p. 36. 12 Economic and Social Council 1979, p. 2. See also Law Reform Commission of Tanzania 2001, para 7.42.

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trafficked or exploited in and for agriculture, informal sector, mining, commercial sexual exploitation, prostitution, forced labour as well as domestic services were already reported.13 In the reports that followed between the early 1980s to the late 1990s, the question of trafficking in Tanzania continued to receive limited attention, although some of the issues related to trafficking such as forced labour, violence against women, sexual exploitation and prostitution featured quite extensively.14 In its concluding comments on the reports submitted by Tanzania at this time, the Committee on the Elimination of Discrimination against Women (CEDAW) “deeply” regretted about this lack of more attention and explicit information on the trafficking of persons in Tanzania, especially of women and girls.15 From the early 2000s onwards to the present, the problem of trafficking in Tanzania obtained increased attention and focus. This is evident from its articulation in the reports the Government of Tanzania has been submitting to the various United Nations human rights treaties’ monitoring bodies and committees, from responses and concluding observations received from these monitoring bodies and committees and also from various institutions such as the IOM,16 the United States Department of State annual Trafficking in Persons Reports17 and other national,18 regional19 and international institutions and organisations.20 These reports and research studies have endeavoured to provide a pragmatic explanation on the situation of trafficking in Tanzania in terms of its nature, causes, statistics, investigation and prosecution, 13 Law Reform Commission of Tanzania 2001, paras 7.29, 7.31, 7.42; Committee on the Elimination of Discrimination against Women 1996, para 32. 14 See for example: Committee on the Elimination of Discrimination against Women 1998, paras 213, 228, 233, 240; Committee on the Elimination of Discrimination against Women 1996, paras 14, 23, 24(a), 30–34; Committee on the Elimination of Discrimination against Women 1990a, paras 61, 63; Committee on the Elimination of Discrimination against Women 1990b, paras 94–97; Committee on Civil and Political Rights 1998a, para 24; Committee on Civil and Political Rights 1998b, paras 34, 61. 15 Committee on the Elimination of Discrimination against Women 1998, para 240. 16 Kamazima et al. 2016a. See also Kamazima 2009. 17 Since the year 2000, the United States Department of State has been releasing global reports on trafficking in persons situations of countries and territories in the world by ranking them according to its own domestic anti-trafficking law. This ranking has some financial and political implications for states concerned. These reports are available at https://www.state.gov/j/tip/rls/tiprpt/. Accessed 8 February 2019. 18 Some of these national institutions include Kiota Women Health and Development Organisation (KIWOHEDE), with most of its activities and reports available at https://kiwohede.org/. Accessed 8 February 2019; Legal and Human Rights Centre (LHRC), with most of its activities and reports available at https://www.humanrights.or.tz/. Accessed 8 February 2019. 19 These include: Southern African Development Community (SADC), with its activities, reports and publications available at https://www.sadc.int/. Accessed 8 February 2019; the East African Community (EAC), with its activities available at https://www.eac.int/. Accessed 8 February 2019; United Nations Office on Drugs and Crime (UNODC)-Eastern Africa, with its activities available at https://www.unodc.org/easternafrica/. Accessed 8 February 2019. 20 For example, the United Nations Office on Drugs and Crime (UNODC), with most of its antitrafficking activities accessible at https://www.unodc.org/unodc/en/human-trafficking/index.html? ref=menuside. Accessed 8 February 2019.

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anti-trafficking measures taken by Tanzania, regions mostly affected by trafficking, ongoing court cases, shortcomings and weaknesses of the measures pursued so far and some pertinent recommendations to address any identified deficiencies. To a large extent, Tanzania’s anti-trafficking response from the late 1990s and throughout the 2000s to the present has been shaped and influenced by these reports and research studies than of Tanzania’s own internal research studies and undertakings on the problem of trafficking. The major limitation of these reports and research studies, however, is the absence of any critical or analytical examination of Tanzania’s antitrafficking legal and institutional framework as gauged by the standards of international law on trafficking. This absence, of which the present book supplies through an analytical examination, has exacerbated not only the failure to combat trafficking successfully but has also robbed Tanzania of an invaluable input of the very basic elements that would have aided the country in developing the most comprehensive framework to prevent and combat trafficking.

6.1.3 Nature of Trafficking in Tanzania According to reports and research studies, both internal and transnational trafficking exist in Tanzania, although the magnitude varies, with internal trafficking exceeding the transnational.21 Internal trafficking refers to trafficking occurring within the territory of one country where people are trafficked without crossing international borders. On the other hand, transnational trafficking is the trafficking where people are trafficked across international borders from one country to other countries.22 Tanzania has also been used as a transit or passage country for people trafficked or smuggled through to other countries in Africa and beyond the continent.23 Thus, Tanzania is a country of origin, transit and destination for trafficked persons. It is a country of origin in that it is the source from which persons are trafficked internally or to other countries. It is also a transit country as people trafficked and even smuggled from other countries of origin pass through Tanzania on their way to destination countries where exploitation ultimately takes place. Tanzania is also a destination country in that persons trafficked from other countries end up in Tanzania where they are exploited. While the geographical location and economic position might influence the nature of trafficking operations in Tanzania, most countries affected by trafficking exhibit similar characteristics of being the origin, transit and destination points.24 21 United

States Department of State 2015, p. 329; African Network for the Prevention and Protection against Child Abuse and Neglect and Anti-Slavery International 2005, p. 25; United States Department of State 2016, p. 362; Committee on the Elimination of Discrimination against Women 2015, para 11. 22 Pearson 2003, p. 3; Aronowitz 2009, pp. 7–9; Asis 2008, pp. 192–193. 23 UNODC 2018, pp. 26, 35, 77–79, 82, 121–122; United States Department of State 2017, p. 387; Frouws and Horwood 2017, pp. 7–10. 24 Ezeilo 2018, p. 54.

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Internal trafficking has mostly occurred in the course of rural-urban movement and migration. Trafficking has transpired in the context of people moving from rural areas in search of better living and economic opportunities in urban areas where they end up being exploited in various sectors.25 This form of trafficking has also happened in the context of people being recruited and moved from rural settings to an urban environment on the promises of a better life, good education, apprenticeship, good-paying jobs and formal employment, only to end up in the most exploitative situations.26 Tanzania Zanzibar also, being a tourist destination, has witnessed many persons, especially young girls and women, being recruited from Mainland Tanzania to end up in exploitative conditions there. While the existence of criminal groups and trafficking networks is uncertain, it has been reported that family members such as parents, relatives and even guardians and some intermediaries have played a significant role in the facilitation of internal trafficking in Tanzania.27 It has been accounted that Dar es Salaam, Tanga, Arusha, Morogoro, Iringa, Manyara, Singida, Mbeya, Kagera (Bukoba) and Dodoma represent the regions most affected. Persons thus trafficked have primarily ended up being exploited in domestic services, agriculture, informal sectors and petty business, mining, fishing as well as sexual exploitation and prostitution.28 While men have been exploited in agriculture, mining and other informal sectors, reports indicate that children, young persons and women are the most victims of trafficking for domestic services, prostitution, petty business and sexual exploitation as well as forced labour and sex tourism.29 Furthermore, incidents have also been reported of persons with albinism who are either trafficked for the removal of their organs or body parts or forcefully having their body parts chopped off of their bodies alive for reasons connected with myth and witchcraft.30 Children with albinism have so far been the most affected, with Tanzania notoriously leading worldwide by far at some time.31 Reports also outline that children from the refugee 25 Rittenhouse

2013, p. 11; Horwood 2009, p. 30; Wizara ya Afya na Ustawi wa Jamii, p. 34. 2013, p. 11. 27 International Labour Organization 2001, p. 16; Committee on the Elimination of Discrimination against Women 2008a, para 27; Committee on Civil and Political Rights 2010, para 8; United States Department of State 2018, p. 413; Committee on the Rights of the Child 2005, para 292. 28 International Labour Organization 2001, p. 16. On a critical look at the negative consequences of domestic services on women and children’s enjoyment of their human rights, see Human Rights Council 2010. 29 Committee on the Elimination of Discrimination against Women 2016, para 77; United States Department of State 2010, p. 318; Committee on the Elimination of Discrimination against Women 2016b, para 24; Legal and Human Rights Centre and Zanzibar Legal Services Centre 2014, pp. 211– 214. 30 Under The Same Sun 2013, pp. 10–14. See also Committee on the Rights of Persons with Disabilities 2018, paras 8.5–8.10, in which the CRPD Committee found Tanzania to have violated its international obligations to protect persons with albinism from violation of their fundamental rights, including protection from being trafficked. The CRPD Committee reached a similar finding in its earlier determination in Committee on the Rights of Persons with Disabilities 2017, paras 8.4–9. 31 This has even prompted the Committee on the Rights of the Child to note with concern the ineffectiveness of the measures Tanzania has so far taken to protect children with albinism, resulting further in their discrimination, killings and violation of their rights, see Committee on the Rights of 26 Rittenhouse

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populations residing in the refugee camps in Tanzania have been trafficked to work on Tanzania’s plantations and farms while others have been recruited, transported and trained to fight as child soldiers in the neighbouring countries.32 For that matter, there have been several reported instances where Tanzanians and even foreigners engaged in internal trafficking have been caught and prosecuted in the courts of law in Tanzania and other jurisdictions.33 As a transit country, Tanzania has witnessed both trafficked and smuggled persons being moved through its borders to other countries in Africa and outside the continent. Persons have been trafficked through Tanzania to other African countries such as South Africa and countries in Europe, the Middle East and North America from as far as China, Pakistan, Ethiopia, Somalia, Eritrea and India.34 In cases of migrant smuggling, persons have been smuggled to Southern Africa through Mozambique, Kenya and Tanzania. To avoid detection and risks, smugglers from the Horn of Africa, for example, use Kenya’s southern coastal towns and Tanzania’s southern coasts to smuggle people further south of Africa.35 While most smuggled persons via Tanzania predominantly come from Somalia and Ethiopia, persons from the DRC, South Sudan and other countries, mostly in the Great Lakes Region as well as the Asian countries of Pakistan and Bangladesh are also smuggled through Tanzania to other countries.36 Persons from South Asian countries have been smuggled overland through Tanzania and Mozambique to South Africa and North America with the aid from and facilitation of their fellow citizens and relatives already living in South Africa and the North American countries.37 The 2018 report of the UNODC on the Global Study on Smuggling of Migrants has indicated that land, sea and air transport have all been employed by smugglers in transporting people to their destination countries, sometimes using one of the means or a combination of the others.38 It has been detailed that some persons thus trafficked and smuggled have been deliberately killed either by traffickers and smugglers or by diseases and other perils of the journey such as extreme weather conditions and storms for those who have pursued the sea the Child 2015a, paras 25, 29–30; Committee on the Rights of the Child 2015b, paras 21, 37, 38, 41, 45, 48, 59. 32 United States Department of State 2002, p. 100; Committee on the Rights of the Child 2008, pp. 1– 3; United States Department of State 2003, pp. 42, 148. This situation triggered the Committee on the Rights of the Child to ask Tanzania whether it has extra-territorial jurisdiction on the involvement of child soldiers in armed conflict in the neighbouring countries, see Committee on the Rights of the Child 2009, paras 3, 6. 33 These reported incidents are summarised by the Committee on Economic, Social and Cultural Rights 2012, para 130. See also Committee on the Rights of the Child 2007a. 34 United States Department of State 2010, p. 318; United States Department of State 2011, p. 350; Legal and Human Rights Centre and Zanzibar Legal Services Centre 2014, pp. 211–214. 35 Frouws and Horwood 2017, pp. 7–10; Horwood 2009, pp. 48–54. 36 UNODC 2018, pp. 26, 35, 77–79, 82, 121–122. UNODC 2018; Legal and Human Rights Centre and Zanzibar Legal Services Centre 2014, pp. 211–214; Marchland et al. 2017b, p. 31–32; Marchland et al. 2016, pp. 30–31, 37–38; International Organization for Migration 2013, p. 16. 37 UNODC 2018, pp. 34–37, 57–58, 78, 82, 121–122. 38 UNODC 2018, pp. 34–37, 57–58, 78, 82, 121–122. For earlier reports, see UNODC 2006, 2009.

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route.39 They also have been subjected to several other crimes such as trafficking itself, rape, torture, abandonment on the way, required to pay huge sums of money, extortion, sexual and physical abuse and reselling, even before arriving at the countries of destination.40 This has also resulted in having many unaccompanied children in the countries of destination.41 Those who thus reach their destinations have been subjected to and exploited in commercial sex and prostitution, domestic work, agriculture and forced labour. In the Tanzanian context, persons smuggled have been found abandoned in trucks, others dumped dead by the roadsides and those rescued being in dire health condition.42 Investigating authorities have been able, on several occasions, to prosecute persons both Tanzanians and foreigners involved in trafficking and smuggling of migrants in and through Tanzania.43 Tanzania has also witnessed smuggled and trafficked persons being detained and languishing in Tanzanian prisons pending the determination of their charges of illegal entry in violation of the immigration laws.44 In broader perspectives, this practice reveals a lack of proper methods for screening and identification of persons who might have been subjected to trafficking and who are generally entitled to support, protection and assistance accorded to trafficked persons under international, regional and national law. The practice also raises other pertinent legal questions such as the legality of detaining persons for a long and unspecified time in Tanzania’s prisons as remand prisoners without formal prosecution as well as whether this practice by the Tanzanian authorities adheres to and is in conformity with its international obligations flowing from the Organised Crime Convention 2000, the Migrant Smuggling Protocol 2000 and other international instruments of similar effect and character. As discussed in the next chapter, the practice by Tanzania in this regard raises clear issues of violation of its international commitments with respect to smuggled migrants. As a destination country, reports and research studies as well as police investigations in Tanzania and other countries have shown that persons have been trafficked to Tanzania from Kenya, Uganda, Rwanda, Burundi, South Sudan, Ethiopia, Somalia, 39 See

also Zhang 2007, pp. 67–68. 2018, pp. 24–32, 38–41. To corroborate this report, see also Sahan Foundation and IGAD Security Sector Program 2016, pp. 10, 13, 15–16, 20, 26. 41 UNODC 2018, pp. 8–9, 12, 37, 42, 78. 42 Reuters, “Dead Migrants Dumped by Road in Tanzania”. https://www.reuters.com/article/ustanzania-migrants-deaths/dead-migrants-dumped-by-roadside-in-tanzania-idUSBRE85Q0K420 120627. Accessed 12 February 2019. 43 Kisutu Resident Magistrate Court, Republic v January John Karuba, Ntabi Erasto Rusanisha and Obedi Joshua Ntabi, Charge Sheet, Criminal Case No. 44 of 2016 (Unreported); Kisutu Resident Magistrate Court, Republic v Pierre Damien Habyarabatuma and 14 Others, Criminal Case No. 327 of 2017 (Unreported); Kisutu Resident Magistrate Court, Republic v Nelson Willness Kawa, Criminal Judgment, 14–29 December 2017, Criminal Case No. 198/2017 (Unreported); Kisutu Resident Magistrate Court, Republic v Ahmed Amrani Shebe, Criminal Judgment, 29 August 2018, Criminal Case No. 192 of 2017 (Unreported); Resident Magistrate Court, Republic v Mohamed Abdou, Court Proceedings, 1 August 2018, Criminal Case No. 304 of 2018 (Unreported). 44 Legal and Human Rights Centre and Zanzibar Legal Services Centre 2014, p. 13. For further corroboration, see Asylum Access—Refugee Solutions Tanzania 2013, pp. 5 et seq.; United States Department of State 2018, p. 414; Horwood 2009, pp. 44–46; Lesser 2010, p. 149. 40 UNODC

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Mozambique, Zambia, Malawi and the DRC.45 Tanzania has also received persons from as far as China, Pakistan, Bangladesh, Nepal, Yemen, India and several other South Asian countries who are brought by their relatives already living in Tanzania on the promises of good jobs and better life opportunities but only to end in exploitative environments. While persons trafficked to Tanzania are adults, there have been a considerable number of trafficked young children as well, especially from Kenya, Rwanda, Malawi and Burundi as indicated by several United States Department of State’s Trafficking in Persons Reports.46 Generally, persons trafficked to Tanzania as a country of destination have ended up being exploited in the sectors of agriculture, mining, commercial sex and prostitution, petty business, forced labour, forced marriages and domestic services. It has also been unveiled that persons, especially young children with albinism, have been trafficked to Tanzania for forcible organ removal or traffic of their body parts for witchcraft purposes.47 It is, therefore, not surprising that persons of other nationalities have been prosecuted in Tanzania for trafficking.48 Transnationally, Tanzanians have been trafficked to other countries both within the African continent and outside. Within the African continent, Tanzanians have substantially been trafficked to Ethiopia, Kenya, Uganda, Malawi, Zambia, DRC and other countries in the south of Africa, including South Africa. Outside of the African continent, Tanzanians have been subjected to trafficking in the European, Middle Eastern, North American and Asian countries, especially the United Kingdom, Sweden, France, Oman, the United Arab Emirates (UAE), Saudi Arabia, Pakistan, Macau, the United States, China and Cyprus.49 In these countries, Tanzanians have ended up being exploited in forced begging as in the case of children with physical disabilities transported from Tanzania to Kenya,50 domestic services and sexual exploitation in the Gulf and Middle Eastern countries as well as prostitution and commercial sex in several European countries.51 It has been uncovered that this trafficking has been facilitated by some Tanzanians in co-operation with foreigners and other persons in different countries. Furthermore, there have been

45 United

States Department of State 2004, pp. 64, 79; United States Department of State 2005, pp. 135, 211; United States Department of State 2007, p. 98; Committee on the Elimination of Discrimination against Women 2016, para 83. 46 United States Department of State 2005, p. 135; United States Department of State 2006, p. 242; United States Department of State 2008, p. 155; United States Department of State 2013, p. 356. 47 United States Department of State 2009, p. 94. 48 Some of these cases involving Kenyans, Indians and Nepali are reported in the Committee on the Elimination of Discrimination against Women 2016, paras 84, 85; United States Department of State 2012, p. 337. 49 United States Department of State 2012, pp. 205, 232–233, 328, 337; United States Department of State 2013, pp. 148, 166, 171, 218, 247, 334, 356; United States Department of State 2014, pp. 154, 178, 227, 303, 371, 387. 50 United States Department of State 2014, p. 228. 51 United States Department of State 2015, pp. 227–228, 329; United States Department of State 2016, pp. 151, 233, 362; United States Department of State 2017, pp. 148, 386–387.

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several instances in which foreigners and Tanzanians engaged in trafficking activities in other countries have been apprehended and prosecuted by investigation and police authorities of the concerned countries.52

6.1.4 Causes of Trafficking in Persons Several causes of trafficking in Tanzania can be pointed out. Violence against women and children or gender-based violence in their various forms and manifestations has been mentioned as a factor.53 Violence and abuse in the homes whether physical, sexual, economic or psychological as well as battery, assault, sexual harassment and gender discrimination, have all played a facilitating role in subjecting women and children into abuse and victimisation.54 Abuses in the Tanzanian homes and families have made women, and to a large extent children, to flee to the streets and elsewhere in hope of finding a better life and be able to provide for their families. This has partly evolved into creating a huge problem of street children who have been exposed to various forms of exploitation and crime, including trafficking for commercial sex, prostitution and domestic services.55 Generally, the economic inequality of women in comparison to men has been recognised as the most underlying cause of trafficking.56 Their economic disadvantage in the socio-economic spheres of life such as in the formal employment sector has made them victims of exploitation for domestic services, commercial sex, forced marriage and prostitution. Many women and young people, despite being the largest section of the population, have resorted to informal businesses which have limited their economic advancement.57 Further, unequal representation in the national and local government decision making bodies has limited the opportunities 52 United

States Department of State 2014, pp. 178, 372, 413; United States Department of State 2013, pp. 313, 171; United States Department of State 2011, pp. 213, 370. 53 United Nations Declaration on the Elimination of Violence against Women defines violence against women to mean: “any act of gender-based violence that results in, or is likely to result, in physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”, UNGA 1993, Article 1. Legal and Human Rights Centre (LHRC) and Zanzibar Legal Services Centre (ZLSC) have consistently quoted this definition and have pointed out that not only is trafficking in women and girls a categorical form of violence against women but also a human rights violation, see Legal and Human Rights Centre and Zanzibar Legal Services Centre 2016b, p. 105; Legal and Human Rights Centre 2015, p. 139. 54 Committee on the Elimination of Discrimination against Women 1998, para 162; Committee on the Elimination of Discrimination against Women 1996, paras 14, 23, 30–34; Committee on the Elimination of Discrimination against Women 2008a, paras 23, 47. 55 Committee on the Rights of the Child 2006a, para 61; Committee on the Elimination of Discrimination against Women 2008a, para 27. 56 Yen 2008, p. 657; Miko 2007, p. 38. 57 Committee on the Elimination of Discrimination against Women 1998, para 256; Human Rights Committee 1992, para 8.

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women would have utilised to speak up against the crimes and issues which most affect them. While the Constitution of Tanzania has greatly promoted the involvement of women in various political and governmental positions,58 their number is still less compared to men. Most decisions have, therefore, been made on their behalf and this has occasioned less attention to the issues that affect women and children such as trafficking in persons.59 Of concern is the situation of rural women where are found nearly three-quarters of all women in Tanzania. They have been subjected to higher levels of illiteracy, traditional stereotypes and forms of discrimination which view women as people fit for agriculture and raising children only, limited and unequal access to land ownership, under-representation in the local decision-making institutions and lack or limited access to health, education, justice and other basic services that negatively impact their lives.60 It is in this context that there has been a continuous influx of persons to the urban areas from the countryside in search of better living, only to end in exploitation and abuse. Young girls have been expelled from schools for reasons of pregnancy. This has not only denied them their universally recognised right to education but has also made them vulnerable to exploitation through trafficking, smuggling and prostitution.61 The problem of unemployment, unequally affecting women and children, has as well exposed persons to exploitation and trafficking.62 It has resulted into rural-urban movement and migration which has ended up subjecting people to trafficking. Unemployment in the formal sector has also seen a large section of society consisting of women resorting to the informal sector where conditions do not always favour women and children’s economic advancement.63 This is evident from the official statistics of the Tanzania National Bureau of Statistics (TNBS).64 By 2018, the population projection of Tanzania stood at 54, 199, 163 million people of which males were 26, 510, 099 and females were 27, 689, 068. In terms of employment profile, the 58 Such as for example, the Constitution of Tanzania 1977, Article 66(1)(b) requires that women should not be less than thirty per centum of all the members of Parliament of Tanzania. Article 66(1)(e) gives power to the President of Tanzania to appoint not more than ten persons to be members of Parliament and at least five members amongst them shall be women. 59 Committee on the Elimination of Discrimination against Women 2016, para 26; Committee on the Elimination of Discrimination against Women 2015, para 13. 60 Committee on the Elimination of Discrimination against Women 1996, para 14; Committee on the Elimination of Discrimination against Women 2016, paras 12, 30, 32, 40; Committee on the Elimination of Discrimination against Women 2015, para 19; Committee on the Elimination of Discrimination against Women 2008a, para 43. See also Heintze and Lülf 2016, p. 150. 61 Center for Reproductive Rights 2011, p. 11; Committee on the Elimination of Discrimination against Women 2015, para 30; Center for Reproductive Rights 2012, p. 10. 62 Foster 2007, p. 206. 63 Committee on the Elimination of Discrimination against Women 2016, para 32; Committee on the Elimination of Discrimination against Women 2015, para 16; Committee on the Elimination of Discrimination against Women 2008a, para 35; Committee on the Elimination of Discrimination against Women 2008b, para 35. 64 On the intersection of the informal economy and trafficking in persons from a critical perspective, see Sharapov 2018b, pp. 526–532.

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Formal Sector Employment and Earnings Survey (EES) reports from 2001 to 2018 have, however, revealed that despite women being the largest population group in Tanzania, there are more adult males’ employments in the formal sector compared to adult females’ and young persons’. In these official reports, Dar es Salaam, Morogoro, Arusha and Kilimanjaro are the regions with the highest level of employment percentage compared to other regions in Tanzania.65 These reports, although not dealing with statistics on the number of persons employed in the informal sector, do provide a strong basis to indicate that the majority of persons, including women and young persons in Tanzania, are employed in the unregulated informal sector. This inference is further alluded to and reinforced by, for example, the 2006 Analytical Report for Integrated Labour Force Survey (ILFS) which indicated that, with the exception of Dar es Salaam, females outnumbered males in being economically active by 52% in rural and other urban areas. The report also submitted that the overall employment ratio of women in rural areas is 77.6% and that the informal sector, in which females are still leading, is ahead of the formal sector in the employment profile in Tanzania.66 This also highlights what international reports have already estimated, namely that in Tanzania the level of internal trafficking in women and children is higher than that of transnational trafficking and that people have been moving from the rural to the urban areas in search of employment and better living. It is in this context of a rural-urban movement that high incidents of trafficking, especially of women and children, have been observed in Tanzania.67 Poverty is also cited as another reason exacerbating trafficking in Tanzania, with most of its poor people, who largely happen to be women, being concentrated in the rural areas.68 Most have their livelihood generated from agriculture which has been subjected to unpredictable weather conditions, cheap prices for the crops and poor or absence of infrastructure to transport agricultural produce to better markets. Poverty generates several other numerous social and economic ills and problems, thereby making the poor vulnerable to exploitation and abuse, including subjection to trafficking, smuggling and other crimes.69 This has made them live a subsistence life, subjected to persistent economic marginalisation and exposure to exploitation and abuse. Furthermore, limited assistance, protection and support services such as shelter, rehabilitation and provision of alternative means to livelihood as well as poor treatment which they sometimes receive have made it difficult for a considerable number of trafficked persons to come forward to report and seek help. This also goes 65 Ministry

of Finance National Bureau of Statistics 2016, p. viii. See similar reports from 2001 to 2016 at https://www.nbs.go.tz/. Accessed 14 February 2019. 66 Ministry of Planning, Economy and Empowerment National Bureau of Statistics 2007, pp. xii– xxii. See also the Ulandssekretariatet LO/FTF Council 2018; Ulandssekretariatet LO/FTF Council 2016. 67 Kamazima et al. 2018a, p. 2. 68 Zhang 2007, pp. 111–114; Kiremire 2006, p. 24. 69 Kamazima et al. 2018b, p. 1055; Committee on the Elimination of Discrimination against Women 2015, para 40; Committee on the Elimination of Discrimination against Women 2008a, para 27; Committee on the Elimination of Discrimination against Women 2007a, para 7.

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together with the general fear of revictimisation, ostracism and shame to which they might be subjected to from the society for disclosing their trafficking.70 Like in many other countries, corruption and complicity among the police, immigration and other government officials have been some of the factors exacerbating trafficking in Tanzania.71 Noting this concern, findings presented by several reports have noted on the failure of the Tanzanian Government to take stern and effective measures to investigate and prosecute its own officials who might corruptly and implicitly be involved in the trafficking and smuggling of persons in, through and outside of Tanzania.72 Lack of Government readily and easily accessible statistics and data on the scale of trafficking has made it impossible for the Government to have an exact estimate of the nature and scale of trafficking in Tanzania so as to channel its anti-trafficking measures in the right direction.73 The Government has relied on the data generated by NGOs and institutions as well as data provided by outside governments such as the United States Department of State to study and understand its own internal problem of trafficking.74 The limited Crimes Statistics Reports available from the Tanzanian National Bureau of Statistics are quite revealing.75 The Bureau started to report crimes statistics in 2014 and its recent report covers the period from January to December 2016.76 The Crime Statistics Reports provide that trafficking in persons, which in the Reports is referred to as human trafficking or trafficking in illegal immigrants, is one of the offences against persons. The Reports disclose that incidents of reported cases of trafficking have been increasing from 21 cases in 2014 to 45 cases in 2015 and up to 55 cases in 2016.77 Note also that the earlier March 2009 Report of the Law Reform Commission of Tanzania indicated that from the years 1999 and/or to 2006, the Tanzania Police Force Headquarters never registered any case relating to trafficking and that it was only in 2007 that for the first time three (3) cases of trafficking were officially registered.78 The Reports indicate that compared to other crimes, trafficking 70 Committee on the Elimination of Discrimination against Women 2016, p. 22; Committee on the Elimination of Discrimination against Women 2015, para 10; Committee on the Elimination of Discrimination against Women 2014, para 45; Committee on Civil and Political Rights 2009a, paras 18, 19; Flowe 2010, pp. 676–677. 71 Williams 2008, pp. 147–148; Deighan 2010, p. 87; Dandurand 2012, pp. 225–226; Organisation for Economic Co-operation and Development Secretary-General 2016, p. 34; UNODC 2011. 72 The Under The Same Sun 2013, p. 14; United States Department of State 2018, p. 411; United States Department of State 2016, p. 363. 73 In this connection, Goodey notes that “In the absence of robust data, there is a real risk that policy responses are developed which do not reflect realities on the ground, which in turn can mean that initiatives are misdirected and their positive impact is limited”, Goodey 2012, p. 40. 74 Despite the importance of data collection to better understand, prevent and combat trafficking, it has also been argued that “data collection is not a neutral tool” and for that reason, it needs to be handled and used in such a way as not to infringe the rights of the victims of trafficking, Uhl 2018, p. 414. 75 Crime Statistics Reports. https://www.nbs.go.tz/. Accessed 14 February 2019. 76 Ministry of Finance; National Bureau of Statistics 2015; National Bureau of Statistics 2017. 77 National Bureau of Statistics 2017, pp. 8, 10; National Bureau of Statistics 2015, pp. 7, 9. 78 Law Reform Commission of Tanzania 1998, p. 114.

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appears to be one among the least of the increasing crimes in Tanzania. These Reports indicate that trafficking in Tanzania is not as a huge problem as presented by external reports. The July 2015 Report even states that trafficking in Tanzania started at around 2007.79 The Report not only offers a new definition of trafficking which is at variance with that of the TIP Protocol 2000 but also inconsistently differs from the definition of trafficking as provided in the Anti-Trafficking in Persons Act 20008 and its Main Regulations 2015.80 It is highly doubtful whether the Report distinguishes trafficking from the smuggling of migrants or whether the two are grouped as one crime. Still, the Report suggests that trafficking is one of the four emerging threats to individual, institutional and governmental security due to the application of cyber technology in its commission.81 It is questionable, however, how the least growing crime should appear a threat for the individual and the nation. These inconsistencies in the statistics thus given have created an assumption that maybe trafficking is not a serious problem as such in Tanzania. In any way, this affects the anti-trafficking efforts in the country as it misdirects Government’s opinion and resources, budget allocation priority in the fight against trafficking as well as the carrying out of any impact assessment, monitoring and evaluation measures on the anti-trafficking policies, initiatives and measures.82 It has also been indicated that lack of capacity for both personnel and resource has created an avenue for traffickers to operate with impunity and without surveillance. Oftentimes, there has been a poor or meagre allocation of resources to institutions responsible for anti-trafficking action. This together with the lack of awareness and limited training among responsible authorities such as law enforcement authorities, lawyers and legal practitioners, judges and magistrates and other Government officials or institutions have hugely affected the fight against trafficking in Tanzania.83 The limited number of reported cases on trafficking and the absence of interest on the part of the legal practitioners and activists as well as litigation on trafficking and smuggling cases speak loudly. As pointed out, Tanzania is surrounded by eight countries and, in the EAC, it is the largest country with long and porous borders.84 Poor resource allocation has limited the ability of law enforcement authorities to guard 79 National

Bureau of Statistics 2015, p. 32. Bureau of Statistics 2015, p. 32. Rather than trafficking in persons, the report defines human trafficking to mean “an illegal act of transporting human beings from one country to another, without following procedure or regulations under the law, with the aim of gaining personally through prostitution, exploitative employment in agriculture, industry, service sectors and caring for the elderly and others without consent and payment”. 81 National Bureau of Statistics 2015, pp. 25, 26. 82 Committee on Civil and Political Rights 2009b, paras 26, 58; Committee on the Elimination of Discrimination against Women 2009, para 37; Dottridge 2017, pp. 161–164. 83 Committee on the Rights of the Child 2015, para 70; Committee on the Elimination of Discrimination against Women 2014, para 45; Committee on the Elimination of Discrimination against Women 2014, para 24. 84 The need to protect the porous borders of Tanzania so as to prevent trafficking in persons and especially the smuggling of persons to or through Tanzania has been an obligation which Tanzania has acknowledged several times. See for example, Bunge la Tanzania 2008a, p. 27; Bunge la Tanzania 2009, p. 27; Bunge la Tanzania 2008b, p. 99; Bunge la Tanzania 2008c, pp. 87, 108, 120, 80 National

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and patrol Tanzania’s borders effectively. Traffickers and smugglers have used the advantage of Tanzania’s long and porous borders to act with impunity.85 Generally, trafficking stems from and results in the violation of trafficked persons’ human rights whether by state or non-state actors. This is premised on the understanding that a critical examination of all the underlying causes of trafficking reveals that they all emanate from or result into violation of the civil and political as well as economic, social and cultural rights.86 Therefore, not only are the causes of trafficking systemic and structurally related to proximate factors, but it is also generally understood that a concrete legal and administrative assault against trafficking must entail the taking of concrete measures to address the root causes of trafficking that subject people to vulnerability from the lens of human rights.87

6.2 Early Anti-trafficking Legal Response Although the reports quoted earlier on and which Tanzania had submitted to the Committee on Civil and Political Rights (CCPR) and later on to the Committee on Economic, Social and Cultural Rights (ESCR) had indicated that slavery, forced labour and trafficking, especially of children, young persons and women, were prohibited conducts in Tanzania, the legal response against these crimes manifested a very limited jurisprudence. The law relating to their prohibition and criminalisation in Mainland Tanzania was first contained in the Penal Code, 1945, CAP 16 RE: 2002. Later on, the Sexual Offences Special Provisions Act, Act No. 4 of 1998 amended the Penal Code by adding Section 139A to criminalise, among other crimes, the offence of trafficking of person. In the case of Tanzania Zanzibar, the Penal Act, Act No. 6 of 2004 prohibited and criminalised trafficking of persons and related offences. These three legal vehicles together with the Constitution of Tanzania represented Tanzania’s only legal response against the crime of trafficking before the year 2008. There are no indications anywhere that Tanzania had any anti-trafficking national Action Plan or anti-trafficking national policy that guided its early fight against trafficking before 2008. As indicated earlier, the first official records of reported cases of trafficking were in 2007. However, even with the three (3) reported cases, the 2009 March Report of the Law Reform Commission of Tanzania (LRC) indicated that these three reported cases “all were eventually not detected”.88 This suggests that although Tanzania had the law relating to trafficking even before 2008, there were no 175, 187. These are official records of the Parliament of Tanzania, available at https://www.parlia ment.go.tz/hansards-list. Accessed 19 February 2019. 85 Tanzania Child Rights Forum 2014, p. 40; United Republic of Tanzania Vice President’s Office 2005, pp. 10–11. 86 Onuoha 2011, p. 149; Chuang 2006, pp. 155–156; Obokata 2006, pp. 122–123. 87 Chuang 2006, pp. 160–163; Cameron and Newman 2008, pp. 1–2; Samarasinghe and Burton 2007, p. 54; Committee on the Rights of the Child 2015, para 29; Committee on the Elimination of Discrimination against Women 2008a, para 28. 88 Law Reform Commission of Tanzania 2009, p. 114.

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records of any criminal investigations and prosecutions of trafficking cases as before 2007. This was not an indication that trafficking was not committed in Tanzania. As found out by the March 2009 Report of the LRC, the crime of trafficking in Tanzania was “committed in various parts of Tanzania but that are not reported”.89 The consultative meetings of the LRC revealed that young persons, especially girls, were trafficked from rural areas to the city areas of Arusha, Mwanza and Dar es Salaam for sexual purposes and prostitution. The 2009 March Report unveiled that although these incidents were known and even condemned by the local communities where these girls were exploited, no action was taken to control the situation.90 The Commission’s 2009 March Report pointed to the lack of information sharing and improved intelligence by concerned actors as the reason for trafficking cases going unreported, without any investigation or prosecution by law enforcement and other responsible institutions.91

6.2.1 Penal Code The Penal Code is the main penal law of Tanzania. It establishes and criminalises offences and stipulates the forms of punishment that can be inflicted on those found guilty of its violation. However, apart from the Penal Code, there are many other laws enacted by the Parliament which establish specific offences in relation to subject matters they were enacted to govern and regulate.92 Legally speaking, however, the Penal Code, before it was amended by the Sexual Offences Special Provisions Act of 1998, lacked any specific and clear provisions criminalising the crime of trafficking. Nonetheless, the current Penal Code contains provisions that outlaw several practices and conducts which are currently recognised to form part of the action, means or purpose elements of the crime of trafficking in Tanzania. These offences include procuration, householder permitting defilement of girls under twelve and sixteen, detention, living on the earnings of prostitutes, aiding and abetting prostitutes, keeping of brothels, conspiracy to defile, kidnapping, abduction, buying or disposing of a person as slave, slave dealing and forced labour. The offence of procuration criminalises the procuring or attempting to procure any girl or woman under the age of twenty-one years with the intent to have an unlawful carnal connection (sexual intercourse) whether in Tanganyika or elsewhere by becoming a common prostitute, an inmate of a brothel or frequent a brothel for unlawful carnal knowledge.93 Section 140 equally criminalises procuration where threats or intimidation, false pretences or false representations, drugs or any other 89 Law

Reform Commission of Tanzania 2009, p. 46. Reform Commission of Tanzania 2009, p. 47. 91 Law Reform Commission of Tanzania 2009, p. 47. 92 For example, the Anti-Trafficking in Persons Act 2008 criminalises several offences of trafficking in persons under Sections 4, 5, 6, 7 and 8 even though it is not the main criminal law of Tanzania. 93 Section 139. 90 Law

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stupefying thing is used to overpower any girl or woman so as to control her for carnal connection with any person. The Penal Code also prohibits the conduct of any person who either as the owner or occupier of premises or who acts, controls or assists in the management of the said premises knowingly induces or suffers any girl or woman under the age of twelve or above the age of twelve but bellow the age of sixteen to resort to or be unlawfully and carnally known either by a specific man or other men in general under such premises.94 The Penal Code also outlaws the detaining of any woman or girl against her will with the intent that she should unlawfully and carnally be known by any particular man or men in general in or upon any premises or any brothel.95 Furthermore, the Penal Code proscribes the conduct of any man or woman who lives wholly or in part on the earnings of prostitution (exploitation of the prostitution of others).96 The Penal Code also punishes any person who keeps a house, room or set of rooms or a place of any kind whatsoever for prostitution as well as conspiring with any person to have any girl or woman unlawfully and carnally known by any man by means of false pretence or other fraudulent means.97 The Penal Code goes further to criminalise the kidnapping of any person within or outside Tanzania by any other person so as to be secretly and unlawfully confined or be subjected to or be in danger of being subjected to grievous harm or slavery or to the unnatural lust of any person.98 Of particular interest is the framing of the provisions dealing with the crimes of buying or disposing of any person as a slave as well as slave dealing. The Penal Code thus provides for the crime of buying or disposing of any person as a slave: Any person who imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, is guilty of a felony, and is liable to imprisonment for seven years.99

The actus reus or the material element of this offence is to import, export, remove, buy, sell, dispose of, accept, receive or detain any person as a slave. A single conduct such as importing or receiving any person as a slave suffices to establish the offence of buying or disposing of any person as a slave. This appears to be the intention of the drafters based on the use of the comma for each individual conduct as well as the conjunction “or” instead of “and”. The mens rea or the mental element of this offence is the actual knowledge on the part of the accused person that through any of these acts, he intends to buy or dispose of another person as a slave. This is reinforced by the fact that these individual acts must be carried out over the said person “against his will”. “Against his will” suggests that the person so subjected does not consent to be treated as a slave. The material element of the crime of buying or disposing of any person as slave constitutes what is generally understood as “powers attaching to the 94 Sections

141, 142. 143. 96 Sections 145, 146. 97 Sections 148, 149. 98 Sections 245, 246, 248, 250. 99 Section 254. 95 Section

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right of ownership”. These elements indicate possession because it is impossible to subject a person to any of these prohibited acts unless one exercises powers incidental to ownership, possession and/or control over a person. A proper consideration of this provision in the light of Article 1(2) of the Slavery Convention would indicate that the offence of buying or disposing of a person as a slave intends to prohibit the slave trade rather than slavery.100 This is because the definition of slavery as understood in Article 1(1) of the Slavery Convention is not strictly defined or followed in this provision.101 Notwithstanding, a simple reading of the provision does not rule out that slavery, especially slavery de jure, is also prohibited. This is partly reinforced by the way the acts constituting the material element of the crime under Section 254 are framed. The next section, Section 255, outlaws the crime of slave trading to the effect that: “Any person who habitually imports, exports, removes, buys, sells, traffics or deals in slaves is guilty of a felony, and is liable to imprisonment for ten years.” While the material elements of this crime seem to be similar to that of buying or disposing of a person as a slave under Section 254, the two crimes are different. In the crime of slave dealing, the accused person does almost all the acts criminalised under Section 254 but “habitually”. In the mind of the accused, he acts in the knowledge that the persons he or she imports, exports, removes, buys, sells, traffics or deals with are slaves. Habitually implies frequency. It means that the person dealing in slaves does so regularly, repeatedly or continuously. He is in the habit of dealing in slaves. The use the term “habitually” together with “deals in slaves” as opposed to “as a slave” under Section 254 allows one to contend that both slavery de jure and slavery de facto are also prohibited even when “status or condition” are not openly inserted in the provision of Section 255 but which can be implied by the use of “habitually”. There is, therefore, a significant difference between the two crimes, with the crime of slave dealing going beyond slavery de jure to include also slavery de facto and thus attracting a harsher punishment compared to the other crime. The Penal Code, however, does not define who a slave is. Neither does the Penal Code define what slavery is. It is important, however, to keep the understanding of these two crimes into consideration because further discussion below as well as the current definition of human trafficking in Chap. 7 will draw a comparison from these provisions. Finally, the Penal Code prohibits forced labour where a person is unlawfully compelled to labour against his will.102 Few things can be pointed out here. The Penal Code does not define prostitution or who the prostitute is. Similarly, it does not directly prohibit prostitution other than outlawing the conduct of a person who “in any public place persistently solicits or 100 Article

1(2): “The Slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.” 101 Article 1(1): “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” (Emphasis added) As well, see Henckaerts and Doswald-Beck 2005, p. 329. 102 Section 256.

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importunes for immoral purposes”.103 It also does not explicitly employ the language of “exploitation of the prostitution of others” but rather chooses to criminalise the conduct of any person who lives wholly or partly on the earnings of prostitution of another person.104 This is generally understood to mean exploitation of the prostitution of others and therefore, even before the enactment of the Anti-Trafficking in Persons Act 2008, this crime was prohibited but not as a consequence of trafficking.105 Nonetheless, the Penal Code considers that only women can be victims of the crime of exploitation of the prostitution of others. Except for the crimes of buying or disposing of any person as slave and slave dealing, the Penal Code seems to have taken a general position that only young girls and women can be victims of these crimes. Since persons were prosecuted for commission of these individual crimes which, as understood today, do form part of the action, means or purpose elements of trafficking, it can be argued that trafficking might or was being indirectly prosecuted, albeit loosely and in the names of and through these individual crimes.

6.2.2 Sexual Offences Special Provisions Act of 1998 (SOSPA) The record of what transpired in the National Assembly leading up to the enactment of SOSPA, CAP 101 RE: 2002 which amended the Penal Code and several other laws is not available on the website of the Parliament of Tanzania.106 It does appear, however, that SOSPA was enacted due to, among other reasons, “the countrywide outcry on the increase of incidents on sexual and domestic violence”.107 Criminal law, as contained in the Penal Code and the laws relating to evidence and procedure, was found to be falling short of protecting women through addressing the menace of sexual offences in the areas of sentencing, evidential and procedural requirements as well as compensation.108 It also does appear that Tanzania enacted SOSPA to give effect to its international obligations following the ratification by

103 Section

145(1)(b).The Penal Code does not define what “immoral purposes” mean. 145, 146. 105 Section 145(2) stipulates: “Where a male person is proved to live with or to be habitually in the company of a prostitute/or is proved to have exercised control, direction or influence over the movements of the prostitute in such manner as to show that he is aiding, abetting or compelling her prostitution with any other person, or generally, he shall unless he shall satisfy the court to the contrary be deemed to be knowingly living on the earnings of prostitution.” (Emphasis added). Section 146 criminalises the same crime but when committed by a woman. 106 Hansards. https://www.parliament.go.tz/hansards-list. Accessed 18 February 2019. 107 Law Reform Commission of Tanzania 1998, p. 6. 108 Law Reform Commission of Tanzania 1998, pp. 32, 32–47; Law Reform Commission of Tanzania 2009, p. 4; Tanzania Women Lawyers Association 2014, p. 15. 104 Sections

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Tanzania of the Convention on the Rights of the Child109 and later on as a prereaction to its Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.110 This would appear to argue that SOSPA is a legal instrument intended to primarily protect the personal integrity, liberty, security and dignity of women and children against sexual exploitation and violence.111 While SOSPA amended several provisions of the Penal Code with respect to several crimes, the main concern of the present study is the provisions relating to trafficking in persons which included: sexual exploitation of children,112 procuration for prostitution113 and trafficking of person.114

6.2.2.1

Sexual Exploitation of Children

Section 138B criminalises the conduct of any person who intentionally and for the purposes of having a child (whether a boy or girl)115 to be sexually abused,116 participates in any form of sexual activity or participates in any obscene or indecent exhibition or show or for sexual intercourse117 (all these acts shall be referred to herein as sexual exploitation); permits the said child to remain in any premises for sexual 109 That Tanzania enacted the Sexual Offences Special Provisions Act to give effect to the Convention

on the Rights of the Child was noted and acknowledged as such by Tanzania before the Committee on the Rights of the Child, see Committee on the Rights of the Child 2001b, para 6. 110 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature 25 May 2000, 2171 UNTS 227 (2000), entered into force 18 January 2002. This can be argued to be the case considering that the Sexual Offences Special Provisions Act of 1998 basically outlaws child prostitution, child pornography and sale of children. 111 This is even evident from the long title to the Sexual Offences Special Provisions Act of 1998 which reads: “An Act to amend several written laws, making special provisions in those laws with regard to sexual and other offences to further safeguard the personal integrity, dignity, liberty and security of women and children.” 112 Section 138B which added a new section to the Penal Code. 113 Section 139 which replaced Section 139 of the Penal Code. 114 Section 139A which added a new section to the Penal Code. 115 A child being defined as “a person of the age of less than eighteen years”, under Section 138B(2) of the Sexual Offences Special Provisions Act of 1998. 116 Section 3 of the Sexual Offences Special Provisions Act of 1998 defines sexual abuse to mean: “illegal sexually oriented acts or wrongs done or said in relation to any person for gratification or for any other illegal purposes”. The Act, however, does not define what amounts to “gratification” or “any other illegal purposes”. 117 Section 3 of the Sexual Offences Special Provisions Act of 1998 defines sexual intercourse not in terms of acts but in terms of evidence to mean: “whether natural or unnatural, shall, for the purpose of proof of a sexual offence, be deemed to be complete upon proof of penetration only not the completion of the intercourse by the omission of seed”. Sexual offences mean offences prescribed under Chapter XV of the Penal Code dealing with offences against morality. Some of these offences include: rape, attempted rape, abduction, indecent assaults, defilement, procuration, detention, living on earnings of prostitutes, aiding and abetting prostitutes, conspiracy to defile, abortion, unnatural offences, attempt to commit unnatural offences, indecent practices and incest.

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exploitation;118 procures the said child for sexual exploitation;119 induces a person to be a client of the said child by means of print or other media, oral advertisements or other similar means for sexual exploitation;120 takes advantages of his influence over, or his relationship to the said child in order to procure her or him for sexual exploitation;121 threatens or uses violence towards the said child so as to procure the said child for sexual exploitation;122 and gives monetary consideration, goods or other benefits to a child, or his parents with intent to procure the said child for sexual exploitation.123 Although the long title to SOSPA emphasises safeguarding the “personal integrity, dignity, liberty and security of women and children”, Section 138B is revolutionary as it recognises that not only can sexual exploitation of children be committed by any person whether male or female but also that victims of sexual exploitation of children can be girls or boys. Section 138B expands the forms in which children can be exploited to encompass sexual intercourse, sexual abuse, participation in any form of sexual activity as well as participation in any obscene or indecent exhibition or show. The provision does not consider the question of consent at all, arguably advancing the position, as early as before 2000, that as far as children’s sexual exploitation is concerned, consent of the child is irrelevant. This position has been reflected in the subsequent major regional and international instruments, albeit extending to cover other areas in which children can be exploited, in addition to sexual exploitation. Section 138B introduces some of the concepts which according to the current legal framework form the means element of trafficking. These include taking advantage of influence over or relationship to a child, using force and coercion against a child or giving monetary consideration, goods or other benefits to the child or his parents so as to sexually exploit the child. Section 138B even recognises the use of modern means of technology124 and other similar means as one of the “means” to procure children for sexual exploitation. In addition to having a provision which deals with the trafficking of person, including children, SOSPA includes Section 138B as a special provision specifically on dealing with the sexual exploitation of children. Notwithstanding, SOSPA presents some limitations here. It contains a limited focus on the sexual exploitation of children only to the exclusion of other forms in which children are exploited by the same means. It fails to define certain forms of sexual exploitation such as what amounts to participation in any form of sexual activity as well as participation in any obscene or indecent exhibition or show.

118 Section

138B(1)(a). 138B(1)(b). 120 Section 138B(1)(c). 121 Section 138B(1)(d). 122 Section 138B(1)(e). 123 Section 138B(1)(f). 124 On the role of technology in the commission and prevention of trafficking in persons see, UN.GIFT 2008, pp. 2 et seq. 119 Section

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Procuration for Prostitution

To procure in the context of this crime means “to obtain (someone) as a prostitute for another person”.125 Section 139 does not introduce any new offence. By replacing the previous Section 139 of the Penal Code, SOSPA makes several changes to make the crime reflect present realities. Section 139 outlaws the conduct of any person whether as male or female who procures or attempts to procure any person whether male or female of any age with or without his or her consent or to remove or attempt to remove such a person from Tanzania to become a prostitute within or outside Tanzania and/or to become an inmate of or frequent a brothel outside Tanzania.126 In addition, Section 139 contains a clear provision prohibiting the conduct of any person to procure or attempt to procure or remove or attempt to remove a child from Tanzania or bring or attempt to bring a child from outside to Tanzania so as to facilitate prohibited sexual intercourse127 of the said child inside or outside Tanzania.128 The same section also criminalises the conduct of any person who detains any other person without his or her consent in any brothel or other premises for prohibited sexual intercourse or sexual abuse of the detained person.129 Section 139 represents both a positive move towards and a negative retreat from the right direction. It is a positive move in that it recognises that procuration for prostitution needs not to be limited to Mainland Tanzania as it was with the Penal Code. The provision recognises that men and women are involved in the procuration for prostitution or prohibited sexual intercourse and also that both sexes can be procured for prostitution or prohibited sexual intercourse. Further, although Section 138B already outlaws the sexual exploitation of children, Section 139 goes a step to prohibit procuration for prostitution of any child within or outside Tanzania as well as from other countries to Tanzania. The same section also does away with age differentiation in the procuration for prostitution unlike the previous provision of the Penal Code. In fact, the provision takes the same position as that of Section 138B that children cannot consent to be procured for prostitution. Section 139, however, is a negative retreat from the right direction on the issue of consent. It prohibits the procuration of adults for prostitution even when adults have freely and willingly consented. This is reflected by the use of “with or without consent” phrase. The provision also does not, in a clear language, prohibit the conduct of procuring an adult person for prostitution in Tanzania from other countries. Such prohibition can only be implied where procuring or attempting to procure “any person whether male or female of whatever age, with or without consent” is taken to mean whether that person is from Tanzania 125 The

meaning of “Procure”: https://en.oxforddictionaries.com/definition/procure. Accessed 18 February 2019. 126 Section 139(a), (c), (e). 127 Prohibited sexual intercourse is defined under Section 3 to mean: “sexual intercourse between persons who are not spouses to each other“. While prostitution applies to adult and children, prohibited sexual intercourse applies specifically to children. 128 Section 139(b), (d). 129 Section 139(f).

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or other countries who is also procured to Tanzania for prostitution. Notwithstanding, SOSPA does not define what prostitution is nor criminalise prostitution itself.

6.2.2.3

Trafficking of Persons

Section 139A was the only provision that specifically outlawed trafficking in persons in Tanzania before the year 2008.130 Section 139A created the offence of trafficking of person when it amended the Penal Code to add Section 139A immediately after Section 139. Section 139A prohibited two conducts of trafficking of person. In the first conduct, Section 139A read: Any person who engages in the act of buying, selling or bartering of any person for money or for any other consideration commits the offence of trafficking.131

According to this provision, the first conduct of trafficking of person consisted of two elements. The actus reus which was the act of buying, selling or bartering, all existing in the alternative. The mens rea consisted of the intention to obtain money or any other consideration. This provision somehow employed a language similar to that of Section 254 which outlaws the crime of buying or disposing of any person as a slave and Section 255 of the Penal Code which prohibits slave dealing. The language of this provision was also somehow similar to that which has been consistently used to refer to slavery and the indicia of slavery under international law.132 The action element or actus reus of this crime contained acts that are understood to be indicators of dealing with a person as if he was a thing, save that such a conduct is impermissible under national and international law.133 Additionally, this provision, unlike that of Sections 254 or 255 of the Penal Code or even of Article 1(1) which outlaws slavery under international law, stated that the mens rea or the purpose element of the crime was to obtain “money or any other consideration”. It is not in the definition of slavery under international law that one wants to benefit monetarily or in other considerations for the crime of slavery to be established. By “money or for any other consideration”, it was not clear whether for any other consideration needed to be financial or material or sexual. But it did appear that the person who carried out any of these individual acts had a clear intention of benefiting from the criminal conduct of dealing with a person 130 This whole Section 139A is repealed by the current Trafficking in Persons Act 2008, Section 38. 131 Section

139A(1)(a).

132 See The Slavery Convention, Article 1(1); Supplementary Slavery Convention, Article 7(a). See

also Allain 2007, pp. 13–14. the question ‘as a matter of common sense, not as a matter of semantics’, we have no doubt that the offences of ‘possessing a slave’ and ‘using a slave’ overlap when committed in relation to the same person. Put simply there can be no ‘use’ unless there is ‘possession’, and ‘use’ is itself an illustration of possession”, Supreme Court of the Australian Capital Territory, The Queen v Watcharaporn Nanthahkhum, Court Judgment, 24 May 2012, Case No: 149 of 2010 (Unreported), p. 9. https://sherloc.unodc.org/res/cld/case-law-doc/traffickingpersonscrimetype/ aus/2012/r_v_watcharaporn_nantahkhum_scc149_of_2010_html/AUS018-R_v_Watcharaporn_ Nantahkhum_SCC149_of_2010.pdf. Accessed 22 March 2019.

133 “Approaching

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as if one was a property or possession. Section 139A(1)(a), therefore, following this analysis, seemed to prohibit the conduct of buying or disposing of any person as a slave similarly as prohibited under Section 254 of the Penal Code, which was strictly interpreted to include also slavery de jure. Unlike Section 254, however, Section 139A(1)(a) went beyond by adding a mental element of obtaining money or any other consideration. Furthermore, although Section 139A(1)(a) purposed to criminalise the crime of trafficking in persons, in actual sense, its definition did not in any way near the definition of trafficking in persons as it now stands in national or international law. It fundamentally lacked the means element through which a person is bartered, sold or bought. Likewise, its purpose element, the intention to obtain money or any other consideration, was substantially different from what is currently recognised in international law and under the Anti-Trafficking in Persons Act 2008 or its Main Regulations 2015 as pointed out in Chap. 7 in this book. The second prohibited conduct of trafficking of person was quite broad. The second conduct under Section 139A(1)(b) prohibited the conduct where any person who “for the purposes 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”, did the following acts: (i) (ii)

(iii) (iv) (v)

(vi)

Arranged for or assisted a child to travel within or outside Tanzania without the consent of his parent or lawful guardian;134 or Obtained an affidavit of consent from a pregnant woman for the adoption of the unborn child of that woman by giving that woman money or any other consideration;135 or Recruited women or couples to bear children;136 or Knowingly permitted the falsification of any birth record or register in his or her capacity as a person concerned with births registration;137 or Engaged in procuring children from hospitals, shelters for women, clinics, nurseries, daycare centres or other child care institutions or welfare centres for money or other consideration or procured a child for adoption from any such institution by intimidation of the mother of the child or any other person;138 or Impersonated the mother or assisted the said impersonation.139

The second prohibited conduct contained multiple prohibited acts. The chapeau to Section 139A(1)(b) stipulated that the trafficker did not buy or sell or barter or place in adoption the specified group of persons himself. Rather, his criminal offence consisted only of his intention to obtain money or any other consideration by promoting, facilitating or inducing the bartering or selling or buying or placing in adoption the categories of persons so specified. The entire Section 139A(b) appeared 134 Section

139A(1)(b)(i). 139A(1)(b)(ii). 136 Section 139A(1)(b)(iii). 137 Section 139A(1)(b)(iv). 138 Section 139A(1)(b)(v). 139 Section 139A(1)(b)(vi). 135 Section

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only to deal with the facilitation or promotion or inducement of another person or persons to buy or sell or barter adults or adopt children. The means used to achieve this by the trafficker were through abuse of his position or authority, intimidation, impersonation and use of money or any other consideration. Unlike Section 139A(1)(a), Section 139A(1)(b) appeared to have imperfectly criminalised the crime of trafficking in persons, especially of children for adoption. As it stood out, Section 139A did not clearly criminalise trafficking in persons in the actual sense according to international law or as based on the current anti-trafficking legal framework of Tanzania. It simply prohibited only two conducts, namely, buying or disposing of any person as if that person was a thing or property, and facilitating or promoting or inducing the bartering or selling or buying or placement for adoption of any person, especially children, for monetary or for any other consideration. The fact that persons could be trafficked for various end purposes through the use of several other means was not the idea taken by the drafters of this provision.140 Their concern was only the human trafficking of children for adoption and buying or disposing of any person as if the said person was a thing or property. Besides, Section 139A did not even define what amounted to the trafficking of person. It only criminalised actions that appeared to amount to the trafficking of person. In other words, it defined trafficking of person through the prohibition of certain specified criminal conducts only. It is, however, worthy to note that at the time when Tanzania enacted SOSPA, the TIP Protocol 2000 was not in force, let alone being adopted. Thus, there was no legal jurisprudence for the drafters of SOSPA to follow under international or regional law. As indicated earlier on in this chapter, the desire by Tanzania to give effect to its international obligations under the Convention on the Rights of the Child and internal factors relating to the inadequacy of the criminal law to sufficiently protect women against violence and abuse formed the basis that prompted the enactment of SOSPA. The final issue related to the punishment for being found guilty of trafficking of person. A person found guilty was liable to imprisonment for a term of not less than twenty years (20) and not exceeding thirty years (30) and a fine of not less than one hundred thousand Shillings (100,000) and not exceeding three hundred thousand Shillings (300,000) or to both fine and imprisonment. In addition to any of the punishments to be pronounced by the court, the convicted person was also required to pay compensation to the victims of trafficking of person. The amount to be paid was determined by the court. While imprisonment terms appeared to be sufficiently reasonable, the corresponding fines did not appear to reflect the gravity

140 Although

the 2004 Report of the United States Department of State suffers from several shortcomings with regard to its analysis of the Tanzanian anti-trafficking situation, it however, noted that: “Tanzanian law criminalizes trafficking for sexual purposes, but the country lacks a comprehensive anti-trafficking law that addresses trafficking for the purposes of forced labor”, United States Department of State 2004, p. 79.

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of the crime committed.141 As noted earlier, the discussion of these provisions is important in the context of Chap. 7.

6.2.3 Penal Act of Tanzania Zanzibar Although Tanzania Zanzibar enacted the Zanzibar SOSPA, Act No. 7 of 1998 to prohibit similar conducts as those prohibited under SOSPA, it is the Penal Act of Zanzibar, No. 6 of 2004, hereinafter the Penal Act, which will be analysed here as it incorporated the 1998 changes.142 The Penal Act is the main criminal law of Zanzibar. It establishes offences and proscribes their punishments. The Penal Act contains both provisions similar to those of the Penal Code and those of SOSPA. It also contains provisions on certain crimes which are related to trafficking in persons but which were missing in the Penal Code of 1945 and SOSPA. The Penal Act criminalises the offences of procuration of prostitution and it basically uses the same language as that employed by Section 139 of SOSPA, with the offence of procuration being proscribed for Tanzania Zanzibar.143 Like the Penal Code, the Penal Act also criminalises procuration of defilement, householder permitting defilement of girl or boy or girls, detention of female in a brothel or elsewhere, a male person living on the earnings of prostitution or persistently soliciting prostitution and woman living on earnings of prostitution or abetting prostitution (exploitation of the prostitution of others), conspiracy to defile, kidnapping, abduction, buying or disposing of any person as a slave, habitual dealing in slaves (slave dealing) and forced labour.144 Unlike the Penal Code, however, the Penal Act specifically criminalises the offence of prostitution whether committed by male or female through offering one’s body for sexual intercourse for a consideration.145 It also criminalises the keeping, managing, assisting in managing or letting any premises to be used as brothels.146 About kidnapping and abduction, it makes it a criminal offence also the kidnapping or abduction of any person to subject him or her to grievous harm or slavery or to the unnatural lust of any person.147

141 This

reason prompted the United States Department of State 2002, p. 100 to note with concern in 2002 that: “A new section of the code criminalizes trafficking within or outside of Tanzania; however the penalty is relatively light.” 142 This observation was also presented by Tanzania to the Committee on the Rights of the Child on 29 November 2008, see Statement by Hon. Margaret Simwanza Sitta 2008, p. 6. 143 Penal Act of Zanzibar, Section 134. 144 Sections 135, 136, 137, 138, 141, 142, 145, 250, 251, 252, 255, 257, 263, 264, 265. 145 Section 140. 146 Section 144. 147 Section 256.

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Like SOSPA, the Penal Act criminalises also procuration of prostitution,148 sexual exploitation of children149 and trafficking of person.150 With regard to these offences, the Penal Act uses similar language and criminalises the same offences as SOSPA. This means that the same observations that have been pointed out with respect to the Penal Code and SOSPA also would apply to the Penal Act. This means as well that before the year 2008, Mainland Tanzania and Tanzania Zanzibar prosecuted the same crime of trafficking of person similarly but each territory using its own penal provisions.151 However, concerning the crime of trafficking of person, the position of the Penal Act is very unfortunate. This is because by the time Zanzibar amended its previous penal law in 2004, the Organised Crime Convention 2000 and the TIP Protocol 2000 were already adopted. Since Tanzania participated in the process leading up to the adoption of these instruments and also taking into account that international affairs is a “Union Matter”,152 it is unfortunate that Tanzania Zanzibar still adopted the same mistakes of SOSPA. In fact, it appears that even the new Bill Supplement that proposes to repeal the Penal Act No. 6 of 2004 still does retain the same shortcomings of the Penal Act of Zanzibar.153 The fact that the current AntiTrafficking in Persons Act 2008 applies to both Mainland Tanzania and Tanzania Zanzibar partly rectifies this situation.

6.3 Need for a Different Legal Regime The history leading to the enactment of the Anti-Trafficking in Persons Act 2008 is quite revealing. Although one of the members from the Tanzanian delegation rightly argued before the Committee on the Rights of the Child (CRC) that SOSPA was enacted to give effect to Tanzania’s obligations under the Convention on the Rights of the Child,154 the CEDAW Committee had earlier on noted on the disturbing fact that there was still no any data or statistics on prostitution and trafficking of

148 Section

134. 155. 150 Section 172. 151 This was already pointed out by the United States Department of State 2008, p. 242 that: “Zanzibar has a separate legal code from the Mainland Tanzania…. On Zanzibar, traffickers can be prosecuted under the Penal Act that criminalizes kidnapping, abduction, and slavery.” 152 See the First Schedule to the Constitution of Tanzania on Union Matters which mentions under clause 2 that foreign affairs is a Union Matter administered by the Government of Tanzania. 153 See Sections 117 on procuration of prostitution and 153 on trafficking of person of the Bill Supplement contained in the Zanzibar Government Gazette Vol. No. CXXVI 6675 of 13 November 2017 which proposes to repeal the Penal Act No. 6 of 2004 by enacting the New Penal Act. This can be accessed from the official website of the House of Representatives of Zanzibar. https://www. zanzibarassembly.go.tz/acts-2018.php. Accessed 20 February 2019. 154 Committee on the Rights of the Child 2001b, para 6. See also Committee on the Elimination of Discrimination against Women 2007, para 49. 149 Section

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women and children from Tanzania.155 It was accounted that internal trafficking, especially of young girls and children for domestic exploitation, was prevalent but not addressed or reported and that data on the protective measures and the number of trafficking victims in Tanzania was not known.156 It was reported that under the current provision of the Penal Code (Section 139A), internal and external trafficking in persons in their various forms were not criminalised.157 Its provisions were found to have imprecise definitions, lacked all the elements of the crime of trafficking in persons, the various end purposes through which trafficking occurs were not covered and that since 1998 when the Penal Code was amended, there were no reported cases of trafficking that were brought before the courts of law. Tanzania did not conduct any comprehensive research on the situation of trafficking in persons so as to protect trafficked persons.158 As remarked by Women’s Legal Aid Centre (WLAC), the Government reports failed to address the effects of SOSPA “on human trafficking and prostitution. The exploitation of women and girls through prostitution and trafficking is deemed to exist in Tanzania, although it is not sustained by government data.”159 It was pointed out as a shortcoming that since the enactment of SOSPA, Tanzania continued to lack a National Plan of Action to address trafficking to the detriment of women and children trafficked from rural to urban areas and other countries.160 These and similarly other related issues were also echoed by the United States Department of State yearly Trafficking in Persons Reports. As early as the year 2002, the United States Department of State Office to Monitor and Combat Trafficking in Persons observed that although the Penal Code criminalised trafficking in persons, the penalty it imposed on traffickers was “relatively light”.161 The 2003 Report noted further that under the current legal framework, “law enforcement agencies traditionally investigate cases of migrant smuggling, and it is unclear how many of these cases are related to trafficking”,162 indicating that Tanzanian investigative authorities have been also confusing trafficking in persons with smuggling of migrants.163 In the 2004 Report, the Office remarked that the current Tanzanian criminal law prohibited only trafficking for sexual purposes to the exclusion of other end purposes of trafficking such as forced labour.164 In the next Report of 2006, it was observed that the anti-trafficking law of Tanzania lacked precise definitions on various concepts 155 Committee

on the Elimination of Discrimination against Women 2001, para 3. on the Rights of the Child 2001a, para 64; Committee on the Rights of the Child 2005, paras 292, 293; Committee on the Rights of the Child 2006d, para 11. 157 Committee on the Rights of the Child 2006b, para 62. 158 Committee on the Rights of the Child 2007b, pp. 2, 3, 5. 159 Women’s Legal Aid Centre 2007, pp. 10, 26. See also Committee on the Elimination of Discrimination against Women 2008c, para 10. 160 Committee on the Elimination of Discrimination against Women, para 10; Committee on the Elimination of Discrimination against Women 2008a, para 27. 161 United States Department of State 2002, p. 100. 162 United States Department of State 2003, p. 148. 163 This has also been a serious problem in other countries like those in Latin America, see Langberg 2005, p. 130. 164 United States Department of State 2004, p. 79. 156 Committee

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relating to trafficking in persons and did not address all forms of trafficking.165 Its 2008 Report submitted that the presence of two different penal codes between Mainland Tanzania and Tanzania Zanzibar disadvantageously impacted Tanzania’s antitrafficking efforts due to separate prosecutions of trafficking in the same country.166 Due to these and other challenges reflected in the pre-2008 anti-trafficking legal framework, it became clear, and as also was proposed by the delegate of Tanzania before the CRC Committee, that the Government of Tanzania needed to embark on a comprehensive study and research on the law relating to trafficking in persons “with a view to addressing gaps and disparities in the legislation”.167

6.3.1 Domestication Tanzania is a dualistic country and therefore, international law will have the force of law only upon Tanzania’s ratification and domestication of an international instrument or agreement.168 According to the Constitution of Tanzania, the National Assembly is vested with the authority “to deliberate upon and ratify all treaties and agreements to which the United Republic is a party and the provisions of which require ratification”.169 In other words, an international instrument or agreement, and for that matter, international obligations as well, do not automatically become the binding law of Tanzania unless ratified by the Government and domesticated by the Parliament of Tanzania. While by ratification Tanzania evidences its acceptance to be bound by an international instrument under international law, by domestication, Tanzania gives the force of law to the said international instrument or agreement under its domestic legal regime so that such instrument does, in effect, become part of the laws of Tanzania. Therefore, the purpose of domestication is to make the rights, duties, principles and obligations contained in such treaties and instruments applicable and domestically enforceable in Tanzania.170 Unless domesticated, such instruments or agreements will only be persuasive legal texts and will not be enforced against the state under its domestic courts and institutions for breach, failure to implement or give effect. This also confirms that while by ratification, approval, acceptance or accession or by any other means a state evidences its legal acceptance to be bound by treaties under international law, and this is rightly addressed by the

165 United

States Department of State 2006, p. 242. States Department of State 2008, p. 242. 167 Committee on the Rights of the Child 2006c, para 38. 168 Shivji 1990, p. 13. On the understanding of dualism, see Gragl 2018, pp. 7, 35–38; Ako et al. 2016, pp. 131–132; Boyle 2016, p. 175. Further see Weill 2014, pp. 106, 188; Broache 2015, p. 6. 169 Constitution of Tanzania 1977, Article 63(3)(e). 170 Adede AO 2001, Domestication of International Obligations. https://www.commonlii.org/ke/ other/KECKRC/2001/14.html. Accessed 21 February 2019, para 1; Boyle 2016, p. 175; Hisashi 2015, p. 250. 166 United

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Vienna Convention on the Law of Treaties,171 how such treaties are applied and given effect is the internal matter of each state. Put it differently, domestication of international treaties and agreements is “a matter of national law and is not governed by international law”.172 In the case of Tanzania, purposive reading of Articles 34 and 35 of the Constitution of Tanzania indicates that the power to negotiate, sign and ratify any international instrument to which Tanzania intends to be bound to is vested in the executive arm of the Government of Tanzania. Once ratified, an instrument binds Tanzania internationally. It is for this reason that Tanzania gives its periodic reports to various international human rights treaties’ monitoring committees even when such instruments have not yet been domesticated in Tanzania. Domestication is achieved through the enactment by the Parliament of Tanzania of the legislation giving effect or the force of law to any international instrument or agreement to which Tanzania has ratified. Such legislation can either give effect to some of the provisions of the said international instrument through amendments to its already existing domestic legislation, the process otherwise known as reception or transformation, or enacting new legislation incorporating the entire international instrument as part of the domestic legislation, a process otherwise known as incorporation.173 This is to say, a state party has to enact such international instrument into law or an Act of parliament. Only through such a legislative action of the Parliament can any international instrument acquire any meaning or legal justiciability in the domestic courts of Tanzania.174 In fact, this position—international instruments lacking domestic enforceability unless domesticated—always has been advanced and argued by Tanzania when questioned by various international human rights treaties’ monitoring bodies on its failure to give effect to the provisions of the treaties it has ratified.175 By enacting the AntiTrafficking in Persons Act 2008, Tanzania domesticated the TIP Protocol 2000.176 Therefore, the Anti-Trafficking in Persons Act 2008 needs to be read closely together with the TIP Protocol 2000 and its parent instrument, the Organised Crime Convention 2000 which also binds Tanzania under international law by virtue of ratification and domestication. With regard to the TIP Protocol 2000, Tanzania could not ratify this instrument without first becoming a party to the TIP Protocol 2000’s parent instrument, the

171 Vienna

Convention on the Law of Treaties, Articles 11–17. 2011, p. 3; Adede 2001, para 2. 173 Peter 2013, p. 6; Osofsky 1997, pp. 191–192. 174 Ako et al. 2016, pp. 131–132. For a comparative position from Nigeria, see Egede 2007, pp. 250– 260, 260–273; from Australia, see De Jonge 2011, pp. 26–28; for Bangladesh, see Karim and Theunissen 2011, pp. 98–101; for Canada, see Beaulac and Currie 2011, pp. 126–131. For a general position, see Carver 2010, pp. 1–32. 175 Committee on Civil and Political Rights 1998c, para 13; Committee on the Rights of the Child 2007c, pp. 2–3; Committee on the Rights of the Child 2006c, para 38; Committee on the Elimination of Racial Discrimination 2005, para 3. 176 United Republic of Tanzania, Ministry of Home Affairs 2018, p. 4. 172 Shelton

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Organised Crime Convention 2000.177 Tanzania signed the Organised Crime Convention 2000 on 13 December 2000 and deposited its instrument of ratification on 24 May 2006.178 It also, on the same date, signed the TIP Protocol 2000 and the Migrant Smuggling Protocol 2000 and deposited its instruments of ratification. The Organised Crime Convention 2000, the Migrant Smuggling Protocol 2000 and the TIP Protocol 2000 entered into force for Tanzania on the 23 June 2006.179 This means that as of 23 June 2006, Tanzania was internationally bound by these legal instruments. Since international affairs is a “Union Matter”, the Ministry responsible for international or foreign affairs deals with the ratification of international treaties but leaves its domestic implementation to the Ministry concerned for implementation, in this case, the Ministry responsible for Home Affairs. The process of domesticating seems to involve the following procedures: an initiative by the Ministry of Justice and Constitutional Affairs; followed by consultations with the Ministry of Finance, where there are possible financial implications involved; next is the deliberation by the inter-ministerial Technical Committee; then the Cabinet deliberates and approves; the Bill is then prepared by the Chief Parliamentary Draftsman; it is then sent to the National Assembly for reading and passing; the President assents to the Bill to become an Act of Parliament; the Act is published in the Government Gazette (GN) and enters into force with respect to Tanzania.180

6.3.2 Enactment of the 2008 Act In order to domesticate the TIP Protocol 2000 in Tanzania or more appropriately, to give the force of law to the TIP Protocol 2000, the Anti-Trafficking in Persons Act 2008 was enacted. As will be shown later on in this chapter, the 2008 Act incorporates nearly all of the basic provisions of the TIP Protocol 2000. The process leading to the enactment of the 2008 Act is well elaborate. It can be gathered from the various reports, parliamentary standing orders, consultations with the various stakeholders and the deliberations that took place in the National Assembly of the Parliament of Tanzania. All these had a profound impact on the legal content of the 2008 Act. The Constitution of Tanzania vests legislative powers in the Parliament of Tanzania.181 The Standing Orders of the National Assembly provide elaborate procedures on the enactment of any Act of Parliament by the Parliament of Tanzania.182 The legislative 177 Organised

Crime Convention 2000, Article 37(2). Status. https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no= XVIII-12&chapter=18&clang=_en. Accessed 21 February 2019. 179 United Republic of Tanzania: Ratification Status. https://treaties.un.org/doc/Publication/CN/ 2006/CN.416.2006-Eng.pdf. Accessed 21 February 2019. 180 Kamanga 1998, pp. 74–78; Peter 2013, pp. 31–32. 181 Constitution of Tanzania 1977, Articles 63(3)(d), 64(1), 89, 97. 182 Constitution of Tanzania 1977, Article 89. These Standing Orders are Katiba ya Jamhuri ya Muungano wa Tanzania ya Mwaka 1977 (2007) Kanuni za Kudumu za Bunge, Toleo la 2007 178 Ratification

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procedures as set out in the Standing Orders were followed in the enactment of the Anti-Trafficking in Persons Act 2008. In May 2006, the Government of Tanzania formed a working group comprising of officials from several ministries who drafted the Anti-Trafficking in Persons Draft and presented it to the Cabinet Secretariat in July. The Cabinet Secretariat revised and approved the Draft in August 2006. In November 2006, the Permanent Secretaries approved the Draft. The Draft was transmitted to Zanzibar for review and comments in February 2007. The review of the Draft by Zanzibar lasted for six months. The process of drafting the national anti-trafficking legislation followed. In mid-January 2008, the Cabinet of the Government of Tanzania approved the Anti-Trafficking in Persons Bill and introduced it for the first reading in the National Assembly two weeks later. The Bill was sent to the Special Committee for further discussion and gathering of stakeholders’ views. Some of the stakeholders that presented their views included the National Organisation for Legal Assistance (NOLA), Legal and Human Rights Centre (LHRC), Tanganyika Law Society (TLS), Tanzania Women Lawyers Association (TAWLA), Prevention and Combating of Corruption Bureau (PCCB), Kiota Women Health and Development Organisation (KOWOHEDE) and the media. On 11 April 2008, the Bill was tabled in the National Assembly for the second reading. The second reading involved deliberations by members of the National Assembly on the contents of the Anti-Trafficking in Persons Bill. After the third reading, following the deliberations by members of the National Assembly and the recommendations that were ultimately included in the final version, the Bill was passed by the National Assembly on 14 April 2008 with its corrections. Thereafter, the Bill was assented to by the President of Tanzania on 6 June 2008 and in February 2009, the AntiTrafficking in Persons Act 2008 came into force after being translated in Swahili and published.183 Of particular interest in this study is the discussion and deliberations of the members of the National Assembly on the content the 2008 Act should contain as expressed during the second reading on 11 April 2008.184 A considered review of their deliberations is hereby presented and its significance in relation to the content of the 2008 Act and its aftermath is underscored. During the second reading, it was stressed by the Ministry of Home Affairs on behalf of the Government of Tanzania that the impetus to enact the 2008 Act was the international consensus on the fight against transnational organised crime of Dodoma: Parliament of Tanzania Dodoma. The 2007 Standing Orders (kanuni za Kudumu) have been revised in April 2013 and the most recent revision is that of January 2016. Specific orders (kanuni) which provide for the various legislative procedures in Tanzania are found under orders 80–93 of the April 2013 Revision and orders 80–93 of the January 2016 Revision respectively. 183 A comprehensive account of the entire proceedings leading to the enactment of the 2008 AntiTrafficking in Persons Act is found from the Bunge la Tanzania (2008) Majadiliano ya Bunge, Mkutano wa Kumi na Moja, Kikao cha Nne – Tarehe 11 April 2008 Bunge la Tanzania (Online Document), Dodoma, pp. 32–77; Bunge la Tanzania 2008d, p. 2; Bunge la Tanzania 2008e, p. 34; United States Department of States 2009, p. 278; United States Department of States 2008, p. 242; United States Department of States 2007, p. 196. 184 These deliberations are found from Bunge la Tanzania (2008) Majadiliano ya Bunge, Mkutano wa Kumi na Moja, Kikao cha Nne – Tarehe 11 April 2008. Bunge la Tanzania (Online Document), Dodoma, pp. 32–77.

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12-15 December 2000 in Italy in which Tanzania participated and the inadequacy of its laws and their lack of comprehensiveness to address and tackle the crime of trafficking more effectively. The Minister noted that the enactment of the 2008 Act intended to prevent trafficking and that trafficking occurs upon the presence of the four basic elements the absence of which vitiates the presence of any trafficking, namely, recruitment, transportation, harbouring and exploitation.185 The Minister remarked that trafficking is present in Tanzania but at a minimal level and it was the decision of Tanzania to ensure that even that minimal level is combated. He noted that the 2008 Act will criminalise both internal and transnational trafficking and will serve the benefit of: strengthening the combating of trafficking, providing an avenue for Tanzania to co-operate internationally in the information exchange regarding trafficking, and the amendment of several laws in Tanzania to reflect this understanding.186 The Committee on International Affairs, Security and Peace also gave its views on the proposed law. The Committee opined that the provisions of the proposed law relating to compensation of the trafficked victims should use an imperative language “shall” instead of “may” so as to show that the right of trafficked persons to compensation entails a mandatory duty on the part of the Government. It proposed that concerning a person who facilitates the commission of trafficking, he should only be punished where such facilitation is done “knowingly”. The Committee argued that the law to be enacted should protect the privacy and confidentiality of the trafficked victim and not the accused person who should be exposed to the public.187 More fundamentally, the Committee noted that the trafficking of women and children in Tanzania for domestic exploitation is a rampant problem. Therefore, the proposed law should be able to indicate at what point in time is trafficking committed when women and children are employed for domestic services.188 Also, the Committee opined that trafficking by religious leaders, psychological treatment for trafficked victims and the legal status of trafficked victims who cannot be repatriated to their countries of origin for reasons of their safety, security and protection of their human rights should be included and clarified in the proposed law.189 It was recommended on behalf of the opposition that the proposed law should be able to deal effectively with transnational trafficking of children abroad, have punishments that are proportional to the gravity of the crimes committed, define what is an organ for the purpose of trafficking, 185 As will be shown

in the next chapter, this understanding was legally unfounded because recruitment, transporting and harbouring are but three of the constitutive acts of the action element. Furthermore, the Minister seemed to have been unaware that the means element is very important for the crime of trafficking to exist. 186 Bunge la Tanzania Kikao cha Nne – Tarehe 11 April 2008, pp. 34–36, 71. 187 While the Committee was right that privacy and confidentiality of victims of trafficking need to be protected, it did not consider in its proposal that even traffickers have their constitutional rights that need to be explicitly guaranteed. 188 As will be shown in the next chapter, this recommendation did not feature into the main criminalisation provisions of the Anti-Trafficking in Persons Act 2008. 189 Bunge la Tanzania Kikao cha Nne – Tarehe 11 April 2008, pp. 36–39. These recommendations wholly feature in the Anti-Trafficking in Persons Act 2008.

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ensure that only qualified persons offer assistance and support to trafficked persons, punish and fine companies and their officials involved in trafficking and that penalties imposed by courts of law on convicted persons should be part of the Anti-Trafficking Victim Fund.190 This was followed by the deliberations by the entire National Assembly. Their deliberations on what the proposed law should contain reflected the following views in general, that: (a) Trafficking chiefly affects women and children. (b) In addition to criminalising various acts which amount to trafficking, the law should clearly define what trafficking means as a crime. (c) The use of hortatory language that subjects the right of the trafficked victims to support and assistance to the availability of resources from the Government should not feature in the proposed law as its presence defeats the very idea of trafficked persons having the right at all.191 (d) Causes of trafficking and similar factors that result in people’s vulnerability should be addressed in the law and actual programmes by the Government. It was understood that trafficking does exist in Tanzania and elsewhere for reasons of unemployment, discrimination in the society, economic disparities, organised crime, regional economic imbalances, corruption in the government, political instability, displacement of people to attract foreign direct investment, conflicts and instability, increase in the violation of human rights of people, lack of stringent punishment for traffickers and poverty. (e) The Anti-Trafficking in Persons Committee and the Anti-Trafficking in Persons Secretariat should have a diversity of membership, those representing the affected, other stakeholders and those responsible for its prevention. (f) Trafficking is a big problem in Tanzania and is growing daily. Lack of statistics by the Government is not an indication of the absence of the problem or its minimal presence. (g) Border control and safeguard and international co-operation should be pursued with other organisations and states fighting trafficking as part of a preventive strategy.192 In addition, awareness-raising, especially on the negative impacts of trafficking to serve as a warning to people, education to primary and secondary school students, the use of the media and engagement of interested stakeholders, 190 Bunge

la Tanzania Kikao cha Nne – Tarehe 11 April 2008, pp. 41–42. While most of these recommendations were ultimately included in the Anti-Trafficking in Persons Act 2008, the recommendation that companies or legal persons should also be subjected to fines did not feature, at least not directly. 191 Not only was this recommendation not included in the Anti-Trafficking in Persons Act 2008, but that its failure to be included represents Tanzania’s only greatest legal weakness with regard to its international and domestic obligation to protect, assist and support victims of trafficking in persons. This is subject to discussion in the next chapter. 192 This recommendation did feature in the Anti-Trafficking in Persons Act 2008. Therefore, the provisions of the TIP Protocol 2000 on this obligation need to be read as applicable also to the Anti-Trafficking in Persons Act 2008.

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(h) (i)

(j) (k)

(l)

(m)

(n)

(o) (p)

(q) (r)

(s)

321

training to responsible officials and institutions as well as translation of the proposed law in Swahili for easy understanding, should be pursued. Domestic and physical violence that affects women and children should be addressed because trafficking is one of the spill-over effects of such violence. Trafficking, especially of young people from Tanzania to participate in armed conflicts and hostilities should be reflected in the proposed law, following an allegation that several Tanzanians have been found fighting in several countries such as Somalia and Iraq where they actually ended into being exploited. Trafficking is a human rights issue and therefore, prohibited by the Constitution of Tanzania. The words and the language used in defining trafficking and its elements are overly broad, confusing and vague. The proposed law should use a simple language that clearly criminalises and defines the conducts it outlaws. Although trafficking is a serious crime, the proposed law should not have a clause requiring prosecuting authorities to obtain the permission of the DPP as this will have a negative impact on the overall investigation and prosecution of trafficking cases in Tanzania. The proposed law should reflect the position that trafficking is modern-day slavery and a violation of the human rights of those trafficked so as to give the weight and attention it deserves. The law should protect trafficked victims against violation of their human rights when they appear to participate in the commission of crimes such as violation of immigration laws. They should be considered as victims and not perpetrators. The law should have provisions which allow for the confiscation of the proceeds of trafficking of the accused persons. Trafficking outside Tanzania for brokered and exploitative marriages and domestic exploitation and prostitution are matters that need to feature in the law. The law should also criminalise the conducts of persons who use the adoption of children as a means or vehicle to traffic and exploit. The law should criminalise or reflect the position that traffickers use the vulnerable situation of parents to unlawfully give them payments to achieve their consent to have their children trafficked; and finally, Welfare, employment and orphanage centres or organisations need to be examined closely so that they will not be used as vehicles to further trafficking.193

These views by members of the National Assembly and the Government of Tanzania have several implications. They feature greatly in the provisions of the Anti-Trafficking in Persons Act 2008 as shown in Chaps. 7 and 8. It is axiomatic that their views largely reflect the evolving understanding of trafficking under international law. Their views on the nature of trafficking in persons, its definition, clarity of its defining elements, the position of the trafficked persons in Tanzania in terms of their repatriation and protection of their human rights and entitlement to assistance 193 Bunge

la Tanzania Kikao cha Nne – Tarehe 11 April 2008, pp. 42–64.

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and support, causes of trafficking, the responsibility of the Government and other stakeholders as well as the duty of the ATC and ATS all permeate the basic provisions of the 2008 Act. Furthermore, the proposal for the misconceived understanding and a highly conflicted approach that trafficking in Tanzania should be understood as modern-day slavery does not feature in the law and this is a correct legal position. Furthermore, while the proposal that the law should make sexual exploitation of women and children as the primary form through which trafficking manifests itself is found in the 2008 Act, the law goes beyond that proposal by recognising that trafficking exists for other end purposes as well.

6.3.3 Constitution of Tanzania The Constitution of Tanzania lacks a clear provision that prohibits trafficking in persons. Such prohibition can only be explained when the Constitution is read purposively. Article 9 of the Constitution of Tanzania requires the Government and its institutions or agencies to direct their policies and programmes to ensure “that all forms of injustice, intimidation, discrimination, corruption, oppression or favouritism are eradicated”.194 It can be argued that since trafficking is a form of injustice to trafficked persons, trafficking is indirectly prohibited by the Constitution. It is to be stressed out, however, that Article 9 belongs to Part II of Chapter One of the Constitution which deals with “Fundamental Objectives and Directive Principles of State Policy”. This part is not enforceable by courts of law.195 Therefore, a trafficked person cannot petition any court of law in Tanzania to determine that the Government of Tanzania or any of its agencies, by failure to protect him or her from injustice, and trafficking being a form of injustice, has breached its obligations under Article 9(h) of the Constitution. However, as will be shown below, this does not mean that one cannot bring action against the Government for violation of his constitutionally guaranteed rights. The Constitution also enshrines the right to equality of life and persons, right of equality before the law, right to personal freedom, right to personal privacy and personal security, right to freedom of movement, right to freedom of expression, right to freedom of religion and the right to just remuneration.196 To a large extent, these rights are violated throughout the trafficking experience.197 Trafficked persons are beaten, tortured, their remuneration denied, their identity and travel documents seized, physically and sexually abused or molested or exploited, their freedom of 194 Constitution

of Tanzania 1977, Article9(h). Article7(2). On the wide applicability of the fundamental objectives and directive principles of state policy and their impact of human rights, see Kabudi 1995, pp. 272–303; Okere 1983, pp. 214–228; Aikman 1987, pp. 373–392; Usman 2007, pp. 643–696; De Villiers 1992a, pp. 29–49; 1992b, pp. 188–199; Mukherjee 2014, pp. 14–34. 196 Articles 12, 13, 14, 15, 16, 17, 18, 19, 23. 197 Perry and McEwing 2013, p. 146. 195 Constitution of Tanzania 1977,

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movement curtailed or completely denied, discriminated against, treated as second class citizens, their privacy intruded as a means of control, their security threatened, the right to freely express their situation and seek the protection of the law denied, their right and freedom of religion abrogated, treated as if they lack equality or protection from the law and even sometimes being killed as a consequence of trafficking.198 Since trafficking is a private crime but which has grave socio-economic consequences to the individual, community, nation and the international community,199 the Government can easily shield itself from any responsibility. However, as discussed earlier in Chap. 5, the Government has obligations to implement under the principle of due diligence.200 The Government has to protect, guarantee, implement and provide full human rights enjoyment to its people based on the Constitution of Tanzania and its commitments under international law. It has to investigate human rights violations, prosecute its perpetrators and provide effective and available remedies to victims of crime, including victims of trafficking.201 The Government will be treated as violating the human rights of its people through its inaction, acquiescence, participation through corruption and complicity of its officials or for its failure to act when the violation of the rights is alleged before its courts by trafficked persons.202 A proper reading of Article 26(2) of the Constitution which provides that “every person has the right, in accordance with the procedure provided by law, to take legal action to ensure the protection of this Constitution and the laws of the land” as well as the provisions of Article 29(1) and (2) clearly operates to indicate that trafficked persons can enforce their violated rights before the courts of law whether the same have been directly violated by private persons as is normally the case with trafficking and directly or indirectly violated by state officials or its organs. Conclusively, it can be contended that while the Constitution of Tanzania does indirectly prohibit the trafficking of its citizens and other persons found within its jurisdiction, it directly enforces claims of violations of human rights of the trafficked persons through its courts of law and other responsible institutions. With regard to the responsibility of the Government of Tanzania, the Basic Rights and Duties Enforcement Act, Act No. 33 of 1994 lays down the procedure under which a legal action or petition can be brought by an individual such as a trafficked person alleging violation of any of his basic rights under the provisions of the Constitution from Articles 12 to 29.203 It is 198 Perry

and McEwing 2013, pp. 139, 146; Gallagher and Skrivankova 2015, p. 8; Sigmon 2008, pp. 254–255; Piotrowicz 2012, p. 184; Chapkis 2003, p. 931; Global Financial Integrity 2017, pp. 23–24; Gallagher 2015, pp. 61–62. 199 Global Financial Integrity 2017, pp. 25–26; Sharapov 2016, p. 20; Waismann 2010, pp. 388–389; Moser 2018, pp. 1–2; Fish 2017, pp. 533. 200 Gallagher and Karlebach 2011, pp. 14–16; Malloch and Rigby 2016a, b, p. 4; Zyberi 2017, p. 243. 201 Gallagher and Karlebach 2011, pp. 14–16; Duffy 2017, p. 104. See as well Xenos 2012, pp. 28 et seq. 202 Williams 2008, pp. 147–148. 203 Basic Rights and Duties Enforcement Act, Act No. 33 of 1994, Section 3.

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in this sense that the framers of the Anti-Trafficking in Persons Act 2008 understood that trafficking is a human rights issue prohibited by the Constitution of Tanzania.

6.4 Conclusion This chapter of the book has analysed the crime of human trafficking in Tanzania before the enactment of the Anti-Trafficking in Persons Act in 2008. It has considered the historical setting of the problem of human trafficking, the nature of the trafficking itself and the factors that exacerbate the problem in Tanzania. It has analysed the provisions of the Penal Code which have a bearing on human trafficking. The chapter found that except for the provisions outlawing slavery and slave trade, strictly speaking, the Penal Code lacked any provision that criminalised the crime of trafficking in persons. Only a few of its provisions criminalise certain elements which might haphazardly form part of the action, means or purpose elements of the crime of human trafficking as understood today. These weaknesses and the general inadequacy of most of Tanzania’s laws at this time led to the enactment of the SOSPA. SOSPA amended the Penal Code to include clear provisions outlawing among other crimes the crime of “trafficking of persons”. The chapter has made a critical and analytical examination of SOSPA’s provisions, especially Section 139A which criminalised the trafficking of persons. It found that the provision, in essence and effect, only criminalised the conduct of buying and disposing of a person as a slave, which was already prohibited by the Penal Code, and the crime of trafficking in persons for the purpose of child adoption, albeit loosely. This chapter found that trafficking in persons, as understood and defined in international law and under the current legal framework of Tanzania, was not criminalised by SOSPA. The chapter also examined the legal framework of Zanzibar before 2008. This chapter found that, with some slight modifications, the Penal Act follows similarly, almost verbatim, the same legal approach and shortcomings as found in the Penal Code and SOSPA. The chapter has also presented factors and circumstances that necessitated the enactment of the current legal and institutional framework. It also has presented important parliamentary debates leading up to the enactment of the current anti-trafficking legal regime and their influence on the content of what the 2008 Act should contain. Finally, this chapter has considered the constitution of Tanzania and how it relates to the problem of human trafficking. The chapter has argued that although the Constitution of Tanzania prohibits human trafficking indirectly, it enforces violations of the human rights of the trafficked persons directly.

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Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature 25 May 2000, 2171 UNTS 227 (2000), entered into force 18 January 2002. Organisation for Economic Co-operation and Development Secretary-General (2016) Trafficking in Persons and Corruption: Breaking the Chain. OECD Public Governance Reviews, OECD Publishing, Paris. Osofsky HM (1997) Domesticating International Criminal Law: Bringing Human Rights Violators to Justice. Yale Law Journal 107(1): 191–226. Pearson E (2003) Study on Trafficking in Women in East Africa. Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ), Eschborn. Perry KM, McEwing L (2013) How do Social Determinants Affect Human Trafficking in South East Asia and What Can We Do About It? A Systematic Review. Health and Human Rights 15(2): 138–159. Peter L (2013) The Implications of Tanzania not Domesticating International Human Rights Instruments: The Case Study of CEDAW. LLM Thesis Submitted to Mzumbe University in June 2013 (Unpublished). Pinkney R (1997) Democracy and Dictatorship in Ghana and Tanzania. Palgrave Macmillan, Hampshire. Piotrowicz R (2012) States Obligations under Human Rights Law towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations. International Journal of Refugee Law 24(2): 181–201. Piotrowicz R et al. (eds) (2018) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (2000), entered into force 25 December 2003. Rittenhouse R (2013) Status of Action against Commercial Sexual Exploitation of Children 2 edn. Tanzania, End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes International (ECPAT). ICEPAT International, Bangkok. Sahan Foundation and IGAD Security Sector Program (2016) Human Trafficking and Smuggling on the Horn of Africa—Central Mediterranean Route. Sahan Foundation and IGAD Security Sector Program (online document). Samarasinghe V, Burton B (2007) Strategising Prevention: A Critical Review of Local Initiatives to Prevent Female Sex Trafficking. Development in Practice 17(1): 51–64. Sharapov K (2016) Productive Ignorance: Assessing Public Understanding of Human Trafficking in Ukraine, Hungary and Great Britain. In: Malloch M, Rigby P (eds) Human Trafficking: The Complexities of Exploitation. Edinburgh University Press, Edinburgh, pp. 17–40. Sharapov K (2018) Trafficking in Human Beings and the Informal Economy. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 526–534. Shelton D (2011) Introduction. In: Shelton D (ed) International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion. Oxford University Press, New York, pp. 1–22. Shelton D (ed) (2011) International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion. Oxford University Press, New York. Shivji IG (1990) The Legal Foundations of the Union in Tanzania’s Union and Zanzibar Constitutions. Dar es Salaam University Press, Dar es Salaam. Sigmon JN (2008) Combating Modern-Day Slavery: Issues in Identifying and Assisting Victims of Human Trafficking Worldwide. Victims and Offenders 3: 245–257. Sinn A (2016) Transnational Organised Crime: Concepts and Critics. In: Hauck P, Peterke S (eds) International Law and Transnational Organised Crime. Oxford University Press, New York, pp. 24–41. Statement by Hon. Margaret Simwanza Sitta (MP) Minister for Community Development, Gender and Children of the United Republic of Tanzania Before the Committee on the Rights of the

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Child, Geneva Switzerland, 29 September 2008. https://www.mcdgc.go.tz/data/Tanzania49.pdf. Accessed 20 February 2019. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, opened for signature 7 September 1956, 226 UNTS 3 (1956), entered into force 30 April 1957. Tanzania Child Rights Forum (2014) Tanzania’s CSO’s Alternative Report to the 3rd, 4th, and 5th Consolidated Report on Tanzania’s Implementation of the Convention on the Rights of the Child (2007–2012). Tanzania Child Rights Forum, Dar es Salaam. Tanzania Women Lawyers Association (2014) Review of Laws and Policies Related to GenderBased Violence of Tanzania Mainland, September 2014. TAWLA, Dar es Salaam. Thachuk KL (ed) (2007) Transnational Threats: Smuggling and Trafficking in Arms, Drugs, and Human Life. Greenwood Publishing Group, Inc, Westport Connecticut. Uhl BH (2018) Assumption Built into Code’ – Datafication, Human Trafficking, and Human Rights – A Troubled Relationship? In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 407–416. Ulandssekretariatet LO/FTF Council (2016) Labour Market Profile, 2016, Tanzania and Zanzibar. Ulandssekretariatet LO/FTF Council, Copenhagen. Ulandssekretariatet LO/FTF Council (2018) Labour Market Profile, 2018, Tanzania and Zanzibar. Ulandssekretariatet LO/FTF Council, Copenhagen. Under The Same Sun (2013) Children with Albinism: Violence and Displacement, an NGO Report Submitted to the United Nations Committee on the Rights of the Child, 16 February 2013. Under The Same Sun, Surrey. UNGA (1993) Declaration on the Elimination of Violence against Women. UN Doc. A/RES/48/104, 20 December 1993. UN.GIFT (2008) 017 Workshop: A Background Paper on Technology and Human Trafficking. The Vienna Forum to Fight Trafficking, 13–15 February 2008, Austria Center, Vienna. United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2222 UNTS 209 (2000), entered into force 29 September 2003. United Republic of Tanzania Vice President’s Office (2005) National Strategy for Growth and Reduction of Poverty (NSGRP), June 2005. Vice President’s Office, Dar es Salaam. United Republic of Tanzania, Ministry of Home Affairs (2018) National Anti-Trafficking in Persons Action Plan (2018–2021), May 2018. Ministry of Home Affairs, Dar es Salaam. United States Department of State Office to Monitor and Combat Trafficking in Persons (2015) Trafficking in Persons Report, June 2015. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2016) Trafficking in Persons Report, June 2016. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2017) Trafficking in Persons Report, June 2017. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2018) Trafficking in Persons Report, June 2018. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2010) Trafficking in Persons Report, June 2010. Department of State Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2002) Trafficking in Persons Report, June 2002. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2003) Trafficking in Persons Report, June 2003. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2011) Trafficking in Persons Report, June 2011. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2004) Trafficking in Persons Report, June 2004. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2005) Trafficking in Persons Report, June 2005. Department of State, Washington D.C.

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United States Department of State Office to Monitor and Combat Trafficking in Persons (2007) Trafficking in Persons Report, June 2007. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2008) Trafficking in Persons Report, June 2008. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2013) Trafficking in Persons Report, June 2013. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2006) Trafficking in Persons Report, June 2006. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2009) Trafficking in Persons Report, June 2009. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2012) Trafficking in Persons Report, June 2012. Department of State, Washington D.C. United States Department of State Office to Monitor and Combat Trafficking in Persons (2014) Trafficking in Persons Report, June 2014. Department of State, Washington D.C. UNODC (2011) Issue Paper: The Role of Corruption in Trafficking in Persons. UNODC, Vienna. UNODC (2018) Global Study on Smuggling of Migrants 2018. UNODC, Vienna. Usman J (2007) Non-Justiciable Directive Principles: A Constitutional Design Defect. Michigan State Journal of International Law 15(3): 643–696. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (1969), entered into force 27 January 1980. Waismann V (2010) Human Trafficking: State Obligations to Protect Victims’ Rights, the Current Framework and a New Due Diligence Standard. Hastings International & Comparative Law Review 33(2):385–430. Weill S (2014) The Role of National Courts in Applying International Humanitarian Law. Oxford University Press, New York. Williams P (2008) Trafficking in Women: The Role of Transnational Organized Crime. In: Cameron S, Newman E (eds) Trafficking in Human Beings: Social, Cultural and Political Dimensions. United Nations University Press, New York, pp. 126–157. Winterdyk J et al. (eds) (2012) Human Trafficking: Exploring the International Nature, Concerns and Complexities. CRC Press, Boca Raton. Women’s Legal Aid Centre (2007) On Behalf of the Southern Africa Human Rights NonGovernmental Organisations’ Network (SAHRINGON) Tanzania Chapter, Tanzania NonGovernmental Organisations’ Shadow Report to CEDAW: The Implementation of the Convention on the Elimination of All Forms of Discrimination against Women, 6 June 2007. Women’s Legal Aid Centre, Dar es Salaam. https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Docu ments/TZA/INT_CEDAW_NGO_TZA_41_10208_E.pdf. Accessed 20 February 2019. Wylie, McRedmond P (eds) (2010) Human Trafficking in Europe: Character, Causes and Consequences. Palgrave Macmillan, Basingstoke. Xenos D (2012) The Positive Obligations of the State under the European Convention on Human Rights. Routledge, New York. Yen I (2008) Of Vice and Men: A New Approach to Eradicating Sex Trafficking by Reducing Male Demand through Educational Programmes and Abolitionist Legislation. Journal of Criminal Law and Criminology 98(2): 653–686. Yusuf AA (ed) (1998) African Yearbook of International Law, volume 5, 1997. Kluwer Law International, The Hague. Zhang SX (2007) Smuggling and Trafficking in Human Beings: All Roads Lead to America. Praeger Publishers, Westport. Zyberi G (2017) Responsibility of states and Individuals for Mass Atrocity Crimes. In: Nollkaemper A, Plakokefalos I (eds) The Practice of Shared Responsibility in International Law. Cambridge University Press, Cambridge, pp. 236–262.

Chapter 7

Criminal Justice Response

Contents 7.1 Some Interpretational and Problematic Aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Criminalisation and Prohibition of Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.1 First Act of Trafficking [Section 4(1)(a)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.2 Second Act of Trafficking [Section 4(1)(b)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.3 Third Act of Trafficking [Section 4(1)(c)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.4 Fourth Act of Trafficking [Section 4(1)(d)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.5 Fifth Act of Trafficking [Section 4(1)(e)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.6 Sixth Act of Trafficking [Section 4(1)(f)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.7 Seventh Act of Trafficking [Section 4(1)(g)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.8 Eighth Act of Trafficking (Placement) [Section 4(2)] . . . . . . . . . . . . . . . . . . . . . . 7.2.9 Acts Promoting or Facilitating Trafficking [Section 5] . . . . . . . . . . . . . . . . . . . . . 7.3 Trafficking of Children [Section 4(3)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Consent of the Victim [Section 4(4)] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Duty to Investigate Cases of Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7 Judicial Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8 Powers of the Court on Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.9 Sanctions and Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10 Asset Confiscation, Forfeiture and Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11 Obligation to Collect and Exchange Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.12 Obligation of International Co-operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

336 348 348 359 360 362 364 365 367 375 379 391 393 393 394 396 397 399 399 401 401 404 405

Abstract This chapter of the book provides a comprehensive and analytical examination of the obligation of a criminal justice response as contained in the Anti-Trafficking in Persons Act 2008 and its Main Regulations 2015. The examination of this mandatory international legal obligation is gauged against similar obligations as discussed and analysed in Chap. 5 of this book. The present chapter considers all aspects of this obligation as contained in this legal framework. Among others, it points out the basic and peculiar features of this legal framework, how its criminalisation provisions have been drafted, the difficult legal relationship between the 2008 Act and its Main Regulations 2015, coherence with international law, especially the TIP Protocol 2000 and areas in which the Tanzanian legal framework either lags behind or is in agreement with or even takes an advanced step compared to the position currently existing under international law. More importantly, this chapter © t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_7

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points out some implications from the major legal shortcomings that this legal framework presents in the discharge of this international obligation and the chapter goes on to suggest some areas for improvement. The remaining two international obligations—obligation to prevent human trafficking, and the obligation to provide victims of human trafficking with support, assistance and protection, including access to remedies—are considered in Chap. 8. This in no way waters down the reality that these three international anti-trafficking obligations are interrelated and even overlap. Keywords 2008 Act · Main Regulations 2015 · Criminalisation · Acts of trafficking · Armed activities · Albinism · Compensation · Sanctions · Confiscation · Elements of trafficking · People smuggling · Exploitation

7.1 Some Interpretational and Problematic Aspects This chapter seeks to provide a comprehensive and analytical examination of the current anti-trafficking legal framework of Tanzania as contained in the AntiTrafficking in Persons Act of 2008, Act No. 6 of 2008, CAP 4331 and its Implementing Regulations, namely, the Anti-Trafficking in Persons (Establishment of Centres for Protection and Assistance of Victims) Regulations2 and the Anti-Trafficking in Persons (Prevention, Protection and Treatment) Regulations.3 Although the major anti-trafficking obligations are discussed separately as they require different administrative, legislative and policy interventions, it is recognised that they all are interrelated and overlapping.4 For instance, the obligation of an effective, appropriate and adequate criminal justice response can result in preventing trafficking. Similarly, providing assistance, protection and support to victims of trafficking can also prevent trafficking and help in the investigation and prosecution of trafficking, which is the obligation of an effective, appropriate and adequate criminal justice response. Due to its length and centrality in the 2008 Act, this chapter 1 The

Anti-Trafficking in Persons Act 2008 or the 2008 Act or the Act.

2 Government Notice No. 27 of 30 January 2015. Centres for Protection and Assistance Regulations

2015. 3 Government

Notice No. 28 of 30 January 2015. Main Regulations 2015. and Burton 2007, p. 53; International Labour Office 2005, p. 7. The clearest elucidation of the overlapping nature of these anti-trafficking obligations is expressed well in the Case of Rantsev v Cyprus and Russia 2010, para 218. In that case, the European Court of Human Rights observed that “It is clear that Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life but also to take appropriate steps to safeguard the lives of those within its jurisdiction. In the first place, this obligation requires the State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and punishment of such breaches. However, it also implies, in appropriate circumstances, a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual.” See also The Case of Osman v The United Kingdom, 1998, para 115.

4 Samarasinghe

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discusses the obligation of a criminal justice response separately from the remaining two obligations which are discussed in Chap. 8. The Anti-Trafficking in Persons Act 2008 is the basic law that criminalises human trafficking in Mainland Tanzania and Tanzania Zanzibar.5 The 2008 Act was first enacted in English and then translated in Kiswahili.6 In Kiswahili, the 2008 Act is called Sheria ya Kuzuia Usafirishaji Haramu wa Binadamu, Sheria Na. 6 ya 2008. According to the Interpretation of the Laws Act, both versions of the law are valid. However, where the two laws conflict or where doubt exists as to the meaning of any word or expression used, the law first enacted, in this case, the English version, prevails. Similarly, where the two laws were enacted in both languages at the same time and a similar conflict or doubt exists, still the English version takes precedence.7 Where necessary both versions of the law will be used comparatively, with the English version taking precedence in case of a conflict or doubt as to the meaning. This approach is very significant because translated in English, the Swahili version would be called “Anti-Illegal Transport in Persons Act” or “Prevention of Illegal Transport in Persons Act”. Therefore, the Swahili version of the law does not reflect the actual sense of the title as used in the English version of the same law because the Swahili version only emphasises the transportation aspect alone. In fact, a focus on the prevention of illegal transportation of human beings alone is very restrictive and does not capture the all-encompassing nature of the English term “to traffic”. The appropriate translation into Swahili would be “Sheria ya Kuzuia Biashara Haramu ya Binadamu” or “Sheria Dhidi ya Biashara Haramu ya Binadamu” as “Biashara Haramu” means “traffic” in English.8 The Act is divided into eight (8) parts. Part I provides for the preliminary matters relating to the short title and commencement, application and interpretation of the key terms of the Act.9 Part II deals with the prohibition and criminalisation of trafficking and related offences.10 Part III covers matters connected with investigations and judicial proceedings.11 Part IV enumerates all the obligations and principles relating to the rescue, rehabilitation, protection and assistance.12 Part V establishes the Anti-Trafficking Fund13 while part VI deals with the ATC.14 Finally, Part VII contains miscellaneous provisions15 while part VIII 5 Anti-Trafficking

in Persons Act 2008, Section 2(1). Interpretation of the Laws Act, CAP 1 RE 2015, Section 84(1) already provides that “the language of the laws of Tanzania shall be English or Kiswahili or both”. 7 Interpretation of the Laws Act 2015, Section 84(2), 84(3). 8 The official English-Swahili Dictionary (TUKI) takes a position that to traffic, among others, means also “biashara haramu ya …”, thereby indicating that the word “transport or transportation” is not needed as it does not interpret correctly the essence of “biashara haramu”. https://www.eli muyetu.co.tz/subjects/arts/eng-swa/t.html/ Accessed 7 March 2019. 9 Anti-Trafficking in Persons Act 2008, Sections 1–3. 10 Sections 4–8. 11 Sections 9–16. 12 Sections 17–24. 13 Sections 25–29. 14 Sections 30–33. 15 Sections 34–37. 6 The

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encompasses consequential matters in relation to repealing or amending other laws with a bearing on trafficking.16 The 2008 Act contains a Preamble. According to the Interpretation of the Laws Act, the Preamble to any written law “forms part of the written law and shall be construed as a part thereof intended to assist in explaining its purport and object”.17 It contains the general purpose and sets the high tone which permeates the entire provisions of the Act. The Preamble postulates a general understanding that at the core of all the anti-trafficking measures is the protection of human rights and dignity. Put it differently, Tanzania takes a position that its obligation to prevent and combat trafficking emanates from its binding sense of duty according to which Tanzania values the dignity of every person and guarantees respect for individual rights without discrimination. According to the Preamble, this sense of duty on the part of Tanzania originates from the Constitution of Tanzania, the Organised Crime Convention 2000, the TIP Protocol 2000 and “other universally accepted human rights instruments and international conventions to which the United Republic is signatory”.18 The Swahili version of the law, however, uses the word “mwanachama” for “signatory” whose actual meaning is translated in the English language by the Kiswahili Dictionary (TUKI) to mean “a member”.19 In the context of this law, mwanchama and signatory should be read as mutually inclusive and whose effect is to state that not only does Tanzania recognise that its binding anti-trafficking obligations ensue from the instruments to which it is a state party or a member state, whether such instruments are domesticated or not, but also that this sense of duty proceeds even from the instruments to which Tanzania is only a signatory state.20 This sense of duty encompasses both the enactment of the anti-trafficking measures and development of programmes that ultimately promote human rights of the trafficked persons and protect them from retrafficking and the vulnerabilities that lead to trafficking.21 It must be mentioned at this juncture that the Preamble and therefore the Act, wrongly spells the actual nomenclature of the TIP Protocol 2000. The Preamble provides under para two that “together with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, 16 Sections

38–41. Interpretation of the Laws Act 2015, Section 25(1). 18 Anti-Trafficking in Persons Act 2008, paras 1–2 of the Preamble. (Emphasis supplied). 19 Mwanachama. https://www.elimuyetu.co.tz/subjects/arts/swa-eng/m.html. Accessed 7 June 2019. 20 Through the Preamble, Tanzania takes the position that its overall anti-trafficking duty to prevent and combat trafficking through protection of the trafficked persons’ human rights emanates also from other international human rights instruments which, legally speaking, have yet to create binding obligations for Tanzania under international law. To be a signatory state to a treaty or convention means that no any binding legal obligation is created against the signatory state. The act of signing, however, “does oblige the State to refrain from acts that would defeat or undermine the treaty’s objective and purpose”, see “Definition of Key Terms” at https://www.unicef.org/french/crc/files/ Definitions.pdf. Accessed 25 February 2019. Therefore, all authorities, institutions and personnel applying, interpreting or using the 2008 Anti-Trafficking in Persons Act must consider the wider legal frameworks of other regional and international instruments which have a bearing on the human rights of trafficked persons when discharging their anti-trafficking obligations in Tanzania. 21 Anti-Trafficking in Persons Act 2008, para 3 to the Preamble. 17 The

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and children …”.22 The actual nomenclature of the TIP Protocol 2000 is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime.23 Furthermore, the Preamble pitches the 2008 Act as part of the global legal framework to combat the exploitation of persons, and in the case of Tanzania, as the most “comprehensive legislation to address all aspects of trafficking in persons”.24 The 2008 Act must, therefore, be read together with and as part of the international anti-trafficking legal framework, as has been done in this chapter.25 The 2008 Act prohibits the offence of trafficking in persons through the criminalisation of several acts of trafficking. Trafficking as a crime is not defined in the 2008 Act. This is despite the advice of the members of the National Assembly that the 2008 Act should contain a general definition of the acts it criminalises.26 However, the definition of trafficking is provided in the Main Regulations 2015 which were adopted in 2015, nearly 7 years after the enactment of the 2008 Act.27 To a large extent, the Main Regulations 2015 define and copy verbatim the international definition of trafficking as contained in the TIP Protocol 2000.28 In order to provide 22 Emphasis

added. Swahili version of the law repeats the same mistake when it states in the preamble that. “NA KWAMBA Jamhuri ya Muungano inatambua haki sawa na utu wa asili wa watu kama ulivyowekwa kwa Katiba ya Jamhuri ya Muungano wa Tanzania ya Mwaka 1977 na kwenye Mkataba wa Kimataifa wa Kupambana na Uhalifu wa Kimataifa na Itifaki ya Kuzuia, Kuangamiza na Kuadhibu usafirishaji haramu wa binadamu na watoto na mikataba mingine ya haki za Binadamu iliyokubaliwa, na mikataba ya kimataifa ambayo Tanzania ni mwanachama” (Emphasis added). 24 Anti-Trafficking in Persons Act 2008, para 4 to the Preamble (Emphasis added). “By all aspects,” the Preamble means peculiar aspects or manifestations in which trafficking in persons exists or is manifested in Tanzania. 25 The structure of these obligations largely follows the structure adopted by Gallagher 2010. 26 During the second reading of the Anti-Trafficking in Persons Bill 2008, members of the National Assembly proposed for the inclusion in the proposed law, of the provision which defines what amounts to trafficking in persons for legal certainty as regards the proscribed conduct, see Bunge la Tanzania, Majadiliano ya Bunge, Mkutano wa Kumi na Moja, Kikao cha Nne – Tarehe 11 Aprili, 2008, 11 April 2008. Bunge la Tanzania, Dodoma, p. 43. See further Coster van Voorhout 2007, pp. 44–45. 27 Regulation 3: “trafficking in persons mean a recruitment, transportation, transfer, harbouring or receipt of persons, by means of threats or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation” (Emphasis added). With slight differences in the addition of the indefinite article “a” before the act of recruitment and the omission of the definite article “the” before the word threat, this definition is similar to the one already given in the TIP Protocol 2000, Article 3(a). 28 There also have been some inconsistencies in the application of the definition of trafficking in persons as defined in the Main Regulations 2015 and several other official crimes reports in Tanzania. For example, the United Republic of Tanzania Ministry of Home Affairs, Tanzania Police Force and Ministry of Finance, National Bureau of Statistics 2015, p. 32 defines the term human trafficking to mean “an illegal act of transporting human beings from one country to another, without following procedures or regulations under the law, with the aim of gaining personally through prostitution, exploitative employment in agriculture, industry, service sectors and caring for the elderly and others without consent and payment”. Such inconsistencies need to be harmonised. 23 The

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a comprehensive understanding of how the Act criminalises trafficking, it is pertinent to offer a clarification on certain basic principles governing the criminalisation provisions of the 2008 Act in general. Under the laws of Tanzania and this Act, the term “act”, when used with reference to any criminalised conduct, includes also an omission, series of acts or omissions or a series of acts and omissions.29 On the one hand, the use of “or” indicates disjunction so that either a series of acts on its own or a series of omissions on its own suffices to constitute a single prohibited act. On the other hand, when “and” is used in the same situation, conduct or act, it suggests that both a series of acts and a series of omissions stand together to constitute an act or omission. Trafficking, like many other human rights-violating crimes, is a crime of a continuing character consisting of a series of acts or omissions or series of acts and omissions. As such, whenever trafficking is alleged to occur, there are entailed continuous positive obligations on the part of the Government of Tanzania to investigate, prosecute and punish the actions of private and state actors who violate such rights within its territory and jurisdiction.30 This obligation subsists as long as trafficking continues and remains within its jurisdiction. The term “person” also requires its own consideration. The Act criminalises the conduct of a “person”, not of an individual. This difference is significant. Under the laws of Tanzania, an individual means a material or natural person; but the term person itself extends beyond an individual to encompass also a “public body, company, or association or body of persons, corporate or unincorporated”.31 In this sense, the 2008 Act criminalises and punishes not only conducts of individual persons who commit acts of trafficking but also conducts of the body of persons or association and juridical or legal persons whether as public or private entities who involve themselves in trafficking.32 Furthermore, the 2008 Act lacks any specific provision criminalising an attempt to commit the crime of trafficking. This, however, does not mean attempting to commit an act of trafficking is not a criminal offence in Tanzania. The rule is that unless a law expresses a contrary intention, its provisions which criminalise any given conducts are also deemed to provide that “an attempt to commit such an offence shall be an offence under such provision, punishable as if the offence itself had been committed”.33 Thus, the silence of the 2008 Act on the offence of attempt to commit the main crime entails a legal presumption that attempt to commit the crime is also criminalised. It is important to note that although the 2008 Act is silent regarding the

29 The

Interpretation of the Laws Act 2015, Section 4 (Emphasis added).

30 ICAT 2016, pp. 3–4; Simic 2004, p. 18; European Court of Human Rights, Judgment of 28 October

1998, The Case of Osman v The United Kingdom, 1998, para 115; Zyberi 2017, pp. 243–244. 31 The Interpretation of the Laws Act 2015, Section 4. Similarly, the Economic and Organised Crime

Control Act (CAP 200: RE 2002), Section 2(1) defines a person to mean “an individual, partnership, committee, association, corporation, and any other organisation or group of persons whether or not a body corporate”. 32 Persons, including larger corporations, “benefit from cheap, exploited labor in their supply chains”, Gallagher and Ezeilo 2015, p. 934; Rodríguez-López 2017, pp. 98–100. 33 The Interpretation of the Laws Act 2015, Section 75.

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nature of the crime of trafficking in persons, the laws of Tanzania and court decisions have recognised human trafficking as a serious, non-bailable crime.34 Furthermore, the Interpretation of the Laws Act states that the words “or”, “other” and “otherwise” when used in a written law do not imply similarity. Their use suggests that acts or conducts in a particular provision are to be read disjunctively or in the alternative unless the word “similar” or some other word of a like meaning is added.35 Therefore, when a prohibited act of trafficking contains several constitutive elements or acts separated by the use of a comma (“,”) and “or”, it means that every such individual act stands alone to constitute a prohibited conduct. A legal requirement does not exist to establish that other listed constitutive acts were also violated for a charge or conviction to stand. Before embarking on the analytical examination of the 2008 Act, several of its unique, challenging drafting techniques need to be stated at the onset. The beginning point is the term “exploitation” which is used and defined in the 2008 Act and the Main Regulations 2015. Generally, exploitation, a term not directly defined under international law,36 refers to the purpose element of the crime of trafficking. Under the TIP Protocol 2000, the term exploitation, “at a minimum,” includes the following forms, namely: exploitation of the prostitution of others; other forms of sexual exploitation; forced labour or services; slavery; practices similar to slavery; servitude; or the removal of organs. “At a minimum” indicates that, in addition to the already internationally enumerated forms of exploitation, states are at liberty to add other or new forms of exploitation in which people are trafficked and which reflect their peculiar geographical or national circumstances.37 Following this consideration, Section 3 of the 2008 Act defines “exploitation” to mean: People smuggling; prostitution and other forms of sexual exploitation; forced labour or services; slavery or practices similar to slavery; servitude; or the removal of organs (Emphasis added)

Thus, Section 3, intending to include three new forms of exploitation, ends up adding two new forms of exploitation not stipulated under Article 3(a) of the TIP Protocol 2000. These are people smuggling and prostitution and other forms of sexual exploitation. The reason these new forms of exploitation are two instead of three is that prostitution and other forms of sexual exploitation are joined by “and,” essentially making it one form of exploitation. While this provision can be read as adding three new forms of exploitation, the effect of using the conjunction “and” is to state that this will be possible only when it is understood that the trafficker will 34 Criminal Procedure Act, Section 148(5)(vi). See also High Court of Tanzania at Dar es Salaam, Dickson Paulo Sanga v. The Attorney General, Miscellaneous Case, Civil Case No. 29 of 2019, Judgment of 19 February 2020 and 18 May 2020 (Unreported), p. 16; Court of Appeal of Tanzania at Dar es Salaam, The Attorney General v. Dickson Paulo Sanga, Appeal from the Judgment and Decree of the High Court of Tanzania, Main Registry at Dar es Salaam, Civil Appeal No. 175 of 2020, Judgment of 5 August 2020 and 6 August 2020 (Unreported). 35 The Interpretation of the Laws Act 2015, Section 13. 36 Marks 2008a, b, p. 282; Uhl 2010, p. 125; Jovanovic 2017, p. 45. 37 Scarpa 2008, p. 5.

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not be prosecuted for trafficking for the purpose of prostitution alone unless it is shown that he also trafficked for other forms of sexual exploitation. This does not conflict with the provisions of Article 3(a) of the TIP Protocol 2000 as the Protocol sets these forms of exploitation “at a minimum”. However, Section 3, in trying to reproduce the exploitative forms of trafficking as listed under the TIP Protocol 2000, goes further to add these new forms of exploitation that are not recognised as such under international law and for which even the domestic legal framework is lacking. This will be explained further below. Another peculiar feature of Section 3 is that it does not state that these exploitative forms are “at a minimum”. This might somehow operate to indicate that the list of the exploitative forms of trafficking is exhaustive. However, as shown below, this is actually not the case. Legally unfortunate, the individual acts of trafficking criminalised under Section 4 do not make a direct reference, in their purpose elements, to the general purpose element of exploitation as expressed in Section 3 of the Act by the term “exploitation”. The criminalised acts of trafficking in Section 4 contain their own purpose elements which, in certain aspects, differ substantially from the constitutive elements of the purpose element defined by the term “exploitation” under Section 3. This has several legal implications. In the first place, it presents a possibility that in all acts of trafficking criminalised under Section 4, which slightly have different exploitative forms than those defined in the term “exploitation” in Section 3, there should be a legal presumption that in their lists of prohibited exploitative forms, they include also the remaining exploitative forms listed under Section 3 in the term “exploitation”. Therefore, the fact that a particular act of trafficking under Section 4 prohibits only a very limited number of exploitative forms should entail a presumption that other forms of exploitation stated under Section 3 and the TIP Protocol 2000 are also included. This approach is impliedly suggested by the 2008 Act itself. Section 3 of Act defines the term exploitation “in relation to trafficking in persons” as a general crime prohibited under Section 4 which stipulates that “a person commits an offence of trafficking in persons if that person” commits any of the acts it lists. In the second place, it is possible to interpret the term exploitation under Section 3 in relation to Section 4 of the Act in such a way that the presumption of inclusion of the forms of exploitation under Section 3 will not apply under Section 4. Such is a situation where certain acts of trafficking under Section 4, by how they are drafted, intend to clearly exclude other forms of exploitation under Section 3. Confusingly, however, the Main Regulations 2015 to the 2008 Act provide also the definition of the term “exploitation” in relation to the offence of trafficking which somehow differs from both the definition of exploitation under Article 3(a) of the TIP Protocol 2000 and Section 3 of the 2008 Act. The Main Regulations 2015 define the term “exploitation” under regulation 3 to mean: “Exploitation” shall include at a minimum, the exploitation for the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or sale of human organs (Emphasis supplied).

Under regulation 3, the forms of exploitation are at a minimum and include: exploitation for the prostitution of others; other forms of sexual exploitation; forced

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labour or services; slavery; practices similar to slavery; servitude; or the removal or sale of human organs. Thus, the Main Regulations 2015 add two new forms of exploitation as well, namely, exploitation for the prostitution of others and the removal or sale of human organs. While the TIP Protocol 2000 prohibits trafficking for the purpose of the exploitation of the prostitution of others or other forms of sexual exploitation and Section 3 of the Act prohibits trafficking for the purpose of prostitution and other forms of sexual exploitation, regulation 3 prohibits trafficking for the purpose of exploitation for the prostitution of others or other forms of sexual exploitation. In effect, therefore, these are three new forms of exploitation. Also, while the TIP Protocol 2000 and the 2008 Act prohibit the removal of organs, regulation 3 prohibits the removal or sale of human organs. Unless well interpreted, these provisions clearly present legal ambiguities with several outcomes. It is understood that since the Main Regulations 2015 were enacted under the 2008 Act, the legal principle is that the Act will prevail over the Main Regulations 2015 to the extent of the inconsistency of the Main Regulations 2015 in relation to the provisions of the Act. However, since the Main Regulations define the term exploitation more expansively in a manner that upholds the spirit of the Act and the TIP Protocol 2000, this study proposes that the Main Regulations 2015 should be read harmoniously together with the principal legislation and the TIP Protocol 2000. The beginning point for this proposal is the Main Regulations 2015. The term “exploitation” as defined in the Main Regulations 2015 is broad enough to include some of the elements of the term “exploitation” as defined in the 2008 Act and under the TIP Protocol 2000. This is the actual purpose of the use of the phrase “at a minimum”, indicating that there are other forms of exploitation which it does not list but for which victims of trafficking are subjected.38 Thus, forms of exploitation contained in the Main Regulations 2015 are understood to be forms of exploitation outlawed in the Act based on the principle of “at a minimum” stated both in the TIP Protocol 2000 and the Main Regulations 2015. Consequently, the term “exploitation” as used in the current legal framework of Tanzania encompasses: people smuggling; prostitution and other forms of sexual exploitation; exploitation of the prostitution of others; other forms of sexual exploitation; exploitation for the prostitution of others; forced labour or services; slavery; practices similar to slavery; servitude; removal of organs; and/or the removal or sale of human organs. It should also be noted that other forms of exploitation not listed under regulation 3 and Section 3 are included in the criminalisation provisions of Section 4 and should be understood as part of the element of exploitation.39 Nevertheless, the 2008 Act is not clear on what actually amounts to “exploitation for the prostitution of others”. International law does not recognise exploitation for the prostitution of others and neither does the TIP Protocol 2000 nor other regional specialty anti-trafficking instruments. What is recognised by these instruments is the trafficking for the purpose of “exploitation of the prostitution of others,” a form of 38 Scarpa

2008, p. 5. include, for example, trafficking for the purpose of prostitution, pornography, sexual exploitation, engagement in armed activities and placement. 39 These

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exploitation already discussed in Chap. 2 of this work.40 Likewise is the last form of exploitation, namely “the removal or sale of human organs” which, as defined in the Main Regulations 2015, slightly differs from the definition provided under Section 3 of the 2008 Act and Article 3(a) of the TIP Protocol 2000 which all use “removal of organs”. As already indicated, a harmonious consideration would require taking a position that the 2008 Act prohibits both the removal of organs as defined under the TIP Protocol 2000 and the removal or sale of human organs as stipulated in the Act and its Main Regulations 2015. As it will be shown later, this approach actually serves to uphold the purpose of the Act which under Section 4(1)(g)(i) criminalises the seventh act of trafficking for the purpose of “removal or sale of organs of the person. Furthermore in this discussion is the term “involuntary servitude”. The TIP Protocol 2000, the 2008 Act and the Main Regulations 2015 recognise “servitude” as a form of exploitation in their definitions of the term “exploitation”. Like the TIP Protocol 2000, this term is not defined in the Act or the Main Regulations 2015. Confusingly, Section 4 of the Act consistently criminalises trafficking for the purpose of “involuntary servitude” and not trafficking for the purpose of “servitude”. The term “involuntary servitude” itself is not defined in the Act. For its definition, one has to refer back to the Main Regulations, which, instead of defining what “servitude” is, define what “involuntary servitude” is. The significance of this inconsistence and its legal consequences will be discussed in the course of examining the first act of trafficking under Section 4(1)(a) of the Act. As has been said regarding the removal of organs and the removal or sale of human organs, the Act prohibits both servitude as defined under international law and involuntary servitude as defined and criminalised under Tanzania’s domestic legal regime. In a similar manner, Section 3 of the Act lists “people smuggling” as part of the purpose element of the general crime of trafficking in persons. While most of the exploitative forms of trafficking as mentioned in the term “exploitation” are defined, “people smuggling” is left undefined. Unless the lack of its definition is presumed to already be provided somewhere else, whether under national or international law, this is yet another indication of poor legal drafting. Since the 2008 Act is silent and the Main Regulations 2015 do not offer any more light, it appears reasonable to take the position that the definition as found under other national laws and the Migrant Smuggling Protocol 2000 should be applied directly to define the content of “people smuggling”.41 The legal consequences of this position, however, are quite serious. Since “people smuggling” is otherwise understood to mean “the smuggling of people” or legally speaking, “the smuggling of migrants” or “migrant smuggling”, the inescapable legal conclusion is that the 2008 Act considers the smuggling of migrants one of the end purposes of the crime of trafficking in Tanzania. Under international law, trafficking in persons is a completely different crime from that of the smuggling 40 Chapter

2, Sect. 2.4.3.1 in this work. is a position in Australia where “people smuggling” is a locally understood nomenclature for migrant smuggling or the smuggling of migrants, see Schloenhardt and Hickson 2013, p. 39; Carling et al. 2015, p. 4; Schloenhardt 2001, p. 331. 41 Such

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of migrants. The two offences are governed by two but totally different international legal regimes which Tanzania has ratified and to which it is internationally bound.42 Since migrant smuggling or people smuggling is one of the exploitative purposes of trafficking in the Tanzanian anti-trafficking law, it means that in Tanzania, smuggled migrants, once caught, are not supposed to be prosecuted or deported at all. They are in actual sense entitled to all the legal protection, assistance and support that is generally accorded to victims of trafficking. It also means that by detaining smuggled people or migrants in its domestic prisons, Tanzania has consistently acted in violation of its international and domestic legal obligation to protect and assist smuggled migrants against violation of their rights by the smugglers. Furthermore, this legal dilemma entails that to better protect smuggled people or migrants, Tanzania has to take cognisance of the Migrant Smuggling Protocol 2000, a Protocol it has ratified and which binds Tanzania under international law. Notwithstanding, it cannot, however, be fully said that the approach of the 2008 Act’s provision on people smuggling has the effect of domesticating, albeit inadvertently, the substance of the Migrant Smuggling Protocol 2000. This discussion makes it clear that poor drafting can have serious but unintended, far-reaching legal consequences.43 One such consequence, for example, is that detained smuggled migrants can institute proceedings against the Government of Tanzania for violation of their individual rights based on the 2008 Act and the Constitution of Tanzania where the elements constituting the crime of trafficking are shown to exist. While it can be understood that people smuggling might have been included because the smuggling of migrants in Tanzania appears to be a more serious problem than even trafficking in persons, it cannot be discerned how such a criminal offence ends to be positioned in that manner. The legal solution Tanzania was supposed to pursue was to establish in the 2008 Act or any other written law a different crime of people smuggling or smuggling of migrants or to enact different legislation to govern the offence of migrant smuggling in Tanzania. Unless this is changed, the legal position remains precarious. Nonetheless and despite this position, the 2016 Revised Edition of the Immigration Act, CAP 54 RE: 2016 criminalises the crime of smuggling of migrants under its Section 46. According to Section 46, it is a criminal offence to: smuggle immigrants 42 As pointed out earlier, on 13 December 2000, Tanzania signed the Organised Crime Convention 2000, the TIP Protocol 2000 and the Migrant Smuggling Protocol 2000. On 24 May 2006, Tanzania deposited its instruments of ratification with respect to these instruments and they came into force for Tanzania on 23 June 2006. 43 The conflation of migrant smuggling and trafficking in persons seems to be one of the reasons behind this poor drafting. Official reports on crime statistics in Tanzania indicate this confusion despite having the Anti-Trafficking in Persons Act 2008 in place. See, for example, United Republic of Tanzania, Tanzania Police Force and National Bureau of Statistics 2016, p. 67; Jamhuri ya Muungano wa Tanzania, Wizara ya Mambo ya Ndani ya Nchi, Jeshi la Polisi Tanzania 2012. Jeshi la Polisi Tanzania, Dar es Salaam, p. 5. In several other crime reports from the Police Force, trafficking in persons is mentioned as a crime in that particular year but the entire content of what is reported turns out to be migrant smuggling, see Jamhuri ya Muungano wa Tanzania, Wizara ya Mambo ya Ndani ya Nchi, Jeshi la Polisi Tanzania 2007, pp. 15, 20–23; Jamhuri ya Muungano wa Tanzania, Wizara ya Mambo ya Ndani ya Nchi, Jeshi la Polisi Tanzania 2010, pp. 7–8, 15.

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to Tanzania, host illegal immigrants in Tanzania; transport illegal immigrants in or out of Tanzania; finance, organise or, aid the smuggling of migrants; facilitate in anyway the smuggling of immigrants into Tanzania or to a foreign country; commit any fraudulent act or make any false representation by any means so as to enter, remain or depart from Tanzania or facilitating or assisting the entrance into, residence in or departure from Tanzania; and transport any prohibited immigrant within Tanzania. The punishment for the offence of smuggling of migrants is a fine of not less than twenty million Shillings (20,000,000) or imprisonment for a term of twenty years (20). In addition, the court can order for confiscation of all proceeds or properties derived from the commission of the offence of smuggling of migrants or anything used for purposes of committing or facilitating the commission of the offence. This operates to confirm that the 2008 Act needs to be read together with the Immigration Act and several other laws. It is yet to be seen how the Tanzanian courts of law will interpret Section 3 and the rest of the criminalisation provisions of the 2008 Act in relation to Sections 23 and 46 of the Immigration Act. Furthermore, when investigating, prosecuting and adjudicating the offence of smuggling of migrants in Tanzania, responsible authorities need to take into account the Migrant Smuggling Protocol 2000 which binds Tanzania internationally. However, a preliminary observation from the case of R v Mohamed Abdou reveals some disappointing results.44 While the Senior Resident Magistrate established all the facts that implicated the accused and his responsibility for smuggling illegal immigrants through Tanzania and later on convicted the accused on his own plea of guilt, the criminal ingredients of the crime of migrant smuggling were not mentioned at all. Even more worrying is the fact that no reference is made to the Migrant Smuggling Protocol 2000 or the 2008 Act. This approach on the part of the court does not help to resolve the ambiguities already raised by the provisions of the Immigration Act and the 2008 Act. Another worrying legal observation about the Immigration Act is the fact that the element of the “intention to obtain a financial or other material benefit,”45 which forms part of the purpose element of the crime of migrant smuggling under international law, is completely missing. The effect of this omission is telling. It means that most states, including Tanzania in this case, have been prosecuting facilitated entry which is not motivated by any reward or financial profit.46 It also means that states continue to prosecute persons who facilitate the stay of smuggled persons or other persons who are present in destination countries irregularly.47 This represents a fundamental deviation by Tanzania of its international 44 Kisutu Resident Magistrate Court, R v Mohamed Abdou, Criminal Judgment, 1 August 2018, Criminal Case No. 304 of 2018 (Unreported). 45 Migrant Smuggling Protocol 2000, Article 3(a). 46 This is clearly indicated by the Immigration Act, CAP 54 RE 2016, Section 46 read together with the Written Laws (Miscellaneous Amendment) (No. 2) Act 2016, Bill Supplement to the Gazette of the United Republic of Tanzania No. 21. Vol. 97 dated 20 May 2016, Section 31 which criminalises persons who smuggle migrants to Tanzania, indiscriminately of whether it is for profit or not. 47 This follows the research findings by Gallagher on certain states and how they have criminalised the crime of migrant smuggling. According to the findings “Of the states surveyed, none had incorporated the Protocol’s definition, unchanged, into their domestic law. Only two of the 13 (both

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obligations assumed under the Organised Crime Convention 2000 and the Migrant Smuggling protocol 2000. Based on the peculiar nature of the criminalisation provisions under Section 4, the book proposes the use of two approaches in the examination of these individual acts of trafficking. The first approach is to examine the criminalised acts by considering whether they reveal the presence of all the three elements of the offence of trafficking as laid down under Article 3 of the TIP Protocol 2000.48 Where these three elements are clearly discerned or can be shown to exist, then an individual act of trafficking criminalised under the Act should be examined in that order. In that case, the action, means and purpose elements as contained in the TIP Protocol 2000 should also be read as forming part of a particular act of trafficking criminalised under Section 4. The second approach would be made applicable where it is impossible to clearly discern the three elements of the crime of trafficking. The second approach proposes that emphasis or greater consideration should be placed on the individual actions carried out by the trafficker49 as playing a paramount role in identifying the specific act of trafficking. Nonetheless, when the definition of what trafficking as provided in the Main Regulations 2015 and the TIP Protocol 2000 is included, the end result is the same—criminalisation of all acts of trafficking while also taking into account the peculiar circumstance of Tanzania. As shown in the ensuing discussion, the two approaches uphold the spirit of the Anti-Trafficking in Persons Act 2008. Also, this approach helps to make a coherent distinction between the various acts of trafficking, first, as between those acts that actually evidence the three elements of trafficking and, second, those acts that do not necessarily manifest the three elements of trafficking but are nevertheless criminalised as acts of trafficking in the Act.50 In the application of these two approaches, the elements of exploitation under Section 3 and regulation 3 which are not listed in particular criminalised acts of trafficking under Section 4 will countries of origin) included financial benefit as an element of the offence of facilitated entry. This means that 85% of surveyed States have retained legislative capacity to prosecute facilitated entry that is not motivated by financial reward. And nine of the 13 (70%) have retained the capacity to prosecute the act of facilitating the stay of a person who has been smuggled and/or who is otherwise irregularly present in the country”, Gallagher 2017, p. 3. See further UNODC 2017. 48 ICAT 2012, pp. 2–3. 49 The term trafficker as used in this work refers to the meaning proposed by the Main Regulations 2015, regulation 3 according to which: “trafficker means a person who recruits, transports, transfers, harbours or receives a person within or across Tanzanian border by force, threats, fraud or deception, abduction, coercion, illegally adopts children, destroys or denies access to identity or travel documents or threat to abuse the legal system or some other form of power or gives or receives payment to achieve consent for the purpose of exploitation”. A trafficker is, therefore, any person who is in any way responsible for or involved in the commission or attempted commission of an act or offence of trafficking in persons as criminalised in the Anti-Trafficking in Persons Act 2008, irrespective of which stage he participated. In support of this approach, see Piotrowicz 2012. 50 This approach is supported by the UNODC Model Law 2009a, b, c, d, p. 32 according to which “In some national legislation, trafficking is defined without reference to the use of the means…, taking into account that some forms of exploitation are coercive by nature. In such cases, the definition includes references to the acts (recruitment, transportation, transfer, harbouring and receipt) and the purpose of exploitation. This facilitates the prosecution of crimes of trafficking and has proved efficient in that context.”

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be presumed to exist, especially where the first approach is used, unless the context suggests otherwise. The actual application of these two approaches will become more straightforward in the course of this examination.

7.2 Criminalisation and Prohibition of Trafficking As noted in Chap. 5,51 the obligation of an adequate, effective and appropriate criminal justice response is an international composite obligation. It encompasses the obligation to comprehensively criminalise trafficking, establish criminal jurisdiction, institute investigation, prosecution and adjudication of trafficking cases, impose sanctions and penalties, establish asset confiscation, recovery and use regime and provide the mechanisms for international co-operation in extradition and mutual legal assistance for trafficking cases. This part starts with the examination of the 2008 Act’s criminal provisions. Generally, the 2008 Act criminalises the following conducts as part of the prohibition of trafficking, namely: acts of trafficking in persons, trafficking in persons for the purpose of placement, acts that promote or facilitate trafficking in persons, severe forms of trafficking in persons, trafficking in persons by an intermediary and the use of the services of trafficked persons.52 Section 4 prohibits the offence of trafficking in persons through the criminalisation of several acts and offences of trafficking. These acts of trafficking are examined one after the other in their order of criminalisation in the 2008 Act.

7.2.1 First Act of Trafficking [Section 4(1)(a)] Section 4(1)(a) criminalises the first act of trafficking in persons. It criminalises the act of a person who: Recruits, transports, transfers, harbours, provides or receives a person by any means, including those done under the pretext of domestic or overseas employment, training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage (Emphasis added).

The first act of trafficking criminalises the offence of trafficking for the purpose of prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage. In the first act of trafficking, there is contained all the three elements of trafficking. The action element consists of recruiting, transporting, transferring, harbouring, providing or receiving a person. In addition to having the same individual components as those found in the TIP Protocol 200053 and which 51 Chapter

5, Sect. 5.1. 4–8. 53 TIP Protocol 2000, Article 3(a). 52 Sections

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have been elaborated further in this work,54 the 2008 Act adds a new individual component of “providing”. To provide has several meanings but it is generally understood to mean “make available for use” or “supply”.55 In the context of trafficking, providing a person entails that the trafficker does supply or makes available any person for trafficking. There appears to be a close relationship between supplying and harbouring as the person who harbours, while not necessarily the supplier, will in most cases be the person who either exploits or supplies victims to other persons for exploitation in the course of trafficking. The trafficker achieves this through the use of unlawful or deceitful means. In addition, the list of the acts constituting the action element indicates that trafficking can occur not only when there is movement such as when transport and transfer are used but also even in the absence of movement such as when recruitment, harbouring, providing or receiving have been employed to maintain someone in an exploitative environment.56 The means element is comprised of by any means, including those done under the pretext of domestic or overseas employment, training or apprenticeship. While “by any means” is not defined under Section 3, it is lucidly different from “including those done under the pretext of domestic or overseas employment, training or apprenticeship”. In fact, “including those done under the pretext of domestic or overseas employment, training or apprenticeship” is in addition to and forms part of “by any means”. The use of “by any means” suggests several possibilities. Firstly, by “by any means” refers to the constitutive components of the means element as found in the TIP Protocol 2000.57 Chapter 2 has already discussed the content of the means element.58 Second, by “by any means” is an umbrella term, which, in addition to the means already provided under the TIP Protocol 2000 and those specifically mentioned in the criminalisation provisions of the Act, comprises of all other unspecified unlawful means by which persons are recruited, transported, transferred, harboured, provided, received or, in any other way, obtained for exploitation. The phrase “including those done under the pretext of domestic or overseas employment, training or apprenticeship” introduces new but additional individual components of the means element of trafficking peculiar to Tanzania. These new individual components of the means element are in addition to “by any means” through which persons 54 See

Chap. 2, Sect. 2.4.1 in this work. Online Dictionary, “Provide”: https://en.oxforddictionaries.com/definition/provide. Accessed 25 February 2019. See also Stoyanova 2017, p. 33–34. 56 Bakirci 2009, p. 161. Gallagher and Skrivankova urge this point lucidly that “The concept of trafficking in international law does not just refer to the process by which an individual is moved into a situation of exploitation—it extends to include the maintenance of that person in a situation of exploitation. Accordingly, it is not just the recruiter, broker or transporter who can be identified as a trafficker, but also the individual or entity involved in initiating or sustaining the exploitation”, Gallagher and Skrivankova 2015, pp. 4–5. For the earlier support of this idea see also Piotrowicz 2010, p. 407. 57 Article 3(a) mentions as the means of trafficking the use of “threat or use of force, or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”. 58 See Chap. 2, Sect. 2.4.2 in this work. 55 Oxford

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are obtained for exploitation. The use of the word “pretext”59 functions to indicate that even these means as used are deceptive and therefore unlawful and vitiate any meaningful consent. In the Tanzanian context, persons, especially women and children, have been recruited and transported domestically and internationally to other countries under the pretext that they will be provided with training, employment and apprenticeship in research and other career development projects, only to end up being exploited in prostitution, armed conflicts and other forms of human exploitation.60 For example, on 20 August 2015, the Reuters reported the suspension by the Government of Tanzania of the 70 out of more than 300 job agencies on the allegations that, due to their involvement, several Tanzanians, especially women, were recruited and trafficked in the Middle East for prostitution, sexual exploitation, domestic services and forced labour.61 It is important to note that although most of the components of the means element are unlawful or unacceptable, it does not necessarily mean they are illegal.62 For instance, the use of overseas employment as a pretext to traffic someone does not necessarily mean it is illegal as the recruitment might have observed the legal and procedural requirements under the domestic laws of Tanzania on recruitment and employment. Hence, while the means of trafficking are generally unlawful and illegal in their own, such as the use of force or coercion, others can be unlawful but not necessarily illegal. The unlawfulness of the means element is with respect to vitiating the consent of the trafficked person. It is because of the unlawful means that a person was trafficked and exploited against his or her will.63 The purpose element encompasses prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage. As already discussed, the openness of this provision and the fact that it exhibits all the three elements of trafficking would require that other prohibited forms of exploitation also be included even when they are not explicitly mentioned. Therefore, this provision, in addition to these seven forms of exploitation, prohibits also people smuggling, exploitation of the prostitution of others, exploitation for the prostitution of others, prostitution 59 Oxford

Online Dictionaries, “Pretext”: https://en.oxforddictionaries.com/definition/pretext. Accessed 25 February 2019. It is defined to mean “a reason given in justification of course of action that is not the real reason”. 60 This was aired out in the deliberations that took place in the National Assembly during the second reading of the 2008 Anti-Trafficking in Persons Bill, see Bunge la Tanzania 2008, pp. 51–52. 61 Reuters, “Tanzania suspends quarter of job agencies in crackdown on sex, labor and trafficking”. https://www.reuters.com/article/us-tanzania-trafficking-agencies/tanzania-suspends-quarterof-job-agencies-in-crackdown-on-sex-labor-trafficking-idUSKCN0QP16G20150820. Accessed 25 February 2019. In her mission to Jordan, the Special Rapporteur on trafficking in persons, especially women and children, found it to be one of the notorious features that employment and recruitment agencies have been involved in trafficking in persons, see Human Rights Council 2016b, para 8. Generally, see also UNODC 2015. 62 Lasocik 2010, p. 23. 63 But as cautioned by the UNODC Model Law 2009a, b, c, d, p. 34, the purpose of excluding consent when consent nullifying means has been used “should not be interpreted as imposing any restriction on the right of the accused to a full defence and to the presumption of innocence. It should also not be interpreted as imposing on the defendant the burden of proof”.

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and exploitation of the prostitution of others, removal of organs or removal or sale of human organs and servitude which encompasses also institutions or practices similar to slavery.

7.2.1.1

Prostitution

This is the first individual component of the purpose element of the first act of trafficking. Before delving into analysing the position of the 2008 Act, regard should be had to the penal laws of Tanzania. The Penal Code neither does it directly and strictly criminalise prostitution as a criminal offence nor define what amounts to prostitution. What the Penal Code does criminalise, however, as pointed out in Chap. 6, is the exploitation of the prostitution of others.64 The Penal Code considers prostitutes among idle and disorderly persons. It subjects to a lighter punishment “every common prostitute behaving in a disorderly or indecent manner in any public place or loitering or soliciting in any public place for the purpose of prostitution”.65 Slightly different from the position of the Penal Code is the Penal Act of Tanzania Zanzibar which criminalises prostitution as a criminal offence.66 This means under the laws of Tanzania Zanzibar, a person trafficked for prostitution commits the crime of prostitution even though he or she is a victim of trafficking. Whether victims of trafficking for the purpose of prostitution are treated as such in Zanzibar will depend on the examination of its practice and the case law. The 2008 Act defines and prohibits prostitution without necessarily criminalising prostitution itself. It is the conduct of those who benefit themselves from the prostitution of the prostitute and not prostitution of the prostitute himself or herself that forms the subject of criminalisation. Prostitution is defined to mean: Transaction, scheme or design involving the use of a person by another person for sexual intercourse or lascivious conduct in exchange for money, profit, or any other consideration.67 (Emphasis added)

In this provision, prostitution is defined in a passive or inactive sense. It is defined as the use of a prostitute “by” another person for sexual intercourse or lascivious conduct in exchange for money, profit or any other consideration through a transaction, scheme or design. It is not defined as an act of the prostitute to offer herself 64 Chapter

6, Sect. 6.2.1 in this work. Code, Section 176(1). 66 Penal Act of Zanzibar, Section 140. 67 Anti-Trafficking in Persons Act 2008, Section 3. In the cases of trafficking of children, this extends also to include the conducts outlawed by the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 2000, Article 2(b) where prostitution is understood to mean: “the use of a child in sexual activities for remuneration or any other form of consideration”. According to Müller, “The UN uses the term ‘any other form of consideration’ to cover the possibility that children might be used as prostitutes in exchange for goods, services, food, or drugs. It is not necessary to pay money for child prostitutes. Child Prostitution includes all forms of transactional sex involving children. Thus, the Protocol noticed that in some societies the exchange of goods is widespread”, Müller 2016, p. 288 65 Penal

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or himself for sexual intercourse or lascivious conduct in exchange for a consideration. In other words, prostitution is defined in terms of the prostitute’s position of victimhood against another person. This means that trafficking for the purpose of prostitution under the 2008 Act is indirectly the same as trafficking for the purpose of the exploitation of the prostitution of others. While prostitution is a voluntary conduct according to the laws of Tanzania, prostitution achieved through trafficking is unlawful and criminal. In this connection, exploitation for the prostitution of others, whatever that means under the Main Regulations 2015, is also criminalised by virtue of this provision.

7.2.1.2

Pornography

The second individual component is pornography. It means: Any representation, through publication, exhibition, cinematography, indecent show, information technology or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual part of a person for primarily sexual purposes.68

Pornography is hereby defined simply to mean representation or display either of a person engaged in real or simulated explicit sexual activities or the person’s sexual part or parts primarily for sexual purposes by use of “live performances, photographs, motion pictures, video recordings, and digital images”.69 The 2008 Act does not criminalise pornography. It criminalises trafficking for the purpose of pornography. Although this provision does not include the means element to achieve pornography, the means element of the first act of trafficking applies here because the conduct criminalised in Section 4(1)(a) is trafficking for pornography.

7.2.1.3

Sexual Exploitation

The third individual component of the purpose element is sexual exploitation. Rather than “sexual exploitation”, the TIP Protocol 2000 uses the term “other forms” of sexual exploitation70 which as understood, does not include exploitation of the prostitution of others. However, the TIP Protocol 2000 does not define the term. Nevertheless, it was the subject of discussion in the course of examining the content of 68 Anti-Trafficking in Persons Act 2008, Section 3. As with prostitution of children, when trafficking

for the purpose of pornography is done to the children, it goes on to include also the prohibitions contained in the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 2000 where pornography is understood by Article 2(c) to mean “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes”. 69 Müller 2016, pp. 287–289. 70 TIP Protocol 2000, Article 3.

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the purpose element in Chap. 2.71 While the 2008 Act under Section 3 and the Main Regulations 2015 under regulation 3 provide for “other forms” of sexual exploitation as an end purpose of trafficking, Section 4 of the Act criminalises as an exploitative manifestation of trafficking “sexual exploitation” without using “other forms”. Nonetheless, it is purposively understood that the 2008 Act criminalises both sexual exploitation which is defined and “other forms of sexual exploitation” which is undefined. Under Section 3, sexual exploitation means: Participation by a person in prostitution or the production of pornographic materials as a result of being subjected to threat, deception, abduction, force, abuse of authority, debt bondage, fraud, or through abuse of a victim’s vulnerability.

This provision defines sexual exploitation as including participation in prostitution or pornographic production (pornography) as a result of a person being subjected to any of the unlawful means that vitiate his or her consent. This provision unnecessarily repeats what is already outlawed by the provision criminalising trafficking for the purpose of prostitution and trafficking for the purpose of pornography. The addition of the unlawful means which were not explicitly included in the first two individual components of the purpose element of the first act of trafficking does not change the substance of the already criminalised conducts because, as pointed out, trafficking, whether for prostitution or pornography, is premised on the lack of consent from the trafficked person as the means of trafficking in the first act points out. Therefore, the 2008 Act unnecessarily criminalises trafficking for sexual exploitation. A better legal approach would have been to: remove prostitution and pornography as individual end purposes of trafficking in the first act of trafficking and subsume them in the third element of sexual exploitation; or discard sexual exploitation as one of the end purposes of trafficking as its contents are already included in the first and second purpose components of the first act of trafficking; or retain sexual exploitation as an individual component which should contain “other forms” of sexual exploitation apart from prostitution and pornography. The third approach carries the actual import of the word “other forms”. The third approach is actually included in the very definition of the term “exploitation” which includes and retains “other forms of sexual exploitation” as a form of exploitation to which victims of trafficking can be subjected.72 Such other forms of sexual exploitation would be other forms in which victims of trafficking are exploited sexually but which do not necessarily include prostitution or pornography.73

71 Chapter

2, Sect. 2.4.3.1 in this book. further Müller 2016, p. 287. 73 For further discussion on the crime of sexual exploitation, especially as it relates to children and the component crimes included therein of which the Anti-Trafficking in Persons Act 2008 fails to directly make reference to, see Chap. 2, Sect. 2.4.3.1 and Chap. 6, Sect. 6.2 in this book. 72 See

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Forced Labour

The fourth individual component is forced labour. The content of what amounts to forced labour was already a subject of an extensive review in Chap. 2 of this work.74 It was established that there must be: work or service exacted from a person; that work or service is exacted by means of menace or threat of any penalty; and the person so forced has not offered himself voluntarily.75 The Employment and Labour Relations Act, Act No. 6 of 2004 prohibits forced labour by making it a criminal offence to procure, demand or impose forced labour. Forced labour is defined to include also bonded labour or any work exacted from a person under the threat of a penalty and to which that person has not consented.76 Basically, the Employment and Labour Relations Act, which is the specific labour legislation in Tanzania and which takes precedence over all other laws on matters concerning labour, follows the same approach as that of international law. The 2008 Act, however, takes a different approach to forced labour. In Section 3, the Act does not define forced labour as such. It does not even purport to make a cross-reference to the Employment and Labour Relations Act. Instead, the 2008 Act defines “forced labour and slavery”. The basic elements of forced labour and slavery are treated as one thing. Forced labour is synonymously described as slavery. Before examining the legal implication of this approach, the provision defining forced labour and slavery is hereby considered. Section 3 provides: The extraction of work or services from any person by means of enticement, violence, intimidation or threat, use of force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt bondage or deception.

The basic elements of “forced labour and slavery” are: exacted work or services and the use of unlawful means. The element of involuntariness or lack of consent is not directly indicated in the provision. However, the unlawful means used operate to vitiate any meaningful consent from a person from whom the work or service is exacted. This purposive reading of the provision would mean that forced labour has been defined according to the Employment and Labour Relations Act and also according to the understanding of international law, albeit indirectly and inconsistently. This also would lead to the conclusion that the first act of trafficking under Section 4(1)(a) of the 2008 Act criminalises trafficking for the purpose of forced labour. While this appears to be the legal position on the one side, the case is not so straightforward on the other hand. As pointed out above, the Act defines “forced labour and slavery” and not forced labour alone or slavery on its own. As understood under international law,77 forced labour and slavery are different subjects governed by 74 Chapter

2, Sect. 2.4.3.2 in this work. Concerning Forced or Compulsory Labour 1930, Article 2(1); Convention Concerning Abolition of Forced Labour 1957), Article 1. 76 Employment and Labour Relations Act, Act No. 6 of 2004, Section 6. 77 The international legal understanding of these two provisions has been extensively discussed in Chap. 2, Sects. 2.4.3.2 and 2.4.3.3 in this book. 75 Convention

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completely different international legal regimes. Thus, how the provision is drafted leads to ambiguity and absurdity. As pointed out earlier, a purposive construction of this provision would mean that the provision needs to be taken as defining forced labour and that as pertaining to slavery, the position under international law should prevail. Additionally, in the list of the unlawful means through which work or service is demanded from a person, debt bondage is mentioned as one of the unlawful means. However, in the 2008 Act, debt bondage and forced labour are mentioned as part of the purpose element of the first act of trafficking. It seems that the Act defines one component of the purpose element (in this case, forced labour) through another individual component of the same purpose element (in this case, debt bondage) of the same act of trafficking. Notwithstanding, it can be argued that Tanzania is not an exception to this approach because in other jurisdictions, debt bondage, which is one of the end purposes of trafficking, has also been considered a means through which trafficked persons are obtained and/or maintained in exploitative situations.78

7.2.1.5

Slavery

Slavery is the fifth individual component of the purpose element. Chapter 2 has already provided a comprehensive analysis of slavery under international law.79 As already noted above with regard to the fourth component of forced labour, based on the 2008 Act’s unclear approach on the definition of forced labour and slavery, it makes sense to conclude that, rather than the definition of “forced labour and slavery” proffered by Section 3 of the Act, it is the definition of slavery as provided under international law that takes precedence in the Act. As already discussed in Chap. 6 in this book, the Penal Code also criminalises the crimes of buying or disposing of a person as a slave and slave dealing.80 In that discussion, it was pointed out that Sections 254 and 255, by outlawing these two crimes, prohibit both slavery de jure and slavery de facto. Thus, in the criminalisation of trafficking for slavery, reference needs to be made to the Penal Code, in addition to the 1926 Slavery Convention.

7.2.1.6

Involuntary Servitude

The sixth individual component of the purpose element is involuntary servitude. While Section 4(1)(a) of the 2008 Act uses the term “involuntary servitude”, Section 3 of the same Act defining the term “exploitation” omits the word “involuntary” but retains “servitude”. The Main Regulations 2015 also omit “involuntary” and retains 78 In this connection, Hall argues that “Debt bondage has little economic value to a trafficker in and of itself—it is valuable only in so far as it is a means of maintaining a victim’s condition of involuntary servitude, which is the real moneymaker. Debt bondage operates as a tool in a trafficker’s coercive toolkit, used to retain the victim’s involuntary labor or services indefinitely”, Hall 2014, p. 876. See further, Gallagher 2015b, pp. 61–62; Buthelezi 2015, pp. 158–159; Fredette 2009, p. 107. 79 Chapter 2, Sect. 2.4.3.3 in this book. 80 Penal Code, Sections 254, 255. See Chap. 6, Sect. 6.2.1 in this book.

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“servitude” in the definition of the term “exploitation”. Nonetheless, the Act criminalises both servitude as understood in international law and involuntary servitude as criminalised under the 2008 Act and its Main Regulations 2015. As discussed in Chap. 2,81 servitude is a legal term used to refer to conducts and practices which do not amount to slavery in themselves but which can become slavery if a fundamental characteristic of slavery—the exercise of any or all of the powers attaching to the right of ownership—is shown to exist.82 These practices are also referred to as institutions and practices similar to slavery and they include debt bondage, serfdom, servile marriage and child exploitation83 and are governed by the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956.84 Servitude and institutions and practices similar to slavery all have negative connotations because inherent in them is the negation of any lawful consent from a person subjected to any of the practices. Such a person is not called a slave but a person of “servile status”.85 There was, therefore, no need for the 2008 Act to add the word “involuntary” to servitude because there is no voluntariness or free consent in servitude.86 Involuntary servitude, however, can be accepted as a form of exploitation for trafficking where its inclusion was intended to mean actually “involuntary servitude” as a form of exploitation different from “servitude” as already explained. As is shown, this actually appears to be the apparent intention of the Legislature. The Main Regulations 2015 define “involuntary servitude” and not servitude itself. Involuntary servitude is defined as: A condition of enforced, compulsory service induced by means of any scheme, plan or pattern, intended to cause a person to believe that, if the person did not enter into or continue in such condition, that person or another person would suffer serious harm or other forms of abuse or physical restraint, or the abuse or threatened abuse of the legal process (Emphasis added)

As noted in the context of examining slavery in Chap. 2, unlike the term “status”, “condition” is a term denoting a factual state. Hence, condition here denotes involuntary servitude as would exist factually in society. According to this definition, involuntary servitude is a factual exploitative situation of enforced or compulsory 81 Chapter

2, Sect. 2.4.3.4 in this book. this section, ‘slavery‘—a condition under which the powers generally exercised towards property, are exercised over a person—, in this context, substantive control over the life of a person or deprivation of his freedom will be considered the exercise of such powers as aforementioned…. Slavery—control over a person as property and exercise of powers incidental to ownership of an object toward them”, The Supreme Court of Israel sitting as Criminal Appeals, Ibrahim Giulani & Basma Giulani v The State of Israel & the Complainant, Criminal Appeal Judgment, Criminal Appeal No: 6237/12, pp. 13, 25. https://sherloc.unodc.org/res/cld/case-law-doc/traffickingpersonscrimetype/isr/2016/state_of_ israel_v__giulani_html/Supreme_Court_decision-Giulani.pdf. Accessed 22 March 2019. 83 Supplementary Slavery Convention, Article 1. See as well Dottridge 2017, p. 62. 84 Article 7(b). See as well Pati 2011, p. 111. 85 Supplementary Slavery Convention, Article 7(a). See also Scarpa 2008, p. 48; Dottridge 2017, pp. 70–71. 86 For a brief consideration of the evolution of “servitude” and “involuntary servitude” under international law, see Dottridge 2017, pp. 69–70. 82 “In

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service exacted from a person and achieved by unlawful means whose effect is to cause that person to believe that unless he enters or continues in that factual exploitative situation, he or another person related to him would suffer serious harm or other forms of abuse or physical restraint or that there will be abuse or threatened abuse of the legal process connected with that person or any other person.87 In other words, it is a factual exploitative situation in which another person is held and forced to render enforced and compulsory work and he is continuously held in that situation or condition through some form of unlawful means which inculcate in him a sense of fear of harm, including through the use of legal processes or threat of abuse or harm or actual harm or abuse to him or another person. This indicates continuity of the exploitative situation and the inability on the part of the person held in involuntary servitude to free himself.88 Understood in this way, involuntary servitude is a form of exploitation different from servitude as understood in international law. In a sense, involuntary servitude is akin to forced labour but not actually forced labour. It shares two elements with forced labour, namely, involuntariness or lack of consent on the part of the person subjected to either forced labour or involuntary servitude and the use of unlawful means to achieve forced labour or involuntary servitude. The difference between the two exploitative forms is that involuntary servitude is a factual situation or “condition” of enforced or compulsory “services” only in which the victim cannot free himself and he is held in that condition continuously while forced labour contemplates both the actual “work or services” legally provided, even where there is no indication of the permanence of the exploitative situation. The inculcation of fear of harm or abuse or actual harm or abuse to the person held in servitude or to another person, the inability to change that condition by the victim and the lack of any appearance of legality are the defining elements of involuntary servitude.89

87 See

also Bowes 2011, pp. 13–14. servitude means a condition in which “the employee is required to perform hard labor, without receiving basic conditions at his employer, and additionally being denied his liberty to change his status, not only with respect to the work he is performing but also with respect to where he is (on the employer’s property), and this place has been forced on him”, Ibrahim Giulani & Basma Giulani v The State of Israel & the Complainant 2016, p. 20. Quoting the US decision in United States v Kozminski, 487 U.S. 931, 952 (1988), the Supreme Court of Israel went on to say “A condition of servitude in which a victim is forced to work for the defendant by the use of threat of physical restraint or physical injury, or by the use or threat of coercion through the law or legal process.” Thus, involuntary servitude encompasses elements of forced labour but goes further to require the application of certain measures intending to directly inculcate the fear of harm or abuse to the person or another person related to him as a means to hold him in that exploitative situation of involuntary servitude. 89 The Anti-Trafficking in Persons Act 2008 seems to take the same legal position on involuntary servitude as that proffered by the UNODC Model Law 2009a, b, c, d, p. 20 according to which the term is defined to mean “the labour conditions and/or the obligation to work or to render services from which the person in question cannot escape and which he or she cannot change”. The Model Law clearly stresses on the inability of the person held in involuntary servitude to escape or change his condition. 88 Involuntary

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Debt Bondage

The seventh individual component of the purpose element is debt bondage. Legally speaking, the criminalisation of trafficking for the purpose of debt bondage would appear an unnecessary repetition because in a legal sense, trafficking for the purpose of servitude includes also debt bondage. However, a closer examination of the definition of debt bondage as given in the 2008 Act as well as the definition of involuntary servitude as stated in the Main Regulations 2015 reveals that debt bondage in this context is somehow legally different from servitude under international law and involuntary servitude under the domestic law. As such, debt bondage forms a separate, independent form of exploitation.90 The Act omits the words “status or condition”. As discussed in the context of slavery in Chap. 2, status is a legal concept (de jure) and condition is a factual concept (de facto).91 In international law, debt bondage as an exploitative status or condition arises from the pledge of the debtor for the debt owed. Debt bondage under the 2008 Act is not considered as a status or condition that arises from the “pledge by a debtor” but as the pledging itself. In other words, debt bondage is not a status or condition arising from the pledge but as an act of pledging. In essence, debt bondage under the 2008 Act refers to the pledge the debtor makes to the trafficker that he will offer his personal services or labour or those of another person under his control to act as a security or payment for a debt.92 However, a proper consideration of the debt arrangement reveals that the length of the time required to pay the debt and the nature of the services offered are not clearly defined and that the value of the offered services as reasonably assessed cannot really result in the immediate, actual liquidation of the debt.93 The services offered here include also sexual services in which a person offers himself or offers another person under his authority as security or payment for the debt.94 Sexual services mean commercial 90 Section 3 defines debt bondage to mean: “pledging by the debtor of his personal services or labour

or those of a person under his control as security or payment for a debt, where the length and nature of services is not clearly defined or the values of the services as reasonably assessed is not applied toward the liquidation of debt”. Compare this definition with that of debt-bondage as provided in the 1956 Supplementary Slavery Convention, Article 1 which states that debt-bondage is: “the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined” (Emphasis added). 91 High Court of Australia, The Queen v Tang, Appeal Judgment, 28 August 2008, [2008] HCA 39, para 25. 92 See also Munk 2010, p. 20; Smith and Kangaspunta 2012, p. 27; Burke 2013, pp. 6–7. 93 This also is corroborated by other sources. For example, according to the UNODC Model Law 2009a, b, c, d, p. 13, the system in which a person is kept in debt bondage makes it “impossible for him or her to pay off his or her real, imposed or imagined debts”. See also Aronowitz 2009, pp. 57–58. 94 “Debt bondage arises if there is a pledge by a person of sexual services as security for a debt claimed to be owed and the debt is manifestly excessive”, District of New South Wales, R v NETTHIP, Judgment of 30 July 2010, (2010)

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use or display of the body or body parts of the person providing services of a sexual nature.95 Regarding the first act of trafficking, a note needs to be made with respect to “practices similar to slavery” and “the removal of organs”. The first act of trafficking omits these two individual components from its purpose element. Nevertheless, a proper consideration of the term “exploitation” as defined in Section 3 of the 2008 Act and regulation 3 of the Main Regulations 2015 would mean that both practices similar to slavery and the removal of organs are part of the first act of trafficking and, therefore, prohibited and criminalised.

7.2.2 Second Act of Trafficking [Section 4(1)(b)] The second act of trafficking is criminalised by Section 4(1)(b) of the 2008 Act. Section 4(1)(b) criminalises the conduct of a person who: Introduces or matches a person to a foreign national for marriage for the purpose of acquiring, buying, offering, selling or trading the person in order that person be engaged in prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage (Emphasis added).

The way the second act of trafficking has been crafted is prone to several legal considerations. In the first place, the second act seems to contain the action element of introducing or matching a person to a foreign national for marriage with two double purposes. The first purpose is to acquire, buy, offer, sell or trade the person and the second purpose is to engage that person in prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage. This would mean that the second act of trafficking lacks the means by which the two purposes are achieved in order to exploit a person. In the second place, the second act can be interpreted as consisting of all the three elements making the crime of trafficking. This is possible where: the first purpose—acquiring, buying, offering, selling or trading a person—is considered the actual action element; introducing or matching a person to a foreign national for marriage is considered the means element to the action; and the second purpose is considered the actual purpose of trafficking. A purposive reading of this provision as informed by its Preamble suggests that the second approach is more pragmatic.96 This can be elaborated further. NSWDC 151. https://sherloc.unodc.org/res/cld/case-law/aus/2010/r_v_netthip_2010_nswdc_159_ html/R_v_NETTHIP_2010_NSWDC_159_30_July_2010.pdf. Accessed 22 March 2019. 95 Supreme Court of Queensland—Court of Appeal, R v Dobie, Application for Extension (Conviction), Judgment, 18 December 2009, (2009) QCA 394. https://sherloc.unodc.org/res/cld/case-law/ aus/2009/r_v_dobie_2009_236_flr_455_html/R_v_Dobie_2009_QCA_394_18_December_2009. pdf. Accessed 22 March 2019. 96 Many scholars have made extensive research studies indicating how marriages to foreign nationals have been used as a vehicle or means to trafficking people, especially women for exploitation, see Richards and Lyneham 2015, p. 107; Schloenhardt and Jolly 2010, pp. 671–672; Cullen-DuPont 2009, pp. 13–16; MacLean 2012, pp. 67–101.

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The actus reus of the second act of trafficking includes acquiring, buying, offering, selling or trading a person and the means of introducing or matching that person. In the earlier discussion on the crimes of buying or disposing of any person as a slave and slave dealing,97 it was found out that acts that form the actus reus include to import, export, remove, buy, sell or dispose or accept, receive or detain a person as a slave. Some of these acts such as buying, selling, importing and exporting feature in the list of actions listed under Section 4(1)(b). Section 4(1)(b) already contains the actions of selling, buying and trading (which can include importing and exporting). Therefore, it is legally logical to consider acquiring, buying, offering, selling or trading persons as the individual components of the action element of the second act of trafficking. The study proposes that introducing or matching98 a person to a foreign national for marriage be considered the means by which a person is acquired, bought, offered, sold or traded to be exploited. It does not appear to be the concern of the Act whether the marriage is real, fake or pretended or whether it even takes place at all. It is clear, however, that the trafficker here is not the same person as the foreign national. This understanding plays a fundamental role in the course of examining the third act of trafficking. While introducing or matching a person to a foreign national for marriage is not a criminal offence or unlawful on its own, its criminal nature is based on the action and the means used for its achievement which intend to lead to exploitation. The purpose element of the second act of trafficking, which is similar to that of the first act of trafficking, needs no further explanation. However, the first and second acts of trafficking are different. Their distinction lies completely in their action elements which are different and partly in their means elements. The means element of the second act is more specific and self-excluding while that of the first act is generally wide enough to even include the means element of the second act of trafficking, and any other means of trafficking whether provided in the law or not but through which an individual is trafficked to be exploited.

7.2.3 Third Act of Trafficking [Section 4(1)(c)] Section 4(1)(c) of the 2008 Act prohibits the third act of trafficking. The law prohibits the conduct of a person who: Offers or contracts marriage, real or simulated, for the purpose of acquiring, buying, offering or trading a person in order that person be engaged in prostitution, pornography, sexual exploitation, forced labour or slavery, involuntary servitude or debt bondage (Emphasis added).

97 Penal

Code, Sections 254, 255.

98 The word “to match” is sometimes interpreted as “a marriage” and the word “to introduce” is also

sometimes interpreted as to make someone officially acquainted with or to someone else. https:// en.oxforddictionaries.com/definition/introduce. Accessed 27 February 2019. See also the Merriam Webster Online Dictionary at https://www.merriam-webster.com/dictionary/introduce. Accessed 27 February 2019.

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Like Section 4(1)(b), Section 4(1)(c) follows the same structure as that of Section 4(1)(b) and therefore, the approach used in the analysis of Section 4(a)(b) will similarly be employed here. Thus, Section 4(1)(c) has the action element of acquiring, buying, offering or trading a person; the means element of offering or contracting a marriage, real or simulated; and the purpose element of prostitution, pornography, sexual exploitation, forced labour or slavery, involuntary servitude or debt bondage. Because the action and purpose elements of the second and third acts of trafficking are the same, the focus is placed on the means element of offering or contracting marriage, real or simulated which differentiates the two acts. In the third act, it is the trafficker himself who acquires, buys, offers, sells or trades another person by means of offering or contracting marriage with that person for the purpose of exploitation. This appears to be the actual meaning and the difference between the two crimes because the verbs “introduces or matches” are different from “offers or contracts”. The Oxford Dictionary offers several definitions of the word contract. Among others, the word contract means “a formal agreement to marry” or “to enter into a formal and legally binding agreement”.99 To offer, while as a noun can mean also “a proposal of marriage” and as a verb it carries several meanings, including “to present or proffer (something) for (someone) to accept or reject as desired” and “make an attempt at or show one’s readiness for (violence or resistance)”.100 The overall import of the verbs to offer or contract is to indicate that the trafficker either uses the legal vehicle or other means with a legal appearance but which might not entirely be voluntary or lawful to enter into what appears to be a binding contract of marriage in order to exploit. This is reinforced further by a consideration of the nature of the marriage so offered or contracted. The marriage is said to be real or simulated. A real marriage would suggest a marriage that actually happened in fact and not as a/or in supposition, imagination or allusion. In the context of this provision, real marriage is a legal marriage as understood according to the laws of Tanzania. A simulated marriage is a marriage that has been pretended or feigned or simply a sham.101 It is the marriage the opposite of the real and lacks any legality. Therefore, purposive reading of Section 4(1)(c) would mean that the trafficker either uses the legal means to enter into an actual and legally binding marriage or uses other unlawful means to enter into pretended, feigned, unlawful or sham marriage with the person he intends to lead to exploitation.102 It also indicates that the person to be exploited offers himself or herself to marriage not necessarily voluntarily. Had the person who consented to the marriage realised that the purpose for which the trafficker offers or contracts marriage is to use it as a means to exploit, he would not have consented. This is further confirmed by the very use of the word “simulated” 99 Oxford

Online Dictionaries, “Contract”: https://en.oxforddictionaries.com/definition/contract. Accessed 27 February 2019. 100 Oxford Online Dictionaries, “Offer”: https://en.oxforddictionaries.com/definition/offer. Accessed 27 February 2019. 101 See the definition of “simulated” from the Oxford Online Dictionary. https://en.oxforddictionar ies.com/definition/simulated. Accessed 27 February 2019; Piotrowicz 2010, p. 405. 102 Schloenhardt and Jolly 2010, pp. 671–672; Richards and Lyneham 2015, p. 107.

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marriage. The person to be exploited is deceived and therefore, appears not to know that the marriage entered is but a vehicle leading to exploitation.103 The criminalisation of the third act of trafficking makes sense in law and the prevailing circumstances of Tanzania and many other countries. From a legal perspective, the third act of trafficking closes any legal gaps that would have existed if only the second act of trafficking was criminalised. Thus, both acts intend to prohibit the use of national and transnational marriage as a vehicle to traffic persons. Consequently, they both prohibit forced and early marriages, and even normal marriages, when used for the purpose of trafficking.104 One of the surprising features of the third act of trafficking is how forced labour and slavery have been separated. While in the first act of trafficking the separation is “forced labour, slavery”, in the third act of trafficking, the separation is “forced labour or slavery”. In the definition of Section 3, the word used is “forced labour and slavery” This seems to be the result of poor drafting which unnecessarily complicates the actual meaning of the words used. This might, in certain instances, result not only in legal and factual ambiguity or absurdity but might also lead to unintended legal consequences with far-reaching implications for Tanzania.

7.2.4 Fourth Act of Trafficking [Section 4(1)(d)] Section 4(1)(d) of the 2008 Act proscribes the fourth act of trafficking in persons. The act proscribed is the conduct of a person who: Undertakes or organises sexual tourism or sexual exploitation (Emphasis added)

The fourth act does not contain all three elements of trafficking. Furthermore, the fourth act does not proscribe sexual tourism105 or sexual exploitation. Section 4(1)(d) proscribes the act of a person who knowingly undertakes or organises sexual tourism or sexual exploitation.106 Sexual exploitation has already been explained to mean the exploitation of another person in prostitution or pornography by the use of unlawful means that vitiate any meaningful consent. Simply explained, sexual tourism means either using escort and sexual services as a means or for the purpose of attracting tourism (tourists) or offering sexual services or practices to military members during their rest or recreational periods. The verb “undertaking” means that a person 103 Richards

and Lyneham 2015, pp. 107–108. some perspectives on these marriages in relation to trafficking, see Scarpa 2008, pp. 26–28; Plambech 2010, pp. 47–61; Zhang 2007, pp. 27–33. 105 Sexual (sex) tourism is defined in the Anti-Trafficking in Persons Act 2008, Section 3 to mean: “(a) program organised by a travel or tourism related establishment or an individual, which consists of tourism packages or activities, utilizing and offering escort and sexual services as enticement for tourists; and (b) sexual services or practices offered during rest or recreational periods for members of the military” (Emphasis added). For the international framework on international sex tourism of children in relation to trafficking, see Vrancken and Chetty 2009, pp. 114–131. 106 Briefly on sex tourism, see Cullen-DuPont 2009, p. 13. 104 On

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assumes, commits himself to or takes the responsibility of ensuring that sexual tourism or sexual exploitation is done or happens. Therefore, a person who undertakes or attempts to undertake sexual tourism or sexual exploitation acts knowingly. This person can be any individual, including those forming part of the travel or tourism-related establishments as well as those establishments themselves. Organising would mean that a person takes responsibility, arranges or makes arrangements, orders or co-ordinates sexual tourism or sexual exploitation to happen.107 Therefore, like undertaking, the person who organises or attempts to organise does so knowing that he is organising sexual tourism or sexual exploitation. This person can be any individual, including individuals who are part of the travel or tourism-related establishments or the establishments themselves. It is not clear what amounts “to escort and sexual services” and “sexual services or practices”. A purposive reading would indicate that these are practices or services of a sexual nature offered to members of the military or to attract tourists regardless of whether the persons so offered have consented. While sexual exploitation is understood to be negative and done without the consent of the trafficked persons, there is no any indication from the definition of sexual tourism to show that such escort and sexual services to tourists and sexual services or practices to members of the military are offered by or through unlawful means. This would imply that the 2008 Act categorises as sexual tourism any escort and sexual services as well as sexual services or practices done with or without consent. One of the unanswered questions concerning military members is whether sexual services or practices offered to them during times other than “rest or recreational periods” will also amount to sexual tourism. In fact, even what actually amounts to rest or recreational periods is not known. There have been implicating allegations on the involvement in sexual exploitation and trafficking for prostitution and other forms of exploitation by members of the international peacekeeping forces in various countries in which they are sent, with a considerable literature documenting this practice and the anti-trafficking steps taken to avert the situation.108 It is not clear now whether the Tanzanian members of the military forming part of such international peacekeeping forces can be prosecuted for acts of trafficking when they engage in sexual tourism in times other than during that of their rest or recreational periods. Should this be answered in the negative, then Section 4(1)(d) might operate to provide a shield against criminal liability to members of the military. Should the provision be answered affirmatively, then members of the military will be held criminally responsible. The second consideration seems to be the position of the 2008 Act, considering that under Section 6(2)(g), the crime of trafficking is considered a severe offence of trafficking in persons when it is committed by a “member of the military or law enforcement agencies” whether within Tanzania or outside the country. In this connection, it would mean that the phrase “during rest 107 Oxford

Online Dictionaries, “organise”: https://en.oxforddictionaries.com/definition/organize. Accessed 27 February 2019. 108 Odello 2018, pp. 443–458; Smith and Smith 2011, pp. 125–145; Hynes 2004, pp. 236–237; Simic 2010, pp. 79–92; Corrin 2005, pp. 552–555; Cameron and Newman 2008a, b, pp. 49–50; generally, see Aoi et al. 2007.

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or recreational periods” does not rule out other periods in which sexual services or practices are provided to members of the military.

7.2.5 Fifth Act of Trafficking [Section 4(1)(e)] Section 4(1)(e) of the 2008 Act outlaws the fifth act of trafficking in persons. A person is criminally responsible under this provision where that person: Maintains or hires a person to engage in prostitution or pornography (Emphasis added)

The fifth act of trafficking does not outlaw the conduct of a person who engages in prostitution or pornography. The focus of the fifth act is actually on the person who is “maintaining or hiring” another person for prostitution or pornography. The Oxford English Dictionary defines to maintain, among others, to mean “to cause or enable (a condition or situation) to continue” and “to keep (something) at the same level or rate”.109 Maintaining connotes prolonging something or a situation, perpetuating or keeping the situation or something to go on for a long time or continuously. In the context of this crime, the trafficker keeps continually, perpetuates or prolongs for a long time the engagement or participation of another person in prostitution or pornography. The use of the term maintaining here seems not to indicate positivity or voluntariness. Impliedly, it shows that the trafficker is in such a position as to be able to effect, prolong, perpetuate or keep the person engaged or participate in prostitution or pornography continuously or as long as that maintenance lasts. This would suggest that the trafficked person is in a position of vulnerability against the trafficker which makes it difficult for the victim to escape the exploitative environment. On the other hand, the verb to hire somehow indicates positivity and limited duration. It generally connotes employing someone for wages or engaging someone for an agreed payment for a short or limited time.110 There is, therefore, an implied suggestion that the person engaged in prostitution or pornography has consented for a limited time in exchange for financial or similar considerations from the person who engages his or her services. By using the verb to hire, the fifth act of trafficking appears to outlaw voluntary engagement in prostitution or pornography for a consideration. This does not seem to align well with the general offence of trafficking which is premised on the lack of consent due to the unlawful means used. This raises the question of agency on the part of the exploited person. Notwithstanding, these questions are partly answered by the fact that the fifth act is an imperfect act of trafficking for its lack of the three elements of trafficking and that terms such as prostitution already connotes victimhood in the 2008 Act. Furthermore, it was pointed out earlier in the discussion that prostitution and pornography in the 2008 Act are, in essence, 109 Oxford

Online Dictionaries, “Maintain”: https://en.oxforddictionaries.com/definition/maintain. Accessed 27 February 2019. 110 Oxford Online Dictionaries, “hire”: https://en.oxforddictionaries.com/definition/hire. Accessed 27 February 2019.

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subsumed in “sexual exploitation”. In the context of sexual exploitation, prostitution or pornography is achieved by clearly stipulated unlawful means of “threat, deception, coercion, abduction, force, abuse of authority, debt bondage, fraud or through abuse of a victim’s vulnerability”. Thus, while the action of hiring appears positive, its consideration from the point of view of sexual exploitation implies the lack of consent from the victim or its vitiation in the process of exploitation.

7.2.6 Sixth Act of Trafficking [Section 4(1)(f)] Section 4(1)(f) criminalises the sixth act of trafficking in persons. The 2008 Act criminalises the conduct of a person who: Adopts or facilitates the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labour and slavery, involuntary servitude or debt bondage (Emphasis added)

Under Section 4(1)(f), the sixth act does not seem to contain all the three elements of the crime of trafficking. The way the provision has been drafted does not rule out the possibility of considering adoption or facilitation of adoption as either the means or action elements of the sixth act. The provision does not criminalise adoption done according to the laws of Tanzania but adoption or facilitation of adoption to lead a person into exploitation.111 Section 4(1)(f) seems to reflect the provisions of the repealed Section 139A(1)(b) of the SOSPA whose second criminalised conduct dealt with, among others, the act of promoting, facilitating or inducing the placement in the adoption of any person for money or any other consideration.112 Even then, the term adoption itself was not defined. The 2008 Act also does not define the term adoption. The earliest allusion to the term adoption in Tanzania indicates that it was used with respect to the adoption of children.113 This, however, does not rule out that adults can also be adopted as the use of the word “person” is not limited to children in the legal sense. Currently, the Law of the Child Act, Act. No. 21 of 2009 governs the adoption of children in Tanzania. Part VI of the Law of the Child Act on Fosterage and Adoption lays down extensive provisions on the adoption of children by Tanzanian and foreign nationals whether residing in Tanzania or abroad. Briefly stated, the Law of the Child Act requires that: application for the adoption order be done legally through the Tanzanian courts and supported by a social investigation report and with a letter of recommendation in cases of foreigners; where the order is interim, the child should not to be taken out of Tanzania without permission of the court; application 111 Further on trafficking

for the purpose of adoption, see Scarpa 2008, pp. 33–34; McCarthy 2016, pp. 31–47; Scarpa 2006, p. 433. 112 The whole of Section 139A of the Penal Code which was inserted following the amendments brought in by the Sexual Offences Special Provisions Act of 1998 is repealed by the Anti-Trafficking in Persons Act 2008, Section 38. 113 Rwezaura and Wanitzek 1988, pp. 124–163.

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for the adoption order be done by adult persons who are responsible; there must be obtained a freely given consent of either the parent, relative or guardian of the child or any other person the court deems his or her consent important to make a determination, including the child itself where it is at least 14 years and capable of making or giving consent; application to be done with an understanding that the child so adopted is entitled to the protection of his fundamental rights, including those relating to inheritance; that it is a criminal offence for the person making the application for the adoption order to give any payment or reward in connection with the said adoption except with the courts’ approval or for any other person to receive any payment or reward for any arrangement which may or may not lead to the granting of the adoption order; that it is a criminal offence for the adoptive parent not to give notice to the responsible authority where the child is to be taken out of Tanzania permanently following the granting of the adoption order; that it is a criminal offence for the parent or guardian of the child to publish any information showing their willingness to cause the child to be adopted or any person to advertise his or her desire to adopt or willingness to make arrangements for the adoption of the child or the person to knowingly publish or cause such information to be advertised; and finally, the application for the adoption order has to be conducted according to and for the purpose of upholding the best interests of the child.114 As it stands out, adoption is a legal process regulated by the laws of Tanzania. It appears to be one of the purposes of the Law of the Child Act to not only protect the fundamental rights of the children to be adopted but also to criminalise any conducts or acts that would use adoption as a vehicle of exploitation for personal advantage.115 The Law of the Child Act, however, does not criminalise such unscrupulous or criminal acts connected with the adoption of children as acts of trafficking. Although the Law of the Child Act came after the Anti-Trafficking in Persons Act 2008 was enacted, reading the two laws together offers legal perspective to and aid in the interpretation of the sixth criminalised act of trafficking. In fact, before the enactment of the 2008 Act or the Law of the Child Act, the Adoption of Children Act, CAP 335 had already been in force. The Adoption of Children Act governed similar matters, including the criminalisation of certain payments and advertisements under Sections 21 and 22. These acts are also prohibited in the Law of the Child Act which, by means of Section 160(1)(b), repealed the Adoption of Children Act. Although repealed, the spirit and purpose of the Adoption of Children Act permeate the provisions of the Law of the Child Act relating to adoption. It is, therefore, legally permissible to consider the provisions of the Law of the Child Act in the understanding of Section 4(1)(f) of the 2008 Act which criminalises adoption or facilitation of the adoption of persons for the purpose of their exploitation. In short, the 2008 Act all it does is criminalising the adoption or facilitation of adoption as used in the context of the Law of the Child Act to lead those that are vulnerable to trafficking in persons.

114 The 115 See

Law of the Child Act, Sections 54–76. Davitti 2010, p. 43.

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7.2.7 Seventh Act of Trafficking [Section 4(1)(g)] The seventh act of trafficking is outlawed under Section 4(1)(g) of the 2008 Act. The law criminalises the action of a person who: Recruits, hires, adopts, transports or abducts (i) a person, by means of threat or use of force, fraud, deceit, violence, coercion or intimidation for the purpose of removal or sale of organs of the person; or (ii) a child or a disabled person for the purposes of engaging the child or the disabled person in armed activities (Emphasis added).

The seventh act outlaws two conducts of trafficking in one act of trafficking. The first proscribes the conduct of a person who recruits, hires, adopts, transports or abducts another person through the use of unlawful means for the removal or sale of organs of the person. The second outlaws the conduct of a person who recruits, hires, adopts, transports or abducts a child or a disabled person to engage in armed activities.

7.2.7.1

First Conduct of the Seventh Act [Section 4(1)(g)(i)]

The first conduct of the seventh act of trafficking has the action element of recruiting, hiring, adopting, transporting or abducting, the means element of threat, force, fraud, deceit, violence, coercion or intimidation; and the purpose element of removal or sale of organs. Recruitment has already been explained in Chap. 2.116 In the immediate context of this crime, recruitment means the voluntary or involuntary obtaining of someone for the purpose of the removal or sale of the person’s organs. Hiring was examined in the course of expounding the main content of the fifth act of trafficking. It was found that hiring connotes willingness and agreement in the undertaking between two parties for a consideration. Adoption was discussed under the sixth act of trafficking and was found to be a legal process applicable especially with children where they are given to the custody of other persons to take care and raise them. Transporting a person, also discussed in Chap. 2, means to carry that person by any means from one location to another or from one country to another. Abduction is already defined under Section 3 of the 2008 Act in relation to trafficking offences to mean “to compel or induce a person to move from one place to another”. This definition would indicate that abduction can be forced (compelled) or voluntary but deceived (induced) transportation or movement of a person from one place to another. The action element of the first conduct, therefore, contains positive acts and those that imply, directly or indirectly, the use of force, coercion or threat thereof. However, any appearance of positivity or neutrality on some of the individual acts of the action element is negated or vitiated by virtue of the unlawful means element employed. The way this provision has been drafted, it does not rule out the applicability of other constitutive components of the action and means elements whose effect is to achieve 116 This

has already been discussed in Chap. 2, Sect. 2.4.1.

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the removal or sale of human organs. Since most of the constitutive acts of the means element are sufficiently clear as regards their negativity and unlawfulness, the study considers the purpose element. The purpose element is the removal or sale of organs. The removal or sale of organs is not a criminal offence on its own. The 2008 Act, however, addresses the removal or sale of organs of the person in the context of trafficking where use is made of any one of the constitutive acts of the action element by any of the unlawful methods of the means element. In the criminalisation of this crime, the 2008 Act differs from and goes beyond the TIP Protocol 2000. While the TIP Protocol 2000 deals only with trafficking for the removal of organs and not their sale and does not deal with trafficking for the removal of other body parts such as tissues and cells or their sale,117 the 2008 Act deals with trafficking for the removal or sale of any body part of the person that can be removed from him. Section 3 defines organs to mean “any part of the human body which can be removed and used to sustain life or for any purpose”. According to this definition, the term organ is not limited only to recognisable or visible body parts such as the heart, lungs, liver, eyes or kidneys,118 but extends to include “any part” of the said human body such as human cells or tissues whether visible or not easily visible. The primary qualification or characteristic of the said “any part of the human body” is that it should be capable of being “removed”. In other words, it is any part of the human body that is capable of being taken away, detached or separated from the human body of a living person. The other two secondary qualifications are that the removed body part should be able either “to sustain human life” or used “for any purpose”. The first secondary qualification of sustaining life would mean that a body part is taken or removed or separated from one living person to sustain the human life of another person. This must be the case as any contrary consideration would otherwise defeat the whole idea of recruiting, hiring, transporting, adopting or abducting a person. A dead person, for example, cannot be recruited, abducted, hired, transported or adopted by the use of any of the unlawful means in the context of trafficking, and especially not for this crime. The second secondary qualification of any body part capable of being removed is that of “for any purpose”. This means that the said “any part of the human body” which has been removed should be used for any other purposes other than sustaining human life. Therefore, the 2008 Act seems to really differ from the TIP Protocol 2000 and even the general legal position under international law as regards the crime of trafficking for the removal of organs. This is because the TIP Protocol 2000 does not extend to address also the removal of body organs and other parts such as tissues and cells for trade or profit or their sale or for just any purpose.119 The 2008 Act outlaws both trafficking for the removal of any of the body parts or organs as well as 117 TIP Protocol 2000, Article 3(a). This was already the subject of extensive discussion in Chap. 2,

Sect. 2.4.3.5 in this book. and Organs”: https://www.msdmanuals.com/home/fundamentals/the-human-body/tis sues-and-organs. Accessed 28 February 2019. 119 According to the position under international law, it has been asserted that the TIP Protocol 2000 “addresses trafficking in organs for the purpose of organ removal. It does not cover the transfer of 118 “Tissues

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their sale and use for any purposes the trafficker intends to, thereby taking a wider scope and coverage than contemplated by the TIP Protocol 2000. “For any purpose” phrase is, therefore, a catch-all or blanket clause consisting of all other purposes for which the said human organs can be used for, including when the removal and sale are for profit. Notwithstanding, trafficking for the removal of organs as understood under international law is purposively prohibited under Section 4(1)(a), 4(1)(b) and 4(1)(c) which criminalise the first, second and third acts of trafficking. I argue that the position taken by the 2008 Act and which goes beyond the limited confines of the TIP Protocol 2000 is justifiable and commendable. The criminalisation of the seventh act of trafficking for the removal or sale of organs has taken into account Tanzania’s domestic circumstances.120 Even before the enactment of the 2008 Act,121 persons with albinism in Tanzania, especially children,122 have been subjected to untold inhuman and degrading acts that have endangered their lives and impaired their equal enjoyment of human rights, including the access to justice.123 They have been abducted, transported, even from other countries to Tanzania, chased, hunted and ambushed to have their body parts dismembered, chopped off alive or amputated from their bodies and even murdered for the purposes based on reasons of witchcraft and other mythical and unfounded beliefs.124 They have been subjected to violence, social stigma and exclusion, discrimination, psychological, sexual and physical abuse and even separation from their families.125 The beliefs and myths upon which these attacks are based upon propagate, among other reasons, that chopping off the body parts of persons with albinism while alive and using them with certain witchcraft-related concoctions bring wealth and good luck to some business persons organ (for profit) alone, a situation that is analogous to the trafficking of body parts of persons with albinism”, Human Rights Council 2017a, para 79. See also UNGA 2018a, para 7; Human Rights Council 2013b, para 42; Working Group on Trafficking in Persons 2011, para 9. 120 Domestic circumstances as they relate to persons with albinism, see Legal and Human Rights Centre 2015, pp. 12, 19, 34, 39–46; Human Rights Council 2017b. 121 Under The Same Sun 2013, p. 17. 122 Children are the most affected due to their innocence which is always associated with witchcraft as well as their vulnerability and powerlessness, Human Rights Council 2017a, b, c, para 29. 123 According to the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism, the human rights of persons with albinism are protected in the general international human rights law and specifically under the “Convention on the Rights of Persons with Disabilities and the International Convention on the Elimination of All Forms of Racial Discrimination, which proscribes “racial discrimination based on colour”, Human Rights Council 2017a, b, c, para 17. See also Legal and Human Rights Centre and Zanzibar Legal Services Centre 2016, pp. 26–28; UNGA 2018a, b, paras 8 and 29–72; Human Rights Council 2019, paras 4 et seq. For a special study of the core international human rights instruments applicable to persons with albinism and the core obligations for the states with respect to persons with albinism, see UNGA 2017a, pp. 4 et seq. 124 The Independent Expert on the Enjoyment of Human Rights by Persons with Albinism has considered “witchcraft” as one among the underlying phenomena that reflects the “plurality of concepts, terms, practices and beliefs” which all and in their various manifestations in various countries operate to harm persons with albinism, Human Rights Council 2017a, b, c, paras 13, 18–56. See also Under The Same Sun 2013, p. 11; Human Rights Council 2016a, paras 16, 20. For a considered analysis of these and several other root causes, see UNGA 2016, paras 3 et seq. 125 Under The Same Sun 2013, pp. 13, 21–23, 27; Human Rights Council 2013, paras 65–76.

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or those engaged in certain economic activities or offer certain advantages to some politicians competing for various political positions.126 Their body organs have been sold at the black market and the crime has generally been clandestine, involving a network of perpetrators, sometimes with even a cross-border element.127 In this context, therefore, “for any purpose” includes also the use of those body parts or organs of persons with albinism for profit as well as for purposes of witchcraft and rituals.128 The repeated occurrence in Tanzania of these acts, as indicated by some reports showing that Tanzania at some point had the highest number of attacks recorded,129 has been the subject of several regional and international reports. In the communications from the human rights treaties’ monitoring bodies and committees, the issue of attacks and the precarious nature of persons with albinism in Tanzania and whether the Government has taken any meaningful steps to address their plight has been raised several times.130 The repeated recurrences of these atrocious acts against persons with albinism in Tanzania131 and many other countries, especially in SubSaharan Africa where in nearly 28 countries more than 600 attacks were reported against persons with albinism,132 have prompted the international community to come up with several resolutions,133 action plans134 and a special mandate135 to address the matter. Furthermore, it is important to note that there have been two individual complaints from persons with albinism that have been lodged against Tanzania before the Committee on the Rights of Persons with Disabilities (CRPD).136 In these individual 126 Human Rights Council 2017a, b, c, para 27; UNGA 2018a, b, para 7; Human Rights Council 2013, paras 16–18. For a considered exposition on these myths, especially on the conceptualisation of witchcraft as it relates to the attacks on persons with albinism, see Human Rights Council 2018a, paras 13 et seq. 127 Human Rights Council 2017a, b, c, paras 4, 31–34. 128 Human Rights Council 2013, paras 19–22; Human Rights Council 2015a, para 15. 129 Under The Same Sun 2013, p. 11. 130 Committee on the Rights of the Child 2015, paras 25, 29–31; Committee on Economic, Social and Cultural Rights 2012b, para 81(5); Human Rights Council 2013, para 50; United Nations Committee on the Elimination of Discrimination against Women 2016, paras 18(b), 42–43; Committee on Economic, Social and Cultural Rights 2012a, p. 1; Committee on Civil and Political Rights 2009, para 15; Committee on the Rights of the Child 2008a, p.3. 131 At the invitation of the Government of Tanzania, the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism prepared a special thematic report dealing with the issue of albinism in Tanzania, thus showing the seriousness of the conundrum, Human Rights Council 2017b. 132 Human Rights Council 2017c, para 1; Human Rights Council 2015, para 16. 133 Human Rights Council 2013a; UNGA 2018b. 134 Human Rights Council 2017c. 135 The United Nations through the Human Rights Council established the mandate of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism so as to address their concerns, Human Rights Council 2015b. This mandate was extended in 2018 through the Human Rights Council 2018b. 136 Committee on the Rights of Persons with Disabilities 2017; Committee on the Rights of Persons with Disabilities 2018.

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complaints, two persons with albinism who were subjected to violent and brutal attacks for the removal of their body parts complained before the CRPD Committee that the Government of Tanzania has violated the provisions of the International Convention on the Rights of Persons with Disabilities by failure to protect them and thereby exposing them to risks and violence; failure to investigate effectively the said attacks against their dignity and human rights; failure to prosecute the perpetrators of such atrocities; failure to provide a safe and secure environment for persons with albinism; and raise awareness to the society about persons with albinism. Of interest in the two cases are the recommendations the CRPD Committee made after finding Tanzania to have violated its obligations under the Convention. The CRPD Committee gave several recommendations, among others, that Tanzania should: Review and adapt legal frameworks as needed to ensure that they encompass all aspects of attacks against persons with albinism, including with regard to trafficking of body parts; and ensure prompt investigation and prosecution of cases of attacks against persons with albinism as well as trafficking of body parts.”137

The CRPD Committee seems to have considered that the removal of body organs of persons with albinism could be related to trafficking in persons. In its analysis, however, the CRPD Committee failed to categorically recognise that these actions were already outlawed and criminalised under the first conduct of the seventh act of trafficking under Section 4(1)(g)(i) of the 2008 Act. The criminalisation of trafficking for the removal or sale of organs, which has been interpreted to also include acts of attack and violence against persons with albinism for purposes of witchcraft and profit, reflects one among the general concerns of the members of the National Assembly who wanted a proper definition of “organs” so as not to give any opportunity to perpetrators of the said atrocities to act with impunity.138 The only overarching limitation presented by the 2008 Act is what happens to persons with albinism whose body parts were removed or hacked off their body in the absence of movement as is the case with most of the reported cases? In other words, the 2008 Act does not seem to directly deal with situations in which body parts are removed from persons with albinism without evidence of recruitment, hiring, adoption, transportation or abduction.139 While the intention behind seems to protect all Tanzanians and especially persons with albinism from the trafficking of their body parts and also that the action element of “recruitment” can somehow ameliorate this shortcoming when read together with similar other action elements of other acts of trafficking, poor drafting might result into having most persons with albinism unprotected by the 2008 Act. Although the provisions of the Penal Code dealing with kidnapping, abduction, conspiracy to murder, murder, grievous bodily harm, attempted murder and assault can be used to prosecute such cases, the absence of a provision in the Act indicating that the action element can be carried on even in the absence of hiring, adoption or any movement is a serious limitation towards an 137 See

the similar para 9 in the two communications. la Tanzania 2008, p. 41. 139 Human Rights Council 2017a, b, c, para 23. 138 Bunge

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effective legal and institutional framework for the protection of persons with albinism in the context of trafficking in persons in Tanzania.

7.2.7.2

Second Conduct of the Seventh Act [Section 4(1)(g)(ii)]

As already noted, the second conduct criminalises the action of a person who recruits, hires, adopts, transports or abducts a child or a disabled person to engage in armed activities.140 The second conduct contains the action element of recruiting, hiring, adopting, transporting or abducting and the purpose element of engaging in armed activities. Unlike the first conduct of the seventh act, the second conduct does not contain any express provision on the use of unlawful means. This reflects the position under international law according to which the means element is not a criminal ingredient in all offences of trafficking of children.141 The 2008 Act buttresses this point and even adds in the category of children the disabled persons. This would mean that for the prosecution of the second conduct, it suffices to only show that there was recruitment, hiring, adoption, transportation or abduction of a child or a disabled person with the intent to engage them in armed activities. This appears to suggest that a lower threshold of criminal responsibility will be required for the second conduct than for the first. The reason for the omission of the means element seems to be centred on the nature of the persons the provision intends to protect, namely, children and disabled persons. A child is generally understood to mean a “person below the age of eighteen years”.142 Section 3 of the Act defines a disabled person as “a person who is unable to fully take care of, or protect himself from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability”.143 A proper consideration of these two groups reflects that these are persons whose statuses easily expose them to vulnerability, cruelty and abuse at the hands of persons who are functionally powerful or are in a position of authority, advantage or dominance over them, and as such, these persons cannot render any meaningful consent.144 It is in this context that there appears to be no need to indicate 140 Generally on trafficking in persons, especially children, for the purpose of engagement in armed

activities see, Cameron and Newman 2008a, b, pp. 50–51. 2016, pp. 61–62; Scarpa 2008, p. 5; Piotrowicz 2012, p. 190. 142 Anti-Trafficking in Persons Act, Section 3. 143 Note that this definition slightly differs from that of the Persons with Disability Act, Act No. 9 of 2010, Section 3 which is more elaborate and according to which a person with disability is a person “with a physical, intellectual, sensory or mental impairment and whose functional capacity is limited by encountering attitudinal, environmental and institutional barriers”. (Emphasis added) Furthermore, the Centres for Protection and Assistance Regulations 2015, regulation 3 defines disability to mean: “a state of physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. A proper consideration of these provisions would indicate that an emphasis is placed on the personal helplessness and inability of the disabled person to function normally and protect himself from abuse. 144 Fisher 2013, p. 33; Van de Glind 2010, p. 9; UNODC 2012, p. 15; Müller 2016, p. 287. For a contrary view that they can exercise agency, see Denov 2010, pp. 20–21. 141 Kruger

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the presence of any unlawful means used to obtain them for the engagement in armed activities. Since the action element of the second conduct is the same as that of the first conduct, the discussion will focus on the purpose element which differentiates the second conduct from the first. The purpose element contemplates the engagement of the child or disabled person in armed activities. The 2008 Act does not define what “armed activities” mean. Nevertheless, its meaning can be ascertained by a consideration of the historical context in which “armed activities” has been referred to in Tanzania as well as the deliberations in the National Assembly in the course of enacting the Act. As early as 2002, the United States Department of State Office to Monitor and Combat Trafficking in Persons had already indicated that children from the large refugee population in Tanzania, among others, “have been transported from refugee camps for training as child soldiers”.145 Also, Tanzania signed the Rome Statute of the International Criminal Court on 29 December 2000 and ratified the same on 20 August 2002.146 It is understood that by ratification a country assumes treaty obligations under international law. Nonetheless, Tanzania is yet to domesticate the Rome Statute, and as such, the Rome Statute has no force of law in Tanzania.147 Article 8(2)(b)(xxvi) of the Rome Statute prohibits the two crimes of conscripting or enlisting of children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities. This provision played a significant role in the criminalisation of the second conduct under the 2008 Act. This is because in several reports of the Committee on the Rights of the Child (CRC), when Tanzania was asked to criminalise recruitment of children for engagement in hostilities, ratification of the Rome Statute by Tanzania was referred to as a right step towards achieving the criminalisation. In its June 2008 report, the Committee on the Rights of the Child (CRC) requested Tanzania to provide subsequent information in its reports on whether Tanzanian law has any provision which “criminalizes the recruitment of Tanzanian persons under 18 by armed groups”. In the same report, the CRC Committee requested Tanzania to give any information on whether Tanzania “assumes extraterritorial jurisdiction over the war crime of conscripting or enlisting children under the age of 15 into the armed forces or using them to participate actively in hostilities” and whether “Tanzanian courts have jurisdiction in case of compulsory recruitment or involvement in hostilities of a person under 18 if committed outside the United Republic of Tanzania, by or against Tanzanian citizens”.148 These concerns were raised with respect to Tanzania’s implementation of its international obligations under the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and partly under the Rome Statute. In its concluding observation on Tanzania given in October of the same year, the CRC Committee recommended that Tanzania should ensure that “the violation of 145 United

States Department of States 2002, p. 100. See also Scarpa 2008, pp. 32–33. Status”. https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no= XVIII-10&chapter=18&clang=_en. Accessed 4 March 2019. 147 United Nations Treaty Section of the Office of Legal Affairs 2006, p. 8, para 3.3.2. 148 Committee on the Rights of the Child 2008b. 146 “Ratification

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the provisions of the Optional Protocol regarding the recruitment and involvement of children in hostilities be explicitly criminalized” and that Tanzania should establish “extraterritorial jurisdiction for these crimes when they are committed by or against a person who is a citizen or has other links with the State party”.149 Furthermore, in the deliberations of the members of the National Assembly, it was proposed that the law should contain provisions which criminalise the conduct of persons who recruit Tanzanian children and young persons to participate in armed hostilities in other countries through the use of unlawful means.150 It is upon this background that the second conduct of the seventh act of trafficking was criminalised. Furthermore, it is well documented that situations of armed conflicts and political unrest expose various vulnerable groups to the risk of being trafficked domestically and internationally for a range of exploitative practices.151 The 2008 Act uses the phrase “armed activities” to criminalise the actions of those who recruit children or disabled persons to have them participate actively in hostilities or “armed conflict” as direct combatants, sexual slaves, spies or in any other roles, regardless of whether the conflict is an international or non-international armed conflict.152 It has been alleged that young persons and children from Tanzania have been recruited to participate in armed hostilities in several countries, including Somalia, DRC and during the war in Iraq.153 The second conduct intends to protect children and disabled persons against this form of exploitation and prosecute persons who engage children and disabled persons in armed activities. International criminal, humanitarian and human rights law154 already outlaw the two crimes of recruitment of children below the age of fifteen years in the national armed forces as well as their active engagement or participation in hostilities. The 2008 Act differs, however, from the international legal regime outlawing the recruitment of children into the national armed forces or their use in active hostilities in four major respects. In the first place, the Act raises the age of protection to eighteen years for the children, thereby according greater protection than that recognised by international law where 149 Committee

on the Rights of the Child 2008a, p. 2. la Tanzania 2008, p. 51. 151 Gallagher 2015a, b, p. 4; Martin 2014, pp. 163–164. On the extensive literature and resolutions on this aspect see: UNODC 2018b; United Nations Security Council 2017a; UNODC 2018a; United Nations Security Council 2017b; UNGA 2017b, paras 13–45. 152 Brusca 2011, p. 13; Davitti 2010, p. 44; Cullen-DuPont 2009, p. 22; Gallagher 2015a, b, pp. 5– 6. See also International Criminal Tribunal for the Former Yugoslavia Appeals Chamber, The Prosecutor v Dusko Tadic, Decision on the Defence of Omission for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1-A, para 70. 153 Bunge la Tanzania 2008, p. 51. 154 This work does not deal with the exposition of the international law’s position on the recruitment of children or their engagement or participation in armed hostilities. However, for a considered and comprehensive analysis of the position of international law in this respect see: Werle and Jessberger 2014, pp. 462–467; Steinl 2017, pp. 7–9, 15–26, 146–276; Özerdem and Podder 2011; Kiyala 2019; Grover 2012; Tiefenbrun 2007, pp. 438–449. For a considered and elaborate study on the international legal framework specifically on the prohibition of trafficking in persons for the purpose of armed conflict, see Gallagher 2015a, b, pp. 30–46. 150 Bunge

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the age is 15 but can be up to 18 depending on the legal regime applied.155 In the second place, the 2008 Act broadens the individual acts through which children and disabled persons are obtained. In addition to recruitment (enlisting or conscripting), it envisages hiring, adoption, transportation or abduction.156 All these actions are criminalised. In the third place, the 2008 Act protects also disabled persons from being engaged in armed activities, a position in which international law is silent. In the fourth place, the 2008 Act does not criminalise the recruitment of children into the national armed forces and/or armed groups or forces. Rather, it prohibits the recruitment and engagement of children or disabled persons in armed activities or hostilities.157 One of the obvious limitations of the second conduct is that it was supposed to cover adults as well, in addition to children and disabled persons, who, according to studies, have been trafficked and exploited during and after armed conflicts for sexual slavery, forced labour and/or active participation in armed activities.158

7.2.8 Eighth Act of Trafficking (Placement) [Section 4(2)] The eighth act of trafficking is criminalised by Section 4(2) of the 2008 Act. The law lays down that: Trafficking in persons shall also be constituted upon placement for sale, bonded placement, temporary placement or placement as service where exploitation by some other persons is the motive.

The eighth act prohibits four different conducts of placement for sale, bonded placement, temporary placement or placement as service. While these four conducts are different from each other, their purpose is the same, namely, exploitation by other persons of the already trafficked persons. Of the four conducts listed, the 2008 Act only defines the second, third and fourth conducts of placement. The first conduct 155 For example, Convention Concerning the Prohibition and Immediate Action for the Elimination

of the Worst Forms of Child Labour, opened for signature 17 June 1999 (ILO Convention No. 182), 2133 UNTS 161, entered into force 19 November 2000, Articles 1, 3(a); and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, opened for signature 25 May 2000, 2173 UNTS 222, entered into force 12 February 2002, Article 1 raise the age of protection to 18 years. The Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, entered into force 1 July 2002, Article 8(2)(b)(xxvi) recognises the age of protection as 15 years. This position is also taken by the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (1977), entered into force 7 December 1978, Articles 77(2); and Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (1977), entered into force 7 December 1978, Article 4(3)(c). As regards the intersection of age threshold in trafficking for armed activities and child soldiering, see Waschefort 2018, p. 141. 156 See further Waschefort 2018, p. 142. 157 Further on this point see, Werle and Jessberger 2014, p. 465. 158 Tiefenbrun 2007, pp. 461–462; Hampson 2007, p. 293; Gallagher 2015a, b, pp. 7–27.

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of placement for sale is left undefined. However, the use of “placement” for all four acts offers some form of consistency in understanding the criminalised conducts. Furthermore, the four criminalised conducts contain only the action and purpose elements. The reason for the omission of the means element appears to be that these persons have already been trafficked. Although the 2008 Act does not actually define what amounts to placement,159 it is not difficult to understand its import. The Nigerian anti-trafficking law contains a provision on placement which might offer more light.160 In the case of Attorney General of the Federation v Accused, the High Court of Nigeria considered five counts of trafficking against the accused person, among them being a count of placement of any person in servitude as security for a debt owed contrary to Section 24(b) of the Trafficking in Persons (Prohibition) Law Enforcement Act 2003 of Nigeria.161 The High Court reasoned that to prove this count beyond a reasonable doubt, the prosecution needs to adduce evidence showing that (a) the victim was placed by the accused in servitude without her consent; (b) the accused intended the victim to be in servitude; and (c) the accused owed a debt to the person with whom the victim is placed in servitude or placed as collateral.162 In other words, the High Court of Nigeria considered a possibility that placement can be equated to placing or entrusting someone or the victim of trafficking under the custody of another person to be exploited unlawfully. It is in this legal sense that the term “placement” is understood under the 2008 Act.

7.2.8.1

Placement for Sale [Sections 4(2)]

The first conduct criminalises as trafficking the conduct of placement for sale where exploitation by some other persons is the motive. In placement for sale, the trafficker places or gives possession of the trafficked person by sale to the custody of 159 In

fact, the Human Trafficking Act of 2005, Act 694, Section 1(3) of Ghana contains almost an exact replica of the Anti-Trafficking in Persons Act 2008, Section 4(2). Section 1(3) of the Human Trafficking Act of Ghana reads: “Placement for sale, bonded placement, temporary placement, placement as service where exploitation by someone else is the motivating factor shall also constitute trafficking.” See also International Organization for Migration 2017, p. xvii. However, it has been impossible to come across any materials from Ghana which offer more clarification on the crime of placement. 160 Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003, Section 24(b) reads: “Any person who (b) places or receives any person in servitude as a pledge or security for debt whether then due and owing or to be incurred or contingent whether under the name of a pawn or by whatever other name such person may be called or known.” 161 The High Court of Justice of Edo State of Nigeria Benin Judicial Division, Attorney General of the Federation v Accused, Criminal Judgment, 19 April 2007, Charge No. B/17c/2005 (Unreported). https://sherloc.unodc.org/res/cld/case-law/nga/2007/attorney_general_of_the_fed eration_and_e_o._charge_no.b.17c.2005.html/Attorney_General_of_the_Federation_and_E.O._ charge_No.B.17c.2005.pdf. Accessed 21 March 2019. Attorney General of the Federation v Accused 2007. 162 Attorney General of the Federation v Accused 2007, p. 45.

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another person to be exploited permanently. While the trafficker is already liable under Section 4(1) of the Act for trafficking, he is equally liable for placing the victim of trafficking at the exploitative custody of another person by sale. The custodial person must know that the act of buying another person is illegal as the law does prohibit the selling or buying of human beings as property under Sections 254 and 255 of the Penal Code and under Section 8 where he buys or engages the services of the trafficked person for prostitution.163

7.2.8.2

Bonded Placement [Sections 3&4(2)]

The second conduct prohibits bonded placement where exploitation by some other person is the motive. Bonded placement is elaborated to mean “placement by a trafficker of a person for exploitative purposes with a promise of subsequent payment to the trafficker by the user of the trafficked person”.164 In the second conduct, the trafficker places the trafficked person at the disposal of “the user of the trafficked person” for an understanding or a promise that there will be subsequent payments to the trafficker. The trafficker, therefore, incurs liability under Section 4(1) for trafficking and under Section 4(2) for bonded placement. The liability of the user of the trafficked person is the same as that of the custodial person in the first conduct of placement for sale. The phrase “with a promise of subsequent payment to the trafficker by the user of the trafficked person” indicates knowledge on the part of the user as well. However, unlike the first conduct of placement for sale, the bonded placement does not appear to be permanent and includes several subsequent payments which necessarily do not indicate the change in possession of the trafficked person by the trafficker. While there is a great correlation between the crime criminalised under Section 8 (use of the services of the trafficked person) and bonded placement, their difference is that bonded placement in Section 4(2) is more expansive than the crime under Section 8 which is only limited to the use or engagement in prostitution and that the element of “a promise of subsequent payment to the trafficker” is missing under Section 8.

7.2.8.3

Temporary Placement [Sections 3&4(2)]

The third conduct criminalises temporary placement for the purpose of exploitation by some other persons. Section 3 of the 2008 Act defines temporary placement as “the transfer of a trafficked person for a limited period for exploitative purposes”. In this conduct, the trafficker temporarily places the person he trafficked at the disposal of some other persons to be further exploited for his personal advantage. The openness of the “exploitative purposes” clause does not rule out the possibility of including

163 Such

other person includes also legal persons or corporations which “hire trafficked workers supplied by third parties, both domestically and abroad”, see Rodríguez-López 2017, pp. 98–99. 164 Anti-Trafficking in Persons Act 2008, Section 3.

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in this provision “people smuggling, prostitution and other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”.165 The fact that the trafficked person is transferred to be exploited temporarily “for a limited period for exploitative purposes” by some other persons indicates two things: that the trafficker keeps and uses the trafficked person for personal benefit or as an advantage-generating asset; and that there is a prior agreement or understanding between some other persons who exploit the transferred trafficked person and the trafficker. Unlike the first and second acts of placement, the temporary placement does not require the sale of the trafficked person and is not based on promises of subsequent payments. Thus, it can include, for example, a lump-sum payment for a limited period only. Thereafter, the transferred trafficked person is returned to the original trafficker. The criminal liability of the trafficker and these some other persons similarly follows what has already been said for placement for sale and bonded placement.

7.2.8.4

Placement as Services [Sections 3&4(2)]

The fourth conduct criminalises placement as services. Placement as services means “the placement of a person by a trafficker for exploitative purposes where the service of that person is not remunerated”.166 The trafficker exploits the trafficked person by placing his services at the disposal of another person without providing any remuneration to the trafficked person. Unlike the remaining three acts of placement, placement as services seems to focus more on the economic and financial exploitation of the trafficked person. In addition, placement as services does not specify the duration of exploitation. It seems that all the four conducts of the eighth act of trafficking (placement), while criminalising the conduct of the traffickers who place trafficked persons to be exploited by some other persons for personal advantages, do indirectly prohibit also the conduct of other persons who knowingly use and exploit trafficked persons for a range of other exploitative situations going beyond the limited scope of Section 8 which will be discussed later. According to Section 4(5), a person convicted for the commission of any of the acts of trafficking is subject to any of the following three types of punishments, namely: payment of the fine of not less than five million Tanzanian Shillings (5,000,000) but not more than one hundred million Tanzanian Shillings (100,000,000); or imprisonment for a term of not less than two (2) years but not more than ten (10) years; or to both payments of fine and imprisonment as the court will determine. Concerning these forms of punishments for acts of trafficking, the 2013 Trafficking in Persons Report of the United States Department of State Office to Monitor and Combat Trafficking in Persons noted that:

165 Anti-Trafficking 166 Anti-Trafficking

in Persons Act 2008, Section 3. in Persons Act 2008, Section 3.

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A provision allowing offenders to pay a fine in lieu of serving prison time allows for a penalty that is not proportionate to the crime and such a fine does not provide an adequate deterrent to potential perpetrators of trafficking offences….167

7.2.9 Acts Promoting or Facilitating Trafficking [Section 5] Section 5 proscribes the conduct of a person whose effect is to promote, procure or facilitate the commission of any of the acts of trafficking under Section 4 of the Act. This does not rule out other offences of trafficking criminalised under the 2008 Act. The criminal liability of the person here consists of his promotion, procuration or facilitation and not the actual commission of the acts of trafficking.168 This, therefore, suggests a limitation on the role of promotion or facilitation to the actual commission of the acts of trafficking. An offence or act of trafficking would nevertheless be committed (Section 4) even in the absence of such acts of promotion or facilitation (Section 5) but that the said offences or acts of trafficking would not have been committed (Section 4) as easily as such except for that promotion or facilitation (Section 5). The law considers that a person has done promotion, procuration or facilitation where that person does any of the following eight acts, knowingly: leases or subleases, uses or allows any house, building or establishment to be used for trafficking;169 unlawfully produces, prints, issues or distributes fake documents as a proof of compliance with government requirements to promote trafficking;170 advertises, publishes, prints, broadcasts or distributes, or causes to be advertised, publicised, printed, broadcasted or distributed any material by any means that promotes trafficking;171 assists in the conduct of misrepresentation or fraud to obtain acquisition of clearances and necessary exist documents from the government agencies for trafficking;172 facilitates or assists the exit and entry from or to Tanzania of a person in possession of fake travelling documents for trafficking;173 confiscates, conceals or destroys the travelling, identity or personal documents of a trafficked person to further trafficking;174 prevents a trafficked person from leaving Tanzania or seeking redress from the Government or the appropriate authorities;175 or financially benefits

167 United

States Department of State 2014, p. 372. in Persons Act 2008, Section 5(1): “A person who promotes, procures or facilities the commission of trafficking in persons commits an offence.” 169 Section 5(2)(a). 170 Section 5(2)(b). 171 Section 5(2)(c). 172 Section 5(2)(d). 173 Section 5(2)(e). 174 Section 5(2)(f). This is often the case in many trafficking incidents, see Kondo 2011, p. 217. 175 Section 5(2)(g). 168 Anti-Trafficking

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from or makes use of the labour or services of a person held under the condition of involuntary servitude, forced labour or slavery.176 While most of the acts amounting to promotion, procuration or facilitation of trafficking are clear with respect to the underlying acts of trafficking, the seventh (g) and eighth (h) acts are not so straightforward. The seventh act (g) considers as an act of promotion preventing a trafficked person from leaving Tanzania or seeking redress from the Government or appropriate authorities. It is not plain how preventing a trafficked person from leaving Tanzania can amount to a promotion, procuration or facilitation of trafficking. This is because a person who prevents a trafficked person from leaving Tanzania in actual sense prevents the commission of one of the acts of trafficking. The seventh act also considers as promotion, procuration or facilitation the conduct of preventing the trafficked person from seeking redress from the Government or appropriate authorities. It is not lucid on how this can amount to the promotion, procuration or facilitation of trafficking while the person is already a trafficked person. Nevertheless, this provision would only amount to the promotion, procuration or facilitation of trafficking where the purpose was to indicate that by means of the prevention, the trafficked person is subjected to or is exposed to the risk of being retrafficked. The eighth act (h) considers as amounting to promotion, procuration or facilitation the conduct of a person who financially benefits or makes use of the labour or services of a person held under a condition of involuntary servitude, forced labour or slavery. On the one hand, it is not discernible, however, how can a person promote, procure or facilitate the commission of trafficking by financially benefiting from or making use of the labour or services of a person held under the condition of involuntary servitude, forced labour or slavery only to the exclusion of other exploitative situations. For example, a person can financially benefit from or make use of the labour or services of a person held in conditions of sexual exploitation. On the other hand, when a person is trafficked, these are always forms of exploitation aimed at by the trafficker. In other words, para (h) should have formed part of Section 4(1). The punishment for the commission of any of the acts that promote or facilitate trafficking is: a fine of not less than two million (2,000,000) Tanzanian Shillings but not more than fifty million (50,000,000) Tanzanian Shillings; or imprisonment for a term of not less than one (1) year but not more than seven (7) years; or to both payments of fine and imprisonment as the court will determine.177 The punishment for promotion or facilitation of trafficking is less in severity compared to the punishment for the commission of the acts of trafficking under Section 4(5) of the Act.

176 Section 177 Section

5(2)(h). 5(3).

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381

Offence of Severe Trafficking [Section 6]

Section 6 of the 2008 Act characterises certain acts or circumstances as an offence of severe trafficking in persons.178 A person who commits the offence of severe acts of trafficking is subject to: the fine of not less than five million (5,000,000) Tanzanian Shillings but not more than one hundred fifty million (150,000,000) Tanzanian Shillings; imprisonment for a term of not less than ten years (10) but not more than twenty years (20); or to both the payment of fines and a term of imprisonment as the court shall determine.179 This punishment is higher compared to the punishment meted for a person convicted of promoting or facilitating the commission of any of the acts of trafficking under Section 5(3). The offence of severe trafficking is committed if: the person trafficked is a child or disabled person;180 the adoption is effected for the purpose of prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage;181 the crime is committed by a syndicate or in large scale;182 the offender is an ascendant, parent, sibling, guardian of a person who exercises authority over the trafficked person;183 the offence is committed by a public officer, an employee or a religious leader;184 the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies;185 the offender is a member of the military or law enforcement agencies;186 and by reason or on the occasion of the act of trafficking, the trafficked person dies, becomes insane, suffers mutilation or is infected with HIV, AIDS, STDs, communicable or other diseases.187 Section 6(2)(a) considers as an offence of severe trafficking where the trafficked person is a child or a disabled person. As discussed already, Section 4(1)(g)(ii) criminalises the recruitment, hiring, adoption, transportation or abduction of a child or a disabled person for the engagement into armed activities. Besides, Section 4(1)(a) to 4(1)(f) and 4(1)(g)(i) contains other acts of trafficking in which children or disabled persons can be trafficked. The offence becomes the offence of severe trafficking only because a child or a disabled person (regardless of disability) has been trafficked. Section 6(2)(b) categorises as severe trafficking where adoption is effected

178 Section

6(1). 6(4). 180 Section 6(2)(a). 181 Section 6(2)(b). 182 Section 6(2)(c). 183 Section 6(2)(d). 184 Section 6(2)(e). 185 Section 6(2)(f). 186 Section 6(2)(g). 187 Section 6(2)(h). It is generally understood that trafficked persons suffer untold diseases, including HIV/AIDS as the result of their trafficking and also that the fear of HIV/AIDS can also be a cause of trafficking, especially child trafficking, see Samarasinghe and Burton 2007, p. 53; Shelley 2011, p. 146; Holmes 2010a, b, p. 4. 179 Section

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for exploitation.188 Section 6(2)(b), therefore, partly elevates the sixth and seventh acts of trafficking under Section 4(1)(f) and 4(1)(g) into the offence of severe trafficking. There appears to be a marginal repetition of the offence criminalised under Section 6(2)(a) and 6(2)(b). By elevating the trafficking of children as an offence of severe trafficking, in which case Section 4(1)(f) and 4(1)(g) covers also adoption, there was no need to have a different Subsection 6(2)(b) to deal with adoption as an offence of severe trafficking. Unless the provision wanted to be categorical and to extend to other persons other than children, it would appear to be unnecessary repetition of the same offence. Section 6(2)(c) deems as severe trafficking when any of the offences or acts of trafficking are committed by a syndicate or in large scale. A syndicate is considered to have been involved when an offence or act of trafficking is committed by a group of two or more persons or is committed against two or more persons as individuals or as a group.189 Instead of defining a syndicate as a hierarchical group of persons or an organisation, the law rather demarcates a syndicate as a number of persons who commit the offence of trafficking or a number of persons against whom the offence of trafficking is committed.190 In the second place, Section 6(2)(c) counts as an offence of severe trafficking where the offence or act of trafficking is committed in large scale. The phrase “in large scale” denotes a quantitative nature in which trafficking is committed. It is, however, not clear whether the quantitative nature indicates a large number of victims, in which case this might as well be covered by the commission of the offence or an act of trafficking by a syndicate where a crime is committed against two or more persons individually or as a group191 or whether the phrase indicates also the large area extending several regions in the same country or beyond the borders of one country to involve other countries as well. This is always the case with many trafficking offences which involve a network of persons across several regions in the same country as well as across countries, thereby implying the presence of a transnational element in the case of the latter. Given this case, the second alternative might somehow also indicate the qualitative nature in which the offence or act of trafficking is executed—requiring extensive organisation for its commission. Section 6(2)(d) covers the offence of severe trafficking where the person committing the offence is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person. This provision, among others, takes into consideration that trafficking in Tanzania has also taken place through the active involvement 188 Briefly,

see Scarpa 2008, pp. 33–34. 6(3). 190 Obokata 2017, pp. 42–43; Orlova and Moore 2005, pp. 282–283; Boister 2016, pp. 43–44. By this approach of defining a syndicate as a group of persons committing a crime or as a group of victims affected by the committed crime, basically, Anti-Trafficking in Persons Act 2008 considers as an offence of severe trafficking in persons where an act of trafficking is committed by an organised crime group, see McRedmond 2010, p. 184. 191 This consideration is reinforced by the fact that the Anti-Trafficking in Persons Act 2008 suffers from, among others, several unnecessary or unexplained repetitions in the criminalisation of the various acts of trafficking in persons. 189 Section

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or facilitation by family members, close relatives or persons who have influence over children or any other persons in vulnerable positions.192 While a parent or sibling or guardian are straightforward terms on their own, it is not clear who is an ascendant offender or who the persons exercising authority over the trafficked person are. The word ascendant means, among others, “dominant, superior or influential or a position of dominance, superiority or control”.193 This would suggest that an ascendant offender is a person in a position of dominance, influence, superiority or control over the trafficked person. This makes the provision unclear when read together with “a person who exercises authority over the trafficked person,” unless the latter is interpreted to mean formal or established authority or power which is abused as the means to subject another person to trafficking.194 In that case, an ascendant person relates more to “parent, sibling or guardian” of the trafficked person as these are people who generally have a position of dominance, influence, superiority or control over the trafficked person.195 Nevertheless, its specific inclusion achieves the purpose of capturing in other persons who, being mostly in informal relationships to the trafficked person, can subject that person to trafficking.196 Unless this is well elaborated by the courts of law, it might operate to elevate all acts of trafficking into the offence of severe trafficking because persons listed under Section 6(2)(d) are those who generally commit the crime of trafficking. Section 6(2)(e) proscribes the offence of severe trafficking committed by a public officer, an employee or a religious leader. None of these designations is defined in the Act. The first designation of a public officer is clarified in the Interpretation of the Laws Act to mean any officer or department with or performing duties of a public nature whether that officer or department is under the immediate control of the President of Tanzania or the control of a local authority, the community or public corporation.197 Hence, Section 6(2)(e) makes an offence of trafficking severe where any officer or department exercising functions of a public nature is involved 192 In

agreement, see Scarpa 2008, p. 17; Committee on the Elimination of Discrimination Against Women 2008, para 27; Committee on Civil and Political Rights 2010, para 8; United States Department of State 2018, p. 413; Committee on the Rights of the Child 2005, para 292. 193 Oxford Online dictionaries, “Ascendant”: https://en.oxforddictionaries.com/definition/asc endant. Accessed 6 March 2019; Collins Online Dictionaries, “Ascendant”: https://www.collin sdictionary.com/dictionary/english/ascendant. Accessed 6 March 2019. 194 Even this approach will also be difficult to reconcile with Section 6(2)(e) according to which the offence of severe trafficking in persons is committed by “a public officer, an employee or a religious leader.” A public officer is a person with formal authority and so appears to be an employee as well. 195 Cameron and Newman 2008a, b, pp. 24–25; Kneebone 2010, pp. 154–155. 196 Anti-Trafficking in Persons Act 2008 seems to follow the approach of the UNODC Model Law 2009a, b, c, d, p. 40. When interpreting as an aggravating circumstance where the offender is in a position of responsibility or trust in relation to the victim, the Model Law states “examples are a parent or a person having legal or de facto control over the victim, such as a social worker who is responsible for the minor in the course of his or her functions or responsibilities”. 197 Interpretation of the Laws Act 2015, section 4, a public officer or public department extends to and includes “every officer or department invested with or performing duties of a public nature, whether under the immediate control of the President or not, and includes an officer or department under the control of a local authority, the community, or a public corporation”.

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in the commission of an offence or act of trafficking. In addition to covering public officers, the designation of “an employee” extends to cover all other departments or employed persons or persons in contracts of employment in which they work for wages, performing functions or duties not of a public nature.198 The inclusion of the designation of religious leaders came as a concern from the Parliamentary Committee (Kamati ya Mambo ya Nje, Ulinzi na Usalama) that religious leaders have somewhat been implicated in trafficking and, owing to their position of trust in the society, they should be included in the category of the offence of severe trafficking.199 Section 6(2)(f) considers as an offence of severe trafficking the recruitment of the trafficked person to engage in prostitution with any member of the military or law enforcement agencies. This offence is similar to the offence criminalised through the fourth act of trafficking under Section 4(1)(d) according to which a person is criminally liable for, among others, undertaking or organising sex tourism by offering the trafficked person for sexual services or practices to members of the military during their recreational or rest periods. However, unlike the fourth act, the offence of severe trafficking is committed through recruitment (not undertaking or organising) of the trafficked person for engaging in prostitution (not sexual services or practices) with “any member” of the military or law enforcement agencies at any time. Therefore, it is an offence of severe trafficking where the trafficker uses coercive or non-coercive means to prostitute or to obtain a trafficked person to engage in prostitution with any military or law enforcement agencies’ members. It is not clear why only prostitution should feature prominently to the exclusion of other forms of exploitation. Likewise, it is not discernible why should a person who subjects the trafficked person to prostitution with members of the military or law enforcement agencies be liable to a higher punishment than a person who commits the fourth act of trafficking for sex tourism or sexual exploitation or the fifth act of trafficking for engagement of another person in prostitution or pornography under Section 4(1)(e). Section 6(2)(g) makes it an offence of severe trafficking where the offender is a member of the military or law enforcement agencies. The rationale of this provision is axiomatic—it is designed to ensure that law enforcement agencies and members of the military whose duty is to enforce the law and protect citizens from any harm or threat, whether internal or external, are not themselves becoming persons who 198 Employment and Labour Relations Act, Section 4 defines an employee to be “an individual who

(a) has entered into a contract of employment; or (b) has entered into any other contract under which (i) the individual undertakes to work personally for the other party to the contract; and (ii) the other party is not a client or customer of any profession, business, or undertaking carried on by the individual; or (c) is deemed to be an employee by the Minister under Section 98(3). Somehow, the same Section 4 of the Employment and Labour Relations Act defines an employer as “any person, including the Government and an executive agency, who employs an employee”. Based on this definition, a public officer can also be an employee and that would mean that the designation of “an employee” as used in the Anti-Trafficking in Persons Act 2008 does not strictly rule out the possibility of public officers being also employees. 199 Bunge la Tanzania 2008, p. 38. On the Code of Conduct designed to regulate generally how faith based and religious organisations are supposed to conduct their anti-trafficking activities without interfering with the faiths or religious convictions of the victims they intend to serve, see D’Estrée and Zimmerman 2011.

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violate their sacred duty through involvement in trafficking. Section 6(2)(g) plays another important role—its presence confirms that not only are members of the Tanzanian military or law enforcement agencies capable of the commission of any of the acts of trafficking but that they should be subjected to a harsher punishment once their involvement is established. This is because members of the military or law enforcement agencies, through their action, inaction or acquiescence, can implicate the Government of Tanzania as a juridical international person for violation of the human rights of its people, including those of the trafficked persons. Finally, Section 6(2)(h) takes into account the public health dimension of trafficking when it makes as an offence of severe trafficking, where due to trafficking, the trafficked person dies, becomes insane, suffers mutilation or contacts other diseases, including HIV and AIDS, STDs and other communicable diseases.200 The 2008 Act seems to increase the punishment of the trafficker where the trafficked person suffers any of the mentioned consequences. It is not clear how or whether consequences such as death which is not immediate but which results from trafficking should implicate the trafficker. In addition and as already discussed, the criminal provisions of Section 6 need to be read together with the remaining criminal provisions of Sections 4, 5, 7 and 8 of the Act. Some shortcomings can be pointed out with regard to Section 6 of the 2008 Act. The acts it stipulates as amounting to offences of severe trafficking are actually not supposed to be considered as offences. These were supposed to be considered factors, circumstances or acts whose presence in any of the criminalised offences or acts of trafficking aggravate or make that particular criminalised offence or act severe trafficking and therefore, subject to a higher punishment.201 Instead, the Act lists as offences of severe trafficking certain acts or “circumstances” which in themselves cannot amount to a crime. Nothing in Section 6(2)(a) to 6(2)(h) contains anything that reveals the commission of a criminal offence or actual element of any of the acts of trafficking. In fact, any such possibility is overruled by the language employed in Section 6(1) and 6(2) according to which “certain acts or circumstances shall be considered as severe trafficking” and “severe trafficking in persons shall be considered to exist if” and not that a person commits an offence of severe trafficking in persons if .202 Actually, it is Section 6(4) which makes these circumstances criminal offences when it states that “a person who commits an offence under this

200 See

also Aronowitz 2009, p. 48; Helton 2016, pp. 450–452. Rights Council 2012, para 67. 202 As consistently used in all the criminalisation provisions of Section 4(1) which reads “a person commits an offence of trafficking in persons if that person”; of Section 5(1) which states “a person who promotes, procures or facilitates the commission of trafficking in persons commits an offence”; of Section 7(1) which states “a person who acts as an intermediary for the purpose of trafficking in persons commits an offence”; and of Section 8 which partly states “a person who buys or engages the services of trafficked persons for prostitution commits an offence”. 201 Human

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section…”.203 A proper position, however, is always to read these provisions consistently with reference to other criminalisation provisions of the 2008 Act. This consideration is already suggested by Section 6(1) which states that “subject to the provisions of this Act…”, a term which understandably makes a clear reference to the remaining criminalisation provisions of the Act.204

7.2.9.2

Offence of Trafficking by Intermediary [Section 7]

Section 7 of the 2008 Act criminalises the conduct of a person who acts as an intermediary for the purpose of trafficking.205 The criminal liability is acting as an intermediary in relation to trafficking. An intermediary is defined in two alternatives as someone who knowingly participates in any aspect of trafficking or as someone concerned with any aspect of trafficking under the 2008 Act.206 The first alternative of a person who knowingly207 participates in any aspect of trafficking is not defined. However, it is clear that since acting as an intermediary is categorised as a criminal offence, to knowingly participate in any aspect of trafficking is a reference to any of the criminalised offences in which a person participates in their commission. This is further clarified when one considers the Kiswahili version of the same provision which partly reads “(a) mtu wa kati… ni mtu ambaye kwa kujua anashiriki…kitendo chochote kile cha usafirishaji haramu wa binandamu chini ya sheria hii.” Kwa Kujua means “by knowing”, “with knowledge” or “knowingly” and Kitendo chochote means “any action, act or deed” in English.208 Generally, to participate means to take part in, be engaged in or be involved in something.209 A proper consideration of the English and Kiswahili versions of this provision indicates that in the first alternative, a person is an intermediary when he knowingly engages, takes part 203 This same language is used under Section 5(3) which criminalises acts of promotion or facilitation

of trafficking in persons. 204 This legal understanding finds support in the recommendation given by the UNODC Model Law

2009a, b, c, d, p. 39 according to which “All aggravating circumstances are linked to the offender who knowingly committed the crime of trafficking in persons.” 205 Section 7(1): “A person who acts as an intermediary for the purpose of trafficking in persons commits an offence.” 206 Section 7(2)(a): “an intermediary means a person who knowingly participates in or is concerned with any aspect of trafficking in persons under this Act” (Emphasis added). “Knowingly” here indicates that the persons have intent or knowledge. 207 Note that the term “knowingly” was purposely added following the deliberations of the National Assembly during the second reading of the proposed 2008 Anti-Trafficking in Persons Bill. The purpose was to ensure that only persons who act with knowledge, knowing that their actions result in other persons being trafficked should be included and criminalised, see Bunge la Tanzania 2008, p. 37. In addition, the Penal Code, Section 5 considers that the term “knowingly” implies “knowledge”. 208 Swahili-English Dictionary (TUKI), “Kitendo”: https://www.elimuyetu.co.tz/subjects/arts/swaeng/k.html. Accessed 7 March 2019. 209 Oxford Online Dictionaries, “Participate”: https://en.oxforddictionaries.com/definition/partic ipate. Accessed 6 March 2019.

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or involves himself in any acts or offences of trafficking as criminalised in the Act. Under the 2008 Act, any person can participate in the commission of trafficking as the: main perpetrator210 co-perpetrator with another person or persons;211 facilitator or promoter;212 undertaker, organiser or director;213 assistant;214 or as a user of the services of the trafficked person.215 There is, therefore, a greater possibility that the first alternative of the provision acts as a sweeping clause to capture all forms in which various actors and persons who, with knowledge, take part or participate in the commission of trafficking.216 A secondary consideration of the first alternative, however, reveals a different meaning. The second consideration requires a determination of the grammatical sense of the term “intermediary” which suggests someone who acts as a mediator, a go-between, a medium or means between two different sides or persons unwilling or unable to communicate directly.217 Taken literally, an intermediary, as a person who knowingly participates in any aspect of trafficking, will be a person who takes part or involves himself as a means or as a medium through, by or because of whom offences or acts of trafficking are committed; or as a person, who, by reason of his active role, presence, engagement, involvement or participation, he makes it possible for any of the offences or acts of trafficking to be carried out. In other words, while any act or offence of trafficking might nevertheless be committed without the intermediary’s participation, trafficking would be as nearly impossible save for his participation. Considered in this alternative, the provision seems to cover all other persons who participate or take part or involve themselves in any act of trafficking in any other ways or means that might not be directly proscribed under Sections 4, 5, 6 and 8 but whose participation form a very important part in the commission of any of the trafficking offences. A further consideration of Section 22 of the Penal Code218 renders more weight to this 210 Offences under Sections 4, 5, 6 and 8 of the Anti-Trafficking in Persons Act 2008 can be committed by any person as the main perpetrator. 211 This can be inferred from the provisions of Section 6(2)(c) and 6(3)(a) according to which any of the offences or acts of trafficking in persons can be committed by a group of two or more persons. In each case, each participator is fully and criminally liable in as much capacity as the other participator(s). 212 Section 5 already criminalises the commission of an offence or act of trafficking in persons as a promoter or facilitator. 213 This can easily be inferred, for example, from the provisions of Section 4(1)(d) in which a person undertakes or organises sex tourism or sexual exploitation. 214 For instance, in Section 4(1)(a) the whole process of recruiting, transporting, transferring, harbouring, providing or receiving can involve several persons who knowingly assist each other or other persons in the commission of the crime of trafficking in persons. 215 This is the essence of the offence criminalised by the Anti-Trafficking in Persons Act 2008, Section 8. 216 See further Stoyanova 2017, p. 43. 217 Cambridge Online Dictionaries, “Intermediary”: https://dictionary.cambridge.org/dictionary/ english/intermediary. Accessed 6 March 2019. 218 Section 22: “When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—(a) every person who actually does the act or makes the

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approach. According to Section 22, persons can participate in the commission of an offence, among others, by aiding or abetting, counselling or procuring or enabling the commission of an offence by other persons. All these persons are treated as principal offenders and therefore are equally as guilty as the main perpetrators. Therefore, Section 7 of the 2008 Act first alternative would seem to cover persons who do not actually or physically commit an offence or act of trafficking but whose roles as participants is so fundamental in the commission of an offence as to be treated principal offenders.219 The second alternative covers a person who is “concerned with” any aspect of trafficking under the 2008 Act. Section 7(2)(b) defines “to be concerned with” as a conduct comprising of submitting or taking a person to a process of trafficking; giving consent for a person to be trafficked; receiving a person at any place to make that person a subject of trafficking; or entering into an agreement for the commission of trafficking or subjecting a person into trafficking.220 By submitting or taking a person to a process of trafficking, Section 7(2)(b)(i) suggests several legal possibilities. It can suggest that he is an intermediary any person who subjects or presents or makes available another person to be trafficked. This means that except for that submission, the trafficking of that person might not have taken place. Therefore, any person will be an intermediary, for instance, under Section 4(1)(a) who, by submitting another person to the trafficker, makes it possible for the trafficker to recruit, transport, transfers, harbours, provides or receives that person for the purpose of exploitation. The second legal possibility will be to consider the actual meaning of the verb “to take”. As used by both Oxford and Cambridge English Dictionaries, the verb “to take” suggests several meanings of which some include “capture or gain possession by force or remove something or someone from one place to another”.221 The verb to take, therefore, connotes the moving of one person by another person (and where such movement is not necessarily voluntary) in the process of or in any act of trafficking; or that a person who acts as an intermediary, by taking a person to a process of

omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person, to commit the offence; (c) every person who aids or abets another person in committing the offence; any person who counsels or procures any other person to commit the offence….” 219 For the Tanzanian jurisprudence in this regard, see The High Court of Tanzania, Masudi v R (1971) HCD 75: “The learned magistrate appears to be confusing an accessory after fact, which is a separate and distinct offence as provided for in Section 387 of the Penal Code, with an aider and abettor in the commission of an offence, who is a principal in the commission of such offence, as provided for in Section 22 of the Penal Code.” 220 Section 7(2)(b): “to be concerned with means to-(i) submit or take a person to a process of trafficking in persons; (ii) give consent for a person to be trafficked; (iii) receive at any place a person for the purpose of making that person be a subject of trafficking in persons; or (iv) enter into agreement whether oral or written for the purpose of trafficking in persons or to subject a person into trafficking in persons”. 221 Cambridge Online Dictionaries, “Take”: https://dictionary.cambridge.org/dictionary/english/ take. Accessed 6 March 2019; Oxford Online Dictionaries, “Take”: https://en.oxforddictionaries. com/definition/take. Accessed 6 March 2019.

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trafficking, means that he has or possesses persons whom he subjects to any of the acts of trafficking. Section 7(2)(b)(ii) covers a person who acts as an intermediary by giving his consent for another person to be trafficked. The person who gives consent acts “knowingly” such that because of his consent another person is trafficked. The consenting person, therefore, appears to be a person in a position of influence, authority, control or dominance over another person who is subjected to trafficking. Section 7(2)(b)(ii) operates to clarify that a person who gives consent unknowingly by virtue of which another person is subjected to trafficking will not be guilty under this provision and does not act as an intermediary. He lacks the knowledge and does not share the intent of the person who traffics that other person for whom he gave consent. Section 7(2)(b)(iii) includes a person who acts as an intermediary by receiving another person anywhere to be a subject of trafficking or to be trafficked. This person might not in actual sense exploit or traffic the person he receives but rather, he agrees to receive that person knowingly that the said person is or will be subjected to trafficking by some other persons. While this is self-explanatory and straightforward, it might present a difficulty in differentiating it from or reconcile it with the provisions of Section 4(1)(a) whose action element includes the constitutive acts of “harbouring and receiving” to lead to exploitation. The person who harbours or receives another person under Section 4(1)(a) acts with knowledge and uses the action of receiving or harbouring to subject a person to trafficking through any of the unlawful means. In other words, the person who receives or harbours another person for exploitation under Section 4(1)(a) can be the actual perpetrator or co-perpetrator who exploits or intends to exploit the trafficked person. Therefore, the difference between Sections 4(1)(a) and 7(2)(b)(iii) lies in the fact that Section 7(2)(b)(iii) does not cover a person who is the actual perpetrator or co-perpetrator that physically commits trafficking. However, the action of the person under Section 7(2)(b)(iii) who acts as an intermediary is so fundamental because by means of his concern or role as an intermediary another person might or might not have been trafficked. Section 7(2)(b)(iv) covers the situation where another person acts as an intermediary by entering into an agreement with another person so that an act or offence of trafficking is committed. The intermediary’s liability originates from his role in entering into an agreement by means of which another person is trafficked. A person convicted of committing an offence by acting as an intermediary is liable to: a fine of not less than four million Tanzanian Shillings (4,000,000) but not more than one hundred fifty million Tanzanian Shillings (150,000,000); an imprisonment term of not less than seven years (7) but not more than fifteen years (15); or both a fine and imprisonment term as will be determined by the court. In substance, the punishment for the commission of an offence as an intermediary attracts more punishment than the punishment for the commission of an offence or acts of trafficking under Section 4. Whether this makes sense or not, the justification appears to have been that a person who acts as an intermediary is the reason why trafficking happened or was executed and so he must be subjected to a higher punishment. Similarly, the punishment for a person who commits an offence as an intermediary is higher than the punishment of a person who promotes or facilitates the commission of any of

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the acts or offences of trafficking. The rationale seems to be based on the nature of the contribution or the role one plays in the commission of trafficking—an intermediary plays a more fundamental role. In fact, the punishment for the commission of an offence by acting as an intermediary is nearly as high as the punishment for the commission of any of the offences of severe trafficking under Section 6 of the 2008 Act. Nonetheless, it needs to be acknowledged that the manner in which Section 7 is drafted makes it difficult to reconcile it with Section 4(1) of the 2008 Act.

7.2.9.3

Offence of Buying or Engaging the Trafficked Person’s Services [Section 8]

Section 8 of the 2008 Act criminalises the conduct of a person who knowingly buys or engages the services of a trafficked person.222 There are several areas in which the services of the trafficked person can be bought or engaged such as in prostitution, forced labour, domestic work, slavery, sexual exploitation or servitude and several others. The 2008 Act, however, limits itself only to one aspect—prostitution. This does not present positive progress reflected under international and regional law as it leaves out of criminalisation the conduct of a trafficker who would buy or engage the services of a victim in other services other than prostitution.223 This shortcoming is, however, remedied by Section 4(2) of the 2008 Act which criminalises the eighth act of trafficking for placement. A person convicted of this offence is subject to the punishment of: a fine not less than one million (1,000,000) Tanzanian Shillings but not more than thirty million (30,000,000) Tanzanian Shillings; a term of imprisonment of not less than twelve months (12) but not more than seven years (7); or to both fine and imprisonment. In essence and in comparison to similar other penal provisions, this presents the least punishment a person can be subjected to for commission, followed by the punishment meted for a person who promotes or facilitates the commission of an act or offence of trafficking. It is important to stress at this juncture that the 2008 Act requires the imposition of “a more severe penalty” for any person who commits a second or subsequent offences or acts of trafficking, in addition to penalties provided in the criminalisation provisions.224 While it is a recognition that a person who repeatedly commits acts of trafficking should be subjected to a higher penalty, it would have been a better option to categorise second or subsequent commission as an aggravating factor for trafficking offences. Therefore, Section 6 of the 2008 Act would have been an ideal place to position Section 13. Notwithstanding, the court is required by law to consider Section 13 in the context of the criminalisation provisions of the Act, especially during sentencing. 222 Section

8: “A person who buys or engages the services of trafficked persons for prostitution commits an offence and shall on conviction be liable to….” See as well UNODC Model Law 2009a, b, c, d, p. 43. 223 For such a proposal, see for example, South African Law Reform Commission 2008, p. 36. 224 Section 13: “The court may, in addition to specific penalties stipulated in various provisions under this Act, impose a more severe penalty for a person who is convicted for a second or subsequent offence under this Act.”

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7.3 Trafficking of Children [Section 4(3)] Section 4(3) of the 2008 Act slightly follows the position of Article 3(c) of the TIP Protocol 2000 according to which trafficking of children does not require the presence of or proof that any of the unlawful means have been employed to traffic a child.225 The rationale for this position is already stated—children cannot consent and lack the ability to consent to be trafficked due to their immaturity, vulnerability and lack of agency.226 While this rationale is presumed in the context of the TIP Protocol 2000, the 2008 Act does away with the presumption. It provides: Where a victim of trafficking in persons is a child, consent of the child, parent or guardian of the child shall not be used as a defence in prosecution under this Act regardless of whether there is evidence of abuse of power, fraud, deception or that the vulnerability of the child was taken advantage of.227 (Emphasis added).

Rather than straightforwardly defining what act constitutes trafficking of children, the 2008 Act considers trafficking of children in the context of the prosecution and evidence. It categorically specifies that the trafficker cannot use the child, parent or guardian’s consent as a defence when prosecuted for trafficking. Confusingly, however, Section 4(3) adds that “regardless of whether there is evidence of abuse of power, fraud, deception or that the vulnerability of the child was taken advantage of”. This represents a significant deviation from Article 3(c) of the TIP Protocol 2000 according to which trafficking of children is constituted “even if this does not involve any of the means set forth…”. In other words, while the TIP Protocol 2000 considers a child trafficked even where the means element is missing and is not a legal requirement, the 2008 Act takes the position that a child is considered trafficked even when some of the constitutive acts of the means element are also present, impliedly making the means element a legal requirement. This provision is flawed and highly misleading. First, there is no need to state that consent is not a defence where a child is trafficked even when the means element has been used for two reasons. In the first place, where the parent or guardian consents for a child to be trafficked, the crime committed is that of severe trafficking under Sections 4, 6(2)(a), 6(2)(d) and 6(4) of the Act. Likewise, the same crime can amount to committing the crime of trafficking 225 On

this position, see Piotrowicz 2012, p. 190; Aronowitz 2009, p. 2; UNODC 2012, p. 15; UNODC 2011, p. 5; United Nations Children’s Fund (2006) Guidelines on the Protection of Child Victims of Trafficking: UNICEF Technical Notes. UNICEF, New York, p. 9; Stevens 2006, p. 663. On some critical perspectives on the omission of the means element in the definition of trafficking of children and its impact, see Sax 2018, pp. 252–254. 226 See further UNODC 2012, p. 15; Müller 2016, p. 287. Some authors, however, disagree with this position, arguing that children, even when under 18 years of age, have their own agency and make independent decisions to migrate in search of better living conditions and therefore, they find that the omission of the means element in the definition of trafficking of children is faulted, Hashim and Thorsen 2011, pp. 17–18; Davidson 2011, pp. 463–464; Sax 2018, pp. 252–254. 227 Compare the Anti-Trafficking in Persons Act 2008, Section 3 with the TIP Protocol 2000, Article 3(c), which reads: “The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subpara (a) of this article” (Emphasis added).

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by an intermediary under Section 7(1), 7(2)(b)(ii) and 7(3) of the Act. In the second place, the 2008 Act seems to take the position under international law that where adult victims are trafficked, the unlawful means used nullify their consent and makes this directly applicable to child victims of trafficking.228 This is legally unjustified because, in essence, it does away with the legal difference between the trafficking of children from the trafficking of adult persons. The law should have indicated rather, that the presence of the means element when a child is trafficked aggravates the crime of trafficking of children and not that consent of the child, parent or guardian of the child is irrelevant even where certain unlawful means have been used. Second, Section 4(3) omits other unlawful means listed under Section 4(1) through which a child is trafficked. The question is: does it mean that the trafficker has a valid defence where he traffics the child after obtaining the consent of the child, parent or guardian of the child by means other than those mentioned in Section 4(3) of the Act? That is to ask: is there a defence where the trafficker, for example, recruits, transports, transfers, harbours, provides or receives a child by means such as a pretext of domestic or overseas employment, training, apprenticeship, threat, abduction, force or coercion to lead to exploitation? Section 4(3) leaves this question open. Although its purpose is clear—to prevent children from being trafficked while also protecting their human rights—the provision reflects poor drafting and its consequences are legally calamitous as it might end into not protecting the children at all. It actually seems to suggest, albeit indirectly, that where the means element is missing, consent can be used as a defence when a child is trafficked. Third, Section 4(3) is silent where the trafficked person is a disabled person. The 2008 Act takes a position that to generally a disabled person, depending on and because of his or her disability, might not be able to give any lawful consent even in the absence of any unlawful means being used. It would have been a better way to protect disabled persons by specifically providing that their consent is irrelevant for the offence of trafficking so that only the action and purpose elements suffice to institute a case against the trafficker. This can be presumed to be the case with respect to Section 4(3) as this is already suggested, for example, by Section 4(1)(g)(ii) which does not require the presence of the means element where the child or a disabled person is trafficked for engagement in armed activities. Finally, it is important to note that in all acts or offences of trafficking in which a child or disabled person is trafficked, Section 6 of the Act which criminalises and punishes the offence of severe trafficking needs to be included in the charge sheet against the trafficker for any act or offence of trafficking he commits or participates in the commission.229

228 TIP Protocol 2000, Article 3(b) states that: “the consent of a victim of trafficking in persons to the

intended exploitation… shall be irrelevant where any of the means… have been used” (Emphasis added). See as well Chuang 2006, p. 445; Kruger 2016, p. 62; Scarpa 2008, p. 17. 229 Anti-Trafficking in Persons Act 2008, Section 6(2)(a), 6(4).

7.4 Consent of the Victim [Section 4(4)]

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7.4 Consent of the Victim [Section 4(4)] Section 4(4) correctly takes the same position as that of international law according to which an adult cannot consent to be trafficked where the means element has been employed by the trafficker.230 However, as pointed out, Section 4(4) of the 2008 Act is fundamentally the same as Section 4(3) on the trafficking of children. Both provisions make the defence of consent immaterial and defective where the child or an adult has been trafficked through the use of unlawful means. Unlike Section 4(3), however, Section 4(4) tenders that consent is defective and immaterial where any of the unlawful means of the whole of Section 4(1) have been employed. This would imply that the 2008 Act seems to offer more protection to adult victims of trafficking than to child victims of the same offence. Nonetheless, this unfortunate position of the 2008 Act is somehow ameliorated by the Main Regulations 2015.231 The definition of the child victim of trafficking in the Main Regulations can indirectly be read as not requiring the means element to be established.

7.5 Criminal Jurisdiction The 2008 Act confers criminal jurisdiction on the investigation and adjudication authorities in Mainland Tanzania and Tanzania Zanzibar for all offences of trafficking whether committed within or outside Tanzania.232 The 2008 Act, however, falls short of having a clear provision delineating forms of jurisdiction it accords to the courts of law and the investigative authorities. Nonetheless, this shortcoming is supplemented when the Act is read together with the Penal Code. According to the Penal Code, Tanzanian courts have jurisdiction for all criminal offences, including trafficking in persons, when committed at any place in Tanzania and within its territorial waters; the crime is committed by a citizen of Tanzania in any place within or outside of Tanzania; and where the offence is committed by a person on an aircraft registered in Tanzania.233 The Constitution, too, confers unlimited jurisdiction to the High Court of Tanzania to deal with cases including those of trafficking in persons.234 It can be contended further that since the 2008 Act domesticates or implements the TIP Protocol 2000 which supplements the Organised Crime Convention 2000, the forms of jurisdiction already provided for under the Organised Crime Convention 2000 and

230 Section 4(4) enumerates that: “A consent of a victim of trafficking in persons is immaterial where

any of the means referred to under Subsection (1) has been used against the victim.” 3 defines a child victim of trafficking as: “any person under the age of eighteen years who has been recruited, transported, transferred, harboured or received for the purpose of exploitation irrespective of the means applied”. 232 Section 2(1). 233 Penal Code, Section 6. See also Fichtelberg 2014, pp. 354–356. 234 Constitution of Tanzania 1977, Article108(1), 108(b). 231 Regulation

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the TIP Protocol 2000 can impliedly be applied in Tanzania where necessary and in order to implement Tanzania’s international obligations.

7.6 Duty to Investigate Cases of Trafficking The 2008 Act does not appear to place a mandatory duty on the law enforcement agencies and officers to investigate cases of trafficking without prior reporting from any other person, including persons trafficked or suspected of being trafficked. However, this duty is direct and mandatory according to the Main Regulations 2015. Regulation 4(8)(b)(i) requires the Tanzania Police Force to, among others, “undertake surveillance, investigation and arrest of individuals or persons suspected to be engaged in trafficking in persons”. In implementing this obligation, the Police Force is required to co-operate closely with other law enforcement agencies and to supervise all antitrafficking investigations, inspections and apprehensions wherever they occur.235 Furthermore, the Main Regulations 2015 place the mandatory obligation to investigate and arrest persons suspected to engage in trafficking to other law enforcement agencies, including the officials of the Tanzania Immigration Services.236 In actual sense, the duty to investigate also can be implied from the provisions of Section 12(2)(b) of the Act according to which a police officer is empowered to arrest without a warrant of arrest any person who obstructs the said police officer “from conducting an investigation” into cases of trafficking. However, to discharge the duty to effectively investigate offences of trafficking while also respecting the constitutional rights of the suspects, the police officer is required at all times to arrest a person only when he has a warrant of arrest. This requirement can be dispensed with when an act of trafficking is being committed in the officer’s presence; the suspect obstructs the police officer from conducting an investigation; or where it appears in the eyes of the police officer that a person is about to commit an act of trafficking and there is no any other way to prevent the commission if he has to wait for the warrant of arrest to be issued.237 Concerning reporting of trafficking cases, while the Main Regulations 2015 place a hortatory obligation on the victim or potential victim of trafficking to report238 and a mandatory obligation on “any person” to report,239 the 2008 Act makes this duty mandatory on the victim or suspected victim of trafficking to report where he “possesses information about any person committing an offence of trafficking in

235 Regulation 236 Regulation 237 Section

4(8)(b)(ii), 4(8)(b)(iv). 4(8)(a)(i).

12.

238 Regulation

14(1): “the potential victim of trafficking may report…” (Emphasis added). 14(1)(a), 14(1)(e). see also the Criminal Procedure Act, Act No. 9 of 1985 (CAP 20 RE: 2002), Section 7 which places a mandatory duty on a person to report to the police officer the commission or intended commission of a crime by any person.

239 Regulation

7.6 Duty to Investigate Cases of Trafficking

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persons elsewhere”.240 Rarely do trafficked persons come to report cases of trafficking for fear of detention or apprehension by police and immigration authorities as well as reprisals, intimidation or injury to their own safety or that of their family members or close relatives from their traffickers.241 Therefore, the duty to report by trafficked persons was supposed to be a soft obligation as provided in the Main Regulations 2015 with a guarantee of protection whenever the trafficked person opts to report. Also, the obligation to report was supposed to include other persons who are not victims of trafficking but who possess sufficient information on the commission of an offence of trafficking as this position is already stipulated under regulation 14(1)(a) of the Main Regulations 2015. In addition, it can be argued that this position is also supported by Section 16 according to which “any other person” is required or empowered to identify another person as a victim of an offence of trafficking. If any person has a mandatory obligation to identify a victim of trafficking, he should also have a mandatory obligation to report. A purposive reading of the law, therefore, indicates that the police officer has both a proactive and reactive obligation to investigate cases of trafficking and that other persons have a mandatory obligation to report trafficking cases, in addition to victims or suspected victims of trafficking.242 Any other person can report or refer the victim or potential victim of trafficking or any case of trafficking to the Police, Faith-Based Organisations, Social Welfare Office, Local Government Officials, Civil Society Organisations responsible for victim protection, to any member of the ATC, Community Development Officers or other law enforcement agencies.243 However, where the report is given to the Local Government Officials, Civil Society Organisations and Faith-Based Organisations, a mandatory obligation is placed on these organisations to immediately report to the Police or Social Welfare.244 Following the reporting or own proactive investigation and surveillance, the police officer is required to summon and interrogate persons alleged or suspected to have committed the offence of trafficking and to record their statements in details and assess if there is revealed any information to sustain a charge of trafficking.245 With respect to victims or suspected victims of trafficking, the police officer or social welfare officer is mandated to conduct an intake assessment or investigation or inquiry to determine 240 Section

10: “A victim of trafficking in person who possesses information about any person committing an offence of trafficking in persons elsewhere shall be required to, immediately report the offence to the police officer” (Emphasis added). Fundamentally and for reasons not known, the 2008 Act impliedly might be taken to suggest also that the trafficked person has no obligation to report his trafficking as he is only required to report information on trafficking happening elsewhere. 241 Tzvetkova 2002, p. 61; Piotrowicz 2002, p. 264; UNODC 2006a, b, p. 44; Heinrich 2010, p. 3; Bernat and Zhilina 2010, p. 4. 242 The impetus for this obligation on the part of the police stems from research findings which have indicated that the reactive approach of the police to the exclusion of the proactive investigation has negatively affected identification of the victims of trafficking and the prosecution of trafficking cases, see Farrell and Pfeffer 2014, pp. 54–55. 243 Main Regulations 2015, regulation 14(1)(a), 14(1)(b), 14(1)(e). 244 Regulation 14(1)(a). see also Mollema 2014, pp. 255–256. 245 Section 11(1)(a), 11(1)(b).

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appropriate intervention to be taken.246 The law also requires them to interview and help the trafficked person who has come to report as well as any victim of trafficking they come across to with immediate assistance, protection and support or referral to such services.247 For child victims of trafficking, the law demands that the police use a friendly special procedure to interview them.248 Thereafter, the social welfare officer is required to prepare a social study report or case summary in the prescribed Form No.5 for the victim admission to a residential facility for temporary shelter.249

7.7 Judicial Proceedings The 2008 Act establishes a mandatory obligation that in all judicial proceedings “the private life and identity” of trafficked persons shall be secured and protected.250 As a general rule, the 2008 Act requires non-disclosure of the name, personal particulars or any other information of the trafficked person to the public.251 Also, the law requires protection of the privacy of the accused person at any stage of the investigation or trial.252 The implementation of this duty is imposed on the law enforcement organs, judges, court personnel, medical practitioners and parties to the case. In order to protect the private life, identity and privacy of the parties to the case, the court can order that the proceedings be conducted in camera, having taken into consideration all the circumstances of the parties and their best interests.253 Once the court decides that a trial or judicial proceedings be held in camera, the 2008 Act prohibits any person from causing the publicity of that prosecution.254 No punishment is prescribed for any person who infringes on this prohibition. It is not clear, however, what extent of the publicity of that prosecution is prohibited. Taken literally, the provision would mean that no part of the proceedings held in camera should ever be made known to the public. This would require the court to balance between the constitutionally

246 Regulation

14(1)(c). See also UNODC 2009a, pp. 2–3. in Persons Act 2008, Section 11(2)(a), 11(2)(b), 11(2)(c); Main Regulations 2015, regulation 8. 248 Regulation 18. See further UNODC 2009b, pp. 1 et seq. 249 Regulation 14(1)(d). 250 Section 9(1). 251 Section 9(4). 252 Section 9(2): “The law enforcement organs, judges, court personnel and medical practitioners, as well as parties to the case shall, at any stage of investigation and trial of an offence under this Act, recognise the right to privacy of the trafficked person and the accused.” 253 Section 9(3). 254 Section 9(5): “Where the prosecution is conducted in camera, it shall be unlawful for-(a) an editor, publisher, reporter or columnist; (b) announcer or producer; (c) producer or director of a film; or (d) any person utilizing tri-media facilities or information technology to cause the publicity of that prosecution.” 247 Anti-Trafficking

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guaranteed right to privacy and personal security, on the one hand, and the constitutional right to freedom of expression and information, on the other hand.255 Again, Section 9(5) leaves open the question of whether it is possible to publicise any information relating to the trial or prosecution of a trafficking case done in open court. During the second reading of the then proposed 2008 Anti-Trafficking in Persons Bill, Section 9(4) read that the “name and personal particulars of the trafficked person or of the accused… shall not be disclosed to the public.” It was the concern of the National Assembly members that “or of the accused” provides unnecessary protection to the trafficker from public disclosure.256 Following this comment, the words “of the accused” were removed from the final draft. However, Section 9(2) protects the privacy of the trafficked person “and the accused”. In essence, this is a recognition that even traffickers have their own constitutional rights which must be protected and respected. Their constitutional rights to, among others, respect of personal privacy, integrity and liberty, the presumption of innocence, right to appeal and legal representation need to be guaranteed in the course of the criminal investigation and proceedings.257 In this connection, the fact that the accused trafficker cannot plead the defence of consent of the victim of trafficking when the means element has been employed to traffic does not operate to place on him the burden of proof which in all criminal proceedings is generally placed on the prosecution.258

7.8 Powers of the Court on Compensation With regard to compensation and damages, the 2008 Act lays down a general rule that a court can award damages to the trafficked person only from personal and separate properties of the accused.259 Where the personal and separate properties of the accused cannot discharge the damages awarded, the law allows the remaining amount to be taken from the confiscated or forfeited properties of the accused person.260 Section 14, however, does not respond to the question of what happens when the trafficker lacks the properties, instrumentalities or proceeds to be confiscated or forfeited and where he has insufficient funds to pay damages to the trafficked person as ordered by the court? This question is partly answered by Part V which establishes

255 Constitution

of Tanzania 1977, Articles 16, 18. la Tanzania 2008, p. 38. 257 International Labour Office 2005, pp. 9–10. 258 UNODC Travaux Préparatoires 2006, p. 348; Jordan 2002, p. 11. 259 Obokata argues that the purpose of compensation in trafficking cases is to “affirm public respect for the victim and give public recognition of the wrongdoer’s fault in failing to respect basic rights”, see Obokata 2006, p. 160. 260 Anti-Trafficking in Persons Act 2008, Section 14(2). 256 Bunge

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the Anti-Trafficking Fund.261 Some of the uses of the funds of the Fund include “supporting the basic material needs of victims of trafficking in persons”.262 The Main Regulations 2015 also take this position. The funds of the Anti-Trafficking Fund can be accessed not only by victims or their legal representatives but also by witnesses and whistleblowers.263 It can somehow be contended that these funds can be used to compensate victims where traffickers have insufficient means. Concerning compensation, the 2008 Act empowers also the courts of law to compel a person convicted of an offence of trafficking to pay compensation to a trafficked person for the injury and suffering he has undergone as the result of trafficking.264 In addition, where the trafficker causes injury to another person in the course of trafficking, the courts are vested with powers to order the trafficker to pay compensation to the injured person.265 As noted with respect to damages, the law is silent on where the monies for compensation will come from where the trafficker possesses insufficient means. Again, Section 27(a) seems to provide a partial solution. The payment of compensation by the accused following the order of the court is in addition to any other punishment the court can order against the accused person. Therefore, an order of compensation can go together with an order to have properties, proceeds or instrumentalities confiscated, an order of imprisonment, fine or both fine and imprisonment as well as an order to pay damages. In this respect, it can be said that the 2008 Act’s provisions on compensation are stronger and imperative compared to the weaker ones contained in the TIP Protocol 2000.266

261 Sections

25–29. 27(a). 263 Regulation 24: “The following persons or institutions, among others, shall be considered competent to receive grants from the Fund, based on the principle of reasonable need, namely: (a) victim and, in appropriate case, his legal representative; (b) witness of trafficking in person cases and whistleblowers.” 264 Section 15(1). 265 Section 15(3). Section 3 defines “injury “to include: “physical, emotional and psychological hurt”. Based on this provision, the Anti-Trafficking in Persons Act 2008 contains more expansive provisions on the recognition and access to remedies by victims of trafficking in persons than the TIP Protocol 2000 which, as noted by Gallagher, “the Trafficking Protocol is silent on other forms of remedy such as restitution and also on the issue of access to remedies. It does not, for example, require States to provide victims with information on their legal rights including their right to seek and receive compensation for injuries and loss”, Gallagher 2010, p. 7. 266 TIP Protocol 2000, Article 6(6) reads that: “Each State Party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damages suffered.” The mandatory nature of “each state shall” is diluted by the “possibility of”, legally insinuating that states have discretion not to recognise compensation to the victims of trafficking as an entitled right. See further Heintze and Lülf 2016, p. 161. 262 Section

7.9 Sanctions and Penalties

399

7.9 Sanctions and Penalties As already discussed, the 2008 Act imposes sanctions and penalties to persons who have committed trafficking offences. The law imposes a range of minimum and maximum fines upon which the trafficker will be required to pay; the terms of imprisonment upon which the trafficker can be subjected; and/or both fine and imprisonment as determined by the courts of law.267 Also, the law imposes more severe but unspecified punishments to persons who commit any of the crimes of trafficking more than once.268 The law, however, is silent regarding the imposition of criminal, civil or administrative punishments to legal persons involved in trafficking. This does not reflect the actual position under international law according to which states are advised to consider imposing, in addition to criminal sanctions, civil or administrative penalties to legal persons. As shown, the 2008 Act also requires the payment of damages and compensation as well as confiscation and forfeiture, in addition to any penalties or punishments the courts will deem fit to impose.269

7.10 Asset Confiscation, Forfeiture and Use Courts are vested also with powers to order, on their own motion, confiscation and forfeiture to the Government of all the proceeds, properties or instrumentalities derived from the offence of trafficking.270 Based on the amendments introduced in 2016, the 2008 Act was amended so that the Attorney General has been given powers, in addition to courts of law, to order confiscation and forfeiture to the Government of all the proceeds, properties or instrumentalities obtained or used in the commission or facilitation of the commission of a trafficking offence.271 The purpose of confiscation and forfeiture is to deprive the trafficker of benefiting from the commission of an act of trafficking, thereby sending the message that trafficking does not pay.272 In the course of conducting criminal investigation and prosecution, the prosecution and investigation authorities are mandated to take provisional measures to ensure confiscation, preservation and forfeiture of all the properties, instrumentalities and proceeds of trafficking.273 In fact, the law requires all the properties or income used or 267 Anti-Trafficking

in Persons Act 2008, Sections 4, 5, 6, 7, 8. 13. 269 Sections 14, 15. 270 Section 14(1); Organised Crime Convention 2000, Articles 12-14; CoE Anti-Trafficking Convention 2005, Article 23(3). The effective discharge of this obligation requires also that states parties put in place mechanisms for international co-operation in asset confiscation, recovery and use, see Dandurand 2012, pp. 221–222. 271 Written Laws (Miscellaneous Amendment) (No.2) Act, 2016, Bill Supplement to the Gazette of the United Republic of Tanzania No. 21, vol. 97 dated 20 May 2016, Section 6. 272 Morehouse 2009, pp. 65–66; ICAT 2014, p. 11. 273 Main Regulations 2015, regulation 20. 268 Section

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derived therefrom which are subject to confiscation or forfeiture be held in custodia legis until the final determination of the case.274 However, where the trafficker has, by an act or omission, whether directly or indirectly, destroyed, diminished in value or otherwise rendered worthless or has concealed, removed, converted or transferred the proceeds, properties or instrumentalities of any offence of trafficking so as to prevent them from being found or to avoid forfeiture or confiscation, the law empowers courts of law to order the offender to pay the amount equal to the value thereof.275 All the properties and proceeds derived from trafficking or the instrumentalities used to further trafficking, once confiscated or forfeited, are kept as part of the funds of the Anti-Trafficking Fund where they can be used, among others, to compensate victims of trafficking.276 This discussion shows a great correlation between the crime of trafficking in persons and other crimes such as money laundering and corruption.277 The 2008 Act reflects this correlation in several of its provisions. Its Section 41 amended the Anti-Money Laundering Act, Act No. 12 of 2006 to make the crimes of trafficking and smuggling of migrants predicate offences to the crime of money laundering.278 Also, Section 3 of the Money Laundering Act makes it a predicate offence the “illicit trafficking or dealing in human organs or tissues” and “corrupt practices”. The 2008 Act outlaws the criminal conduct of trafficking for the purpose of removal or sale of organs of the person. Therefore, the 2008 Act must be read together with the Money Laundering Act as well as the Prevention and Combating of Corruption Act, Act No. 11 of 2007 and their associated regional and international frameworks. Section 40 also of the 2008 Act amends the Immigration Act, CAP 54 RE: 2016 such that a person who is a non-national of Tanzania but who has committed a crime of trafficking is considered a prohibited immigrant.279 A prohibited immigrant is criminally liable for several punishments, including arrest and expulsion.280 Therefore, the 2008 Act needs to be read together with the Immigration Act for cases where the prohibited immigrant happens to be a trafficker or where the context of “exploitation” admits people smuggling which is an offence criminalised under Section 46 of the Immigration Act and prohibited under Section 4 of the 2008 Act.

274 Main Regulations 2015, regulation 19. In Custodia Legis “is a Latin phrase which means ‘in the custody of the law.’ This phrase is used in reference to property taken into the court’s custody during the pendency of litigation over it…. In general, when things are in custodia legis, they cannot be distrained or interfered by a private person. Usually property held in custodia legis remains in the possession of the law until a court order is issued to distribute the same”, see USLEGAL: In Custodia Legis Law and Legal Definition. https://definitions.uslegal.com/i/in-custodia-legis/. Accessed 13 June 2019. 275 Section 14(3). 276 Main Regulations 2015, regulation 21; ICAT 2016, pp. 23–24. 277 Aronowitz 2009, pp. 62–63; UNODC 2009c, p. 10; UNODC 2011. 278 Money Laundering Act, Act No. 12 of 2006, Section 3. 279 Immigration Act, CAP 54 RE: 2016, Section 23(1)(k). 280 Immigration Act, Section 25.

7.11 Obligation to Collect and Exchange Information

401

7.11 Obligation to Collect and Exchange Information The Main Regulations 2015 impose a mandatory obligation on the ATS to establish a national database system on victims of trafficking and traffickers.281 All institutions both governmental and private with an obligation to respond and report cases of trafficking are required to give information in the specific Form No. 1 which is included in the Schedule to the Main Regulations to the agency designated to update the national database on trafficking.282 The collected information is to be used for: investigation, prosecution and assisting victims; sharing information to relevant stakeholders; writing reports to international and regional bodies; planning different programmes and strategies to combat trafficking; monitoring and evaluating anti-trafficking interventions; research; and fundraising for anti-trafficking activities.283 The inclusion of this duty as a mandatory obligation seems to respond to the concern from reports of several domestic and international institutions which have indicated that lack of data and statistics on trafficking, especially on the number of victims and reported cases of trafficking, greatly hinders Tanzania’s anti-trafficking efforts.284 The actual operationalisation of this obligation is yet to be seen. What remains clear, however, is that Tanzania’s continual lack of the national database system on trafficking is a violation of its mandatory domestic obligation.

7.12 Obligation of International Co-operation When it comes to international co-operation, the 2008 Act might appear less explicit. However, this obligation is implicit even in the very Preamble.285 By recognising that the 2008 Act is a comprehensive legislation supplementing international instruments that prohibit the exploitation of persons,286 the Preamble makes an implicit admission that there is a need to consult and co-operate with other international institutions, organisations as well as countries that are governed by other specialty

281 Main

Regulations 2015, regulation 5. The 2016 resolution of the United Nations General Assembly urges also on the importance of this obligation, see UNGA 2017c, para 44. See also Madsen 2016, pp. 501–502. 282 Main Regulations 2015, regulation 6. 283 Main Regulations 2015, regulation 7. See also Herz 2012, p. 132. 284 See also Perry and McEwing 2013, pp. 139–140. 285 The mandatory nature of and justification for this obligation is well argued by Heintze and Lülf that: “The transnational character of trafficking is taken up in the Protocol’s obligation to cooperate, since without cross-border cooperation any efforts to fight trafficking will most likely fail: in short, transnational organised crime transcends cultural, social, linguistic, and geographical borders and must be met with a concerted response”, Heintze and Lülf 2016, p. 162. 286 The Organised Crime Convention 2000, Article 1; and the TIP Protocol 2000, Article 2(c) have, as part of their chief aims, the promotion of cooperation to prevent and combat transnational organised crime and trafficking in persons more effectively.

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instruments to effectively fight trafficking.287 Section 3 of the 2008 Act actually recognises the presence of “foreign authorities” with which Tanzania can co-operate to combat trafficking.288 Several of its criminalisation provisions recognise that trafficking includes a transnational element or can be committed beyond the territorial limits of Tanzania, thereby requiring the need for international co-operation against trafficking.289 Furthermore, the 2008 Act requires co-operation with other governments, specifically in the areas of repatriation of trafficked persons from other countries to Tanzania and from Tanzania to other countries.290 In the area of prevention, the law requires Tanzania to make “closer networking with government agencies in the country and overseas, particularly in the formulation of policies and implementation of relevant programs” to prevent trafficking.291 Impliedly, co-operation is also required in the form of financial assistance to the Anti-Trafficking Fund which is established for assistance, support and protection of trafficked persons.292 The ATC, whose functions include “defining, promoting and co-ordinating the policy of the Government for prevention and control of trafficking”,293 has several obligations, one of which requires international co-operation through keeping abreast of “international and regional developments and standards in prevention and combating trafficking in persons”.294 More importantly, the 2008 Act requires the resort to extradition proceedings under the Extradition Act295 in relation to non-citizens who commit acts of trafficking in Tanzania.296 The Extradition Act provides well elaborate procedures in which Tanzania conducts extradition proceedings with and in co-operation with foreign governments. While a clear reference to the Extradition Act is commendable, there is also a drawback. According to Section 3 of the Extradition Act, extradition proceedings can only be conducted where any other country has entered into an agreement with Tanzania to co-operate in the extradition. It is not clear what happens in a situation where traffickers are present in Tanzania or Tanzanian persons suspected of committing crimes of trafficking are present in other countries in which there is no specific extradition agreement with Tanzania. It would have been better to stipulate in the 2008 Act that Tanzania can recognise the TIP Protocol 2000 and the Organised Crime Convention 2000 as the basis of extradition proceedings in such situations.297 287 Paragraph

IV of the Preamble.

288 Foreign authority is defined to mean: “a person designated by a foreign government as competent

authority to act on behalf of a foreign government for purposes of this Act”. instance, Sections 4(1)(a), 4(1)(b), 4(1)(d), 4(1)(g), 5(2), 6(2)(c). 290 Sections 21, 22. 291 Section 24(2)(a)(i). 292 Sections 25, 26(c), 27. 293 Section 30(1). 294 Section 32(g). 295 Extradition Act, Act No. 15 of 1965 (CAP 368 RE: 2002). 296 Section 36(1). 297 This legal possibility is already envisaged by Article 16(4) according to which “If a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from 289 For

7.12 Obligation of International Co-operation

403

Furthermore, the 2008 Act is silent on the application of mutual legal assistance in the investigation, prosecution and judicial proceedings in respect of trafficking cases. Nevertheless, it can be implied that mutual legal assistance in Tanzania will be done according to the stipulated provisions of the Mutual Assistance in Criminal Matters Act, Act No. 24 of 1991, CAP 254 RE: 2008 and the amendments thereto. This is because generally, mutual legal assistance and extradition are related concepts which all apply in international co-operation for criminal matters. Areas such as confiscation, forfeiture and asset recovery as well as gathering of evidence, investigation, judicial proceedings and prosecution would require the use of mutual legal assistance, in addition to extradition.298 Like the Extradition Act, the Mutual Assistance in Criminal Matters Act also requires the presence of an agreement between Tanzania and any foreign government.299 Having a provision in the 2008 Act that directly requires the application of the Mutual Legal Assistance in Criminal Matters Act or a resort to the Organised Crime Convention 2000 would have greatly facilitated criminal co-operation in cases of trafficking, especially for transnational trafficking.300 Nonetheless, the absence of such a clear provision does not rule out the implied application of the provisions on mutual legal assistance and extradition from the Organised Crime Convention 2000. Additionally, the 2008 Act through several provisions of the Main Regulations 2015, especially regulation 22, imposes a mandatory obligation on Tanzania to cooperate internationally with other countries and regional and international organisations. Regulation 4(4)(a)(v) requires Tanzania through the DPP in Mainland Tanzania and Tanzania Zanzibar to, among others, “recommend negotiation of mutual assistance and extradition treaties with other countries”. Therefore, a mandatory duty is placed on Tanzania to enter and negotiate treaties for mutual legal assistance and extradition with other countries so as prevent and combat trafficking as well as effectively carry out the anti-trafficking investigation, prosecution and judicial proceedings. Regulation 22 provides a further detailed mandatory obligation on the Government of Tanzania through the ATC and the Ministry responsible for Foreign Affairs as well as other concerned agencies to ensure that there is an international anti-trafficking co-operation between Tanzania and other states and organisations.301 Regulation 22 envisages a mandatory obligation to carry out international cooperation in the areas of: prevention, protection, prosecution and integration aspects of trafficking; systematic exchange of information and good practices among law another State Party with which it has no extradition treaty, it may consider this Convention the legal basis for extradition in respect of any offence to which this article applies.” See also Dandurand 2012, p. 215; Morehouse 2009, p. 57. 298 Rantsev v. Cyprus and Russia 2010, para 289; Bowen 2018, p. 215. 299 Mutual Assistance in Criminal Matters Act 2008, Section 3. 300 Organised Crime Convention 2000, Article 18 contains extensive provisions on the application of its mutual legal assistance provisions in the investigation, prosecution and judicial proceedings of transnational organised crimes, including trafficking in persons. 301 “Anti-Trafficking Committee, in collaboration with the Ministry responsible for Foreign Affairs and other concerned agencies, shall promote cooperation, technical support and partnership with other States, Regional and International Organisations…”.

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enforcement agents and immigration authorities; prevention, detection, investigation and prosecution of trafficking cases; protection of victims of trafficking through exchange and joint training at the bilateral, regional and international levels; and the repatriation of victims of trafficking with due regard to their safety, humanitarian and compassionate factors.

7.13 Conclusion This chapter of the book has made a critical and comprehensive examination of the international obligation of a criminal justice response as contained in the AntiTrafficking in Persons Act 2008. Because there were no prior works to analyse the criminal provisions of this law, this chapter has adopted its own framework of analysis and examination. It has categorised offences criminalised under Section 4 as acts of trafficking in persons ranging from the first to the eighth act of trafficking. Besides, the chapter has also considered the remaining criminalisation provisions from Sections 5 to 8 of the 2008 Act. It has made a critical analysis of these offences, pointing out their peculiar features, strengths and weakness and their overall impact on the discharge of this obligation. For example, the chapter has shown that the way some of these provisions have been framed, such as those on trafficking for the purpose of removal or sale of human organs and the engagement of children or disabled persons in armed activities, reflect serious criminal problems that have prevailed in Tanzanian society for which members of the National Assembly were desirous to see them criminalised. Although the second and third acts of trafficking in persons appear to have no means elements of trafficking at all, this chapter has argued that their first purpose elements should be considered their action elements and what appears to be their action elements should actually be considered their means elements. Furthermore, it has submitted in general that the manner in which the 2008 Act and its Main Regulations 2015 approach the concept of “exploitation” presents so many ambiguities and definitional difficulties that can only be resolved upon systematic and harmonious interpretation and application. Concerning the trafficking of children and the issue of consent, this chapter has submitted that although the 2008 Act clearly protects children from trafficking, the poor manner in which its provisions have been drafted in this respect might seem to offer equal or even more protection to the adult victims of trafficking than child victims of the same offence. In other areas, the provisions discharging this international obligation seem to align or even provide better and more mandatory provisions than those currently existing in the TIP Protocol 2000, especially the provisions on compensation and access to remedies. In general, the chapter has established that the 2008 Act and its Main Regulations 2015 contain substantive provisions that discharge the essence of this international obligation. Although the Main Regulations 2015 were promulgated in 2015, this chapter has shown that they play a very important role in the examination of the 2008 Act. The chapter has shown, for example, that the Main Regulations 2015 provide better clarification on issues of trafficking of children, the definition

7.13 Conclusion

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of certain key terms, reporting obligations, investigation of trafficking offences by police officers and other law enforcement agencies as well as the discharge of the obligation of international co-operation in relation to human trafficking.

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Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, opened for signature 7 September 1956, 226 UNTS 3 (1956), entered into force 30 April 1957. The Law of the Child Act, Act. No. 21 of 2009. Tiefenbrun S (2007) Child Soldiers, Slavery and the Trafficking of Children. Fordham International Law Journal 31(2): 415-486. Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003. Tzvetkova M (2002) NGO Responses to Trafficking in Women. Gender and Development 10(1): 60-68. Uhl BH (2010) Lost in Implementation? Human Rights Rhetoric and Violations – A Critical Review of Current European Anti-Trafficking Policies. Security and Human Rights 2: 119-126. Under The Same Sun (2013) Children with Albinism: Violence and Displacement, an NGO Report Submitted to the United Nations Committee on the Rights of the Child, 16 February 2013. Under The Same Sun, Surrey. UNGA (2016) Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism: A Preliminary Survey on the Root Causes of Attacks and Discrimination against Persons with Albinism. UN Doc. A/71/255, 29 July 2016. UNGA (2017) Report of the Independent Expert on the Enjoyment of Human Rights by Persons with Albinism: Applicable International Human Rights Standards and Related Obligations Addressing the Issues Faced by Persons with Albinism. UN Doc. A/72/131, 14 July 2017. UNGA (2017) Sale and Sexual Exploitation of Children, Including Child Prostitution, Child pornography and other Child Sexual Abuse Material; and Trafficking in Persons, Especially Women and Children. UN Doc. A/72/164, 18 July 2017. UNGA (2017) Trafficking in Women and Girls. UN Doc. A/RES/71/167, 2 February 2017. UNGA (2018) Enjoyment of Human Rights by Persons with Albinism. UN Doc. A/73/181, 18 July 2018. UNGA (2018) Resolution Adopted by the General Assembly on 19 December 2017: Persons with Albinism. UN Doc. A/RES/72/140, 15 January 2018. United Nations Children’s Fund (2006) Guidelines on the Protection of Child Victims of Trafficking: UNICEF Technical Notes. UNICEF, New York. United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2222 UNTS 209 (2000), entered into force 29 September 2003. United Nations Security Council (2017) Report of the Secretary-General on Trafficking in Persons in Armed Conflict Pursuant to Security Council Resolution 2388 (2017). UN Doc. S/2018/1042, 21 November 2017. United Nations Security Council Resolution 2388 (2017). UN Doc. S/RES/2388 (2017), 21 November 2017. United Nations Treaty Section of the Office of Legal Affairs (2006) Treaty Handbook. United Nations Publication Sales No. E.02.V2. United Republic of Tanzania Ministry of Home Affairs, Tanzania Police Force and Ministry of Finance, National Bureau of Statistics (2015) Crime and Traffic Incidents Statistics Report from January-June 2015. National Bureau of Statistics, Dar es Salaam. United Republic of Tanzania, Tanzania Police Force and National Bureau of Statistics (2016) Crimes Statistics Report January – December 2015, January 2016. Tanzania Police Force and National Bureau of Statistics, Dar es Salaam. United States Department of State Office to Monitor and Combat Trafficking in Persons (2018) Trafficking in Persons Report, June 2018. Department of State, Washington D.C. United States Department of States, Office to Monitor and Combat Trafficking in Persons (2002) Trafficking in Persons Report, June 2002. Department of State, Washington D.C. United States Department of States, Office to Monitor and Combat Trafficking in Persons (2014) Trafficking in Persons Report, June 2014. Department of State, Washington D.C. UNODC (2006) Trafficking in Persons Global Patterns. UNODC, Vienna.

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UNODC (2006) Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Transnational Organised Crime and the Protocols Thereto. UNODC, Vienna. UNODC (2009) Anti-Human Trafficking Manual for Criminal Justice Practitioners Model 5: Risk Assessment in Trafficking in Persons Investigations. UNODC, New York. UNODC (2009) Anti-Human Trafficking Manual for Criminal Justice Practitioners Model 9: Interviewing Child Victims of Trafficking in Persons. UNODC, New York. UNODC (2009) International Framework for Action to Implement the Trafficking in Persons Protocol. UNODC, New York. UNODC (2009) Model Law against Trafficking in Persons. UNODC, Vienna. UNODC (2011) Issue Paper – The Role of Corruption in Trafficking in Persons. UNDOC, Vienna. UNODC (2012) Global Report on Trafficking in Persons. UNODC, Vienna, United Nations Publication, Sales No. E.13.IV.1. UNODC (2015) The Role of Recruitment Fees and Abusive and Fraudulent Practices of Recruitment Agencies in Trafficking in Persons. UNODC, Vienna. UNODC (2017) Issue Paper – The Concept of “Financial or Other Material Benefit” in the Smuggling of Migrants Protocol. UNODC, New York. UNODC (2018a) Countering Trafficking in Persons in Conflict Situation: Thematic Paper. UNODC, Vienna. UNODC (2018b) Global Report on Trafficking in Persons in the Context of Armed Conflict 2018. United Nations Publications, Sales No. E.19.IV.2, UNODC, Vienna. Van de Glind H (2010) ILO’s International Programme on the Elimination of Child Labour (IPEC) – Migration and Child Labour – Exploring Child Migrant Vulnerabilities and those of Children Left-Behind. ILO, Geneva. Vrancken P, Chetty K (2009) International Child Sex Tourism: A South African Perspective. Journal of African Law 53(1): 111-141. Waschefort G (2018) Child Soldiering in Relation to Human Trafficking. In: Piotrowicz R et al. (eds) Routledge Handbook of Human Trafficking. Routledge Taylor & Francis Group, London, pp. 135-145. Werle G, Jessberger F (2014) Principles of International Criminal Law, 3rd edn. Oxford University Press, Oxford. Working Group on Trafficking in Persons (2011) Trafficking in Persons for the Purpose of Removal of Organs. UN Doc. CTOC/COP/WG.4/2011/2, 29 July 2011. Written Laws (Miscellaneous Amendment) (No. 2) Act, 2016, Bill Supplement to the Gazette of the United Republic of Tanzania No. 21. Vol 97 dated 20 May 2016. Zhang SX (2007) Smuggling and Trafficking in Human Beings: All Roads Lead to America. Praeger Publishers, Westport. Zyberi G (2017) Responsibility of states and Individuals for Mass Atrocity Crimes. In: Nollkaemper A, Plakokefalos I (eds) The Practice of Shared Responsibility in International Law. Cambridge University Press, Cambridge, pp. 236-262.

Chapter 8

Prevention of Human Trafficking and Protection of Victims

Contents 8.1 Obligation to Prevent Trafficking in Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1.1 Preventing Trafficking through Addressing Vulnerability . . . . . . . . . . . . . . . . . . . 8.1.2 Preventing Trafficking through Addressing Demand . . . . . . . . . . . . . . . . . . . . . . . 8.1.3 Preventing Trafficking by Acting Lawfully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Obligation of Assistance, Protection, Support and Remedies . . . . . . . . . . . . . . . . . . . . . . 8.2.1 Obligation to Identify Victims of Trafficking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 Obligation Not to Punish Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 Rescue, Protection from Further Harm and Respect of Privacy . . . . . . . . . . . . . . 8.2.4 Obligation to Provide Physical, Social and Psychological Care . . . . . . . . . . . . . . 8.2.5 Obligation to Provide Legal Assistance and Protection . . . . . . . . . . . . . . . . . . . . . 8.2.6 Obligation of Repatriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.7 Obligation of Effective and Appropriate Remedies . . . . . . . . . . . . . . . . . . . . . . . . 8.2.8 Special Consideration on the Child Victims and Disabled Persons . . . . . . . . . . . 8.3 Centres for Protection and Assistance of Victims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

416 416 422 423 426 427 430 431 433 437 438 440 442 444 446 447

Abstract This chapter of the book analyses the Anti-Trafficking in Persons Act 2008’s remaining two obligations. These are the obligations to prevent human trafficking and the provision of support, assistance, protection and remedies for victims of human trafficking. These two obligations are discussed against the background of Chap. 5 which examined the content of, among others, these two anti-trafficking obligations under international anti-trafficking law. The first obligation, that of a criminal justice response, was discussed in Chap. 7. The present chapter points out the mandatory nature in which the prevention obligation is presented in the 2008 Act. It portrays the scattered and subsumed nature in which this obligation is presented in the legislation and how the Main Regulations 2015 largely help to provide more substantive provisions for preventing and combating human trafficking. Thereafter, the obligation to support, protect and assist victims, including access to remedies, is examined. As shown in this chapter, unlike the prevention obligation, the 2008 Act contains extensive provisions encapsulating the substance of this obligation. Furthermore, it establishes the major limitations that this legal framework presents in the discharge of these two obligations and their ensuing ramifications. The chapter also offers some recommendations to rectify such legal limitations. © t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_8

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Keywords Prevention · Vulnerabilities · Demand · Ministry of Home Affairs · Ministry of Social Welfare · Repatriation · Remain · Main Regulations 2015 · Centres for Protection and Assistance Regulations 2015 · Resources · Victims · ATC

8.1 Obligation to Prevent Trafficking in Persons As discussed in Chap. 5,1 the obligation to prevent trafficking is an international mandatory obligation.2 It is a threefold obligation encompassing the obligations to prevent trafficking through addressing vulnerability, preventing trafficking by addressing demand and preventing trafficking by responding lawfully. The obligation of prevention intends to pre-empt or address trafficking before its occurrence.3 The 2008 Act does not contain a specific part dedicated to this obligation. The obligation to prevent trafficking is narrowly contained in Section 24 which is subsumed in the overall obligation to rescue, rehabilitate, protect and assist trafficked victims. Likewise, several other provisions of the 2008 Act can be read as imposing this obligation on Tanzania. Importantly, however, the Main Regulations 2015 dedicate the entire part II on the “Preventative and Combative Measures” to supplement the 2008 Act. The obligation to prevent trafficking in the 2008 Act is, therefore, a scattered or subsumed obligation.4 The following discussion, therefore, examines Tanzania’s implementation of the obligation to prevent trafficking as provided under Section 24, other scattered provisions of the 2008 Act and in the Main Regulations 2015.

8.1.1 Preventing Trafficking through Addressing Vulnerability The obligation to prevent trafficking through addressing vulnerability requires Tanzania to co-operate internationally and co-ordinate internally in taking positive steps and measures to ameliorate factors of vulnerabilities that expose persons to the risks of being trafficked.5 States can effectively prevent trafficking only by addressing the structural root causes of trafficking otherwise referred to as social 1 Chapter

5, Sect. 5.2 in this book. and Lülf 2016, pp. 161–162. 3 Samarasinghe and Burton 2007, p. 53. 4 This obligation is contained in the Anti-Trafficking in Persons Act 2008, part IV. 5 The regional and international nature of this obligation is well encapsulated in the provisions of the TIP Protocol 2000, Article 9(1) which reads: “States Parties shall establish comprehensive policies, programmes and other measures: (a) to prevent and combat trafficking in persons”. Similar provisions are also contained in the Organised Crime Convention 2000, Article 31(7); TIP Protocol 2000, Article 9(5); Directive 2011/36/EU, Article 18(2); CoE Anti-Trafficking Convention 2005, Article 5(2); SAARC Convention 2002, Article VIII(2), VIII(7); ASEAN Convention 2015, Article 11(4); UNGA 2017, para 16. 2 Heintze

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determinants of trafficking.6 Chapter 6 already analysed these factors of vulnerability.7 In the discharge of this obligation, Section 24 establishes a mandatory duty on the part of the Government to prevent trafficking.8 It requires the Government to establish, implement, strengthen and co-ordinate, among others, effective preventive measures, programmes, actions, initiatives and policies against trafficking.9 The 2008 Act requires the leading Ministry of Home Affairs to discharge the prevention obligation through the ATC supported by the ATS.10 The Ministry of Home Affairs through the ATC and ATS is required to co-ordinate, collaborate and partner with several other ministries and institutions within Mainland Tanzania and Tanzania Zanzibar as well as with regional and international organisations, institutions and foreign governments to combat and prevent trafficking.11 The Ministry of Home Affairs is required to entrust this obligation to the Government Departments and Agencies under its auspices, especially the Tanzania Immigration Services and the Tanzania Police Service as well to share with domestic and international network members the guidelines on policies and programmes addressing, preventing and combating trafficking. The Tanzania Immigration Services is obligated to: conduct surveillance, investigation and arrest of individuals and persons engaged or suspected of engaging in trafficking;12 protect the integrity of Tanzanian passports, visas and other travel documents to prevent their fraudulent use for trafficking, install machine readers and fraud detection equipment at all departure and entry points in Tanzania; conduct and integrate anti-trafficking training programmes for its officials on how to identify victims of trafficking and traffickers13 exchange and share information on trafficking activities of syndicates through established networks 6 Davitti

2010, p. 41; Perry and McEwing 2013, p. 146; Howard 2018, pp. 523–524; Alpert and Chin 2017, p. 383. 7 Chapter 6, Sect. 6.1.4 in this book. See also Scarpa 2008, pp. 13–16; Shelley 2011, pp. 138–139; Iroanya 2018, pp. 42–45; Cullen-DuPont 2009, pp. 23–27; Bales 2007, pp. 273–276. 8 Section 24 reads in part: “It shall be the duty of the Government to establish, implement and coordinate preventative, protective and rehabilitative programmes for trafficked persons” (Emphasis added). 9 Preventative programmes or otherwise preventative measures are defined under the Main Regulations 2015, regulation 3 to mean: “actions and initiatives against trafficking in persons including establishment and strengthening of effective policies and programmes to prevent trafficking in persons” (Emphasis added). 10 Anti-Trafficking in Persons Act 2008, Sections 24, 30(1), 30(2), 32(a), 32(f), 32(i); Main Regulations 2015, regulation 4(7). Section 30(1) and 30(2) reads: “(1) There is established an AntiTrafficking Committee which … be responsible for defining, promoting and coordinating the policy of the Government for prevention and control (of) trafficking in persons. (2) The Anti-Trafficking Committee shall be supported by a Secretariat which shall consist of not more than nine persons appointed by the Minister.” Regulation 4(7) stipulates: “The Ministry responsible for Home Affairs shall have the overall responsibility of coordinating and overseeing matters relating to trafficking in persons” (Emphasis added). 11 Main Regulations 2015, regulation 4. 12 This duty is also imposed on the Tanzania Police Service through the Main Regulations 2015, regulation 4(8)(b)(i). 13 Aronowitz 2009, pp. 152–153; Human Rights Council 2012, para 34; UNGA 2017, paras 38–39.

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with other law enforcement agencies and immigration counterparts in other countries; develop and distribute educative materials on issues of trafficking; and design procedures to protect minors travelling abroad unaccompanied or accompanied by one parent through the implementation of the parental travel authority duly processed by the Immigration Department.14 The Tanzania Police Service has the mandatory duty to: engage in closer co-ordination and collaboration with other law enforcement agencies for the effective investigation and apprehension of traffickers as well as for the formulation of plans and programmes to prevent trafficking; establish a system to receive complaints and information to assist victims of trafficking and conduct rescue operations; supervise the conduct of investigation on the apprehension of traffickers inland transportation terminals, domestic seaports and airports; integrate anti-trafficking training to all the Police Academies and other training schools operated and managed by the Tanzania Police Force;15 make a national integration of the anti-trafficking issues under the Police, Gender and Children Desk; and foster co-operation and co-ordination with the law enforcement agencies of other countries, including INTERPOL,16 SARPCCO17 and EARPPCO18 in the investigation and apprehension of traffickers.19 The Ministry of Home Affairs through the ATC and the ATS has a mandatory obligation to co-operate with other ministries and organisations to prevent and combat trafficking. In this connection, the Ministry for Foreign Affairs has the mandatory 14 Main Regulations 2015, regulation 4(8)(a). Regarding some of the risks the accompanied and unaccompanied children on the move make which sometimes expose them to the risks of exploitation, violence and trafficking in persons, see generally United Nations Children’s Fund 2017, pp. 15–44. 15 See also UNGA 2017, para 38. 16 Regulation 3 defines INTERPOL as “International Criminal Police Organisation”. INTERPOL is an inter-governmental organisation comprising of 194 member countries, helping police all around the world to work together in making the world a safer place through sharing information and data on crimes and criminals. It also offers a range of operational and technical support to police. For more information regarding its activities, especially on trafficking in persons and smuggling of migrants, visit https://www.interpol.int/en. Accessed 13 March 2019. See also Herz 2012, pp. 138–139. 17 Regulation 3 defines SARPCCO to mean “Southern African Regional Police Chiefs Corporation Organisation”. It currently has 16 African states, namely, Angola, Botswana, Comoros Island, Democratic Republic of the Congo, Lesotho, Malawi, Madagascar, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. SARPCCO was established to co-ordinate police co-operation in the Southern and Central Africa with a view to pursue “relentless pursuit against regional and trans-national crime”. For further information regarding its activities, see its official website, available at https://www.sarpcco.com/. Accessed 13 March 2019. 18 Regulation 3 defines EARPCCO to mean “Eastern African Regional Police Chiefs Corporation Organisation”, an East African police co-operation organisation established to co-ordinate “a regional response to fight transnational and organised crime”. It currently has as its members Burundi, Djibouti, Eritrea, Ethiopia, Kenya, Rwanda, Seychelles, Somalia, South Sudan, Sudan, Tanzania and Uganda. Further information regarding its activities is available at https://www. smallarmssurvey.org/tools/ro-poa/profiles-of-regional-organizations/africa/eapcco.html. Accessed 13 March 2019. 19 Main Regulations 2015, regulation 4(8)(b).

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obligation to: make its resources and facilities available for the provision of necessary services to Tanzanians trafficked overseas; identify Tanzanians working abroad so as to make a follow-up on their welfare and provide periodic reports to relevant home authorities as a preventive measure; establish guidelines to implement pre-marriage onsite and pre-departure counselling programmes; enter into bilateral agreements with other countries to safeguard Tanzanians working in those countries; offer antitrafficking training and orientation seminars to the Foreign Service Personnel; and explore means to enhance its assistance in eliminating trafficking through closer networking and co-operation with government agencies in Tanzania and overseas.20 With respect to the Ministries for Social Welfare in Mainland Tanzania and Tanzania Zanzibar, they have a binding obligation to: establish and run centres for protection and assistance of victims of trafficking; develop a system of accreditation among NGOs on their roles in the establishment and management of centres of assistance for victims; develop and implement rehabilitative and protective programmes for victims; provide counselling and temporary shelter to trafficked persons; support family reunification, reintegration and resettlement of victims; develop training programmes for Social Welfare Officers and medical practitioners on identification and assistance to victims;21 inspect, monitor and evaluate the implementation of NGOs’ activities in their shelters; and order closure and removal of accreditation of NGOs which operate shelters against Government standards.22 Ministries responsible for Labour and Employment in Mainland Tanzania and Zanzibar have an obligation to: develop and implement rules and guidelines to prevent labour trafficking, including the involvement of employment agencies; develop policies and guidelines to regulate the employment of domestic workers;23 conduct anti-trafficking awareness programmes for labour officers, inspectors and communities; and offer anti-trafficking training to labour officers and inspectors.24 Ministries responsible for Legal Affairs in the Mainland and Zanzibar shall, through the DPP: conduct anti-trafficking training to state attorneys and public prosecutors; co-ordinate investigation and fast track prosecution of trafficking cases;25 establish mechanisms for the protection of victims and witnesses; recommend the review of laws to enhance protection against trafficking; and recommend the negotiation of mutual legal assistance and extradition treaties with other countries.26 Ministries responsible for Legal Affairs in Mainland and Zanzibar through the Commission for Human Rights and Good Governance shall: conduct anti-trafficking 20 Anti-Trafficking

in Persons Act 2008, Section 24(a); Main Regulations 2015, regulation 4(1). 2017, para 38. 22 Anti-Trafficking in Persons Act 2008, Section 24(b); Main Regulations 2015, regulation 4(2). 23 According to Vrancken and Chetty, the obligation to supervise employment and labour recruitment agencies so that they are not used as a cover-up for trafficking is an old anti-trafficking obligation dating way back to the 1921 International Convention for the Suppression of the Trafficking in Women and Children, see Vrancken and Chetty 2009, p. 116. 24 Anti-Trafficking in Persons Act 2008, Section 24(c); Main Regulations 2015, regulation 4(3). See further Aronowitz 2009, pp. 147–148; UNGA 2017, para 20. 25 UNGA 2017, para 38. 26 Anti-Trafficking in Persons Act 2008, Section 24(d); Main Regulations 2015, regulation 4(4)(a). 21 UNGA

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advocacy and training programmes for its officials; provide legal assistance, including legal representation in the courts of law to victims; integrate trafficking issues in the National Human Rights Action Plan;27 monitor compliance to international human rights treaty obligations on the elimination of trafficking; and monitor violation of the rights of trafficked persons in Tanzania whether by state or non-state actors.28 Through the Judiciary, the Ministries responsible for Legal Affairs have a mandatory duty to train judicial officers and fast track cases of trafficking.29 The Ministries responsible for Community Development, Gender and Children in Mainland and Zanzibar are required to: mainstream trafficking issues in their policies, programmes and institutions; offer anti-trafficking training to community development officers and gender and children development officers; create anti-trafficking awareness programmes in communities;30 and design and implement anti-trafficking preventive programmes.31 Ministries responsible for Transportation and Communication in Mainland and Zanzibar and their responsible agencies have the duty to: review and mainstream anti-trafficking issues and guidelines for ports and airports and establish tools for trafficking incidences; provide and monitor mandatory anti-trafficking training of airport, transport and port personnel; and monitor communication to track trafficking incidences and provide information on trafficking to relevant authorities.32 Regarding the obligation on the commercial carriers to ascertain whether their passengers have necessary documents as part of the border measures,33 the 2008 Act seems not to directly impose this obligation nor criminalise the failure to fulfil the obligation. Ministries responsible for Local Government Authorities in Mainland and Zanzibar have the obligation to: conduct anti-trafficking advocacy and prevention campaigns; prevent trafficking through the promotion of family and community empowerment;34 strengthen, activate and mobilise departments under their auspices to prevent and suppress trafficking; monitor and document incidences of trafficking and submit them to the Department of Social Welfare and relevant authorities; effect cancellation of the licenses of institutions violating the 2008 Act; encourage and

27 The National Human Rights Action Plan of 2013–2017 does not contain any issue on trafficking in persons. See the United Republic of Tanzania Ministry of Constitutional and Legal Affairs 2013. 28 Anti-Trafficking in Persons Act 2008, Section 24(d); Main Regulations 2015, regulation 4(4)(b). 29 Anti-Trafficking in Persons Act 2008, Section 24(d); Main Regulations 2015, regulation 4(4)(c). 30 UNGA 2017, para 20. 31 Main Regulations 2015, regulation 4(5). 32 Main Regulations 2015, regulation 4(6). 33 TIP Protocol 2000, Article 11(2): “Each State Party shall adopt legislative or other appropriate measures to prevent, to the extent possible, means of transport operated by commercial carriers from being used in the commission of offences established in accordance with Article 5 of this Protocol.” As noted by the UNODC Model Law 2009, p. 49, however, this obligation does not require the commercial carriers “to make any judgment or assessment of the validity or authenticity of the documents”. 34 UNGA 2017, para 15.

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support anti-trafficking community-based initiatives;35 provide basic social services for prevention, rescue, recovery, rehabilitation and reintegration or after-care support services to victims of trafficking and their families; develop by-laws or issuances aimed at providing protection and support to trafficked persons; and adopt measures to prevent trafficking.36 Ministries responsible for Tourism in Mainland and Zanzibar have to: formulate and implement anti-trafficking preventive measures, especially against sex tourism and other touristic activities which might contribute to trafficking; provide anti-trafficking training to Tourism Officers and tour guides on surveillance, assistance, investigation and rescue strategies; and integrate trafficking issues in tourism policies and guidelines.37 Ministries responsible for Education and Vocational Training in Mainland and Zanzibar have the obligation to: incorporate migration and trafficking matters in the primary and secondary level curricula; provide educational opportunities and vocational training for child victims; and raise antitrafficking awareness to school committees and education stakeholders.38 The 2008 Act even goes further to include the NGOs in the prevention of trafficking in Tanzania. Their obligation, however, although very important, is not legally mandatory in the 2008 Act.39 The NGOs “may”: support and collaborate with Government agencies and Local Government Authorities to formulate and implement anti-trafficking policies, programmes, campaigns and rescue operations; complement Government efforts and share experiences and expertise to assist victims; undertake on their own anti-trafficking prevention, rescue, recovery, support and reintegration activities and services to victims and their families;40 document trafficking cases and submit them to the Department of Social Welfare; sensitise the community on anti-trafficking matters; and assist the Government in facilitating shelters for victims of trafficking.41 It is important to note in this connection that all preventive duties on the part of the Government and its Ministries or Agencies are stated in an absolutely mandatory language. This is a highly commendable legal step. On the one hand, this indicates commitment and willingness on the part of the Government of Tanzania to suppress and eliminate trafficking. The Government of Tanzania takes cognisance that while its resources might be limited, trafficking can comprehensively be combated through effective prevention of trafficking activities. On the other hand, however, framing mandatory provisions on the prevention of trafficking means that trafficked persons 35 On the best practices in grass-roots and community-based efforts to combat trafficking in persons, see Reed 2013, pp. 256–277. 36 Main Regulations 2015, regulation 4(8). 37 Main Regulations 2015, regulation 4(9). See also UNGA 2017, para 43. 38 Main Regulations 2015, regulation 4(10). See also Aronowitz 2009, pp. 147–148; Odera and Malinowski 2011, pp. 30–31; UNGA 2017, para 20. 39 Despite being hortatory, the role played by NGOs has been very decisive. This is because “many trafficked persons fear and distrust state-based organisations as they frequently enter destination countries illegally, or have had their documentation removed on arrival”, Tzvetkova 2002, p. 61. On the anti-trafficking roles of these NGOs and their limitations, see Samarasinghe and Burton 2007, pp. 51–64; Cullen-DuPont 2009, pp. 33–34. 40 Odera and Malinowski 2011, pp. 39 et seq. 41 Main Regulations 2015, regulation 4(11).

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and victims possess the corresponding right to bring before domestic courts and international adjudicatory institutions actions against Tanzania’s Government where the Government’s failure to take preventive measures results in and exposes them to trafficking.

8.1.2 Preventing Trafficking through Addressing Demand This international obligation requires the Government to address the demand that fosters all forms of exploitation of persons, thereby leading them to trafficking.42 It requires the Government to eliminate social, cultural, political, economic, legal and developmental factors that shape the demand and facilitate the trafficking process.43 The 2008 Act does not contain an express provision obligating the Government to prevent trafficking by addressing demand. This is despite the National Assembly members’ deliberations that measures addressing the demand fostering all forms of trafficking need to feature in the law.44 This duty, however, can be implied from several of its provisions, albeit to a limited extent. More importantly, the Main Regulations 2015 have several mandatory obligations whose effect is to prevent trafficking by addressing demand. Section 8 already criminalises the knowing use of the services of the trafficked person for prostitution. The criminalisation of this offence is intended to reduce the demand fostering exploitation. However, as discussed in the context of the 2008 Act’s criminalisation provisions, limiting Section 8 only to buying or engaging the services of trafficked persons for prostitution to the exclusion of all other forms of services in which trafficked persons can be exploited is a drawback, which somehow is mitigated by the provisions of Section 4(2) of the Act. Other obligations relating to preventing the demand can impliedly be gathered from the functions of the ATC under Section 32 of the 2008 Act. Among others, the ATC has the function of proposing and promoting strategies to prevent and combat trafficking. Such preventive strategies can include strategies that prevent trafficking through addressing demand;45 and keeping abreast of international and regional developments and standards in preventing and combating trafficking. This would require Tanzania to co-operate with other regional and international institutions and governments to prevent trafficking through the use of up-to-date preventive 42 TIP Protocol 2000, Article 9(5): “States shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation, especially of women and children that leads to trafficking.” This duty is also reiterated in other specialty anti-trafficking instruments and policy documents such as CoE Anti-Trafficking Convention 2005, Article 6; Directive 2011/36/EU, Article 18; ASEAN Convention 2015, Articles. 11(2), 12(a); UNODC Model Law 2009, p. 43; UN Recommended Principles and Guidelines 2002, principle 4, guideline 7; UNGA 2017, para 13. 43 For the earlier discussion on this obligation, see Chap. 5, Sect. 5.2.2. 44 Bunge la Tanzania 2008, pp. 45–48, 59, 61. 45 Anti-Trafficking in Persons Act 2008, Section 32(e).

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and development standards, including those targeting the prevention of trafficking through addressing the demand.46 The provisions of Section 32 can, therefore, be read as encompassing the application in Tanzania of the internationally and regionally recommended preventive measures addressing the demand. The Main Regulations 2015 contain express and mandatory provisions requiring Tanzania to prevent trafficking by addressing the demand without necessarily using the term “demand”. Its provisions require the Government or its relevant Ministries, Agencies and Departments to: network with government agencies in Tanzania and overseas as well as enter into collaborative arrangements and bilateral agreements with other countries for prevention of trafficking; develop and offer anti-trafficking trainings and awareness to various Government and judicial officers, practitioners, attorneys, prosecutors, inspectors and personnel;47 enter into mutual legal assistance and extradition treaties with other countries to prevent trafficking; conduct advocacy and awareness-raising to the general public and local communities;48 establish transnational and international networks for information exchange and sharing; strengthen co-operation with police enforcement and immigration agencies in other countries at the regional and international levels; undertake strategic research on the structure and dynamics of trafficking with a transnational crime dimension and formulate preventive policies and strategies accordingly; conduct periodic studies on trends, routes and modus operandi of traffickers so as to prevent trafficking more effectively; incorporate migration and trafficking issues in the primary and secondary school curricula; and raise anti-trafficking awareness to school committees and education stakeholders.49

8.1.3 Preventing Trafficking by Acting Lawfully International and regional anti-trafficking law require states to prevent trafficking lawfully when implementing their anti-trafficking obligations.50 Tanzania is obligated to implement its anti-trafficking obligations without violating established human rights of the trafficked persons so as not to occasion collateral damage.51 46 Anti-Trafficking

in Persons Act 2008, Section 32(g). 2017, para 38; European Commission 2013, p. 3; Lederer 2017, p. 406. 48 UNGA 2017, para 30. 49 See Main Regulations 2015, regulations 4(1)(d), 4(1)(f), 4(3)(c), 4(3)(d), 4(4)(a)(i), 4(4)(a)(v), 4(4)(b)(i), 4(4)(c)(i), 4(5)(b), 4(5)(c), 4(6)(b), 4(6)(c), 4(6)(e), 4(8)(a)(ii), 4(8)(a)(iv), 4(8)(b)(vi), 4(8)(b)(vii), 4(8)(b)(viii), 4(8)(b)(ix), 4(8)(a), 4(8)b), 4(8)(f), 4(9)(b), 4(10)(a), 4(10)(c). 50 This obligation is contained in the provisions of the TIP Protocol 2000, Article 14(2); CoE Anti-Trafficking Convention 2005, Article 3; UN Recommended Principles and Guidelines 2002, principle 3, guidelines 1(1), 1(4), 1(5), 1(9), 3(5), 5(5), 5(6), 6(2), 6(4), 6(6), 8(3). 51 The substance of this obligation is captured well by the UN Recommended Principles and Guidelines 2002, guideline 1 according to which “violations of human rights are both a cause and a consequence of trafficking in persons. Accordingly, it is essential to place the protection of all human rights at the centre of any measures taken to prevent and end trafficking. Anti-trafficking 47 UNGA

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Tanzania has an obligation to ensure that its implementation of the anti-trafficking obligations does not overrule or result in breaching its regional and international human rights obligations on the protection of human rights and fundamental freedoms of the vulnerable groups, including trafficked persons, refugees, stateless persons and non-citizens.52 These groups need to have their rights protected without discrimination. Unfortunately, the 2008 Act does not possess any clear and express provision demanding Tanzania to respond lawfully. As with the obligation to prevent trafficking by addressing demand, the provisions requiring Tanzania to act lawfully can be implied from this law and the Constitution of Tanzania. The Preamble requires that in the interpretation of the provisions of the 2008 Act regard must be had to its fundamental purpose which is the protection of the equal rights and inherent dignity of people as enshrined in the Constitution of Tanzania and as found in other “universally accepted human rights instruments and international conventions” to which Tanzania is a state party or a signatory state as well as any human rights recognised, protected or enshrined also in the Organised Crime Convention 2000 and the TIP Protocol 2000.53 Since the TIP Protocol 2000 and by extension the Organised Crime Convention 2000 contains the savings clause to the effect that its anti-trafficking obligations do not interfere with states’ and individuals’ rights, obligations and responsibilities under international law, especially international human rights, humanitarian and refugee law,54 Tanzania is directly required to respond lawfully when implementing its international anti-trafficking obligations, including the obligation to prevent trafficking. It has to ensure that its measures do not discriminate trafficked persons and other vulnerable persons on grounds that violate their human rights.55 In fact, the 2008 Act is more emphatic when, through the Preamble, it expresses that human rights protections contained in the universally accepted human rights instruments and international conventions to which Tanzania is signatory, not even a state party, are recognised in Tanzania.56 Furthermore, the Preamble requires the enactment of measures and development of anti-trafficking programmes that “promote human dignity, protect the people from any threat of violence and exploitation and eliminate trafficking in persons”.57 measures should not adversely affect the human rights and dignity of persons and, in particular, the rights of those who have been trafficked, migrants, internally displaced persons, refugees and asylum-seekers.” 52 Maher et al. 2015, p. 102; Mahdavi 2011, p. 11. 53 Anti-Trafficking in Persons Act 2008, para 11 to the Preamble. 54 TIP Protocol 2000, Article 14(1). See also Obokata 2006, p. 163. 55 TIP Protocol 2000, Article 14(2). 56 Anti-Trafficking in Persons Act 2008, para II to the Preamble. This appears to reflect the legal reasoning of the High Court of Tanzania, Bernado Emphraim v Holaria Pastory & Another 1990, LRC 757; High Court of Tanzania, D.P Valambhia v Transport Equipment LTD (1993) TLR 91 quoted by Magare 2016, p. 31 that “the fact that an International Convention to which Tanzania is a party is not incorporated into Tanzanian law does not absolve the government of its duty to adhere to its undertakings in the agreement”. 57 Anti-Trafficking in Persons Act 2008, para III to the Preamble.

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Besides, the 2008 Act contains other provisions with a bearing on preventing trafficking lawfully. The Act has provisions requiring responsible authorities and personnel to protect the private life, personal identity and privacy as well as guaranteeing safety, protection and support to trafficked persons in the investigation and judicial proceedings,58 to specifically consider the best interests of the trafficked children or disabled persons when providing assistance, support or protection and consideration of the best interests of the trafficked persons generally;59 ensure that protection and assistance services should not be premised on the willingness of the rescued victims to participate in the prosecution of trafficking cases;60 require that repatriation must be done lawfully without compromising the safety of the trafficked persons or that of their family members;61 and not to prosecute trafficked persons for trafficking or penalise them for the crimes they committed as the result of their being trafficked.62 These provisions can all be interpreted as imposing the duty on the Government to act lawfully in the implementation of its anti-trafficking obligations. The Constitution of Tanzania requires the Government, its state authorities and agencies to ensure that any of their policies and programmes, including those on trafficking, are geared towards ensuring that “human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights” and that all persons should enjoy equality before the law “without any discrimination”.63 In addition, the Main Regulations 2015 contain several obligations whose effect is to require Tanzania to respond lawfully. Regulation 4(4)(b)(iv) requires the Ministries responsible for Legal Affairs in Mainland Tanzania and Tanzania Zanzibar through the Commission for Human Rights and Good Governance to ensure that it monitors Tanzania’s “compliance to international human rights treaty obligations related to elimination of trafficking in persons”. In other words, the Ministries responsible for Legal Affairs through the Commission for Human Rights and Good Governance have a mandatory obligation to ensure that Tanzania acts lawfully when implementing its preventive anti-trafficking obligations. The Constitution of Tanzania charges the Commission for Human Rights and Good Governance with several functions, including, where necessary “to institute proceedings in court in order to prevent violation of human rights or to restore a right that was caused by that

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in Persons Act 2008, Sections 9, 11. in Persons Act 2008, Sections 17(4), 19, 34(3). 60 Anti-Trafficking in Persons Act 2008, Section 18(2). 61 Anti-Trafficking in Persons Act 2008, Sections 23(2). See also Obokata 2006, pp. 157–158. 62 Anti-Trafficking in Persons Act 2008, Section 34(1). 63 Constitution of Tanzania 1977, Articles 9(f), 13(1). Article 13(5) defines to discriminate to mean “to satisfy the needs, rights or other requirement of different persons on the basis of their nationality, tribe, place of origin, political opinion, colour, religion, sex or station in life such that certain categories of people are regarded as weak or inferior and are subjected to restrictions or conditions whereas persons of other categories are treated differently or are accorded opportunities or advantage outside the specified conditions or the prescribed necessary qualifications except that the word ‘discrimination’ shall not be construed in a manner that will prohibit the Government from taking purposively steps aimed at rectifying disabilities in the society”. 59 Anti-Trafficking

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infringement of human rights, or violation of principles of good governance”.64 Furthermore, the Main Regulations 2015 empower the Commission for Human Rights and Good Governance “to monitor violation of the rights of the victims of trafficking”65 , whether from state or non-state actors. In this connection, the Commission for Human Rights and Good Governance can also inquire into the conduct of any person, including Government institutions or departments and public officers, whose conducts result in the violation of the human rights of other persons.66 Finally, regulation 22 requires that when Tanzania co-operates internationally with other countries to repatriate victims of trafficking, regard must be had to “their safety, humanitarian and compassionate” concerns. Based on the foregoing, it is submitted that Tanzania is required to respond lawfully when implementing its anti-trafficking obligations. Most of these obligations have been framed in mandatory terms, thereby evidencing Tanzania’s commitment to prevent and combat trafficking in Tanzania.

8.2 Obligation of Assistance, Protection, Support and Remedies The obligation to assist, protect, support and provide remedies for trafficked persons is an international obligation to countries of origin, transit and destination.67 The impetus for this obligation stems from an understanding that trafficked persons are both victims of trafficking as a criminal offence and trafficking as a violation of human rights and fundamental freedoms.68 This obligation intends mainly to assist victims of trafficking in their recovery and reintegration in society.69 As with the previous two international obligations, this is also a composite obligation entailing several duties on the part of the Government of Tanzania and its responsible institutions or agencies. It is comprised of the obligations to identify victims of trafficking, not to penalise them, protecting them from further harm and of their privacy, providing them with physical and psychological care and support, legal assistance and protection, repatriation obligations and the duty to provide effective and appropriate remedies.70 These obligations are contained under part IV of the 2008 Act. However, this part is to be read together with the rest of the provisions of the 2008 Act as well as with the Implementing Regulations. 64 Constitution

of Tanzania 1977, Article 130(1)(e). Regulations 2015, regulation 4(4)(b)(v). 66 Constitution of Tanzania 1977, Article 130(1)(f). 67 Scarpa 2008, p. 64; Rantsev v. Cyprus and Russia 2010, para 289; United Nations Children’s Fund 2006, p. 13. For a prior discussion on this obligation, see Chap. 5, Sect. 5.3 in this book. 68 Bruckmüller and Schumann 2012, pp. 104–105; Piotrowicz 2012, p. 181; Onuoha 2011, p. 149; Omelaniuk 2005, p. 3. 69 Inter-Agency Coordination Group against Trafficking in Persons 2016, p. 58. 70 See Chap. 5, Sect. 5.3 in this book for an extensive discussion of these obligations under international law. 65 Main

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8.2.1 Obligation to Identify Victims of Trafficking The obligation to identify trafficked persons is a mandatory obligation under the 2008 Act.71 Identification of the victims of trafficking means “the process of verifying, ascertaining and/or proving that a person is a victim of human trafficking”.72 Based on this definition, a person can only be identified as a victim of trafficking where there is a stipulation or a prior understanding of who the victim of trafficking is. Unfortunately, the 2008 Act does not directly and correctly define who the victim of trafficking is. For its definition, regulation 3 of the Main Regulations 2015 provides: Any person who has been recruited, transported, transferred, harboured and received by means of threat or use of force, coercion, abduction, fraud, deception, abuse of power, abuse of a position of vulnerability for the purpose of exploitation which may be in form of forced labour or services, slavery or practices, similar to slavery, servitude, removal of organs, prostitution or other forms of sexual exploitation (Emphasis added).

From this definition, a victim of trafficking would be any person who has been obtained through any of the unlawful means and who has been subjected to any of the forms of exploitation prohibited under the 2008 Act. It is not clear, however, why the victim of trafficking would be a person only obtained by such limited constitutive acts of the action element through a few specified methods of the means element and for the limited purposes of exploitation. Unless clearly explained and defined, many persons who have been trafficked might not be recognised as victims of trafficking and consequently, their rights and entitlement to protection, support and assistance might be defeated.73 How this provision is drafted would mean as well that victims of trafficking, for example, who happen to be migrant workers in irregular situations and members of their families run the risk of not being protected when they fall outside this definition, considering also that Tanzania, at the time of writing, is yet to sign and ratify the Migrant Workers Convention.74 However, since the Main Regulations 2015 supplement and implement the provisions of the Act,75 a purposive reading of its provisions would indicate that this definition does not exclude other action, means and purposive elements as found in the 2008 Act. Impliedly, regulation 3 71 Anti-Trafficking in Persons Act 2008, Section 16. This obligation under international and regional

law is expressed in the provisions of the ASEAN Convention 2015, Article 14(1); CoE AntiTrafficking Convention 2005, Article 10(1), 10(2); Directive 2011/36/EU, Articles 11(4), 18(3); UN Recommended Principles and Guidelines 2002, guideline 8(2). 72 Odera and Malinowski 2011, p. 17. 73 For an expansive definition of who the victim is see European Commission 2012, pp. 9–19. See further Scarpa 2008, p. 69; Rijken 2018, p. 240. 74 Pécoud 2017, p. 59. For the ratification status of the Migrant Workers Convention as of 27 June 2019, see https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&lang=en&mtdsg_no=IV-13& src=IND. Accessed 27 June 2019. 75 The Main Regulations 2015 have been made under the Anti-Trafficking in Persons Act 2008, Section 37 according to which “The Minister may, on the advice of the Anti-Trafficking committee, make regulations prescribing (d) the rehabilitation and re-integration of trafficked persons; (e) the procedure for protection, rehabilitation and assistance in handling of children who are victims of trafficking in persons.”

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affirms this position because when elaborating on the forms of exploitation to which victims of trafficking can be subjected, the phrase “which may be in form of” is used and whose effect is to show that the forms of exploitation listed are not conclusive or exhaustive. By “any person”, the Main Regulations 2015, and by extension the 2008 Act, indicate that any person whether as a woman, child or man can be a victim of trafficking and therefore, in need of protection, support and assistance. However, due to the vulnerable position in which child victims of trafficking are exposed to, the Main Regulations 2015 provide a separate definition of who the child victim of trafficking is.76 Rather than the position under the 2008 Act, this definition somehow reflects the position of international law according to which the means element is not a legal requirement to establish the criminal offence of trafficking of children.77 The obligation to identify victims of trafficking is placed on the “authorized officer” or “any other person that has reasonable grounds to believe that a person is a victim of trafficking in persons”.78 While this “any other person” is left undefined, the 2008 Act defines who the authorised officer is. In relation to trafficking cases, an authorised officer includes an immigration officer, a police officer,79 TRA officer, officer of the TISS or any other public officer exercising powers of any law enforcement agency.80 Based on their duties, it is generally understood that public officers of these designations are well equipped to deal with cases of trafficking, including identification of its victims. Although “any other person” is left undefined, it clearly refers to persons other than the authorised officers or other designated public officers discharging powers of the law enforcement agencies. Unlike the first category of authorised officers who possess knowledge and ability or might have been trained to identify victims of trafficking, the second category of “any other person” has to fulfil the obligation of identification as soon as there are “reasonable grounds to believe that a person is a victim of trafficking”. The High Court of Ireland has dealt with the question of what amounts to “reasonable grounds to believe that a person is a victim of trafficking in persons”. In its 15 April 2015 determination, the High Court of Ireland reasoned that: To arrive at the conclusion that a person is a suspected victim of human trafficking the Garda Superintendent… must be in possession of sufficient information to afford reasonable grounds for that belief. The test for reasonable is – whether or not a reasonable person, acting without passion or prejudice, believes what he/she is being told …. Where there is 76 Main Regulations 2015, regulation 3 defines a child victim of trafficking as: “any person under the age of eighteen years who has been recruited, transported, transferred, harboured or received for the purpose of exploitation irrespective of the means applied”. 77 Davitti 2010, p. 43; Dandurand 2012, p. 217; Kruger 2016, pp. 61–62. 78 Anti-Trafficking in Persons Act 2008, Section 16: “Identification of victims of trafficking in persons shall be carried out by an authorized officer or any other person that have reasonable grounds to believe that a person is a victim of trafficking in persons.” See also Odera and Malinowski 2011, p. 21. 79 The police officer is defined by Section 3 as: “includes an officer from another security service”. Security service is defined under Section 3 to include “Police, Tanzania Revenue Authority, Immigration and the Tanzania Intelligence and Security Services”. 80 Anti-Trafficking in Persons Act 2008, Section 3.

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insufficient information … to have reasonable grounds for believing that a person is a victim of suspected trafficking the case remains open and every effort is made to gather additional information from the potential victim or other sources…. Reasonable grounds are not the same as evidence but that, in determining that a person is a suspected victim, there must be sufficient information to afford reasonable grounds for that view…. The test of reasonable grounds indications is an objective one. It may be satisfied by a convincing account on the part of the applicant, but even unconvincing account may suffice if as a matter of fact there is an objective evidence of trafficking.81 (Emphasis added)

It appears from the reasoning of the High Court of Ireland that “reasonable grounds to believe” is an objective assessment done by a person who possesses sufficient information such that in a given trafficking scenario, “any other person” can afford a belief that a certain person might be a victim of trafficking. Therefore, reasonable grounds test is an assessment based on the presence of sufficient information affording ground for a belief. The 2008 Act through its Main Regulations 2015 takes this approach.82 It is for this reason that as a preventive strategy against trafficking, the general public and several other government departments and agencies should be trained on the issues of trafficking and how to identify its victims.83 As discussed in Chap. 5,84 identification of the victims of trafficking not only helps to accord them the victim status and thereby entitle them to several support, protection and assistance measures but also that such identification is in the public interests as it might operate to help the police and investigation authorities to obtain necessary information for investigation and prosecution.85 In addition, Section 11(2) of the 2008 Act requires that any police officer (and all the public officers to whom the term applies) who comes by the trafficked person, following the identification to: assist the victim to obtain medical and psychological treatment; assist the victim to a place of safety if the victim expresses safety concern; and inform the victim of his rights and any basic support which may be available to assist the victim.86 This is further buttressed by a consideration of other provisions of the 2008 Act. Section 19(1) requires that protection, rehabilitation and assistance to victims of trafficking, especially child victims or disabled victims 81 The High Court of Ireland, P–v—Chief Superintendent Garda National Immigration Bureau & Ors, Criminal Judgment, 15 April 2015, (2015) IEHC 222, 2013, 795 JR, paras 32, 41. 82 Main Regulations 2015, regulation 14(1)(a) reads: “the following procedures shall be undertaken in implementing comprehensive programmes for protection, rehabilitation and assistance to victims of trafficking in persons—(a) any person who has any knowledge or learns of facts or circumstances that give rise to a reasonable belief that a person will be, or may be or has been trafficked shall immediately report the same...” and regulation 14(1)(e) states further that “any person or medical practitioner who has any knowledge or learns of facts or circumstances that give rise to a reasonable belief that a person will be, or many be, or has been trafficked for the removal or sale of organs shall immediately report the same” (Emphasis added). 83 Main Regulations 2015, regulations 4(1)(e), 4(2)(f), 4(3)(d), 4(4)(a)(i), 4(4)(b)(i), 4(4)(e)(i), 4(5)(b), 4(6)(b), 4(6)(c), 4(6)(e), 4(8)(a)(iv), 4(8)(b)(vi), 4(9)(b), 4(10)(b), 4(12). 84 Chapter 5, Sect. 5.3.1. See also UNODC 2006, p. 75; Thomson 2016, p. 66. 85 Inter-Agency Coordination Group against Trafficking in Persons 2016, p. 52; Shoaps 2013, p. 938; UNODC 2006, p. 75; Thomson 2016, p. 66. 86 Anti-Trafficking in Persons Act 2008, Section 11(2)(a), 11(2)(b), 11(2)(c). See also Odera and Malinowski 2011, p. 22.

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of trafficking, should be given “from the moment when grounds exist to believe that the child or the disabled person is such a victim until identification…”. Thus, the 2008 Act takes a progressive and very expansive approach such that even where formal identification of the victim of trafficking is not yet done, the existence of any grounds indicating that the child or disabled person might be trafficked or likely to be trafficked or has been trafficked should be enough to accord protection, rehabilitation and assistance or provision of temporary basic material support.87 The 2008 Act as well as the Main Regulations 2015 allow also the victims or the potential victims of trafficking to report themselves for recognition as victims or potential victims or to be referred to the social welfare officer,88 police or designate NGOs89 for assistance.

8.2.2 Obligation Not to Punish Victims It is an accepted international obligation that victims of trafficking should not be prosecuted or penalised for liberation, status or consequential crimes they committed in connection to their being trafficked or for criminal offences they committed because of being compelled.90 In the absence of this obligation, the obligation to protect, 87 Anti-Trafficking in Persons Act 2008, Section 17(1). Section 3 defines “temporary basic material

support” to include “education, health care, clothing, shelter, counselling and nutritional requirements”. This appears to place a paramount human rights consideration on victims of trafficking, especially children and disabled persons, pending formal identification of their statuses as victims of trafficking. 88 Section 3 defines a Social Welfare Officer to include also the probation officer. The Law of the Child Act, Act No. 21 of 2009, Section 3 defines a social welfare officer as “a social welfare officer in the service of the Government”. A social welfare officer, therefore, would refer to professional or non-professional officers employed to work for the Government and in other Social Welfare Agencies or Institutions to offer support services for the welfare and well-being of those they serve, see the United Republic of Tanzania, Ministry of Health and Social Welfare, Department of Social Welfare 2012, p. ix. The same Report mentions some of the services provided by Social Welfare Officers (SWOs) at page 5 as including: helping social rehabilitation to victims of trafficking and their reinstatement back into normal way of life as well as, where necessary, provision of legal and material assistance, psychological, medical and professional rehabilitation, employment and dwelling place. For general duties of social welfare officers make reference to page 22. Other specific anti-trafficking functions of the social welfare officers will be analysed in the subsequent obligations. 89 Section 3 defines NGO by reference to the Non-Government Organizations Act. The NonGovernmental Organizations Act, Act No. 24 of 2002 defines an NGO under Section 2 to refer to any “voluntary grouping of individuals or organization which is autonomous, non-partisan, nonprofit making which is organised locally at the grass root, national or international levels” for various socio-economic and cultural developmental activities. In the context of trafficking in persons, designated NGOs would refer to such NGOs registered or designated to work in close collaboration with the Government in any area in the fight against trafficking in persons or protection, assistance and support to the victims of trafficking. 90 This international obligation is well encapsulated by the UN Recommended Principles and Guidelines 2002, principle 7: “Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement

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assist and support victims of trafficking would have been rendered meaningless and ineffective were states left at liberty to treat victims as criminals for these crimes.91 This obligation is treated as mandatory in the 2008 Act.92 Accordingly, victims of trafficking shall not be prosecuted for their being trafficked; and they should not be penalised or prosecuted for crimes they have committed as a result of their being trafficked.93 However, the same provision adds that “for crimes directly relating to prosecution in offences stipulated under this Act”. This appears to impose a limitation on the immunity from prosecution accorded to victims. It takes away the immunity from prosecution for crimes the victims have committed which do not directly relate to the prosecution of offences under the 2008 Act. In other words, victims cannot plead as a defence the provision of Section 34(1) where it is shown that they were involved in the commission of other crimes not directly related to their being trafficked or not directly connected with any crime in the 2008 Act. This limitation appears to be reasonable because its absence might have achieved to licence the victims to commit other crimes with impunity on the ground of their immunity as recognised victims of trafficking.94

8.2.3 Rescue, Protection from Further Harm and Respect of Privacy An international obligation exists that victims of trafficking and witnesses should be rescued from trafficking, be protected from further harm and have their privacy respected.95 This obligation intends to protect victims of trafficking, their family members and witnesses from potential retaliation or intimidation by traffickers. Only by rescuing and protecting them from further harm and respect of their privacy can they effectively benefit from domestic and international assistance, protection and support measures and exercise the equal enjoyment of their fundamental human rights. The 2008 Act and the Main Regulations 2015 primarily place this duty on all public officers in the security services such as the Police, TRA, Immigration in unlawful activities to the extent that such involvement is a direct consequences of their situation as trafficked persons.” See also CoE Anti-Trafficking Convention 2005, Article 26; ASEAN Convention 2015, Article 13(7); Directive 2011/36/EU, Article 8; UNGA 2017, para 27; Human Rights Council 2012, para 27. See further Schloenhardt and Markey-Towler 2016, pp. 13–15. 91 UNODC Model Law 2009, p. 41; ICAT 2012, pp. 9–10; Gallagher and Karlebach 2011, pp. 9–10. 92 Section 34(1): “Trafficked persons shall neither be the subject of prosecution (for) trafficking in persons nor penalised for crimes directly relating to prosecution of offences stipulated under this Act” (Emphasis added). See also Scarpa 2008, p. 19. 93 ICAT 2016a, b, p. 13; Piotrowicz and Sorrentino 2018a, b, pp. 171–172. 94 Human Rights Council 2012, para 25; Schloenhardt and Markey-Towler 2016, p. 11. 95 Organised Crime Convention 2000, Articles 24(1), 24(2), 24(4), 25(1); TIP Protocol 2000, Article 6(5); ASEAN Convention 2015, Article 14(5); CoE Anti-Trafficking Convention 2005, Articles 12(2), 28(4); Directive 2011/36/EU, Article 11(1), 12(3); UN Recommended Principles and Guidelines 2002, principle 2, guideline 6(6).

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Department and the TISS.96 By extension, this duty is equally placed on all public officers in the service of the Government of Tanzania and its ministries, agencies and entities who, in the discharge of their public functions, are likely to encounter victims of trafficking.97 In addition, the duty is placed on the private entities and personnel who, based on the nature of their activities, might come into contact with trafficked persons.98 Concerning protection from further harm, the 2008 Act and its Main Regulations 2015 do not use an explicit language to that effect. However, the duty is nevertheless enshrined. Section 9(1) of the Act requires absolute protection of the private life and identity of trafficked victims from further harm, retrafficking and/or victimisation. The Main Regulations 2015 require that victims of trafficking should be resettled or otherwise relocated and integrated to another geographical area and environment, including in a third country to protect their identity and safety or that of members of their families from further harm from the traffickers.99 The Main Regulations 2015 imposes the implementation of this obligation on the Ministries responsible for Social Welfare in Mainland Tanzania and Tanzania Zanzibar in co-operation with other stakeholders.100 Furthermore, the Main Regulations 2015 require the Department of Social Welfare to actually develop, among other plans, the resettlement plan detailing how victims will be relocated in the most becoming and orderly manner that respects their rights and entitlements. Once resettled, the Department of Social Welfare is mandated to keep regular contact with the victims concerning their welfare.101 Section 18(2) of the 2008 Act requires that victims of trafficking, and by extension witnesses as well, should be assisted, supported and protected without being required to make statements or participate in the prosecution of the perpetrators of trafficking. The mandatory nature of this requirement stems from the fact that the entitlement to protection, support and assistance in Tanzania for victims of trafficking is an unfettered right.102 The obligation to rescue victims and protect them from further harm goes together with the obligation to protect the privacy of victims from stigmatisation, intimidation, shame, retaliation and humiliation generally associated with trafficking.103 The 2008 Act makes mandatory the observance of this 96 Anti-Trafficking

in Persons Act 2008, Section 17(1); Main Regulations 2015, regulation 4(8)(b)(iii). 97 Main Regulations 2015, regulation 4(8)(g), 4(9)(b). 98 Main Regulations 2015, regulation 4(9)(b), 4(11)(d). 99 Main Regulations 2015, regulation 3 defines resettlement to mean: “the process of facilitating relocation and integration of victims into another geographical area and environment, usually a third country”. See as well Raffaelli 2009, pp. 205–206. 100 Main Regulations 2015, regulation 11. 101 Main Regulations 2015, regulation 16(a) and 16(b). However, regarding main challenges and difficult experiences in resettling trafficked persons and practical recommendations on how to make the resettlement plans effective, see Brennan 2010, pp. 1581–1608. 102 Main Regulations 2015, regulation 9: “Every victim of trafficking in persons shall be provided with temporary shelter and other forms of assistance.” 103 Corrin 2005, p. 547; Aronowitz 2009, pp. 47–48; Flowe 2010, pp. 676–677; Raffaelli 2009, pp. 205–206.

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duty by all law enforcement organs, judges, court personnel, medical practitioners, parties to the proceedings, journalists and all other persons otherwise connected with trafficking cases.104 The right to privacy of the accused person is also protected.105 The Centres for Protection and Assistance Regulations 2015 stipulate as one of the fundamental rights of the victims placed at the centres for protection and assistance, and by extension in all other situations, the protection of their reasonable privacy. Also, the Centres for Protection and Assistance Regulations 2015 require that when the Licensee106 of the Centre107 establishes a victim protection procedure,108 he has to include the standards which guarantee the protection of victims’ privacy and dignity.109 This discussion operates to indicate that protection of the privacy and confidentiality of the victims of trafficking, and by extension of the witnesses as well, covers both protection of privacy and confidentiality during the investigation and judicial proceedings and in the private life, including when placed at the centres for protection and assistance or when placed anywhere for temporary basic material support. Any disclosure of any information relating to the victims can only be done upon their freely given and informed consent.110

8.2.4 Obligation to Provide Physical, Social and Psychological Care Once identified and rescued, an international obligation is placed on states parties to provide physical, social and psychological care as well as assistance and support services.111 Among the reasons necessitating this obligation is the fact that trafficking, as a criminal offence and a violation of human rights, results in untold injury to the physical, moral and psychological health as well as social integrity of the 104 Anti-Trafficking

in Persons Act 2008, Section 9(2), 9(5). 9(2). 106 Centres for Protection and Assistance Regulations 2015, regulation 3 defines the licensee to mean “a person or an organisation to which a licence for establishment of the centre is issued”. 107 Centres for Protection and Assistance Regulations 2015, regulation 3 defines centre to mean “an established or designated institution where five or more victims of trafficking in persons in need of care and protection are received, cared for and provided with basic support such as food, clothing, psychological support, shelter, medical and legal assistance and basic education or vocational training”. 108 According to the Centers for Protection and Assistance Regulations 2015, regulation 3, victim protection procedure refers to guidelines and actions “aimed at preventing and responding to abuse, violence and exploitation of victims of trafficking in persons” while placed at the centre. 109 Centers for Protection and Assistance Regulations 2015, regulations 9(f), 16(2)(d). 110 Centres for Protection and Assistance Regulations 2015, regulation 8(f). See also Odera and Malinowski 2011, p. 24; International Organization for Migration 2007, pp. 7–10. 111 See Organised Crime Convention 2000, Article 25(1); TIP Protocol 2000, Article 6(3), 6(4); ASEAN Convention 2015, Article 14(10); SAARC Convention 2002, Article IX(3); CoE AntiTrafficking Convention 2005, Article 12(1), 12(5); Directive 2011/36/EU, Articles 11, 13–16; UN Recommended Principles and Guidelines 2002, principles 8–10, guideline 6. 105 Section

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victims of trafficking, warranting states to take decisive actions to remedy its negative consequences on the victims.112 Unless such measures are taken, the health and social integrity of the victims might be impaired permanently.113 Already indicated in the 2008 Act and the Main Regulations 2015 is that the discharge of this obligation should ultimately be able to achieve the complete rehabilitation,114 reintegration,115 reinstatement,116 reunification117 or resettlement of the victims of trafficking.118 The 2008 Act imposes this obligation as both an immediate obligation—an obligation requiring immediate action pending other processes and as a long term obligation of a continuing nature—requiring the continuous taking of measures by all concerned stakeholders to ultimately achieve the total recovery of the victims of trafficking.119 As an immediate obligation, the police officer who comes by a victim of trafficking or to whom the victim of trafficking has been referred to has an immediate obligation to: (a) assist the victim to obtain medical and psychological treatment; (b) assist the victim to a place of safety when indicated by the victim; and (c) inform the victim of his rights and any basic support which may be available to assist him.120 This obligation is discharged together with the police officer conducting an intake assessment or investigation or inquiry to determine the most appropriate intervention he can undertake to help the victim.121 This duty is placed also on all public officers in the security services who have to provide or refer the rescued or identified victims to temporary basic material support or care and protection.122 Basic material support, sometimes referred to as care and protection, includes also “education, 112 Helton

2016, pp. 450–452; Miko 2007, p. 37; Scarpa 2008, pp. 20–21; Penttinen 2008, p. 15. this reason, trafficking in persons, as aptly observed by Yen, ‘is not a victimless crime’, see ´ c and Simeunovi´c-Pati´c 2012, p. 270; Perry and McEwing 2013, Yen 2008, p. 660. See also Copi´ p. 139; Scheper-Hughes 2015, p. 86. 114 As used in this context, rehabilitation refers to “recovery of physical and mental health of the victim of trafficking in persons through shelter provision, medical care and psycho-social support”, see Main Regulations 2015, regulation 3. 115 As used in this context, reintegration means “the process of facilitating the victim’s safety, dignified and sustainable return to the family, community, or country of origin, and to live a normal life thereafter”, see Main Regulations 2015, regulation 3. In support of this definition, see Odera and Malinowski 2011, p. 39. 116 Anti-Trafficking in Persons Act 2008, Section 17(2). As used in this context, reinstatement includes reintegration and as much as possible intends to return the victim of trafficking in the position he was in before he was trafficked. It is acknowledged by Newland, however, that this process is always very difficult to achieve and sustain it, see Newland 2017, pp. 169–173. 117 In the context of this obligation, reunification means “the returning of victims of trafficking to the custody of their families, after they have been rescued or involved in a period of foster care placement outside their family home”, see Main Regulations 2015, regulation 3. 118 Anti-Trafficking in Persons Act 2008, Section 17(2). 119 The prevention of trafficking is also an immediate and long term obligation. In support of this approach, see Nanu 2010, pp. 151–158. The same obligations have also been termed as obligations of conduct and obligations of results by Obokata, See Obokata 2006, p. 160. 120 Anti-Trafficking in Persons Act 2008, Section 11(2). 121 Main Regulations 2015, regulation 14(1). 122 Anti-Trafficking in Persons Act 2008, Section 17(1). 113 For

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health care, clothing, shelter, counselling and nutritional requirements”.123 Likewise, the immediate obligation is placed on the social welfare officer to whom the victim has been referred to or has come to report to prepare a social case study report or case summary to be used in the admission of the victim to a residential facility for a temporary shelter.124 In addition to admission to a residential facility for a temporary shelter, the social welfare officer has a general obligation also to provide other services such as the provision of counselling services, legal assistance, material assistance, psychological, medical and professional rehabilitation, employment and a dwelling place.125 While these designated public officers have specific duties to discharge, the overall general and long term obligation is placed on the ATC in close co-operation with the Ministries of Social Welfare, Home Affairs and the Department of Social Welfare as well as other ministries, agencies and stakeholders.126 To effectively discharge this obligation, a general but mandatory obligation is vested in the Ministries responsible for Social Welfare to oversee and supervise the entire process leading to victims’ rehabilitation, reunification, reintegration with their families and communities or resettlement in collaboration with other stakeholders.127 Other general duties towards discharging this long term and continuing obligation include: ensuring that the provision of physical, social and psychological care as well as assistance and support services are also available to Tanzanian victims of trafficking who happen to be overseas; establishment of centres for protection and assistance of victims; development of training programmes for assistance of victims; provision of after-care support services to victims and their families; provision of basic educational and vocational training opportunities for victims, especially children; establishment of referral mechanism for multi-sectoral co-ordination to assist and support victims;128 provision of educational assistance, livelihood or skills training; and co-ordination of data collection, research and documentation of victim support programmes to identify efficient and effective measures and services for victims and their families.129

123 Anti-Trafficking

in Persons Act 2008, Section 3. Regulations 2015, regulation 14(1)(d). 125 Anti-Trafficking in Persons Act 2008, Section 17(2), 17(3); Main Regulations 2015, regulation 4(2)(d). 126 Anti-Trafficking in Persons Act 2008, Section 32; Main Regulations 2015, regulations 4(1)(a), 4(2)(a), 4(2)(b), 4(2)(c), 4(2)(d), 4(2)(e), 4(2)(f), 4(2)(g), 2(2)(h), 4(4)(a)(iii), 4(4)(a)(iv), 4(4)(b)(ii), 4(5)(a), 4(8)(b)(iii), 4(8)(g), 4(8)(h), 4(9)(b), 4(10)(b), 4(11)(b), 4(11)(c), 4(11)(d), 4(11)(g), 5, 7(a), 10, 11, 15, 16, 22; Centres for Protection and Assistance Regulations 2015, regulations 4, 5, 6, 7. 127 Main Regulations 2015, regulation 11. 128 On the practical operationalisation of referral mechanisms, see Kanics 2018, pp. 303–315. 129 Main Regulations 2015, regulations 4(1)(a), 4(2)(a), 4(2)(f), 4(8)(g), 4(11)(d), 4(11)(g), 10, 16(c). These multifaceted set of measures indicate that rescued victims of trafficking not only need to have their rights protected but also as persons with their own agency and capabilities to pursue their own livelihood when given necessary training, education and skills. On the elaboration of this aspect, see Briones 2010, pp. 63–64, 74–76; ICAT 2016a, b, p. 28. 124 Main

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These measures need to be adequate and effective to protect, assist and support victims of trafficking and their families, where necessary.130 The law takes a very progressive approach according to which measures of protection to victims of trafficking and/or their families and witnesses include also protection measures “foreseen by international conventions”.131 Therefore, protection, assistance and support measures for victims and/or members of their families and witnesses as provided in the 2008 Act are supplemented and need to be read together with similar measures enshrined in international conventions which have been translated or incorporated in Tanzania’s legal, policy and administrative framework. Furthermore, the discharge of these duties requires that the victim gives his full and informed consent where he is eighteen years and above.132 Where he is a minor, the written permission of the Commissioner133 or Director134 needs to be obtained first.135 In addition, this obligation shall be discharged taking into account the special needs of the victims of trafficking such as women, children, disabled persons or any person with special needs.136 There is, however, one limitation for this obligation. While the duties comprising this obligation are couched in a mandatory language, their provision is “subject to the availability of resources”.137 There is a great possibility, based on Section 18(3) of the 2008 Act, for the Government to fail to discharge and fulfil this obligation for the victims of trafficking, witnesses and/or their family members on the ground that it lacks resources. While this position will be legally justified and defendable, it will nevertheless amount to a violation of Tanzania’s anti-trafficking obligations under national and international law. This is because trafficking is a crime whose violations are of a continuing nature requiring also the implementation of anti-trafficking obligations of a continuing character.138 Unless remedied, the possibility is clear that trafficked persons might continue to have their rights violated

130 Anti-Trafficking

in Persons Act 2008, Section 18(1).

131 Main Regulations 2015, regulation 3 defines the term “protection” to encompass “measures that

enable individuals at risk to enjoy the rights and assistance foreseen by international conventions as translated into laws, policies, strategies and action plans” in Tanzania. 132 Centres for Protection and Assistance Regulations 2015, regulation 8(c), 8(f), 21(4). See also Odera and Malinowski 2011, p. 22. 133 Centres for Protection and Assistance Regulations 2015, regulation 3 defines Commissioner to mean “the Commissioner for Social Welfare in Mainland Tanzania”. 134 Centres for Protection and Assistance Regulations 2015, regulation 3 defines Director as “the Director of Social Welfare in Tanzania Zanzibar”. 135 Centres for Protection and Assistance Regulations 2015, regulation 21(5). 136 Main Regulations 2015, regulation 17. 137 Anti-Trafficking in Persons Act 2008, Section 18(3). 138 In support of this provision, Copi´ ´ c and Simeunovi´c-Pati´c argue that trafficking in persons “should be understood as a process, a continuum, which includes different levels of abuse, exploitation, ´ c and Simeunovi´c-Pati´c 2012, p. 272. See also and apposition of vulnerability of victims”, see Copi´ Aronowitz 2009, p. 1; Yousaf 2018, p. 210. Taking a similar approach, Doherty and Morley consider that the whole experience of the victims of trafficking entails a “cumulative trauma” that impairs victims’ psychological health”, see Doherty and Morley 2016, pp. 122–123.

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on the ground of lack or unavailability of resources on the part of the Government of Tanzania.139

8.2.5 Obligation to Provide Legal Assistance and Protection The international obligation to provide legal assistance and protection to victims of trafficking forms the basis on which victims access and exercise all their important rights, including the right to protection, the right not to be prosecuted for trafficking or for crimes whose commission is the result of being trafficked and the right to participate in the legal and judicial proceedings against the traffickers and perpetrators.140 Since all measures for victims’ support, protection, assistance and recovery are to be given on a consensual basis, victims of trafficking have the right to be given full information concerning the nature of these measures to which they are entitled.141 Such information includes also information on the court and administrative proceedings.142 They also have the right, when willing, to participate in the criminal investigation and proceedings against the traffickers and perpetrators;143 right to have legal representatives or guardians of their own from the funds of the Anti-Trafficking Fund;144 right to financial aid and assistance in relation to antitrafficking criminal prosecutions;145 right to be given free legal aid and counselling in the language they understand;146 right to free legal representation in criminal and judicial proceedings;147 right to compensation and damages against traffickers;148 139 These

concerns were actually brought up during deliberations of the 2008 Anti-Trafficking in Persons Bill at the second reading in the National Assembly. See Bunge la Tanzania 2008, p. 45 in which it was argued that this provision defeats the very right of trafficked persons to have access to protection, support and assistance. 140 For the international and regional framework on this obligation, see ASEAN Convention 2015, Articles 14(9), 15(2); Organised Crime Convention 2000, Article 25(3); TIP Protocol 2000, Articles 6(2)(a), 6(2)(b), 8(2); CoE Anti-Trafficking Convention 2005, Articles 10, 12, 16, 28; SAARC Convention 2002, Article V; Directive 2011/36/EU, Articles 12, 15, 16; UN Recommended Principles and Guidelines 2002, guideline 4(7). 141 Anti-Trafficking in Persons Act 2008, Section 11(2): “A police officer who comes by a victim of trafficking in person shall be under the general duty to (c) inform the victim of his right and any basic support which may be available to assist the victim.” See also Centres for Protection and Assistance Regulations 2015, regulations 8(e), 16(2)(b), 16(4), 35; Rijken 2018, p. 246. 142 TIP Protocol 2000, Article 6(2)(a). 143 Anti-Trafficking in Persons Act 2008, Section 9. 144 Main Regulations 2015, regulation 24(a). See further United Nations Children’s Fund 2006, p. 16. 145 Main Regulations 2015, regulation 25(d). 146 Anti-Trafficking in Persons Act 2008, Section 18(3)(a); Centres for Protection and Assistance Regulations 2015, regulations 8(d), 9(l). See also Obokata 2006, p. 153. 147 Anti-Trafficking in Persons Act 2008, Section 18(3)(a), 18(3)(b); Main Regulations 2015, regulation 4(4)(b)(ii). 148 Anti-Trafficking in Persons Act 2008, Section 15.

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right to protection of their legal rights and fundamental freedoms during the trial;149 protection against retaliation, intimidation, harm or threat from traffickers for their participation as witnesses in the legal proceedings against traffickers;150 and the right to remain during the whole course of the legal investigation and prosecution of the trafficking case.151 According to the 2008 Act, the right to remain requires the victim of trafficking to be placed at the reception centre where he will receive basic material assistance, pending completion of the proceedings and voluntary repatriation.152 Attached to the right to remain is the possibility that the victim of trafficking can permanently remain in Tanzania upon the approval of the Minister of Home Affairs where it is in the best interests of the victim following completion of the legal process and judicial proceedings.153 Impliedly, the right to remain here also includes the granting of the reflection period to the victim.154 As noted in Chap. 5, the right to remain is very important for two reasons, namely, it ensures protection to the victim of trafficking from arbitrary deportation or expulsion and/or repatriation contrary to his right to effectively participate in criminal proceedings against his trafficker, and entitles the victim to the support, protection, assistance measures and effective remedies available under the domestic laws of Tanzania.155

8.2.6 Obligation of Repatriation The obligation to repatriate is an international obligation that requires co-operation between countries of origin and countries of destination.156 The ATC has a mandatory obligation to collaborate with the Ministry of Foreign Affairs and other concerned agencies to promote co-operation, technical support and partnership with other states, 149 Anti-Trafficking

in Persons Act 2008, Section 9(2), 9(4). Regulations 2015, regulation 4(4)(a)(iii), 4(4)(a)(iv). 151 Anti-Trafficking in Persons Act 2008, Section 34(2). See as well Obokata 2006, p. 158; Gallagher 2010, pp. 15–16. 152 Anti-Trafficking in Persons Act 2008, Section 34(2), 34(5). 153 Anti-Trafficking in Persons Act 2008, Section 34(3), 34(4): “(3) Where it is in the best interest of the trafficked person, the trafficked person may be allowed to remain in the United Republic after the legal process with the approval of the Minister responsible for home affairs. (4) The person who is allowed to remain in the United Republic pursuant to Subsection (3) shall stay in a reception centre provided by the Government where the person shall receive basic material assistance until settled within the Untied Republic” (Emphasis added). 154 Weiss 2016, pp. 48–49. Briefly on the reflection period, see Copi´ ´ c and Simeunovi´c-Pati´c 2012, pp. 274–275. 155 Chapter 5, Sect. 5.3.5 in this book. See also Copi´ ´ c and Simeunovi´c-Pati´c 2012, p. 279; ICAT 2016a, b, pp. 15–17. 156 This international obligation is found in the TIP Protocol 2000, Article 8; CoE Anti-Trafficking Convention 2005, Articles 14, 16; SAARC Convention 2002, Article IX(1); ASEAN Convention 2015, Article 15(2); UN Recommended Principles and Guidelines 2002, principle 11, guideline 6(7). See also Gallagher 2017, pp. 12–13. 150 Main

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regional and international organisations in ensuring that repatriation of victims of trafficking is done voluntarily, effectively, lawfully, successfully and appropriately.157 The obligation to repatriate victims of trafficking from Tanzania to other countries and to receive victims of trafficking from other countries to Tanzania is primarily vested in the Ministry of Home Affairs in collaboration with the Ministry of Foreign Affairs and other relevant agencies.158 On reception, the Government has a mandatory obligation to accept its citizens who have been trafficked abroad or any trafficked stateless persons who were entitled to permanent residence in Tanzania upon entry into the territory of another state when they were trafficked.159 The Government is enjoined to facilitate reception by issuing and providing the necessary travelling documents and any authorisations needed to receive trafficked persons who are Tanzanians or stateless persons with an entitlement to permanent residence in Tanzania.160 On repatriating foreign victims of trafficking, the Government of Tanzania is duty-bound to co-operate with their countries of origin, including in the issuance of travel documents and other authorisations to facilitate repatriation.161 Their repatriation, however, should be effected following a risk and security assessment carried on to assess and evaluate whether it is in the best interests of the victims to be repatriated.162 In this sense, repatriation should only be done where there is complete regard of their safety, humanitarian and compassionate factors.163 Humanitarian factors refer to legal factors that Tanzania is required to take into account before considering repatriating any foreign victim of trafficking.164 Compassionate factors are non-legal and individual-based factors that Tanzania needs to consider before actually repatriating a foreign victim of trafficking.165 Where the risk and security assessment verification reveals or indicates that the safety, humanitarian and/or compassionate considerations of the victim will be violated, the foreign victim of trafficking shall not be repatriated. This also includes a similar consideration of the safety as well as compassionate and

157 Main

Regulations 2015, regulation 22(a). See also Obokata 2006, pp. 157–158. It has been argued that “partnership” is the missing “P” is the paradigm of “3Ps” of prevention, prosecution and protection, see Sheldon-Sherman 2012, p. 447. 158 Main Regulations 2015, regulation 12. 159 Anti-Trafficking in Persons Act 2008, Section 21(1). See also Inter-American Commission on Human Rights 2015, para 54. 160 Anti-Trafficking in Persons Act 2008, Section 21(2). 161 Anti-Trafficking in Persons Act 2008, Section 23(3). 162 Main Regulations 2015, regulation 13. See also Smith and Kangaspunta 2012, p. 31; Watson and Silkstone 2006, p. 116. 163 Main Regulations 2015, regulation 22(d); Gallagher 2017, pp. 12–13. 164 Humanitarian factors refer to all the rights established and enshrined in the international human rights instruments whose entitlement to victims of trafficking operate to deter or prevent any state from repatriating them where there is an indication that such rights will be violated in the country to which they are repatriated, see UNODC Travaux Préparatoires 2006, p. 380, Footnote 14. 165 Compassionate factors here refer to “personal circumstances of the victim such as family situation, age, common-law marital relationship and other factors to be considered on an individual and case-by-case basis”, see UNODC Travaux Préparatoires 2006, p. 380, Footnote 14.

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humanitarian considerations to the family members of the victim of trafficking.166 In addition and in consideration of the legal right to remain, the law requires the investigation and adjudicating authorities as well as all concerned agencies to ensure that foreign victims of trafficking are not repatriated where that might affect their right to legal representation and participation in the judicial proceedings against their traffickers or access to support, assistance and protection services and other remedies which are provided domestically.167 For that matter, the 2008 Act prohibits involuntary and unsafe repatriation.168 Foreign victims of trafficking, including those who are stateless should only be repatriated to their countries of origin voluntarily, with an assurance of safe conditions and appropriate provision of transportation.169 Funds from the Anti-Trafficking Fund (ATF) and other sources as well can be used in making their repatriation and reception possible.170 Where it is impossible to repatriate and where also the legal proceedings have been completed but it is in their best interests to remain in Tanzania, the law gives them an entitlement to the residence upon the approval of the Minister of Home Affairs.171 Based on these considerations, it can be submitted that not only does Tanzania depart from the weaker provisions of the TIP Protocol 2000 with respect to the obligation of repatriation but also that Tanzania requires repatriation and reception to be done mandatorily in full respect of the rights of the victims of trafficking, including respect of and compliance with the international legal obligation of non-refoulement.172

8.2.7 Obligation of Effective and Appropriate Remedies The international obligation to provide effective and appropriate remedies to the victims of trafficking is based on the fact that trafficking, while a criminal offence in Tanzania, is chiefly a violation of human rights.173 Only by means of effective and appropriate remedies which are readily available and accessible can trafficking

166 Anti-Trafficking in Persons Act 2008, Section 23(2). Other risks that make it impossible to return,

repatriate or integrate victims of trafficking include the unwillingness of the victim of trafficking to return, threat from the traffickers, obstruction of justice by traffickers and criminal groups and the involvement of family members in the trafficking process, see further the Ministry of Health, Community Development, Gender, Elderly and Children 2016, para 4.4. 167 Anti-Trafficking in Persons Act 2008, Section 34(2), 34(5). 168 Anti-Trafficking in Persons Act 2008, Section 23(1)(a). See also Obokata 2006, pp. 157–158. 169 Anti-Trafficking in Persons Act 2008, Section 23(1). 170 Main Regulations 2015, regulation 25(e). 171 Anti-Trafficking in Persons Act 2008, Section 34(3). 172 Obokata 2006, pp. 155–156. On the scope and content of non-refoulement, see further Lauterpacht and Bethlehem 2003, pp. 87–177. 173 Onuoha 2011, p. 149; ICAT 2016a, b, p. 2; Hua 2011, p. xiv; Gallagher and Pearson 2010, p. 85; Bassiouni 2006, pp. 206–207.

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as a human rights violation be effectively addressed and the justice done.174 The purpose of remedies is thus to assist victims to recover from their trafficking experience, get rehabilitated, reinstated, reunited and integrated with their families and the community at large and prevent them from further violations and revictimisation.175 Because the right to effective remedies is a two-fold right, trafficked persons are entitled to both its substantive and procedural aspects.176 The substantive remedies entitled to victims of trafficking include, but are not limited to, rehabilitation and recovery, compensation, restitution, guarantees of non-repetition, satisfaction and restoration.177 Procedural remedies include,178 but are not limited to, the right of the victims of trafficking to compensation in the course of criminal proceedings against their traffickers;179 the right to have access to international human rights treaty-monitoring bodies to file complaints of human rights violations by the Government of Tanzania whether through state actors or by non-state actors;180 the right of access to domestic courts in Tanzania by victims of trafficking alleging the Government’s failure to protect their constitutionally protected human rights due to its inaction to investigate and prosecute cases of trafficking, prevent further trafficking and provide them with protection, assistance and support;181 the right to open constitutional proceedings against the Government where its public officials are found to have participated in trafficking crimes, thereby violating their constitutionally guaranteed rights;182 the right to apply for the funds from the ATF for personal assistance 174 This

obligation can be gathered from the provisions of the Organised Crime Convention 2000, Article 25(2); TIP Protocol 2000, Article 6(6); ASEAN Convention 2015, Article 14(13); CoE AntiTrafficking Convention 2015, Article; 15 Directive 2011/36/EU, Articles 12, 15, 17; International Covenant on Civil and Political Rights, Article 2(3)(a); UN Recommended Principles and Guidelines 2002, principle 17, guideline 9. See also Gallagher 2017, p. 13; Committee on Economic, Social and Cultural Rights (General Comment No. 9) 1988, para 9. 175 Anti-Trafficking in Persons Act 2008, Sections 17(2), 32; Main Regulations 2015, regulation 3, 11, 12; ICAT 2016a, b, p. 2. 176 Gallagher 2010, p. 4; Thomson 2016, pp. 67–68; Van der Wilt and Lyngdorf 2009, p. 46. 177 ICAT 2016a, b, pp. 10–12; Thomson 2016, pp. 69–73. 178 UNODC Legislative Guide 2004, pp. 267–268, para 60; UN Recommended Principles and Guidelines 2002, principle 16, guideline 4(4); ICAT 2016a, b, pp. 12–24. 179 Anti-Trafficking in Persons Act 2008, Section 15. See also McGregor 2018, p. 265. 180 Such remedies have already been accessed by Tanzanian persons with albinism alleging violations of their fundamental human rights through the inaction of the Government of Tanzania. See Committee on the Rights of Persons with Disabilities 2017; Committee on the Rights of Persons with Disabilities 2018. 181 As already shown, Constitution of Tanzania 1977, Articles 26(2), 29(1), 29(2) provide for this legal remedy by means of the Basic Rights and Duties Enforcement Act, Act No. 33 of 1994 which acts as legal vehicle through which violations of any of the rights enshrined in the Constitution of Tanzania 1977, Articles 12–29 can be enforced before the High Court of Tanzania through an application by any victim of trafficking alleging the violation. See also Piotrowicz 2012, pp. 186– 189; McGregor 2018, p. 262. 182 The same Constitution of Tanzania 1977, Articles 26(2), 29(1), 29(2) provide for this legal remedy by means of the Basic Rights and Duties Enforcement Act, Act No. 33 of 1994 which acts as legal vehicle through which violations of any of the rights enshrined in the Constitution of Tanzania 1977, Articles 12–29 can be enforced before the High Court of Tanzania through an

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as well as for judicial prosecution and proceedings;183 and access to sub-regional and regional human rights courts and tribunals to which Tanzania is a state party or partner state.184 The 2008 Act and its Main Regulations 2015 do not contain an explicit or implied provision allowing victims of trafficking to institute independent civil suits to claim restitution and other remedies from the traffickers, in addition to those ordered by courts in the course of criminal and judicial proceedings or as a direct application to the ATF.185 However, the National Anti-Trafficking in Persons Action Plan (2015– 2017) suggested this possibility by requiring the ATS to consult with the Office of the DPP, the Attorney General Chambers (AG) and several NGOs on the possibility of ensuring that victims of trafficking can also institute civil proceedings to claim damages against their traffickers as the result of their being trafficked.186

8.2.8 Special Consideration on the Child Victims and Disabled Persons In addition to requiring the taking into account of their special needs in all antitrafficking measures, the 2008 Act and its Implementing Regulations put a special application or petition by any victim of trafficking alleging the violation directly perpetrated by state actors. 183 Main Regulations 2015, regulations 24(a), 24(b), 25(d), 25(e). Direct access to the funds is important because it helps the victim to enjoy access to financial and other assistance without actually requiring the presence of a prior conviction of the trafficker. See also McGregor 2018, pp. 266–277. 184 This includes access to the African Commission on Human and Peoples’ Rights under the African Charter on Human and Peoples’ Rights, arts 50, 55; access to the African Court on Human and Peoples’ Rights under the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights. Adopted by the Assembly of the Heads of State and Government on 10 June 1998 at the 34th Ordinary Session in Ouagadougou, Burkina Faso 8–10 June 1998, entered into force 25 January 2005, Articles 5(3), 34(6). See for example African Court on Human and Peoples’ Rights, In the Matter of Jebra Kambole v United Republic of Tanzania, Judgment of the Court, 15 July 2020, Case Application No. 018/2018 in which a Tanzanian citizen approached the highest human rights regional court in Africa arguing, among others, that his constitutional rights have been violated by the Government of Tanzania. For a full decision, see https://en.african-court.org/images/Cases/Judgment/Appl.%20018%20-% 202018%20-%20Jebra%20Kambole%20-%20Judgment.pdf. Accessed 17 July 2020. 185 The UNODC Model Law 2009, pp. 66–67 contains this suggestion already. The institution of civil remedies by victims of trafficking has been recognised in other countries, see Harvard Law Review Association 2006, pp. 2574–2595; Nam 2007, pp. 1655–1703; McGregor 2018, pp. 265–266. 186 United Republic of Tanzania Ministry of Home Affairs 2015–2017, pp. 15–16. In Uganda, the High Court has awarded civil damages to a foreign victim of trafficking in a civil case, see High Court of Uganda at Kampala, Plaintiff v Hasan Awdi, Ali Wadi, Advan Fanjan Redhi and Awdi Sonic (U) LTD, Civil Judgment, 30 January 2015, Civil Suit No. 95 of 2012 (Unreported). https://sherloc.unodc.org/res/cld/case-law-doc/traffickingpersonscrimetype/ uga/2015/civil_suit_no__95_of_2012_html/Awdi_Civil_2015.pdf. Accessed 21 March 2019.

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emphasis on the victims of trafficking who happen to be children and disabled persons. In fact, the Law of the Child Act, Act. No. 21 of 2009 makes this obligation completely mandatory by requiring that a child should be protected when he appears to be a victim of, among others, trafficking in persons under the 2008 Act.187 The law requires that in all dealings with children and the disabled persons who are victims of trafficking, consideration of their best interests and human rights should be paramount.188 They should be given support, protection and assistance from the moment any reasonable ground exists to believe that they have been trafficked or might be subjected to trafficking.189 In case the age of the child is not clear, but indications exist that the person might be a child, the law requires him to be treated as a child and be entitled to all victim support, assistance and protection services pending official verification of the age.190 Their privacy, personal information and safety need to be secured and guaranteed in the entire process of investigation, judicial proceedings and trial, including the requirement that proceedings be held in camera and the said proceedings not to be published.191 In cases of repatriation, a child or disabled person shall not be repatriated to the country of origin unless their parents, relatives or legal guardians have given consent to receive and provide care or a government agency or child protection agency has given an assurance to grant adequate child assistance and protection upon return.192 In cases of medical treatment and examination as a form of assistance to the child victims, especially when placed at the centres for protection, the law requires that the written permission of the Commissioner or Director must be obtained first.193 Child victims should also be provided with educational and vocational training opportunities as recognition of their fundamental right to education.194 When interviewing them, the police officer is required to adopt a friendly special procedure so as not to victimise, intimidate or threaten the child victims or subject them to further harm.195 The Main Regulations

187 Anti-Trafficking

in Persons Act 2008, Section 16(l) reads: “For the purposes of this act, a child is in need of care and protection if that child is a person in relation to whom an offence has been committed or attempted under the Anti-Trafficking of Persons Act.” 188 Anti-Trafficking in Persons Act 2008, Section 17(4). Generally on the internationally recommended principles governing special protection measures for child victims of trafficking in persons see United Nations Children’s Fund 2006, pp. 10 et seq. 189 Anti-Trafficking in Persons Act 2008, Section 19(1). 190 Anti-Trafficking in Persons Act 2008, Section 19(2); United Nations Children’s Fund 2006, p. 15. 191 Anti-Trafficking in Persons Act 2008, Section 9(2), 9(4); United Nations Children’s Fund 2006, pp. 11–12. 192 Anti-Trafficking in Persons Act 2008, Section 22. See also Scarpa 2008, p. 65; United Nations Children’s Fund 2006, pp. 28–30. 193 Centres for Protection and Assistance Regulations 2015, regulation 21(5). 194 Main Regulations 2015, regulation 4(10)(b); Odera and Malinowski 2011, pp. 30–31. 195 Main Regulations 2015, regulation 18.

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2015 place similar obligations for women, too.196 These special considerations for child victims and disabled persons are in addition to those measures provided under regional and international human rights legal instruments.

8.3 Centres for Protection and Assistance of Victims The 2008 Act requires the Government to establish or designate centres for protection and assistance of the victims of trafficking so as to provide them with accommodation, nutrition, legal assistance, psychological and medical care, security, protection and assistance to locate their relatives.197 The implementation of this duty requires the Government to co-operate and collaborate with the NGOs specialised in offering support, protection and assistance services to victims.198 It is through the Centres for Protection and Assistance Regulations 2015 that this duty of the Government is effectively discharged. The Centres for Protection and Assistance Regulations 2015 require any person or an applicant who wants to establish a centre for protection and assistance of victims to make an application to the city, municipal, town or district council social welfare officer.199 Once all procedures for application, assessment and inspection have been completed,200 the Commissioner or Director is vested with the power to grant a licence for the applicant or licensee to open and run a centre for protection and assistance of victims.201 These centres, however, are not for permanent placement. Placement is supposed to be temporary, not exceeding six months, and shall be used as a last resort unless circumstances require otherwise.202 This caution and understanding is very important. Studies have shown that victims of trafficking, especially women and children, have been detained in shelters and other detention facilities where their liberty, right to health and freedom of movement and the right not to be discriminated against, which are internationally protected rights, have been

196 Main Regulations 2015, regulation 17. It provides that “Special consideration needs to be under-

taken in assisting children, women, persons with disabilities and any other persons who are victims of human trafficking.” 197 Anti-Trafficking in Persons Act 2008, Sections 20(1), 24(b)(ii); Main Regulations 2015, regulation 4(2)(a). See further Tanzania Women Lawyers Association 2014, pp. 44–48. 198 Anti-Trafficking in Persons Act 2008, Section 32(f); Main Regulations 2015, regulation 4(2)(b), 4(2)(g), 4(2)(h), 4(11). On the role of NGOs, with some critical perspectives as well, in the countries of origin, transit and destination with regard to protecting victims of trafficking, especially women and children, see generally Tzvetkova 2002, pp. 60–68; UNODC 2008; Doorninck 2018, pp. 426– 428. 199 Centres for Protection and Assistance Regulations 2015, regulation 4. 200 Regulations 5, 6. 201 Regulation 7. 202 Regulation 8(h).

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curtailed in the guise of protecting and assisting them from their traffickers.203 Hence, stipulating that these shelters should be a last resort and that victims should stay only temporarily is a positive step in ensuring the protection of their fundamental rights and freedoms.204 Of particular interest are the guiding principles and the rights the victims admitted to the centres for protection and assistance are entitled to. In the delivery of services, the centres are required to abide by the following principles, namely: consideration of the best interests of the child as paramount;205 protection and assistance to victims should be based on individualised plans;206 full and informed consent of the victims should be obtained;207 respect of the victims’ right to full participation in the centres’ activities;208 non-disclosure of personal information of the victims without consent unless there are special exceptions;209 and disabled persons should be given special care and treatment.210 Any victim placed at the centre is entitled to several rights including the right to: be treated with respect; be given care and support according to his special needs and circumstances; adequate nutrition, clothing and nurturing; medical care; appropriate education and training; reasonable privacy; possession and protection of personal belongings; be informed of the behaviour expected of him; protection from all forms of violence, abuse, neglect and exploitation; not be subjected to torture or ill-treatment; personal time and leisure; be consulted; be allowed to express his opinion and views based on personal abilities;211 and access to interpretation services in case he uses a different language.212 The running of the centres is overseen and supervised by the welfare committee to ensure that the 203 Gallagher

and Pearson 2010, pp. 73–114; Ahmed and Seshu 2015, p. 175; Brennan 2010, pp. 1598–1599; Gallagher and Ezeilo 2015, p. 927; Rijken 2018, p. 240. See as well Global Alliance Against Traffic in Women 2017, p. 2. 204 UN Recommended Principles and Guidelines 2002, guideline 6(1) already notes this concern when it advises that “States and, where applicable, intergovernmental and non-governmental organizations, should consider: ensuring, cooperation with non-governmental organizations, that safe and adequate shelter that meets the needs of trafficked persons is made available. The provision of such shelter should not be made contingent on the willingness of the victims to give evidence in criminal proceedings. Trafficked persons should not be held in immigration detention centres, other detention facilities or vagrant houses.” 205 This is an internationally recognised principle, see further United Nations Children’s Fund 2006, p. 10. 206 This is important in the context of trafficking in persons as it is generally understood that there is no a typical victim of trafficking. Rather, victims experience, react and are differently affected by the whole trafficking process from recruitment to exploitation, see Aronowitz 2009, pp. 48–49; Odera and Malinowski 2011, p. 28; Zimmerman and Watts 2003, p. 3. 207 This principle is very important as it safeguards victims of trafficking in persons against abuse of their fundamental rights and freedoms on the excuse of protecting and assisting them, see Gallagher and Pearson 2010, pp. 86–87; Doezema 2002, pp. 21–22; Odera and Malinowski 2011, p. 22. 208 Odera and Malinowski 2011, p. 28. 209 United Nations Children’s Fund 2006, pp. 11–12; Odera and Malinowski 2011, p. 24. 210 Regulation 8. See also Copi´ ´ c and Simeunovi´c-Pati´c 2012, p. 272. 211 United Nations Children’s Fund 2006, pp. 10–11. 212 Regulation 9. See also Obokata 2006, p. 153.

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centres are managed in compliance with the law and in full protection of the human and fundamental rights of the victims.213 In addition, particular interest is given to the victim protection principles and victim protection procedures of these centres. Victims are to be protected based on some of the following principles, that is: they all have the right to be protected from injury, neglect, sexual abuse, sexual exploitation and any other form of abuse or discrimination, irrespective of any ground whatsoever; any violence, abuse, exploitation and neglect of a victim of trafficking should be treated as acts of misconduct and grounds for disciplinary measures, including dismissal of any employee of the centre; and no victim of trafficking shall be punished or disadvantaged for making an allegation of his rights being violated or abused or neglected.214 Regarding victim protection procedure, victims of trafficking have an entitlement to the following standards; prompt investigation of their allegations; right to be informed of the procedures involved; right to receive necessary support and assistance; protection of privacy and dignity; and immediate measures to secure and ensure victims’ safety.215 The review of these obligations, principles, standards and duties of the centres for protection and assistance reveals that fundamental rights of the victims of trafficking are highly respected and cared for. It indicates that victims of trafficking, irrespective of their background or where they come from, are to be treated with respect and dignity and humanity without discrimination on any ground. It appears that Tanzania has taken mandatory legal and administrative steps and measures to accord the highest protection standards to victims of trafficking. While the centres for protection and assistance have their own resources and means to run themselves, there is only one limitation on the part of the Government in discharging its obligation to protect, assist and support victims of trafficking—the “subject to the availability of resources” clause. This clause puts the enjoyment of rights by victims of trafficking at the most precarious position as any plea of unavailability of resources on the part of the Government might end up rendering these rights and entitlements illusory. It is upon the Government, despite this limitation, to forge best methods, initiatives and ways to effectively implement its international and domestic mandatory obligation to protect, assist and support victims of trafficking in Tanzania. The “subject to the availability of resources” clause is the only limitation that greatly dilutes or diminishes the strength of the otherwise mandatory obligation of the 2008 Act and Its Implementing Regulations on victims’ protection, support and assistance.

8.4 Conclusion This chapter of the work examined the remaining two international anti-trafficking obligations, namely the obligation to prevent human trafficking and obligation to 213 Regulation

10. 15. 215 Regulation 16(2). 214 Regulation

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provide victims with protection, support and assistance as well as access to remedies as provided in the 2008 Act and Its Implementing Regulations. It found that the obligation to prevent human trafficking is a mandatory obligation within the Tanzanian legal framework. Nonetheless, this chapter has argued that the prevention obligation is a subsumed or scattered obligation because, in the 2008 Act, the obligation is only found in Section 24 which is subsumed within the protection obligation. The obligation is scattered across several other sections of the law and is chiefly only to be found in the Main Regulations 2015. Lack of a clear provision on commercial carriers with respect to their anti-trafficking obligations and the fact that some aspects of this prevention obligation are only implied in the law are the only shortcomings the law presents. Regarding the protection obligation, this chapter has found that the 2008 Act and its Implementing Regulations use a very mandatory, direct language to express Tanzania’s commitment to helping victims of trafficking. The obligation is wide-encompassing, comprehensive and in some respects, the law even provides better, substantive provisions compared to the TIP Protocol 2000. For example, the 2008 Act and its Main Regulations 2015 mandatorily prohibit unsafe, involuntary repatriation, unlike the TIP Protocol 2000. Its special considerations on the child and disabled victims of human trafficking are wide-encompassing. The only overarching limitation of the law to the discharge of this obligation has to do with the clause subjecting the discharge of this obligation to the availability of resources from the government.

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Chapter 9

Institutional Framework and the Action Plans

Contents 9.1 Institutional Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 National Action Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.1 Guiding Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.2 Strategic Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter of the book explores the National Anti-Trafficking in Persons Action Plans and the institutional framework under whose mandate is entrusted the discharge and implementation of the anti-trafficking obligations. Section 9.1 surveys the institutional framework from the national to the local government level, including its inclusion of the private sector and the international and regional institutions in the prevention of human trafficking and protecting victims in Tanzania. Section 9.2 scrutinises the content of the national anti-trafficking Action Plans. It considers the purpose of their formulation, the content of what they present and the role they play in gauging Tanzania’s actual implementation of its domestic and international anti-trafficking obligations. Section 9.3 examines some of the cases decided by the courts in Tanzania and their overall impact on the development of the anti-trafficking jurisprudence of the country. Besides, the chapter provides a limited comparative study of the decisions from other Commonwealth jurisdictions which provide an informed practice of countries with similar legal structures so as to provide an objective set of recommendations for Tanzania. Keywords Institutional Framework · Action Plans · Case Law · Commonwealth · ATC · ATS · Government · Anti-Trafficking Obligations · Guiding Principles · Strategic Actions · Overseeing · Co-ordinating

9.1 Institutional Framework The 2008 Act and its Main Regulations 2015 establish the institutional framework in Tanzania mandated to oversee, supervise and implement Tanzania’s anti-trafficking © t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_9

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obligations.1 The Ministry of Home Affairs is vested with the “overall responsibility of co-ordinating and overseeing matters relating to trafficking in persons” in Tanzania through the ATC and the ATS.2 Section 30(1) of the 2008 Act establishes the ATC as the main executive body with the mandate of “defining, promoting and coordinating the policy of the Government for prevention and control of trafficking in persons” in Tanzania. The ATC is supported by the ATS as the chief professional and expert-based body with the main duty “to advise the Anti-Trafficking Committee on matters relating to general administration” of the 2008 Act, its Implementing Regulations and on any anti-trafficking matters that will be referred to by the Minister of Home Affairs.3 On the one hand, the ATS consists of not more than nine persons appointed by the Minister of Home Affairs and is headed by the Secretary appointed by the President of Tanzania from among senior public officers.4 On the other hand, the chairperson and other members of the ATC are appointed by the Minister of Home Affairs to whom they are responsible.5 The ATC consists of a considerable number of members with diverse professions and who seem to somehow have an anti-trafficking related background. The ATC consists of the chairperson appointed from persons holding or who have held the Office of the Director of Immigration, Inspector General of Police (IGP) or Director of Intelligence and Security Service; two members from the Ministry responsible for Social Welfare, one from Mainland and the other from Zanzibar; two representatives from the Ministry responsible for women and children, one from Mainland Tanzania and the other from Tanzania Zanzibar; a representative from the Ministry of Local Government not below the designation of an Assistant Director; a representative from the Ministry responsible for Foreign Affairs; a lawyer from the AG’s Chambers not below the designation of a Principal State Attorney; five persons each being a representative of the Police Force, Prisons Services, Immigration, TISS and the Refugee Services; a representative of the Labour Department not below the designation of Deputy Commissioner for Labour; a representative of the private sector recommended by the association of NGOs; a representative of a Zanzibar-based association of NGOs; a representative from the Commission for Human Rights and Good Governance; and two representatives from other CSOs appointed by the Minister.6 According to Section 32 of the 2008 Act, the functions of the ATC and ATS consist of: co-ordinating anti-trafficking activities of the Government Departments and law enforcement agencies; making recommendations for the formulation of the National Anti-Trafficking in Persons Action Plans; advising the Minister on antitrafficking policy matters; providing advice on the investigation and prosecution of trafficking offences; proposing and promoting strategies to prevent and combat 1 This

is internationally recognised as a mandatory duty if anti-trafficking interventions are to have any meaningful outcomes to counter trafficking in persons. see UNGA 2017, p. 28. 2 Main Regulations 2015, regulation 4(7). 3 Anti-Trafficking in Persons Act 2008, Sections 30(2), 30(3). 4 Sections 30(2), 30(3), 30(4). 5 Section 31(2). 6 Section 31(1).

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trafficking; liaising with the Government agencies and NGOs to promote the rehabilitation and reintegration of victims of trafficking; keeping abreast with regional and international developments and standards in the prevention and combating of trafficking; and dealing with any matter relating to human trafficking in Tanzania. Although the overall anti-trafficking responsibility is discharged by the ATC and ATS on behalf of the Ministry of Home Affairs and the Government of Tanzania, several other Government ministries, departments and agencies as well as NGOs and CSOs are also involved as part of the institutional framework. Thus, while the primary obligation to oversee the entire process of victims’ reunification, rehabilitation and reintegration with their families and communities and resettlement is vested in the Ministries responsible for Social Welfare in Mainland Tanzania and Zanzibar,7 the duty to repatriate victims of trafficking to other countries and receive victims from other countries to Tanzania is chiefly vested in the Ministry of Home Affairs and the Ministry of Foreign Affairs in co-operation with other appropriate agencies.8 Conversely, the provision of shelters and accommodation in the centres for protection and assistance of victims is largely done by the NGOs and CSOs licensed by the Government of Tanzania.9 The work of co-ordinating all these activities in a way that achieves maximum effectiveness is left to the ATC and ATS.10 Other Ministries, Government Departments and stakeholders involved in the discharge of anti-trafficking obligations as part of the overall institutional framework include: the Ministries responsible for Labour and Employment in Mainland Tanzania and Tanzania Zanzibar; Ministries responsible for Legal Affairs in Mainland and Zanzibar through the DPP, Commission for Human Rights and Good Governance and the Judiciary; Ministries responsible for Community Development, Gender and Children in Zanzibar and Mainland; Ministries responsible for Transportation and Communication in Zanzibar and Mainland; Departments of Tanzania Immigration Services, Tanzania Police Force, TRA, TISS and other law enforcement agencies; Ministries responsible for Local Governments in Zanzibar and Mainland; Ministries responsible for Tourism in Zanzibar and Mainland, Ministries responsible for Education and Vocational Training in Zanzibar and Mainland; and the NGOs and CSOs in Zanzibar and Mainland.11 This institutional framework shows that anti-trafficking issues have been made an important agenda in almost all the ministries and agencies from the central to local government levels, including in the private sectors as well. Based on the nature of this organisational structure, it appears that the successful discharge of Tanzania’s anti-trafficking obligations largely depends on the ATC and ATS’s co-ordination role, their expertise as well as sufficient budgetary allocation from the Government. As already pointed out in Chap. 8, the “subject to availability of resources” clause from the Government represents the only setback that can cripple the effective discharge of the anti-trafficking obligations by this institutional setup. 7 Main

Regulations 2015, regulation 11. Regulations 2015, regulation 12. 9 See the Centres for Protection and Assistance Regulations 2015. 10 Main Regulations 2015, regulations 4(12), 10. 11 Main Regulations 2015, regulation 4; Anti-Trafficking in Persons Act 2008, Section 24. 8 Main

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9.2 National Action Plans As of 2020, Tanzania has already developed two National Anti-Trafficking in Persons Action Plans. The first Action Plan covered the period of three years from 2015 to 201712 and the second Action Plan covers the time frame from 2018 to 2021.13 Both the 2015–2017 and 2018–2021 Action Plans are one “living” document in the sense that their overriding principles, overall objectives and comprehensive strategic actions are the same and continue to evolve and be updated in each allotted time frame.14 They must be read in tandem, including together with any future Action Plans that will be developed thereafter. Their actual purpose and objective is to contribute towards the actual realisation of Tanzania’s anti-trafficking obligations into concrete actions which can be implemented to effectively fight and combat trafficking, protect its victims and prosecute the perpetrators.15 The Action Plans provide a means through which these obligations are disaggregated into tangible, specific implementable actions and measures that can be assessed, monitored and evaluated to gauge the level of Tanzania’s compliance and effectiveness in meeting its commitments.16 As such, the Action Plans create an enabling policy environment and an implementation framework to facilitate the successful realisation of the antitrafficking interventions and articulate the ways through which co-ordination and collaboration among relevant stakeholders and actors can be achieved nationally and internationally.17 Through the Action Plans, Tanzania envisions having a free-fromtrafficking country which provides quality services to victims of trafficking, with a mission to mobilise state and non-state actors as well as stakeholders and partners in adopting various initiatives to combat trafficking based on the 4P’s parameters, namely, prevention, prosecution, protection and partnership.18

12 United Republic of Tanzania Ministry of Home Affairs 2015–2017, National Anti-Trafficking in Persons Action Plan 2015–2017. Ministry of Home Affairs Dar es Salaam. The first National Anti-Trafficking in Persons Action Plan expired in December 2017. However, its main principles are all reflected in the new Action Plan. 13 United Republic of Tanzania Ministry of Home Affairs 2018, National Anti-Trafficking in Persons Action Plan (2018–2021), May 2018. Ministry of Home Affairs, Dar es Salaam. The first National Anti-Trafficking in Persons Action Plan will be referred to as the Action Plan 2015–2017 and the second will be referred to as the Action Plan 2018–2021. They will collectively be referred to as the Action Plans. 14 Action Plan 2018–2021, p. 5. 15 Action Plans 2015–2017 and 2018–2021, notes 2.0 and 2.1 respectively. See also ICAT 2016a, b, p. 68. 16 Bruckmüller and Schumann 2012, p. 107. See also Aronowitz 2009, p. 160. 17 Action Plans 2015–2017 and 2018–2021, notes 2.1 respectively. See also the introduction to the Republic of Kenya Ministry of Labour, Social Security and Services 2013–2017, p. iv. 18 Action Plan 2018–2021, pp. 7–8. See also Action Plans 2015–2017 and 2018–2021, notes 4.0 and 5.0 respectively.

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9.2.1 Guiding Principles These are the principles which guide all the relevant actors when dealing with various trafficking-related issues or when implementing the anti-trafficking obligations as contained in the Action Plans.19 Both the 2015–2017 and 2018–2021 Action Plans contain five similar guiding principles upon which depends any successful implementation of the anti-trafficking obligations. All actors are required to make these principles paramount and the foundation or the overriding understanding upon which their anti-trafficking activities and actions are based upon. These principles are explained further herein below.

9.2.1.1

Government Ownership

The two Action Plans establish as one of the guiding principles that the Government of Tanzania owns the implementation of the National Action Plans as well as the anti-trafficking obligations under domestic and international law. In other words, the Government of Tanzania recognises that it possesses the mandatory, chief obligation to address trafficking in Tanzania as the leading actor.20

9.2.1.2

Stakeholders Participation

In addition to Government ownership, the Action Plans admit that trafficking affects the whole society and therefore, needs the support and co-operation of all sectors such as the Government Ministries, Departments and Agencies (MDAs), Local Government Authorities (LGAs), Civil Society Organisations (CSOs), international organisations, development partners and community groups. Only by a multi-sectoral endeavour of all these actors can a collective, positive response and action against trafficking be successful and possible.21

9.2.1.3

Human Rights-Based Treatment of Victims

The Action Plans require that all measures geared towards victims’ protection, support, assistance and rehabilitation should be based on the internationally, regionally and locally accepted standards of human rights treatment.22 They should be

19 Action

Plans 2015–2017 and 2018–2021, notes 6.0 and 5.0 respectively. Plans 2015–2017 and 2018–2021, notes 6.1 and 5.1 respectively. 21 Action Plans 2015–2017 and 2018–2021, notes 6.2 and 5.2 respectively. On the importance of this collaborative approach, see UNGA 2017, para 25. 22 UNODC 2009a, b, para 13. 20 Action

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accorded to all victims without discrimination on any ground.23 In the discharge of this obligation, the Government is enjoined to collaborate with the CSOs.

9.2.1.4

Interdisciplinary Co-ordination

The fourth guiding principle amplifies the second guiding principle further by obligating the Government to establish co-operation and co-ordination mechanisms among all its relevant ministries and agencies from central to the local government as well as to institute close engagements and interactions with CSOs, the private sector and other interested actors, including international organisations.24

9.2.1.5

Systematic Monitoring, Evaluation and Sustainability

The Action Plans instruct the Government and all the relevant actors to conduct periodic monitoring and evaluation on the implementation of the anti-trafficking measures.25 Monitoring and evaluation intend to ensure the sustainability of the obtained anti-trafficking results through an assessment of their effectiveness to ensure that the measures taken are up-to-date and reflect the best practices towards the combating of trafficking in Tanzania.26 The Action Plans, therefore, contain the responsibility, expected targets, budget and the time frame for each action.

9.2.2 Strategic Actions The Action Plans contain a total of eight (8) strategic actions which aim at prioritising the key intervention areas to be tackled by all concerned, relevant actors when implementing the Action Plans and the international anti-trafficking obligations. These eight (8) strategic actions which are detailed in the implementation matrix are explained herein below. 23 Action

Plans 2015–2017 and 2018–2021, notes 6.3 and 5.3 respectively. Plans 2015–2017 and 2018–2021, notes 6.4 and 5.4 respectively. 25 The impetus for systematic evaluation and monitoring is already urged upon by the UN Recommended Principles and Guidelines 2002, guideline 1(7) which requires states as well as intergovernmental and non-governmental organisations to consider: “establishing mechanisms to monitor the human rights impact of anti-trafficking laws, policies, programmes and interventions. Consideration should be given to assigning this role to independent national human rights institutions where such bodies exist. Non-governmental organizations working with trafficked persons should be encouraged to participate in monitoring and evaluating the human rights impact of anti-trafficking measures.” 26 Action Plans 2015–2017 and 2018–2021, notes 6.5 and 5.5 respectively. Milivojevic and Segrave argue that there is a need to conduct evaluation of anti-trafficking measures so as to gauge the impact of counter-trafficking responses, see Milivojevic and Segrave 2012, p. 235. See also UNODC 2009a, b, p. 7; Schrover 2015, p. 42. 24 Action

9.2 National Action Plans

9.2.2.1

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Policy, Legislation and Institutional Mechanisms

The first strategic action of the Action Plans requires the establishment of the legal framework which is overseen, supervised and implemented by the institutional framework. As discussed in Chaps. 7 and 8, the 2008 Act and its Implementing Regulations provide the legal framework overseen and supervised by the ATC with the assistance of its ATS which, on behalf of the Government under the Ministry of Home Affairs, co-ordinate and collaborate with various state and non-state actors to ensure the actual realisation and implementation of the anti-trafficking obligations. As part of the strategic action on policy, legislation and institutional measures, the 2018–2021 Action Plan contains three main activities as part of this strategic action, namely: to expeditiously amend the 2008 Act and its Implementing Regulations; institutionalise the ATS by 2021 according to the already proposed organisational structure as well as acquire work equipment; and develop the Strategic Plan by 2021 through the hiring of a consultant and convening the stakeholders meeting.27

9.2.2.2

Capacity Building for Skills Enhancement

In general, the second strategic action of the Action Plans aims at capacity building through the provision of knowledge and skills to all personnel of the MDAs, LGAs and CSOs, especially in the areas of policy, prevention, protection, assistance and prosecution. To achieve this strategic action, the Action Plans enjoin the Government to forge strategic alliances and engagements with local and foreign partners and experts in knowledge and experience sharing.28 Concerning capacity building for skills enhancement, the 2018–2021 Action Plan has one main activity which is building capacity to key stakeholders on management and on addressing trafficking cases. To achieve this, the capacity building requires assessment needs to be conducted together with conducting training to officers from MDAs, LGAs, CSOs, law enforcement officers (judiciary, police, immigration and prison) and other stakeholders.29

9.2.2.3

Prevention and Public Awareness Raising

This strategic action recognises that raising public awareness is one of the most effective strategies to combat and prevent trafficking because “it creates an informed,

27 Action Plan 2018–2021, pp. 15, 16. For the strategic action on policy, legislation and institutional mechanisms of the previous Action Plan, see Action Plan 2015–2017, p. 13. 28 Action Plans 2015–2017 and 2018–2021, notes 7.2 and 6.2 respectively. 29 Action Plan 2018–2021, p. 16. For the strategic action on capacity building for skills enhancement of the previous Action Plan, see Action Plan 2015–2017, p. 14.

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responsible and responsive society as trafficking in persons is a concern of all”.30 The strategic action requires the use of all forms of mass communication to educate and inform the public about the seriousness and impact of trafficking and its implications on human rights and national security. The overarching goal is to ensure that the general public is aware of the 2008 Act and its Implementing Regulations. The 2018–2021 Action Plan comprises of two main activities of conducting public awareness-raising programmes on trafficking and facilitating prevention interventions of trafficking. The 2018–2021 Action Plan contains several accompanying activities to the main activities. For the first main activity, these include conducting awareness-raising programmes to primary and secondary schools in several regions of Tanzania, conducting similar programmes in other regions through theatre art performances, developing, producing and disseminating awareness-raising materials, designing four television and radio programmes on trafficking issues and airing television and radio programmes on national and local stations. For the second main activity, the accompanying activities include conducting investigation and operations to identify perpetrators of trafficking and rescue the victims, co-ordinating and disrupting trafficking routes through community dialogue sessions to educate members of the communities and their local leaders, and introducing helplines to report suspects and rescue victims by convening consultative meetings with CSEMA,31 DSW,32 MCDGC33 on 116 toll and police on 111 toll-free to assist victims of trafficking.34

9.2.2.4

Victim and Witness Support and Protection

The fourth strategic action requires the Government, in co-operation with relevant stakeholders, to provide shelter and other necessary facilities according to the minimum international standards. Shelter and other necessary facilities should aim at providing comfort to the victims to enable them to feel safe, secure and protected and that any rehabilitation, repatriation and reintegration services should be friendly and based on the best practices so as to secure the mental and emotional well-being of the victims. This will not only put the victims in a better frame of mind but also will prepare them to assist in the investigation and prosecution of trafficking cases. The services to be offered should also include training and capacity building in “income generating skills, educational and recreational activities in order to empower victims

30 Action Plans 2015–2017 and 2018–2021, notes 7.3 and 6.3 respectively. See also Inter-Agency Coordination Group against Trafficking in Persons 2016a, b, p. 21. 31 “Children’s SEMA is a Swahili word which means speaking (National Helpline 116) literally means affording children opportunities and space to speak”, see Action Plan 2018–2021, p. 3. 32 Department of Social Welfare, see Action Plan 2018–2021, p. 3. 33 Ministry of Community Development, Gender and Children, see Action Plan 2018–2021, p. 3. 34 Action Plan 2018–2021, pp. 17–18. On the strategic action of prevention and public awareness raising of the previous Action Plan, see Action Plan 2015–2017, p. 15.

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and enable them to learn”.35 In addition, the ATS should work together with the DPP to explore and establish mechanisms for witness protection. The 2018–2021 Action Plan contains two main activities of providing support to victims of trafficking and facilitating victim protection. The sub-activities to the first main activity include: convening consultative meetings with AG Chambers, NGOs and TLS for the provision of free legal services to victims of trafficking; supporting all registered service providers to rehabilitate, reunify, reintegrate and repatriate victims of trafficking; and to construct four (4) government-owned protection shelters for victims of trafficking in four regions in Tanzania. The accompanying sub-activity for the second main activity is strengthening co-ordination in the implementation of witness protection measures.36

9.2.2.5

Communication, Co-ordination and Co-operation

The fifth strategic action mandates the Government of Tanzania to work together with relevant stakeholders such as CSOs, private sectors and the general public to address trafficking through the implementation of an integrated action on information sharing, entry points control, prevention, investigation and prosecution so that victims are protected and perpetrators are punished. Besides, the ATS is charged with the obligation to facilitate communication and co-ordination among the MDAs, LGAs, CSOs and international organisations and co-operation with other countries to implement the already instituted measures to combat trafficking in Tanzania.37 In the realisation of this strategic action, the 2018–2021 Action Plan has two obligations, namely, strengthening co-ordination and co-operation at national and international levels and strengthening co-operation among MDAs, LGAs, CSOs and other relevant stakeholders. The ensuing activities include: Tanzania’s participation in bilateral, sub-regional, regional and international anti-trafficking meetings; establishment of bilateral arrangements to assist victims of trafficking; participation in the National Protection Technical Committee; updating the National Directory and referral network of Government, private sector and civil society service providers on trafficking issues; and printing and distributing copies of the National Directory to relevant stakeholders.38

35 Action

Plans 2015–2017 and 2018–2021, notes 7.4 and 6.4 respectively.

36 Action Plan 2018–2019, p. 19. On the strategic action on victim and witness support and protection

of the previous Action Plan, see Action Plan 2015–2017, pp. 15–16. 37 Action Plans 2015–2017 and 2018–2021, notes 7.5 and 6.5 respectively. The impetus for cooperation stems from an appreciation that its absence not only fails to reduce trafficking in one region or country such as Tanzania, but also that it might actually operate to displace or shift trafficking to other countries or regions, see Inter-Agency Coordination Group against Trafficking in Persons 2016, p. 11; UNGA 2017, para 25. 38 Action Plan 2018–2021, pp. 20–21. See further Action Plan 2015–2017, pp. 16–17 for the strategic action on communication, co-ordination and co-operation.

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Research and Information Sharing

Notes 7.6 and 6.6 of the two Action Plans stipulate the sixth strategic action of research and information sharing. The strategic action requires the institution of systematic and effective information management through co-ordination and integration among all relevant agencies. The information management system will not only help to create public awareness but also will enable Government agencies to gather up-to-date, fast and reliable information for intelligence sharing and improvement of counter-trafficking measures. In addition, anti-trafficking research will help to identify trends in trafficking crimes, especially where crime syndicates are involved and its findings will be used as the baseline for concerted actions to address trafficking in Tanzania.39 In this area, the 2018–2021 Action Plan embraces two activities, namely, conducting research on trafficking and developing the National Management Information System (NMIS). The Action Plan has three sub-activities of: conducting a baseline survey on the magnitude of trafficking in potential routes used to transport victims, including the border between Tanzania and Kenya; building capacity to potential stakeholders on data collection and reporting on trafficking cases, especially as touching on identified and assisted victims as well as prosecuted cases; and actual development of the NMIS in Tanzania.40

9.2.2.7

Monitoring and Evaluation

In this strategic action, the implementation matrix is used to monitor and evaluate the implementation of the anti-trafficking obligations and activities as contained in the Action Plans. The purpose of the monitoring and evaluation is to gauge and assess anti-trafficking interventions’ effectiveness and the areas in which further action is required in the future Action Plans.41 In the realisation of this strategic action, the 2018–2021 Action Plan embodies one obligation, namely, facilitating monitoring, evaluation and reporting on the Action Plan’s implementation through: reviewing monitoring and evaluation (M&E) plan and tools; conducting training to key stakeholders on M&E tools; compiling, printing and disseminating reports to

39 The intention of this strategic action is, therefore, to ensure that any anti-trafficking measures and decisions taken are evidence-based. Evidence-based decision-making is effected when “the best available research evidence is combined with the field-based experience of experts or professionals and adapted to the specific implementation context as well as the preferences of those directly affected by the decision or intervention”, see ICAT 2016a, b, p. 6. 40 Action Plan 2018–2021, pp. 21–22. See further Action Plan 2015–2017, p. 17 on the strategic action of research and information sharing. 41 Action Plans 2015–2017 and 2018–2021, note 7.7 and 6.7 respectively. See further UNODC 2009a, b, p. 7. On the importance of this obligation, Chuang opines that there is “the need to ensure that existing counter-trafficking measures do not operate at cross-purposes with the goal of long-term prevention”, Chuang 2006, p. 156.

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implementing partners and relevant stakeholders; and conducting quarterly meetings for ATC members.42

9.2.2.8

Resource Mobilisation

The final strategic action requires the ATC and ATS to use various ways to solicit funds such as writing project proposals, round table sessions, fund raising events, forfeiture and confiscation of the proceeds of trafficking and Government budget allocation. The reason for taking this step is self-evident—effective implementation of the anti-trafficking obligations and the Action Plans requires enough resources.43 The 2015–2017 Action Plan had one activity of facilitating resource mobilisation through preparing project proposals, convening six (6) donor round tables and conducting two (2) fundraising events to mobilise resources.44 The 2018–2021 Action Plan contains similar main activity. Its sub-activities include conducting audits of resources for the implementation of the Action Plans, preparing a concept paper and convening one to one potential donor round table conversations to mobilise resources.45 The review of the two Action Plans reveals several important issues. The Action Plans provide concrete and tangible actions through which the anti-trafficking obligations under the 2008 Act and its Implementing Regulations are realised. The two Action Plans indicate that they need to be read together if one has to get the actual picture of how Tanzania has been able to implement its anti-trafficking obligations and activities in concrete terms. The review exhibits that the two Action Plans have put more emphasis especially on the obligations of preventing trafficking and supporting, protecting and assisting victims of trafficking. This is because the first obligation of having an effective, appropriate and adequate criminal justice response, as evidenced by the first strategic action of the Action Plans, is already in place. Therefore, even where resources of the Government might be limited, the Action Plans indicate the willingness of the Government of Tanzania to implement its anti-trafficking obligations. The review unveils that Tanzania has not implemented all of its anti-trafficking obligations at once. Due to its limited capacity and resources, it has focused on the few strategic actions which are implemented on a specific time frame to allow monitoring and evaluation to ensure sustainability and effectiveness of the anti-trafficking measures. This approach, somehow, mitigates the “subject to availability of resources” clause by indicating the level of commitment on the part of the Government based on the resources at its disposal.

42 Action

Plan 2018–2021, pp. 22–23. For the strategic action on monitoring and evaluation of the previous Action Plan, see Action Plan 2015–2017, p. 18. 43 Action Plans 2015–2017 and 2018–2021, note 7.8 and 6.8 respectively. 44 Action Plan 2015–2017, p. 19. 45 Action Plan 2018–2021, pp. 23–24.

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9.3 Case Law The courts in Tanzania have decided several cases of trafficking in persons. However, it has been difficult to obtain a compilation of all the decided cases. There appears to be no centralised system or a special collection in which decided trafficking cases can be found and located. In other situations, it has been possible to obtain the charge sheets and not the actual prosecuted cases. Nevertheless, the few decided cases the author has been able to obtain reveal certain pertinent legal issues that need to be discussed. Except for one case that has been decided by the High Court, the majority of the cases which will be examined here have been decided by the Kisutu Resident Magistrate Court in Dar es Salaam. Thus, the majority of these cases do not set any binding legal precedent for Tanzania because the Resident Magistrate Court is not a court of record. In Tanzania, only the High Court and Court of Appeal are the courts of records. Nonetheless, this book discusses these cases just to provide an overall objective direction regarding how the subject or crime of human trafficking has been approached in Tanzania by courts of law. In the ensuing discussion, these cases are examined in the light of the anti-trafficking principles already discussed. R v January John Karuba, Ntabi Erasto Rusanisha and Obedi Joshua Ntabi This is a charge sheet only. It has been difficult to obtain its actual decided case.46 In this charge sheet, the first and second accused are charged with two different crimes of trafficking in persons. In both counts, they are charged with severe trafficking in persons contrary to Sections 4(1)(a) and 6(2)(c) which criminalise the offence of severe trafficking in persons where the crime is committed by a syndicate or in large scale; and Section 6(4) which provides for the punishment. Regarding the first count, the first and second accused persons are charged with the commission of the offence by transporting nearly fifteen (15) people from Rwanda and Burundi to Tanzania under the pretext of overseas employment for the purpose of sexual exploitation between 1 April 2014 and 1 September 2014. In the second count, the first and second accused persons are charged with the commission of severe trafficking by harbouring the said transported persons in Dar es Salaam on 2 September 2014 for the purpose of sexual exploitation in Tanzania. Several legal issues can be pointed out here. Firstly, transporting and harbouring are treated as separate and independent constitutive conducts of the action element of the first act of trafficking under Section 4(1)(a). This reflects the legal position correctly.47 Nonetheless, charging the two accused persons with one crime with two different action elements is also legally possible where both actions emanate from the same criminal conduct done by the same perpetrators in the course of the trafficking

46 Kisutu Resident Magistrate Court, R v January John Karuba, Ntabi Erasto Rusanisha and Obedi

Joshua Ntabi, Charge Sheet, Criminal Case No. 44 of 2016 (Unreported). 47 See also Frescura 2006, p. 140.

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chain. This helps to avoid duplication and repetition of the same facts. In the case of Uganda v Umutoni Annet,48 the High Court of Uganda held that: It is permissible to charge an accused in one count in respect of acts which are stated in a way that shows separate actions done separately in one single transaction which constitutes an offence, for that reason the indictment would not be bad for duplicity. Accordingly, I find and hold that in the indictment before me there was no duplicity as the actions of abduction and deception, transportation and transfer of the victims in both count nos. 1 and 2 were all done in one transaction in this case.49

Therefore, while the constitutive acts of the action element can each stand as an independent action to sustain a charge, including several in one count where they all happened in the same transaction, including them in one count is legally permissible and actually helps to strengthen the case of the prosecution and avoids unnecessary duplicity.50 Second, the two counts clearly indicate the three elements that constitute the first act of trafficking in persons under Section 4(1)(a). These elements are transporting or harbouring persons by means of or under the pretext of overseas employment for the purpose of sexual exploitation. Third, the two accused persons are charged under Sections 4 and 6 together. Under Section 4, the two accused persons commit the first act of trafficking and under Section 6(2)(c) they are considered a syndicate as they are a group of two persons. Based on the charge sheet, their punishment is based on Section 6(4) and not under Section 4(5) of the 2008 Act. This indicates that Section 6 cannot be read in isolation from Section 4. This is because while Section 6 contains acts or circumstances that amount to severe trafficking in persons, it is Section 4 which actually criminalises the actual acts of trafficking in persons. John Njwanga v R This case arose from the District Court of Kyela at Kyela as criminal case no. 124 of 2010.51 In this case, the appellant was charged, convicted and sentenced to a 25-year imprisonment term with the offence of trafficking of person (a child) under Section 139A(1) of the Penal Code. The appellant decided to appeal to the High Court to have his conviction and sentence quashed. Although the High Court considered all the grounds of appeal raised by the appellant and found them to lack merit, of interest in the present examination is the High Court’s determination in relation to the offence of trafficking in persons. 48 High

Court of Uganda International Crimes Division at Kalolo, Uganda v Umutoni Annet, Criminal Judgment, 16 October 2014, HCT-00-ICD-CR-SC, No. 003 of 2014 (Unreported). https://sherloc.unodc.org/res/cld/case-law-doc/traffickingpersonscrimetype/uga/2014/uga nda_v__umutoni_annet_html/Uganda_v._Umutomi_High_Court_2014.pdf. Accessed 21 March 2019. Uganda v Umutoni Annet 2014. 49 Uganda v Umutoni Annet 2014, p. 24. 50 According to the High Court of Uganda, the test is whether there is failure of justice or the accused is prejudiced as the result. Therefore, where such approach results in the failure of justice or the accused person is prejudiced, it appears better to charge separate counts for each act of the action element, see Uganda v Umutoni Annet 2014, p. 24. 51 The case is cited as High Court of Tanzania at Mbeya, John Njwanga v R, Criminal Appeal, 30 December 2016, Criminal Appeal No. 124 of 2016 (Unreported).

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The High Court found that the Magistrate of the District Court at Kyela charged the appellant based on a non-existent provision which was repealed by Section 38 of the 2008 Act. However, the High Court found this omission curable and that “the particulars of the offence under the charge sheet were adequate to inform the appellant of the offence he was charged, and as such, they did not occasion any failure of justice on the part of the appellant”. According to the Judge, Sections 4 and 6 of the Act were the proper provisions to charge the appellant as these were intended to protect vulnerable persons and groups, including children. In fact, the Judge noted that the 2008 Act was enacted to protect vulnerable groups against trafficking and exploitation which “infringed human dignity and human rights” contrary to the Constitution of Tanzania and relevant international legal instruments. He established that where the victim of any act or offence of trafficking under Section 4 is a child, Section 6 should always be used to charge and convict the trafficker. The conviction of the appellant was confirmed, his sentence reduced to ten (10) years and ordered to pay the fine of three million Shillings (3,000,000) after completion of his sentence. While this decision is commendable, especially on the fact that it did not require the establishment of any means element to show that a child has been trafficked and that at all times in which a child is involved as a victim, a person needs to be charged and convicted under Section 6, several shortcomings need to be pointed out. While the High Court cited the provisions of Sections 4 and 6 verbatim, it did not state which offence under Section 4 did the appellant commit in relation to Section 6 of the 2008 Act. Consequently, the High Court failed to establish which ingredients of the crime of trafficking of children the prosecution needed to establish and prove to sustain its case. Similarly, the High Court, as a court of record, failed to expound the elements of the act of trafficking under which the appellant was charged and convicted with under Section 4 and neither did the court provide any considered legal jurisprudence on the provisions of Sections 4 and 6. It is not clear also how the High Court ordered that compensation under Section 15(1) of the 2008 Act should be paid after the appellant has finished serving his term of imprisonment. This would mean that the victim of trafficking will have to wait for the next ten years before actually obtaining his compensation. This approach might operate to delay or even deny the victim of trafficking of his right to compensation where after completing his imprisonment term, the convicted person is unable to pay the ordered compensation. As such this latter part of the judgment sets a wrong precedent.52 R v Ahmed Amrani Shebe In this case, the accused was charged with the first act of trafficking in persons under Sections 4(1)(a) and 4(5) of the 2008 Act for transporting another person to Pakistan by means of or under the pretext of apprenticeship for the purpose of debt bondage.53 Therefore, the action, means and purpose elements of the first act 52 On the role of the judges of national courts on expounding the international anti-trafficking norms, see Esser and Dettmeijer-Vermeulen 2016, pp. 91–105. 53 Kisutu Resident Magistrate Court, R v Ahmed Amrani Shebe, Criminal Judgment, 29 August 2018, Criminal Case No. 192 of 2017 (Unreported).

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of trafficking are indicated clearly. The Resident Magistrate, however, went on to dismiss the case because according to him, the evidence presented by the prosecution was not corroborated by anybody, the facts as constructed by the prosecution are very simple to make any sense and the case leaves a lot of unanswered questions which cast doubts that the prosecution has been unable to prove its case beyond a reasonable doubt. Like the decision in John Njwanga v R, the Court did not enumerate the ingredients of the offence which the prosecution needed to establish to sustain a charge against the accused person. Furthermore, the Court did not analyse the actual content of the three elements of the first act of trafficking so as to develop the legal jurisprudence in Tanzania. The Court focused more on the incompetence of the prosecution and the simplicity of its facts than on the legal analysis of the main provisions of the Act. While the Court rightly dismissed the case for prosecution’s failure to discharge its burden of proof, the failure by the court to provide its legal jurisprudence on the criminalisation provisions of the Act is regrettable. R v Samson Mbaria Pirias and Lohelo Boniphace Mwambulanga In this case, the two accused persons were charged with the offence of severe trafficking in persons under Section 6(2)(c) of the 2008 Act.54 The two accused persons were charged with transporting a victim from Kenya to South Africa for the purpose of forced labour. In this case, the Court noted that any charge of trafficking under Section 6(2) must indicate the purpose element for which a person is trafficked. This would require a person to refer to Section 4(1) of the 2008 Act which criminalises acts of trafficking and states their purposes. The Court also noted that the constitutive acts or circumstances under Section 6(2) are not cumulative and therefore, the establishment of any of the circumstances or act regarding any act of trafficking in persons suffices. With specific reference to Section 6(2)(c), it was submitted by the prosecution without Court’s objection that what matters in the definition of a syndicate is not the relationship of its members but the presence of more than one person committing the crime against a victim as in this case. The Court also considered that since the investigation of this case was still ongoing, the detention of the properties of the two accused persons which were used in the commission of trafficking should be left undisturbed. It was the view of the prosecution that any return of the properties to the accused persons might defeat the very purpose of confiscation should the Court find the two accused persons guilty. It is commendable that the Court was able to lay down the principle that the acts or circumstances under Section 6(2) do not apply cumulatively but rather separately and that the reason Section 6(2) needs to be read together with Section 4 is because Section 4 criminalises acts of trafficking and contains the purpose elements which Section 6 needs to indicate.55 Nevertheless, the Court seems to follow the same legal 54 Kisutu Resident Magistrate Court, R v Samson Mbaria Pirias and Lohelo Boniphace Mwambulanga, Criminal Judgment, 4 July 2017, Criminal Case No. 220 of 2017 (Unreported). 55 This reflects the proposal given by the UNODC Model Law 2009b, pp. 38–39 on aggravating circumstances, recommending that “all aggravating circumstances are linked to the offender who knowingly committed the crime of trafficking in persons”.

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mistakes as those of the previous decisions. For example, the means element in this case is missing, the ingredients the prosecution needs to establish to sustain its charge are absent as well, and a considered discussion of the actual content of the provisions of Sections 4 and 6, especially on the elements of trafficking or severe trafficking in persons, are also missing. The Court wrongly cites the law as the Anti-Trafficking in Persons Act 2003. R v Nelson Willness Kawa In this case, the accused person was charged with the offence of facilitating the trafficking of an adult victim from Tanzania to Oman under the pretext of overseas employment for the purpose of forced labour and involuntary servitude under Sections 4(1)(a) and 4(5) of the 2008 Act.56 In the end, the Court found the accused person not guilty of the offence and submitted that the prosecution has failed to discharge its case beyond a reasonable doubt. While the three elements of the first act of trafficking have been established, namely, the action element of trafficking a person, the means element of the pretext of overseas employment and the purpose element of forced labour and involuntary servitude, the actual analysis of these elements is missing. The court did not establish the offence’s ingredients which the prosecution is required to prove. Even if the facts and evidence were clear against the accused person, he would have been convicted and sentenced under the wrong provision of the law. According to the facts, the accused was alleged to have “facilitated” the trafficking of another person by helping him to get the passport unlawfully knowing that the intention of such facilitation is in furtherance of trafficking in persons. Therefore, the accused person was supposed to be charged under Section 5 which criminalises acts that promote or facilitate trafficking in persons. Furthermore, it seems that there would have been a justification for including Section 4(1)(a) also where, in addition to committing the offence under Section 5, the accused person actually committed the offence of trafficking in persons under Section 4. While this operates to indicate that a person can be charged together with the commission of several crimes from Sections 4, 5, 6, 7 and/or 8, it also reveals that the Court failed to bring out these legal issues more clearly. In addition, the Court seems to have dismissed the case on the inconsistencies of the facts as presented by the prosecution and the victim of trafficking and not the actual analysis of the law. Again, the court seems to take into account other factors legally irrelevant in the actual determination of the committed crime. For instance, the Court asks the question: Suppose if the situation was good and the work being conducive, would she return back to Tanzania…. The answer is definitely that she would remain in (sic) Oman making money. So her failure to perform the work because it was cumbersome cannot be hardened to the accused (sic) even if the accused assisted her in getting a passport (Emphasis added)

56 Kisutu

Resident Magistrate Court, R v Nelson Willness Kawa, Criminal Judgment, 14 and 29 December 2017, Criminal Case No. 198 of 2017 (Unreported).

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In other words, the Court is indirectly implying that where a person has been trafficked by another person for the purpose of forced labour or involuntary servitude, the fact that the trafficked person later on finds the work to be good, that should operate to exonerate the accused person or lighten his criminal liability. Put it differently, the Court seems to suggest that where the person has been trafficked for involuntary servitude or forced labour and where he earns money out of it (implied consent) but fails to perform the work because he considers it cumbersome or difficult, that is his problem and therefore, being forced or the difficult nature of the work should not incriminate the person who facilitated his trafficking.57 This reasoning is legally unsound for two reasons. In the first place, to sustain a conviction that a person has promoted or facilitated trafficking in persons, it has to be shown that he knowingly did an act with the intent to cause trafficking to occur, irrespective of whether trafficking actually occurred or is prevented from occurring. In the second place, where the person who facilitated trafficking is the person who also trafficked, the ingredients of the offence of trafficking need to be established. Offences such as forced labour require the prosecution to establish the presence of work or services, extracted under menace or threat of any penalty and the involuntariness on the part of the trafficked person. Proving these would require a consideration of the work in which the trafficked person is doing, the relation with his employer and whether there was willingness on his part. The fact that later on the trafficked person turns to love the work or fails to do the work for being “lazy” is, therefore, immaterial. A consideration of these cases as decided by the courts in Tanzania reveals a sharp contrast from similar cases decided in other Commonwealth jurisdictions. In some decisions from Uganda, the High Court of Uganda sitting at Arua has ruled that in a situation where the accused is charged with a count of aggravated trafficking in children for the purpose of use in witchcraft, rituals and related practices contrary to Section 5(f) of the Prevention of Trafficking in Persons Act of Uganda, the prosecution has the onus “to prove each of the ingredients beyond reasonable doubt before it can secure his (accused) conviction”.58 In this particular case, the prosecution, in addition to the requisite elements of the crime of trafficking of children, was required to establish three ingredients of the crime, namely: that the victim in each count was a child; that the victims were used or any of their body parts was used in witchcraft or harmful rituals and related to harmful human practices; and that it is the accused who used the victims or any of their body parts in such practices. The prosecution’s failure to establish these facts led to the dismissal of the case. 57 This, however, is not a legal position under national and international law. Under the AntiTrafficking in Persons Act 2008, “the presence of consent of the victim at one stage of the process cannot be taken as consent at all stages of the process. If there has not been consent at any stage of the process it means that the case is one of trafficking. This means that if a person consented to work abroad or to enter a country illegally, but did not consent to exploitation, an offence has been committed”, Tanzania Police Force 2014, p. 6. 58 High Court of Uganda at Arua, Uganda v Orwothwun Martin, Criminal Judgment, 7 August 2017, Criminal Session Case No. 0052 of 2017 (Unreported). https://sherloc.unodc.org/res/cld/ case-law-doc/traffickingpersonscrimetype/uga/2017/case_no__0052_of_2017_html/Case_no_0 052_of_2017.pdf. Accessed 21 March 2019 (Emphasis added).

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In the earlier case of Uganda v Umutoni Annet, the accused person was charged with two counts of aggravated child trafficking and human trafficking contrary to Sections 3(1)(a), 4(a) and 5(a) of the Prevention of Trafficking in Persons Act of Uganda.59 Having established all the facts and evidence of the parties, the High Court dedicated a considerable time to analyse the law. It stated the cardinal principle that “in all criminal cases, excepting a few statutory ones not including human trafficking, the burden of proof lies squarely upon the prosecution in regard to every essential ingredient of the offence”.60 The court laid down that to sustain its charge on aggravated child trafficking for each of the two counts, the prosecution has to prove the following five ingredients, namely: that the victim was a child; that there was transportation and transfer; such transportation or transfer was accomplished by means of the use of threat or use of force or other forms of coercion, of abduction, of fraud, of deception … or giving or receiving of payments or benefits…; for the purpose of exploitation; and that the accused person participated.61 Although the High Court had no reason to include the means element in its discussion on the trafficking of children, the case reveals the Court’s great understanding and appreciation of the legal issues relating to the prosecution of trafficking cases. While the High Court found that all the five ingredients were discharged by the prosecution for the first count, the lack or failure to prove beyond a reasonable doubt the age of the child victims as an ingredient of the offence led to the acquittal of the accused on the second count. Instead, the accused was found to have committed the offence of human trafficking under Section 3(a).62 The Ugandan approach has also been followed in Nigeria. In the case of the Attorney General of the Federation v Accused, the High Court of Nigeria considered the five counts of trafficking in persons charged against the accused person.63 The accused person was charged with the placement of any person in servitude as security for a debt owed contrary to Section 24(b) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003; transfer of a person so that such person should be held in slavery contrary to Section 24(a) of the same law; deceitful inducements of any person to go to any place contrary to Section 19(1)(b) of the same law; sale of any person as slave contrary to Section 23 of the same law; and trafficking of any person as slave contrary to Section 23 of the same law. In this case, the High Court formulated the ingredients of the five offences for which the accused person was charged. It was the view of the High Court that the prosecution could only discharge the burden of proof by sufficiently bringing evidence to prove each ingredient of each charged offence. It was understood that these elements or ingredients “are cumulative in character such that the absence of the proof of any of the elements is fatal to the case of the prosecution”.64 The accused was discharged 59 Uganda

v Umutoni Annet 2014. v Umutoni Annet 2014, p. 21. 61 Uganda v Umutoni Annet 2014, p. 22. 62 Uganda v Umutoni Annet 2014, p. 31. 63 Attorney General of the Federation v Accused 2007. 64 Attorney General of the Federation v Accused 2007, p. 23. 60 Uganda

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of all counts for prosecution’s failure to adduce evidence proving the ingredients of each count. Similarly, in the case of the Attorney General of the Federation v Franca Edith Asiboja,65 the accused person was charged with a total of seventeen (17) counts. She was discharged and acquitted on counts 2, 3, 6, 8, 9, 11, 12, 14, 15, 16 and 17 and was required to enter her defence for remaining counts 1, 4, 7, 10 and 13. In the first count, the accused was charged with the procurement of a person for prostitution contrary to Section 15(a) of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003. In the fourth count, the accused was charged with organising foreign travels to promote prostitution contrary to Section 16 of the same law. In count seven, the accused was arraigned for deceitful inducement contrary to Section 19(1)(b) of the same law. In count 10, she was charged with trafficking in slave contrary to Section 23 of the same law and finally, in count 13, the offence was slave dealing contrary to Section 24(c) of the same law. As in the previous decision, in this case, the High Court also analysed the basic ingredients of the offences the prosecution is supposed to prove beyond a reasonable doubt.66 In the end, the High Court established that only counts 1, 4 and 10 had their ingredients proved beyond reasonable doubt and for which the accused was convicted. The High Court went on to submit that not all offences of trafficking in persons need the physical presence of the accused to have them committed. There are several forms in which a person can participate in the commission of trafficking crimes and he will nevertheless be held responsible.67 This is already reflected in the criminalisation provisions of the Anti-Trafficking in Persons Act 2008, especially as stipulated under Section 7 according to which there are other forms in which a person can participate in offences

65 High

Court of Justice Edo State Benin Judicial Division at Benin City, Attorney General of the Federation v Franca Edith Asiboja, Criminal Judgment, 19 April 2007, Charge No. B/31C/2005 (Unreported). https://sherloc.unodc.org/res/cld/case-law/nga/2007/_hon__attorney_ general_of_the_federation_and_franca_edith_asiboja_charge_no._b31c2005.html/Hon._Att orney_General_of_the_Federation_and_Franca_Edith_Asiboja_Charge_No._B.31C.2005.pdf. Accessed 21 March 2013. 66 This approach is consistently followed also in High Court of Justice Anambra State Awka Judicial Division at Awka, Attorney General v Mrs. Felicia Okafor, Criminal Judgment, 12 May 2007, Suit No: A/12C/06 (Unreported); High Court of Justice Edo State Benin Judicial Division at Benin City, Attorney General of the Federation v Samuel Emwirovbankhoe, Criminal Judgment, 22 April 2008, Suit No. B/20C/2005(Unreported); Federal High Court of Nigeria Asaba Judicial Division Delta State, Federal Republic of Nigeria v Favour Anware Okwuede, Criminal Case Judgment, 28 September 2009, Charge No: FHC/ASB/24C/09 (Unreported). All these decisions are available from the United Nations Office on Drugs and Crime’s website at https://sherloc.unodc.org/cld/v3/ htms/cldb/search.html?lng=en#?c=%7B%22filters%22:%5B%7B%22fieldName%22:%22en% 23caseLaw@country_label_s%22,%22value%22:%22Nigeria%22%7D%5D%7D. Accessed 21 March 2019. 67 In the words of the High Court: “There is no need for the accused to be physically present… in order for her to commit the offences. Thus, she does not need to be with PW3 in order to procure her, or organize her foreign travel or traffic her. The accused as has been shown, carried out these acts through the instrumentality of a proxy,” Attorney General of the Federation v Franca Edith Asiboja 2007, p. 39.

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of trafficking in persons other than directly or physically being present or carrying out an act or offence of trafficking in persons. South Africa also seems to have taken a similar approach as that of Nigeria and Uganda. In The State v Onyekachi Okechukwu Eze,68 the accused was charged with nine counts. Of particular interests is the first count of illegal and intentional trafficking without consent for sexual purposes contrary to Section 71(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007. The Court considered that trafficking is a criminal process rather than a criminal action.69 After succinctly stating the facts of the case, the arguments and evidence as presented by parties, the Court understood that to find a person criminally liable for this offence, “it is necessary to undertake an examination of those elements which are relevant to the crime of trafficking in persons and which feature prominently in the present case. It is also necessary to highlight some of the principles underlying the crime.”70 The Court took a considerable time to analyse the material and mental elements as well as the three elements of the crime of trafficking in persons and how the facts and evidence as presented by the prosecution fulfil all the legal requirements. In the case of The State v Veeran Palan and Edwina Norris,71 the two accused were charged with ten (10) counts. Particular interest is paid to the first and second counts of illegal and intentional trafficking of the two victims without their consent for sexual purposes. From page 19 of the judgment, the Court devoted a considerable amount of time to explaining the international law on trafficking in persons under the Organised Crime Convention 2000 and the TIP Protocol 2000 and its domestication as well as its applicability in South Africa. The Court examined the three elements of the crime of trafficking in persons and how the facts and evidence of the prosecution correlate with the elements of the crime of trafficking.72 68 The

Regional Division of Gauteng Pretoria, The State v Onyekachi Okechukwu Eze, Criminal Judgment, 27 November 2017, Case No: 14/546/2013 (Unreported). https://sherloc.unodc. org/cld/v3/htms/cldb/search.html?lng=en#?c=%7B%22filters%22:%5B%7B%22fieldName% 22:%22en%23caseLaw@country_label_s%22,%22value%22:%22South%20Africa%22%7D% 5D%7D. Accessed 21 March 2019. The case was originally instituted under the previous law before South Africa enacted the Prevention and Combating of Trafficking in Persons Act No. 7 of 2013. However, in the discussion of the basic elements and ingredients of the crime of trafficking in persons, the Court uses the new law. 69 In the words of the Court: “The elements referred to in the definition are the result of a criminal strategy put in place by the perpetrators of this crime in order to secure the physical availability and presence of a victim by means of illicit means such as physical or psychological coercion, threats or use of force, abduction, abuse of power or abuse of a position of vulnerability, in order to exploit the victim sexually or for other purposes”, The State v Onyekachi Okechukwu Eze 2017, p. 25. 70 The State v Onyekachi Okechukwu Eze 2017, p. 25. 71 Regional Court of Kwazulu-Natal at Port Shepstone, The State v Veeran Palan and Edwina Norris, Criminal Case, 12 June 2015, Case No: RCD 13/14 (Unreported). https://sherloc.unodc.org/res/cld/case-law-doc/traffickingpersonscrimetype/zaf/2015/s_v_ veeran_palan_and_another_html/State_v_Palan_and_Norris.pdf. Accessed 21 March 2019. 72 The Court found: “the evidence clearly shows that accused 1 and 2 had employed deception to lure the two complainants to Port Shepstone for the purpose of getting them to engage in prostitution and provided the finances and means of transferring them there. They were also harboured and accommodated by accused 1. The women did not freely and with full knowledge of all the material

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These principles seem to have, somehow imperfectly, been followed in the Tanzanian case of R v Jackline Patrick Milinga & Others decided in 2017.73 In this case, the three accused were charged with recruiting and transporting ten persons from Tanzania under the pretext of overseas employment for the purpose of sexual exploitation in Nairobi, this being a crime of trafficking in persons contrary to Sections 4(1)(a) and 4(5) of the 2008 Act. According to the Magistrate, the prosecution was required to prove beyond reasonable doubts the following ingredients, namely: (I) that the accused together and jointly recruited the victims; (II) that the accused transported the victims under the pretext of overseas employment; and (III) that the accused recruited and transported the victims for the purpose of sexual exploitation.74 The Court took a considerable time to analyse the action element of recruitment and transportation and how the accused persons organised and achieved it. The Court also, based on the work description and the requirements the trafficked ten persons were required to comply with for their job in Nairobi, found that overseas employment was used as means to traffic them for the purpose of sexual exploitation. In the end, the three accused persons were all convicted on the strength of the prosecution’s case and its proof of the three elements of trafficking in persons as required by the law and as framed by the Court. Although the Court did not actually delve into analysing the criminal provisions of the 2008 Act or its fundamental anti-trafficking principles and its relation to TIP Protocol 2000, this case sets a good precedent to be followed by subsequent cases on trafficking in Tanzania. Additionally, the Court found that the three accused intended to smuggle the ten victims of trafficking to Kenya because some of them lacked valid travel documents to undertake the journey.75 In this sense, even though this aspect was not analysed in the judgment, the Court shows the proximity to the relationship that exists between the crimes of trafficking in persons and the smuggling of migrants in Tanzania. Based on this discussion, it is recommended that in all decisions touching on trafficking in persons in Tanzania, it is important for the courts of law to: be able to establish the undisputed facts of the case; formulate the basic ingredients of a particular act of trafficking in which the accused person is charged; ensure that the established ingredients follow or include the three elements of the crime of trafficking, unless the person trafficked is a child where the means element is not required76 or where a particular crime of trafficking lacks the three elements at once; require the prosecution to discharge its onus of proving beyond reasonable doubts facts consent thereto. Consequently both accused are found guilty of the main counts 1 and 2”, the State v Veeran Palan and Edwina Norris 2015, p. 25 (Emphasis added). 73 Kisutu Resident Magistrate Court, R v Jackline Patrick Milinga, Mary Judith Amukowa & Simon Alex Mgaya@Juma, Criminal Case, Judgment of 20 September 2017, Criminal Case No. 214 of 2015 (Unreported). 74 R v Jackline Patrick Milinga and Others 2017, p. 7. 75 R v Jackline Patrick Milinga and Others 2017, p. 16. 76 Magistrate Court for the Province of Masvingo, The State v Howard Munyanyi and 2 Others, Criminal Judgment, 3 July 2017, Case No. MSVP 804-6/17 (Unreported). https://sherloc.unodc. org/cld/case-law-doc/traffickingpersonscrimetype/zwe/2017/the_state_and_howard_munyanyi_ and_2_others.html?lng=en&tmpl=htms. Accessed 21 March 2019.

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through the establishment of the presence of all the ingredients of a particular act of trafficking against the accused; analyse the law from its international and domestic applicability; show the relationship between the various criminalisation provisions of the 2008 Act; and strive to develop the legal jurisprudence of Tanzania on trafficking offences through an analytical consideration and exposition on the acts of trafficking and especially on the constitutive components of the purpose elements which are left undefined or those defined, are still ambiguous and confusing.77 Emanating from the legal principles stated and applied in the case of The State v Veeran Palan and Edwina Norris, the courts in Tanzania need to be able to clearly bring to the surface the principles underlying the offences of trafficking in persons. This is important in the future so as to create legal certainty and predictability on cases of trafficking in Tanzania as well as for setting sound precedents for subsequent decisions.

9.4 Conclusion This chapter discussed and presented the institutional legal framework mandated to combat trafficking in persons and protect victims of human trafficking. It found that the institutional framework is robust, well-coordinated from the central to the local government level and is participatory in nature. If this institutional framework is staffed with experts and given sufficient budgetary allocation, the author argues that it can effectively discharge Tanzania’s anti-trafficking obligations. The chapter considered the National Anti-Trafficking Actions Plans 2015–2017 and 2018–2021 and found these Action Plans pragmatic and actually do provide a legal and administrative platform to assess and evaluate in concrete terms Tanzania’s implementation of its domestic and international anti-trafficking obligations. Although the clause on the availability of resources from the government is a serious setback, I argue that the Action Plans largely mitigate this setback and help to prioritise anti-trafficking actions of the Government of Tanzania. Finally, the chapter provided a limited comparative analysis of the case law on human trafficking from Tanzania and other jurisdictions. It has shown that courts in Tanzania are yet to fully grasp the extent of the domestic and international anti-trafficking law. This is indicated by the fact that in several times the provisions of the 2008 Act are cited verbatim without any further explanation, even the law is wrongly cited, particular ingredients to constitute a crime are not enumerated or even analysed and there is a general lack of jurisprudential analysis of the anti-trafficking legal provisions in general. The chapter argues, however, that Tanzania can improve this situation by, among others, learning from several other Commonwealth jurisdictions.

77 These

issues are comprehensively dealt with in UNODC 2017.

References

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References Anti-Trafficking in Persons (Establishment of Centres for Protection and Assistance of Victims) Regulations, Government Notice No. 27 of 30 January 2015. Anti-Trafficking in Persons (Prevention, Protection and Treatment) Regulations, Government Notice No. 28 of 30 January 2015. Anti-Trafficking in Persons Act, Act No. 6 of 2008, CAP 433. Aronowitz AA (2009) Human Trafficking, Human Misery: The Global Trade in Human Beings. Praeger Publishers, Westport. Bruckmüller K, Schumann S (2012) Crime Control versus Social Work Approaches in the Context of the “3P” Paradigm Prevention, Protection, Prosecution. In: Winterdyk J et al. (eds) Human Trafficking: Exploring the International Nature, Concerns, and Complexities. CRC Press, Boca Raton, pp. 103–128. Bruinsma G (ed) (2015) Histories of Transnational Crime. Springer, New York. Chuang J (2006) Beyond a Snapshot: Preventing Human Trafficking in the Global Economy. Indian Journal of Global Legal Studies 13(1)(5): 137–163. Esser LB, Dettmeijer-Vermeulen CE (2016) The Prominent Role of National Judges in Interpreting the International Definition of Human Trafficking. Anti-Trafficking Review 6: 91–105. Frescura L (2006) There Is No Escape from that Miserable Life. Empowering Women for Gender Equity 1(2): 133–144. Human Rights Council (2012) Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo. UN Doc. A/HRC/20/18, 6 June 2012. ICAT (2016a) A Toolkit for Guidance in Designing and Evaluating Counter-Trafficking Programmes: Harnessing Accumulated Knowledge to Respond to Trafficking in Persons. ICAT, New York. ICAT (2016b) Pivoting Toward the Evidence: Building Effective Counter-Trafficking Responses Using Accumulated Knowledge and a Shared Approach to Monitoring, Evaluation and Learning. ICAT, New York. Milivojevic S, Segrave M (2012) Evaluating Responses to Human Trafficking: A Review of International, Regional, and National Counter-Trafficking Mechanisms. In: Winterdyk J et al. (eds) Human Trafficking: Exploring the International Nature, Concerns, and Complexities. CRC Press, Boca Raton, pp. 233–264. Office of the United Nations High Commissioner for Human Rights (2002) Recommended Principles and Guidelines on Human Rights and Human Trafficking. UN Doc. E/2002/68/Add.1, 20 May 2002. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (2000), entered into force 25 December 2003. Republic of Kenya Ministry of Labour, Social Security and Services (2013-2017) The National Plan of Action for Combating Human Trafficking: Strategic Framework 2013-2017. Ministry of Labour, Social Security and Services, Nairobi. Schrover M (2015) History of Slavery, Human Smuggling and Trafficking 1860-2010. In: Bruinsma G (ed) Histories of Transnational Crime. Springer, New York, pp. 41–70. Tanzania Police Force (2014) Anti-Trafficking in Persons Act 2008: Training Manual on Investigations and Interviewing of Human Trafficking Offences. Tanzania Police Force, Dar es Salaam. United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2222 UNTS 209 (2000), entered into force 29 September 2003. United Nations General Assembly (2017) Trafficking in Women and Girls. UN Doc. A/RES/71/167, 2 February 2017. United Republic of Tanzania Ministry of Home Affairs (2015–2017) National Anti-Trafficking in Persons Action Plan (2015–2017). Ministry of Home Affairs, Dar es Salaam.

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United Republic of Tanzania Ministry of Home Affairs (2018) National Anti-Trafficking in Persons Action Plan (2018–2021), May 2018. Ministry of Home Affairs, Dar es Salaam. UNODC (2009a) International Framework for Action to Implement the Trafficking in Persons Protocol. UNODC, New York. UNODC (2009b) Model Law against Trafficking in Persons. UNODC, Vienna. UNODC (2017) Evidential Issues in Trafficking in Persons Cases: Case Digest. UNODC, Vienna. Winterdyk J et al. (eds) (2012) Human Trafficking: Exploring the International Nature, Concerns, and Complexities. CRC Press, Boca Raton.

Part III

Summary, Conclusion and Recommendations

Chapter 10

Summary, Conclusion and Recommendations

Contents 10.1 Comprehensive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481 10.2 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497 10.3 Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499

This final chapter of the book provides a comprehensive summary of the entire work. It gives an objective summary that restates the main arguments and findings that this book has presented from Chaps. 1 to 9. The book also provides a general conclusion and ends with a set of recommendations for the most prominent legal shortcomings that have been hereto identified.

10.1 Comprehensive Summary The objective of this book was to make an analytical examination of Tanzania’s framework on trafficking in persons in the light of international law (Sect. 1.2). To achieve the objective, the first part of the book first embarked on an analysis of the international legal framework on trafficking in persons. This analysis covers Chap. 2 (understanding trafficking in persons), Chap. 3 (international legal regime), Chap. 4 (state responsibility for trafficking) and Chap. 5 (anti-trafficking obligations). The second part of the book analyses Tanzania’s anti-trafficking legal framework. It is contained in Chap. 6 (trafficking in persons in Tanzania), Chap. 7 (criminal justice response), Chap. 8 (prevention of human trafficking and protection of victims) and Chap. 9 (institutional framework and the Action Plans). The present chapter, which forms the third part of the book, provides a comprehensive summary of the entire work, general conclusion and a set of recommendations. While it was possible to refer to the international legal framework directly within the framework of the Tanzanian analysis and therefore wholly discarding the first part, I thought it prudent to separate the two. In my opinion, while an anti-trafficking expert might find the analysis of Tanzania more interesting, persons unfamiliar with © t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8_10

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the subject, taking Tanzania into account, would like to understand first the foundation upon which the Tanzanian analysis is based. Furthermore, my book has indicated that before this study, there has been an astronomical paucity of information, jurisprudential court decisions and limited academic research on human trafficking in Tanzania. Thus, an objective and analytical examination of the Tanzanian situation could not be based on this underdeveloped jurisprudence. These two considerations are the main justifications for the approach this book has pursued. Additionally, although the first part on the international framework might appear to some as descriptive and therefore more of a textbook, its inclusion is necessitated by the fact that human trafficking is a growing academic field that requires constant research. Its developments are seen at the international, regional and state levels alike. For example, anti-trafficking legal developments at the level of the AU and its analysis are matters less dwelt upon by the normative discourse on trafficking (Sect. 3.2.4). Some of the recent policy documents of the EU and the CoE on trafficking have also been considered in this work (Sects. 3.2.2–3.2.3). Additionally, recent general comments and concluding observations of the treaty-monitoring mechanisms have been clear points of reference in the study (Sect. 3.3). These developments might not have featured prominently in the main discourse. The international legal framework on trafficking in persons is contained in the United Nations Convention against Transnational Organised Crime (Organised Crime Convention 2000) (Sect. 3.1.1) through the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime (TIP Protocol 2000, Sect. 3.1.2). In essence, Chap. 2 provided background information on the TIP Protocol 2000 (Sects. 2.1–2.3). It considered the pre-2000 anti-trafficking legal regime which was progressively contained in the International Agreement for the Suppression of the White Slave Traffic, 1904; International Convention for the Suppression of the White Slave Traffic, 1910; International Convention for the Suppression of the Traffic in Women and Children, 1921; International Convention for the Suppression of the Traffic in Women of Full Age, 1933; and ultimately, the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, 1949 (Sects. 2.1.1–2.1.2). The study pointed out the peculiar features of these instruments and how they immensely impacted the formulation, negotiation and adoption of the TIP Protocol 2000 and its current definition of trafficking in persons (Sects. 2.3 and 2.4). This was followed by a thoughtful, critical analysis of the definition of trafficking in persons as contained in the TIP Protocol 2000 (Sect. 2.4). The TIP Protocol 2000’s Article 3(a) definition’s basic features, namely the action element (recruitment, transportation, transfer, harbouring or receipt of persons), the means element (threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person) and the purpose element of exploitation (exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs) were encapsulated

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(Sects. 2.4.1–2.4.3). The book has not only explained the actual meaning of each of these elements, their individual constituent components and the rationales for their inclusion, it has also brought to light their inherent limitations, challenges they pose and the impact these have on the overall fight against trafficking in persons. The book ended on an optimistic note that, since its adoption, the TIP Protocol 2000 has proved a game-changer—it has obtained a near-universal acceptance and is constantly used as a benchmark for all anti-trafficking measures pursued by states across the globe. Thereafter, the book focused on understanding and providing an exposition of the basic features of the international anti-trafficking legal framework in Chap. 3. Although the Organised Crime Convention 2000 and the TIP Protocol 2000 form the primary legal framework on trafficking in persons, it is by no means a standalone regime. This primary legal framework is supported by regional specialty antitrafficking instruments and several other international soft law policy frameworks (Sect. 3.2). Thus, at the regional level we have the SAARC Convention 2002; CoE Anti-Trafficking Convention 2005; Directive 2011/36/EU; and the SEAN Convention 2015. As far as policy documents are concerned, the most seminal is the 2002 Recommended Principles and Guidelines on Human Rights and Human Trafficking and its Commentary from the United Nations Office of the High Commissioner for Human Rights. The basic features of this international framework were discussed briefly (Sects. 3.2.1–3.2.4). These features included the scope of application and purpose, penal and criminalisation provisions, investigation and prosecution, international co-operation, anti-trafficking prevention, and victims’ support, assistance and protection of their human rights. More importantly also, the book has provided a brief analysis of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime, 2000 (Migrant Smuggling Protocol 2000). Its analysis was used also to point the salient legal differences between the smuggling of migrants and trafficking in persons (Sect. 3.1.3). Chapter 3 also focused on the international human rights instruments (Sect. 3.3). According to my study and several others before, international human rights law is highly related to human trafficking. Principles, rights and obligations contained in the international human rights instruments apply equally to trafficked persons in various situations and circumstances. These situations and circumstances encompass victims of human trafficking being stateless persons, migrants, refugees, asylum seekers, women, (unaccompanied) children and aliens in the destination states. There is an international understanding that victims of trafficking, because of their various statuses of vulnerability, face a plethora of challenges and violations which impair their equal enjoyment of human rights, including unjustified, involuntary deportations, detention and prosecution for status offences and violation of immigration laws of the destination states. Of particular relevance to my study were the Universal Declaration of Human Rights 1948; International Covenant on Civil and Political Rights 1966; International Covenant on Economic, Social and Cultural Rights 1966; Convention on the Elimination of All Forms of Discrimination against Women 1979; International Convention on the Elimination of All Forms of Racial Discrimination 1965; Convention on the Rights of the Child 1989; Convention for the Protection

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of Human Rights and Fundamental Freedoms 1950; African Charter on Human and Peoples’ Rights 1981; American Convention on Human Rights 1969; International Convention on the Protection of All Migrant Workers and Members of Their Families 1990; and the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees 1967. My book has made a brief, yet analytical examination of the core principles and human rights protections of these instruments and their applicability to various trafficking in persons scenarios. Additionally, the study considered the various findings, concluding observations and general guidelines and comments issued by treaty-monitoring committees of these instruments touching on trafficking in persons. Overall, the monitoring committees seem to progressively require governments and states parties to include aspects of trafficking in persons in their reports and intervention measures as part of compliance with their international human rights obligations (Sect. 3.3). In Chap. 4, my book dwelt on the doctrine of state responsibility and its association with trafficking in persons. The basis for this approach was that generally and factually, trafficking in persons is a crime committed by private individuals and, as such, it does not implicate the state under international law. However, this is not to say or admit that because trafficking is generally or factually committed by private persons, then that is its legal characterisation. Certainly, that is not the case. A consideration of trafficking in persons as a crime committed mostly by private actors is factual but not a legal characterisation of the underlying act. Under international law, trafficking in persons is a crime that can be committed by state and non-state actors alike, only that the responsibility for each actor is different. It is for this reason that trafficking in persons is legally characterised as a human rights violation under international law where states are implicated and a criminal offence in the penal and criminal provisions of the states’ domestic legal regimes where private persons are responsible. In order to find situations and circumstances through which publicly and privately committed acts of trafficking would implicate the state, my study resorted to the 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts of the International Law Commission. Although the Draft Articles is a soft law instrument, my book has shown the Articles’ almost near-universal acceptance, not as a legal instrument, but as a restatement of the international customary law principles on the doctrine of state responsibility. Using the Draft Articles, the book has explained what amounts to the breach of states’ international obligations and its attribution to the states to ascertain their international responsibility for a particular internationally wrongful act. The principles enumerated here were used further to indicate circumstances of responsibility where trafficking is committed by public officials and non-state actors. To make the work more relevant and meaningful in relation to trafficking, the book applied the human rights’ internationally accepted standard of due diligence to specifically find circumstances through which states will be implicated for trafficking committed by private persons, thereby requiring them to take measures to remedy and rectify the violation. Having elucidated the basic principles of international state responsibility in Chaps. 4 and 5 of this book turned to states’ anti-trafficking obligations. Basically,

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this part intended to understand what duties and obligations the international antitrafficking framework envisages for states. Borrowing from Gallagher’s approach, the book categorised these obligations into the following three: the obligation of a criminal justice response; the prevention obligation; and the obligation of protection, assistance and remedies for victims (Sects. 5.1, 5.2 and 5.3). The obligation of a criminal justice response encompasses criminalisation of trafficking and related offences, the establishment of criminal jurisdiction, investigation, prosecution and adjudication, the imposition of sanctions and penalties, the institution of asset confiscation, recovery and use mechanisms and the development of robust international co-operation frameworks. The obligation to prevent trafficking entails that states prevent trafficking by addressing vulnerabilities to trafficking, removing the demand fostering trafficking and ensuring that the prevention of trafficking is lawful—not violating established principles and norms of international human rights law in the veneer of victims’ protection. The third obligation for states requires them to put into place mechanisms for identifying victims of trafficking, outlawing the penalisation or prosecution of victims of trafficking for offences resulting from trafficking, protecting victims from further harm, protecting their privacy and confidentiality, providing victims with physical (material) and psychological care and support, affording them with legal assistance and protection, putting into place mechanisms to allow lawful and voluntary repatriation, and finally, ensuring the presence of and access to effective and appropriate remedies for victims. All these obligations are contained in the international anti-trafficking legal framework. However, these obligations are stated clearly, more substantively and even more legally binding in some instruments than in others. Therefore, in the discussion of these obligations, the study has been able to also point out the weaknesses and strengths of some of these instruments in comparison to others. The second part of the book starts with Chap. 6. The chapter has provided background information on the problem of trafficking in persons in Tanzania and the early legal response before the year 2008. The problem of trafficking in Tanzania was articulated as early as the 1950s. Nonetheless, it was in the late 1970s that some reports and information on trafficking came to attention (Sect. 6.1.2). Most of these reports are traced through the communications between Tanzania and the Committee on Civil and Political Rights 1979, Committee on Economic, Social and Cultural Rights 1979 and the Committee on the Elimination of Discrimination against Women 1998. Fundamentally, it was during the early 2000’s and onwards that the current framework of Tanzania acquired its first legal structure. As it stands now, Tanzania is a source (origin), transit and destination country for trafficking in persons (Sect. 6.1.3). Although patterns of transnational trafficking are clearly visible in Tanzania, internal trafficking is more prevalent. Several factors have been responsible for the problem of trafficking in Tanzania. These include violence against women and children, economic inequality of women in comparison to men, unequal representation in decision-making bodies, unemployment, poverty, corruption, lack of capacity, personnel and resources as well as long, porous borders that remain under guarded (Sect. 6.1.4). My study has found that before 2008, Tanzania lacked specific legislation on trafficking in persons. Nonetheless, some of the earliest glimpses of the

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anti-trafficking legal response could be discerned from the Penal Code (Sect. 6.2.1). The Penal Code of Tanzania did not actually contain a clear provision prohibiting trafficking. Rather, it criminalised certain crimes which had a bearing on trafficking. These crimes would in today’s framework imperfectly fit into being either part of the action, means or purpose elements of trafficking in persons. These offences included procuration, householder permitting defilement of girls under twelve and sixteen, detention, living on the earnings of prostitutes, aiding and abetting prostitutes, keeping brothels, conspiracy to defile, kidnapping, abduction, buying or disposing of a person as a slave, slave dealing and forced labour. Due to some of the inherent weaknesses of the Penal Code and other criminal laws that were pointed out by the Law Reform Commission of Tanzania 1998 and due to Tanzania’s ratification of the Convention on the Rights of the Child, the Sexual Offences Special Provisions Act of 1998 (SOSPA) was adopted (Sect. 6.2.2). SOSPA amended several provisions of the Penal Code. Of particular interest for this book, SOSPA added a new Section 139A which criminalised the offence of trafficking of persons. Upon closer examination of Section 139A, my book has found that SOSPA did not criminalise trafficking as understood today. Rather, SOSPA criminalised two separate, unrelated crimes. The first crime was that of buying, selling or bartering a person for money or any other consideration. The second crime was that of facilitation, promotion or inducement of another person to buy, sell, barter or place (placement) for the adoption of another person, especially children through the use of unlawful means. At least imperfectly, the second crime seemed to have criminalised trafficking in persons for the purpose of child adoption. Tanzania Zanzibar, which forms part of the United Republic of Tanzania, has its own penal and criminal law, the Penal Act of Zanzibar of 2004 (Sect. 6.2.3). The Penal Act criminalises similar offences as SOSPA. Unlike SOSPA which was enacted in 1998, the Penal Act of Zanzibar is legally unfortunate. By the time the Penal Act was amended, the Organised Crime Convention 2000 and the TIP Protocol 2000 were already adopted. Instead of following the provisions of international law then, the Penal Act chooses the shortcomings of SOSPA for its provisions on trafficking in persons. These and several other shortcomings were pointed out by national and international stakeholders as impediments to Tanzania’s ability to prevent and combat trafficking (Sect. 6.3). As a response, Tanzania participated in the negotiation and later on signed the Organised Crime Convention 2000, the TIP Protocol 2000 and the Migrant Smuggling Protocol 2000 on 13 December 2000 and deposited the instruments of ratification on 24 May 2006. On 23 June 2006, the three instruments entered into force for Tanzania. Thereafter, Tanzania domesticated the TIP Protocol 2000 through the enactment of the Anti-Trafficking in Persons Act in 2008. Legally fortunate, the Anti-Trafficking in Persons Act 2008 applies to both Mainland Tanzania and Tanzania Zanzibar (2008 Act, Section 2). In 2015, nearly seven years after the 2008 Act was adopted, the Implementing Regulations 2015 were promulgated. These are the Anti-Trafficking in Persons (Establishment of Centres for Protection and Assistance of Victims) Regulations, Government Notice No. 27 of 30 January 2015 (Centres for Protection and Assistance Regulations 2015) and

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the Anti-Trafficking in Persons (Prevention, Protection and Treatment) Regulations, Government Notice No. 28 of 30 January 2015 (Main Regulations 2015). The 2008 Act, the Centres for Protection and Assistance Regulations 2015 and the Main Regulations 2015 form the anti-trafficking legal framework of Tanzania. This framework has been the subject of an analytical examination in the second part of this work from Chaps. 7 to 9. Chapter 7 has examined the obligation of a criminal justice response in the AntiTrafficking in Persons Act 2008. The simple approach to analysing the 2008 Act as used in this book not only ensures that the book is objective and simple to follow for any reader, it also harmonises well with the first part of this study on the international legal framework. Ideally, the three international anti-trafficking obligations would have been better studied together in one chapter as was done in Chap. 5. However, due to its special importance and centrality in the 2008 Act, the obligation of a criminal justice response has been treated separately from the remaining two. The analysis of the criminal provisions of the 2008 Act comprises the largest part of Chap. 7. Before embarking on analysing these provisions, my book brought to light some of the interpretational and problematic features of the 2008 Act’s criminal provisions (Sect. 7.1). The starting point was the term “trafficking in persons” itself. The 2008 Act does not directly define what trafficking in persons is. The definition of the term was formulated later in 2015 when its Main Regulations 2015 were adopted. Instead, Section 3 of the 2008 Act defines the term “exploitation” which in the context of trafficking under international law refers to the purpose of trafficking in persons. This is the third element of trafficking after the action and the means elements. My book found the 2008 Act’s approach to “exploitation” very peculiar. The 2008 Act defines exploitation in Section 3 in “relation to trafficking in persons”. In this book, I have argued that “in relation to trafficking in persons” should be construed as a reference to the criminal provisions of the 2008 Act (Sections 4–8). The 2008 Act lists as elements of exploitation the “people smuggling, prostitution and other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs” (Emphasis added). This is legally problematic for several reasons. Firstly, these forms of exploitation are not set “at a minimum” following the approach of the TIP Protocol 2000 and other specialty anti-trafficking instruments. This makes an implication that these forms of exploitation are final. However, as shown in this book, especially when one reads regulation 3 of the Main Regulations 2015, this is obviously not the case. Second, people smuggling (also migrant smuggling or the smuggling of migrants) is a different crime under international law which is governed by the Migrant Smuggling Protocol 2000 and not the TIP Protocol 2000. Treating migrant smuggling as an end purpose of trafficking not only obfuscates the difference between the two crimes, it actually imposes additional legal obligations on Tanzania to consider smuggled migrants as victims of trafficking and therefore accord them equal protections. However, an examination of Sections 23 and 46 of the Immigration Act indicates that this was neither the intention of the drafters nor of Tanzania. This is because the Immigration Act criminalises the crime of migrant smuggling while omitting the purpose element which under Article 3(a) of the Migrant Smuggling Protocol 2000 is

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referred to as the intention “to obtain, directly or indirectly, a financial or other material benefit”. Smuggled immigrants have been detained, prosecuted and even deported from Tanzania based on its immigration laws which do not regard them as victims. Furthermore, by omitting the purpose element for the crime of migrant smuggling, the Immigration Act somehow contradicts the provisions of the Migrant Smuggling Protocol 2000 which do not obligate states to criminalise facilitated migration not motivated by profit. Third, “prostitution and other forms of sexual exploitation” forms the second element of “exploitation” in the 2008 Act. However, under the TIP Protocol 2000 what states are required to consider is the “exploitation of the prostitution of others or other forms of sexual exploitation”. The TIP Protocol 2000 treats exploitation of the prostitution of others or other forms of sexual exploitation as two different forms of exploitation. The 2008 Act treats these two as one form of exploitation. It actually considers “prostitution” and not “exploitation of the prostitution of others”. This manner of drafting a legal provision creates legal uncertainty and adds a more evidential burden in the investigation and prosecution of trafficking cases. Fourth, these individual elements of “exploitation” differ widely from the individual elements of exploitation of the various acts of trafficking criminalised under Section 4 of the 2008 Act. One example suffices here. Section 4(1)(a) criminalises the first act of trafficking whose purpose element (exploitation) contains “prostitution, pornography, sexual exploitation, forced labour, slavery, involuntary servitude or debt bondage”. With the exception of “forced labour” and “slavery”, the remaining individual acts are different. To resolve this ambiguity and somehow create certainty and predictability, I devised a compromise approach in my book. In this compromised approach, all acts criminalised under Section 4 which reveal the three elements of trafficking were presumed to include elements of “exploitation” under Section 3 even when their individual elements are different. Where the acts criminalised under Section 4 reveal only two elements of trafficking or are drafted in an exclusionary manner, then elements of “exploitation” of Section 3 should be presumed excluded. According to my book, this approach resonates well with the intention of the drafters of the 2008 Act, who wanted trafficking to be criminalised comprehensively in Tanzania while taking its specific contexts and peculiarities into account. Fifth, the 2008 Act’s approach to “exploitation” is somehow different from that of regulation 3 of the Main Regulations 2015. According to the Main Regulations 2015, forms of exploitation are “at a minimum” and include “exploitation for the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or sale of human organs” (Emphasis added). Thus, the Main Regulations 2015 go beyond the 2008 Act to add “exploitation for the prostitution of others”, “other forms of sexual exploitation” and the “removal or sale of human organs”. It is not clear what exploitation for the prostitution of others means. While the exploitation of the prostitution of others centres not on the prostitution itself but on its exploitation to benefit another person, exploitation for the prostitution of others seems to suggest an emphasis on exploitation as a means to prostitute. This is legally confusing. To the form of exploitation of the “removal

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of organs”, the Main Regulations 2015 adds “sale of human organs”, a form of exploitation wholly distinct from the “removal of organs”. Therefore, there appear to be legal inconsistencies between the 2008 Act and the Main Regulations 2015. As shown in my book, sometimes the Main Regulations 2015 take a more correct legal position than the 2008 Act itself. My book has argued that the 2008 Act and the Main Regulations 2015 need to be read harmoniously with the TIP Protocol 2000 to achieve legal certainty. This is because the Preamble to the 2008 Act presumes that the Tanzanian legal framework supplements the international one. Sixth, certain definitions of key legal terms are misleading. For example, Section 3 of the 2008 Act defines forced labour to mean the same thing as slavery. Under international law, the two forms of exploitation are different. Lastly, my study has indicated that while the 2008 Act’s Preamble incorrectly cites the TIP Protocol 2000’s official name, the 2008 Act’s official Kiswahili nomenclature is even more misleading. The Swahili version of the law reads: Sheria ya Kuzuia Usafirishaji Haramu wa Binadamu, Sheria Na. 6 ya 2008. In English, this would mean the “Prevention of Illegal Transport in Persons Act”. Therefore, it fails to legally capture the actual meaning of trafficking in persons. My study has proposed that the Swahili nomenclature of the law should be amended to read: “Sheria ya Kuzuia Biashara Haramu ya Binadamu” or “Sheria Dhidi ya Biashara Haramu ya Binadamu”. “Biashara haramu” means “trafficking”, “binadamu” means “human beings” or “people” or “persons” and “kuzuia” means “to prevent”. “Dhidi” means “against” or “anti” while “Sheria” means the law or an Act of parliament. Generally, the 2008 Act prohibits the following offences, namely: acts of trafficking in persons [Section 4(1)]; trafficking for placement [Section 4(2)]; promotion, facilitation or procuration of trafficking (Section 5); severe trafficking (Section 6); trafficking by an intermediary (Section 7); and use of the services of trafficked persons (Section 8). Concerning acts of trafficking, Section 4(1) lists eight (8) different acts of trafficking (Sects. 7.2.1–7.2.8). For lack of a proper legal designation, my book proposed to refer to these acts as the first to eighth acts of trafficking. Thus, Section 4(1)(a) criminalises the first act of trafficking, Section 4(1)(b) the second act of trafficking, Section 4(1)(c) the third act of trafficking, Section 4(1)(d) the fourth act of trafficking, Section 4(1)(e) the fifth act of trafficking, Section 4(1)(f) the sixth act of trafficking, Section 4(1)(g) the seventh act of trafficking with two prohibited conducts and Section 4(2) the eighth act of trafficking (placement). The first to third acts of trafficking contain three elements of trafficking. Their purpose elements are all the same. Thus, other forms of exploitation included under Section 3 and regulation 3 of the Main Regulations 2015 form part of the first three acts of trafficking. The difference between the three acts of trafficking lies in their action and means elements. While the first act of trafficking has the action element of “recruitment, transportation, transferring, harbouring, providing or receiving”, the second and third acts have the same action elements of “acquiring, buying, offering, selling or trading” another person. The means element of the first act of trafficking includes “by any means, including those done under the pretext of overseas employment, training or apprenticeship”, thereby including any form of means a trafficker could use to obtain a person for trafficking. The means elements of the second and

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third acts of trafficking are quite specific and different. The second act of trafficking has “introducing or matching” a person to a foreign national for marriage and the third act of trafficking uses “offering or contracting” marriage. A cursory reading of the second and third acts of trafficking might indicate that these two “means elements” of the second and third acts of trafficking are their action elements. My book has found that they are not. A closer look indicates that these two acts have two double purposes, with their first purposes clearly reflecting similar action elements of the Penal Code’s crimes of buying or disposing of any person as a slave (Section 254) and slave dealing (Section 255). The action elements of these two crimes in the Penal Code include “importing removing, buying, selling, disposing, accepting, receiving or detaining” a person. Notably, in the second act, the foreign national is not the same as the person who introduces or matches while in the third act of trafficking, the trafficker uses marriage deceitfully as well as lawfully to traffic. The fourth to sixth acts of trafficking share one similar characteristic—they each contain only two elements of trafficking. Therefore, purposes other than what they prohibit are excluded. The fourth act has the action of “undertaking” or “organising” and the purpose element of “sexual exploitation”. In other words, the fourth act criminalises trafficking for the purpose of exploitation through participation in prostitution and pornography according to Section 3. Although Section 3 defines “sexual exploitation” as containing unlawful means, that does not appear to be a direct legal requirement of the fourth act. The fifth act of trafficking has the action element of “maintaining” or “hiring” another person to engage in prostitution or pornography. Unfortunately, the provision seems to prohibit consensual and forced engagement. This is because while “maintaining” implies a victim’s vulnerability and trafficker’s position of authority in relation to prostitution, “hiring” indicates consent or willingness without necessarily implying vulnerability or abuse of authority. The sixth act is very clear in that it prohibits adoption or facilitation of the adoption of children for the purpose of trafficking. Its lack of the means element is legally justified. As a rule of international law (Article 3(c) of the TIP Protocol 2000), the means element is not a legal requirement where a child is trafficked. Its presence only aggravates the crime. The seventh act of trafficking criminalises two separate conducts that share the same action element of “recruitment, hiring, adoption, transportation or abduction”. The difference lies partly in their means elements and more fundamentally in their purpose elements. The first conduct under Section 4(1)(g)(i) criminalises the recruitment, hiring, adoption, transportation or abduction of another person by use of unlawful means such as “threat or use of force, fraud, deceit, violence, coercion or intimidation” for the purpose of “removing or selling organs of that person”. This is not the same crime as trafficking for the purpose of the “removal” of organs. The latter crime is prohibited by the TIP Protocol 2000 and under Section 4(1)(a), 4(1)(b), 4(1)(c) and 4(1)f) of the 2008 Act. Section 4(1)(g)(i) specifically outlaws the “removal or sale of organs of the person”. Thus, both removal and sale are prohibited. As pointed out in Chap. 2 (Sect. 2.4.3.5), trafficking for the removal of organs under international law does not extend to include the removal or sale of a person’s cells or tissues. On the contrary, the 2008 Act does not take this approach. It defines “organs”

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under Section 3 as “any part of the human body which can be removed and used to sustain human life or for any purpose”. (Emphasis added). Thus, under the 2008 Act, human organs include tissues, cells and basically any part of the body. Furthermore, the 2008 Act adds an additional qualification to “any part of the human body”—it should be “capable of being removed” or detached or dismembered from the body. Thereafter, the removed organ (any body part) can be used to sustain human life or “for any purpose”. My book has argued that “for any purpose” is a very innovative clause as it has taken into account Tanzania’s notorious circumstance—that persons with albinism have been victims of attacks in which parts of their bodies (skin, eyes, hands, limbs, hair and even internal organs) have been eviscerated, detached or dismembered from their bodies and used for purposes connected with witchcraft. My book has contended that the only limitation this provision faces is that unless the action element of “recruitment” is interpreted as not necessarily requiring the element of “movement”, several victims who happen to have albinism might not be protected. This is because most of the attacks against persons with albinism have occurred without evidence of “movement” like in “abduction”. Such attacks against persons with albinism have even occurred in the absence of “hiring” or “adoption”. The second conduct of the seventh act criminalises the recruitment, hiring, adoption, transportation or abduction of a child or a disabled person for engaging them in “armed activities”. The means element has been omitted because trafficking of children, and by extension, trafficking of disabled persons under the 2008 Act, does not require the proof that unlawful means were employed. The 2008 Act does not prohibit the enlistment or conscription of children (or disabled persons) into the national armed forces. Rather, it prohibits their use or engagement in armed activities. The eight act of trafficking is the crime of trafficking for placement under Section 4(2) of the 2008 Act. Basically, it prohibits retrafficking or double-trafficking of the already trafficked person either through: sale of the trafficked person (placement for sale); use of the trafficked person to obtain subsequent payments through his services (bonded placement); short-term renting of the trafficked person for exploitation (temporary placement); or use of the trafficked person to offer unremunerated services to another person (placement as service). Thereafter, the 2008 Act criminalises the offence of promotion, facilitation or procuration of the acts of trafficking in persons under Section 5 (Sect. 7.2.9). The facilitator or promoter does not commit acts of trafficking. Rather, by his role, he enables acts of trafficking to be committed. Most of the acts of facilitation are quite clear in terms of their underlying acts. Unclear, however, is Section 5(2)(g) and 5(2)(h). Section 5(2)(g) seems unclear on how preventing a trafficked person from leaving Tanzania amounts to trafficking. Section 5(2)(h) limits the financial or other benefits the trafficker makes only from involuntary servitude, forced labour or slavery. Other forms of exploitation through which the trafficker obtains benefits are omitted. Section 6 of the Act criminalises severe acts of trafficking in persons (Sect. 7.2.10). Problematically, it criminalises circumstances that aggravate acts of trafficking into crimes. The provision’s limitation is its criminalisation of these “circumstances” and non-existent “acts” in Section 6. Instead, the 2008 Act was supposed to indicate that

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Section 6 directly aggravates acts of trafficking in Section 4 into severe trafficking when certain circumstances of Section 6 are present in Section 4. At least this is how the courts of law in Tanzania seem to interpret the provision. Section 7 of the 2008 Act criminalises trafficking by an intermediary (Sect. 7.2.11). Basically, the provision criminalises the acts of those persons who assist, aid, abet, counsel or procure the commission of acts of trafficking such that except for their intermediary role, trafficking might not have been committed. According to Section 22 of the Penal Code, these participants are all regarded as principal offenders. Finally, Section 8 criminalises the crime of buying or engaging the services of the trafficked person (Sect. 7.2.12). The crime is committed with knowledge of the user of the services that the person rendering the services is a victim of trafficking. The only shortcoming the provision poses is its limitation to prostitution only to the exclusion of other forms of exploitation. Partly, this problem might be remedied by Section 4(2) on trafficking for placement. Concerning the defence of consent in trafficking in persons, the position of international law is very clear that where unlawful means of trafficking has been used, consent of the victim is vitiated and cannot be pleaded as a defence (Article 3(b) of the TIP Protocol 2000). This approach is taken by Section 4(4) of the Anti-Trafficking in Persons Act 2008 (Sect. 7.4). Concerning the trafficking of children, this book has already indicated the international and domestic understanding that the means element is not a legal requirement and that its presence only aggravates trafficking. Nonetheless, the 2008 Act ends up hammering down its own legal understanding (Sect. 7.3). Section 4(3) reads that “where a victim of trafficking in persons is a child, consent of the child, parent or guardian of the child shall not be used as a defence in prosecution under this Act regardless of whether there is evidence of abuse of power, fraud, deception or that the vulnerability of the child was taken advantage of”. (Emphasis added). The study has found this provision problematic. Simply considered, Section 4(3) means that consent is irrelevant in the trafficking of children whether or not there is the use of unlawful means. The provision somehow seems to make room for the unlawful means to be part of the trafficking of children while denying the defence of consent. This is otherwise the international legal position on the trafficking of adults and not the children. More problematically, Section 4(3) confines itself to the few constitutive components of the means element to the exclusion of all others. My book has indicated that this approach ends up offering more protection to adult victims of trafficking than to children. Regulation 3 partly rectifies the damage when it states concerning the trafficking of children that “irrespective of the means applied”. The remaining provisions on a criminal justice response are less ambiguous. The 2008 Act’s provisions on the establishment of criminal jurisdiction for trafficking under Section 2 are quite clear when read together with Section 6 of the Penal Code (Sect. 7.5). Concerning the duty to investigate trafficking, the law places a mandatory obligation on the investigative authorities (Sect. 7.6). The law requires the investigative authorities to act lawfully, reactively and proactively. The only limitation of the 2008 Act in this area is to place a mandatory obligation on the

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victim of trafficking to report his trafficking or that of another person, unlike the Main Regulations 2015 which make this duty on the part of the victim hortatory and only mandatory on the part of “any person”. During judicial proceedings and adjudication, generally Section 9 is elaborate on the requirement that all proceedings should not impair the right to privacy and confidentiality of the victim (Sect. 7.7). Equally, the rights of the suspect should be respected. Concerning compensation, the 2008 Act has more imperative and elaborate provisions, unlike the weaker ones in the TIP Protocol 2000 (Sect. 7.8). Regarding sanctions and penalties, the law imposes fines, terms of imprisonment or both fines and terms of imprisonment for persons convicted of trafficking (Sect. 7.9). The only limitation the 2008 Act portrays is its lack of a provision on administrative, civil and criminal sanctions and penalties to legal persons. More importantly, the 2008 Act incorporates several provisions on the confiscation of the instruments, properties and proceeds generated from the commission of trafficking and their use to help victims of trafficking for damages, remedies and support facilities (Sect. 7.10). Finally, as part of the criminal justice response, the 2008 Act includes the obligations to collect and exchange information (Sect. 7.11) and the institution of effective mechanisms to enhance international anti-trafficking co-operation through, among others, mutual legal assistance and extradition (Sect. 7.12). Chapter 8 has examined the remaining two anti-trafficking obligations. The chapter first examined the prevention obligation (Sect. 8.1). Unlike the obligation of a criminal justice response, the 2008 Act lacks a clear part wholly dedicated to the prevention of trafficking. Only Section 24 which is subsumed within Part IV of the 2008 Act on rescue, rehabilitation, protection and assistance to victims of trafficking contains elements of the prevention obligation. Other provisions on prevention are scattered across the remaining parts of the 2008 Act. For this reason, my study has termed the prevention obligation a subsumed or scattered obligation in the 2008 Act. Nonetheless, Part II of the Main Regulations 2015 on preventive and combative measures contains the most extensive provisions on the prevention of trafficking. All the three composite obligations of the general prevention obligation, namely, addressing vulnerability, removing the demand fostering exploitation and responding lawfully, have been framed in very mandatory terms as duties imposed across several ministries and departments from the national to the local government level. The fact that these provisions are all framed in mandatory terms means that victims of trafficking possess a right to approach the courts of law for remedies when their trafficking results from Tanzania’s failure to comprehensively prevent trafficking. The obligation to prevent trafficking is only framed as a soft duty for non-state actors and other stakeholders such as the NGOs and CSOs. Unfortunately, the 2008 Act neither mandates the commercial transport carriers to ascertain whether their passengers have valid travel or identity documents nor imposes fines or sanctions for the failure thereof. Thereafter, the discussion turned on to the obligation to provide assistance, protection, support and remedies (Sect. 8.2). Generally, this obligation is based on the premise that trafficking is a human rights violation and a criminal offence entailing grave bodily, psychological, mental, physical and other health-related consequences

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to the victims. The composite elements of this obligation have been analysed comprehensively. On the obligation to identify victims of trafficking, the study has found regulation 3 of the Main Regulations 2015’s definition of a victim of trafficking somehow inadequate. The definition contains very limited individual components of the action, means and purpose elements which might indirectly exclude other persons from being identified as victims of trafficking. The obligation to identify victims is placed on “authorised officers” who include immigration officers, police officers, officers of the TRA, officers of the TISS and other public officers exercising powers of the law enforcement agencies. The same duty is placed on “any other person that has reasonable grounds to believe that a person is a victim of trafficking in persons”. The law requires that once identified, victims of trafficking should immediately be assisted with temporary basic support. The law further requires that these supportive measures should be given to victims, especially children and disabled persons, even when their identification as victims of trafficking is pending. Regarding the obligation not to punish victims for status offences whose purpose is to restrain states from turning victims of trafficking into criminals to be prosecuted, Section 34(1) of the 2008 Act makes this obligation mandatory. It requires the Government not to prosecute victims for crimes they committed as the result of being trafficked. Notwithstanding, the 2008 Act does not provide a blanket amnesty. Where the crimes committed are not directly linked to their being trafficked, the law waives their immunity. The study finds this provision reasonable as it safeguards the “victim status” from being used as a veneer for criminal activities. The next obligation is that of rescuing, protecting from further harm and respecting the victims’ privacy. The duty to rescue trafficked victims or potential victims from trafficking is placed on all public officers in the security services and law enforcement agencies as well as all public officers in the service of the Government of Tanzania and its ministries, agencies and departments. Equally, private entities such as NGOs and CSOs also are enjoined to participate in the rescue. The law requires that victims’ privacy, identity, confidentiality and protection of their private life be guaranteed. This guarantee includes safeguards and protection from potential stigmatisation, shame, intimidation, retaliation, retrafficking and humiliation from traffickers, family and community members. More importantly, the law requires the support and protection of the victims not to be conditioned on their willingness to give statements or participate in the investigation or prosecution of trafficking cases. The observance of this obligation is placed on all personnel and authorities that deal with victims of trafficking. Concerning the obligation to provide physical, social and psychological care, the 2008 Act crafts it as both an immediate obligation demanding immediate action or intervention and as a long term obligation of a continuing character requiring the taking of continuous measures that ultimately achieve the total recovery, rehabilitation, reintegration, reinstatement, reunification or resettlement of the victims. Their needs for health care and treatment, education and skills training, clothing, shelter and housing, counselling, nutritional requirements and psychological support should be provided adequately and effectively. The most profound limitation of this obligation is Section 18(3)’s problematic constraint. Section 18(3) states that the provision

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of support, assistance and protection is “subject to the availability of resources”, thereby rendering almost impracticable the fulfilment of the otherwise mandatory provisions of the 2008 Act. The next obligation requires the provision of legal assistance and legal protection. The premise for this obligation is that victims can access and have all their rights protected and also participate in the prosecution of their traffickers only if they are given access to legal assistance and protection. The 2008 Act requires this obligation to be given on a consensual basis thus, demanding that victims be given full information and disclosure regarding their rights and protection and support measures available for them. The 2008 Act includes this obligation and offers robust provisions granting victims of trafficking the right to remain in Tanzania for the protection of their rights pending the investigation and prosecution of their traffickers. Where it is impossible for them to be repatriated to their home countries, the law offers certain possibilities of victims applying and obtaining permanent residence in Tanzania. Regarding the obligation to repatriate foreign victims or receive Tanzanian victims of trafficking, the 2008 Act frames this as a co-operation obligation between Tanzania and other states. The 2008 Act requires repatriation to be done following the risk and security assessment. Furthermore, it obligates responsible authorities to consider the compassionate (personal), humanitarian (legal) and safety factors into account. According to the 2008 Act, repatriation is prohibited where these factors are in jeopardy and the assessment reveals that the rights of the victims or their family members might be violated in the destination countries. Thus, unlike the weaker provisions of the TIP Protocol 2000, the 2008 Act contains not only pragmatic, human rights-based provisions on repatriation but also prohibits involuntary, unsafe and random repatriations that disregard the best interests of the victims. Regarding the final obligation of access to effective and appropriate remedies, this book has found that this obligation has a constitutional basis. Although the Constitution of Tanzania is silent on the prohibition of trafficking, its provisions from Articles 12–29 provide a robust framework to protect victims of trafficking whose rights have been infringed by state or non-state actors through the Basic Rights and Duties Enforcement Act. These remedies to victims extend from the local to including access to international mechanisms such as courts, commissions and committees for the enforcement of their rights. The 2008 Act’s only limitation for this final obligation is its lack of a provision allowing victims of trafficking to institute independent civil suits to claim damages or restitution independent of the compensation or damages awarded by the courts during criminal proceedings against the accused persons. Overall, the 2008 Act puts an emphasis on the Government and its stakeholders to discharge their anti-trafficking obligations in a manner that takes into account the special needs of the victims such as women and more categorical emphasis on the special needs of the children and disabled victims of trafficking. Chapter 8 concludes its discussion through a consideration of the centres for the protection and assistance of victims (Sect. 8.3). The entire Centres for Protection and Assistance Regulations 2015 are dedicated to regulating the treatment of the victims of trafficking who have been placed at these centres. These centres are mostly run by

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private persons, NGOs and CSOs with the licence or supervision from the Government. The Centres for Protection and Assistance Regulations 2015 contain guiding principles, entitled rights, protection principles and victims protection procedures, all intending to ensure that victims of trafficking are not abused or mistreated during their stay at the centres. More importantly, the law lays down a very salient rule that placement at the centre is temporary, not exceeding six months, and should preferably be the last resort. My book finds this requirement needed and justified to avoid victims of trafficking ending up detained and their rights violated at these centres in the guise of protecting and assisting them. Chapter 9 of the book has provided an overview of the institutional framework mandated to supervise the implementation of the anti-trafficking legal framework of Tanzania. The study has indicated that this overall institutional responsibility is vested in the Ministry of Home Affairs (MoHA) through the ATC and its ATS (Sect. 9.1). The ATC and ATS liaise with all the Government MDAs in Tanzania Mainland and Tanzania Zanzibar together with all LGAs. In addition, the ATC and ATS collaborate with domestic private actors such as CSOs and Non-Governmental Organisations (NGOs). Through the responsible ministries, the ATC and ATS extend co-operation and collaboration with other governments, regional and international governmental and non-governmental organisations and the donor community. The study has found this institutional framework very comprehensive and capable of achieving maximum effectiveness if followed and allocated with sufficient funding and resources. Furthermore, the chapter has scrutinised the national anti-trafficking in persons’ action plans (Sect. 9.2). So far, Tanzania has adopted two national action plans, with the second one expiring in 2021. The Action Plans disaggregate the domestic anti-trafficking obligations in concrete goals that can be measured, monitored and evaluated to assess Tanzania’s level of commitment and the progress of implementation. This is done through the plans’ four (4) guiding principles and eight (8) strategic actions which are intended to be updated in each subsequent term. In the two Action Plans, my book has established that these Action Plans are an objective policy imperative that makes the assessment of Tanzania’s compliance with its domestic and international obligations more achievable and measurable. Thus, even where Government resources are limited, the Action Plans help the Government to direct its few resources into the areas prioritised in the Action Plans to achieve maximum outcomes. Finally, Chap. 9 provided a brief yet critical and analytical overview of some of the decided cases in Tanzania that relate to trafficking (Sect. 9.3). The study was able to access only a limited number of cases. Except for one case from the High Court, most of the cases have been decided by the Resident Magistrate Courts. Upon closer legal examination, the majority of these cases have revealed some disappointing results. They reveal a lack of legal appreciation or understanding of the basic principles of the crime of trafficking. They lack any clear analysis of the 2008 Act and its Implementing Regulations 2015 in the light of the principles of international law on trafficking in persons. Coupled with the absence of jurisprudential decisions from the High Court or the Court of Appeal of Tanzania, which are the courts of record and

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whose decisions bind lower courts, the cases collected and analysed in this study do not set better precedents for future decisions. This limitation necessitated a limited comparative study of some decisions from other Commonwealth jurisdictions in Africa. These jurisdictions were Uganda, Nigeria and South Africa. My book has found that the courts of law of all three jurisdictions seem to have followed sound legal principles in their domestic analysis of their legal frameworks according to the international anti-trafficking legal regime. The book has used these jurisdictions to suggest recommendations for improvement of the Tanzanian situation.

10.2 Conclusion This book has examined the subject of trafficking in persons from the international and national legal perspectives. The study has shown that the international legal framework on trafficking is contained in the Organised Crime Convention 2000 and the TIP Protocol 2000. This framework is supplemented by regional specialty instruments and several other human rights and related legal frameworks. The book has analysed in detail the internationally agreed-upon definition of what trafficking entails and its three elements. It has established that, despite being interrelated in some areas, human trafficking and migrant smuggling are two different crimes under international law governed by separate legal instruments. It has shown that the current definition of trafficking is more expansive and pragmatic compared to the limited approaches of the previous legal frameworks. For example, it recognises that trafficking affects all persons, extends beyond prostitution and exploitation of the prostitution of others and differentiates between trafficking in adults from trafficking in children. The book has demonstrated that states have anti-trafficking obligations to implement under international and regional law. Because trafficking is mostly committed as a private criminal conduct carried on by non-state actors, this study incorporated the principles of state responsibility to show circumstances upon which states incur responsibility for trafficking as measured by the standard of due diligence of the international human rights law. New developments in international and regional law on issues of trafficking, especially on the African continent, have been well presented in this study than in the previous studies on this discourse. The book has submitted, like many others before it, that while the international legal framework presents several challenges since its adoption, it has succeeded in shaping states’ domestic legislation, regional frameworks and states’ international co-operation. Concerning Tanzania, this book has found that the crime of trafficking was articulated since the 1970s. It has established that trafficking does happen in Tanzania, exacerbated by several causes, with Tanzania being the origin, transit and destination country in internal and transnational trafficking. The study noted that the initial antitrafficking legal measures were taken by Tanzania through the Penal Code and the Sexual Offences Special Provisions Act of 1998 (SOSPA). While intending to criminalise trafficking, the study has submitted that SOSPA failed considerably in this

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task when gauged by the standards of the current law. Even the Penal Act of Zanzibar, which came after the adoption of the Organised Crime Convention 2000 and the TIP Protocol 2000, repeats similarly the legal mistakes characterising SOSPA. Following these shortcomings and the concerns raised by national and international stakeholders, Tanzania decided to give effect to its international commitment by domesticating the TIP Protocol 2000 through the enactment of the Anti-Trafficking in Persons Act 2008 which applies to both Tanzania Mainland and Tanzania Zanzibar. On a criminal justice response obligation, the book has examined and analysed the law, finding that the 2008 Act, while criminalising the crime of trafficking mostly according to international law, has several provisions which are contrary to Tanzania’s commitment. Some of its provisions copy verbatim the provisions of international law without further clarity, create new crimes such as placement and exploitation for the prostitution of others without certainty on their criminal ingredients, confuse certain crimes such as trafficking in persons from migrant smuggling and slavery from forced labour and fail to comprehensively criminalise certain crimes such as severe trafficking in persons, trafficking for the purpose of sale or removal of human organs, the buying or engaging the services of the victims of trafficking for prostitution as well as trafficking for the purpose of sexual exploitation in relation to prostitution, pornography and “other forms” of sexual exploitation. Its definition of the term exploitation is somehow ambiguous and lacks direct applicability to the criminalisation provisions of the 2008 Act. The provisions of the 2008 Act on the trafficking of children suggest to offer more protection to adult victims of trafficking than to child victims. Furthermore, the study has found that the 2008 Act unnecessarily places a mandatory obligation on the victims of trafficking to report, unlike the Main Regulations 2015 which place a soft obligation. Also, the study has submitted that while the 2008 Act barely recognises the criminal liability of legal persons, it lacks provisions on penalties and punishments to legal persons. The book has pointed out that the crime of trafficking by an intermediary, especially its second alternative, unless well clarified by practice or the courts of law, it presents a clear interpretative challenge in relation to the acts of trafficking under Section 4(1) of the 2008 Act. This book has affirmed that by considering smuggling in migrants as one of the end purposes of trafficking, Tanzania has been acting contrary to its international commitment in the way it treats migrants and that this problem is further exacerbated by the Immigration Act of Tanzania which criminalises migrant smuggling by omitting the mental element of the intention to obtain “financial or other material benefit”. Nevertheless, unlike the weaker provisions of the TIP Protocol 2000, the 2008 Act uses a stronger and imperative language on the powers of the courts to order compensation and imposes a mandatory requirement to protect and respect the rights of the victims in the investigation and prosecution of trafficking. The 2008 Act as well places a mandatory obligation on the Government of Tanzania to collect and exchange information as well as co-operate with other governments and organisations in preventing and combating trafficking. Although the Main Regulations 2015 contain extensive provisions on the obligation to prevent trafficking, the 2008 Act lacks a clear Section dedicated entirely to the discharge of this obligation and the study has argued that this obligation is,

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therefore, a scattered or subsumed obligation in the Act. While the book finds that this obligation is couched in mandatory terms, it is not comprehensive in some areas, especially as it lacks a provision on the duties of and punishments to commercial carriers in relation to trafficking. The 2008 Act and the Main Regulations 2015 consider the obligation of assistance, protection, support and remedies as both an immediate obligation and a longterm obligation of a continuing character. Most of the provisions follow those of international law and, although there are some shortcomings, in certain respects, the 2008 Act and its Main Regulations 2015 have gone a step further than anticipated in international law. For example, the 2008 Act and its Main Regulations 2015 state categorically that victims of trafficking have a mandatory and enforceable right, prohibit involuntary and unsafe repatriations and offer more protection even to disabled persons. Notwithstanding, the 2008 Act and its Main Regulations 2015 are weak for the lack of a provision on independent civil claims by victims of trafficking and for subjecting this obligation to the “subject to availability of resources” clause. Finally, the book has analysed the institutional framework, the national antitrafficking Action Plans and the case law. It has found that the institutional framework, which is spearheaded by the MoHA through the ATC and the ATS, is an inclusive one as it incorporates also other ministries, departments and even private stakeholders. The book has established that by adopting the Action Plans, Tanzania evidences the implementation of its anti-trafficking obligations in concrete and measurable outcomes. Equally, the book has taken a preliminary, critical look at the case law of Tanzania in comparison to other Commonwealth jurisdictions. The book noted that courts of law in Tanzania are yet to fully discharge their judicial task effectively due to the failure to expound the principles upon which national and international anti-trafficking law is based upon, thereby failing to develop the legal jurisprudence of Tanzania in this area. This book concludes that, despite its several shortcomings, Tanzania’s legal and institutional framework is very pragmatic and progressive in most areas when compared to the provisions of international law. Overall, the study suggests that the law needs several amendments to make the framework comprehensive and effective.

10.3 Recommendations Based on the findings and the conclusion as stated, the book proposes several recommendations. On the criminalisation provisions, this book proposes that: 1.

2.

Section 3 of the 2008 Act should be amended to include the definition of the new added crimes or forms of exploitation such as placement for sale, armed activities and trafficking for the exploitation for the prostitution of others. Section 3 of the 2008 Act should be amended to remove people smuggling as a manifestation of trafficking by having a special section dealing with the crime

500

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

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of migrant smuggling. Alternatively, since the crime of migrant smuggling has been criminalised already in the Immigration Act, the Immigration Act should be amended to include the element of the intention to obtain a financial or other material benefit. Sections 3, 4(1)(c) and 4(1)(f) of the Act should be amended so that slavery and forced labour are treated as different crimes with separate definitions following the position under domestic and international law. Section 3 of the Act and regulation 3 of its Main Regulations 2015 need amendments to avoid repetition and ambiguity in the criminalisation of the crimes of trafficking for the purpose of prostitution, pornography, sexual exploitation, prostitution and other forms of sexual exploitation and exploitation for the prostitution of others and other forms of sexual exploitation. To better protect persons with albinism, the Act should be amended under Section 4(1)(g)(i) so that the crime of trafficking for the purpose of removal or sale of human organs does not at all times require the element of movement in its action element. To comprehensively protect all persons, the law should be amended in Section 4(1)(g)(ii) so that the crime of trafficking for the engagement in armed activities includes adults as well, in addition to children and disabled persons. The provision of the law on the trafficking of children under Section 4(3) must be amended following the position of international law to offer more protection to child victims of trafficking. Section 8 should be amended so that the crime of buying or engaging the services of the victims of trafficking goes beyond prostitution. This recommendation applies also to Section 5(2)(h) which criminalises the crime of promoting or facilitating the commission of trafficking only when a person benefits financially from the labour or services of a person held under a condition of involuntary servitude, forced labour or slavery. Sections 3 and 4 of the law as well as regulation 3 of the Main Regulations 2015 should be amended to indicate the relationship between the various criminalised acts of trafficking and the element of exploitation. The Preamble both in the English and Swahili versions of the law should be amended to correctly cite the TIP Protocol 2000 according to its official nomenclature. The law should contain a specific provision on the criminal liability of legal persons and the imposition of sanctions on them whether as civil, administrative or criminal. The crime of severe trafficking under Section 6 should partly be amended to directly reflect its relation to the remaining criminalisation provisions of the Act. The Act should be amended to demarcate its position with the Main Regulations 2015, especially in situations where the Main Regulations 2015 take a position which is legally more correct than the Act.

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14. The definition of who the victim of trafficking is under regulation 3 of the Main Regulations 2015 should be amended to make it more expansive so as to include other victims who might otherwise remain unprotected. 15. The second and third acts of trafficking under Section 4(1)(b) and 4(1)(c) should be amended so that their first purpose elements are clearly designated as their action elements. 16. The Act should include a definition of what amounts to “rest or recreational periods” for members of the military for the purpose of criminal responsibility in the fourth crime of undertaking or organising sex tourism or sexual exploitation under Section 4(1)(d). 17. The law needs an amendment clarifying how preventing a trafficked person from leaving Tanzania amounts to promoting or facilitating the commission of the crime of trafficking under Section 5(2)(g) of the Act. 18. The crime of trafficking in persons by an intermediary needs clarification on its relation to the acts of trafficking under Section 4(1) and 4(2). 19. The Swahili official nomenclature of the law needs to be amended to rather read Sheria Dhidi ya Biashara Haramu ya Binadamu as this correctly reflects the content of and is consistent with the English version of the law. On the obligation to prevent the crime of trafficking, this book recommends that: 1. In addition to having Part II in the Main Regulations 2015 dedicated to preventing and combating trafficking in Tanzania, the 2008 Act should be amended to include a specific section on preventing trafficking, and; 2. The 2008 Act should impose a direct obligation on commercial carriers to ascertain whether their passengers have travel or identity documents and should impose corresponding sanctions or fines for their non-compliance. On the obligation of assistance, protection, support and remedies, this book recommends that: 1. The Act should be amended to contain a specific provision allowing victims of trafficking to institute independent civil suits. 2. The “subject to availability of resources” clause under Section 18(3) of the Act should be removed as an indication of Tanzania’s commitment to protect, assist and support victims of trafficking.

Table of Cases

African Commission on Human and Peoples’ Rights, Institute for Human Rights and Development in Africa v. Republic of Angola, Human Rights Judgment, 22 May 2008, Communication No. 292/04. Court of Appeal of Tanzania at Dar es Salaam, The Attorney General v. Dickson Paulo Sanga, Appeal from the Judgment and Decree of the High Court of Tanzania, Main Registry at Dar es Salaam, Civil Appeal No. 175 of 2020, Judgment of 5 August 2020 and 6 August 2020 (Unreported). District of New South Wales, R v NETTHIP, Judgment of 30 July 2010, (2010) NSWDC 151. https://sherloc.unodc.org/res/cld/case-law/aus/2010/r_v_net thip_2010_nswdc_159_html/R_v_NETTHIP_2010_NSWDC_159_30_July_2 010.pdf. Accessed 22 March 2019. Ecowas Community Court of Justice, Hadijatou Mani Koraou v. Republic of Niger, Human Rights Judgment, 27 October 2008, Judgment No. ECW/CCJ/JUD/06/08. European Court of Human Rights Court (Plenary), The Case of Soering v The United Kingdom, Human Rights Judgment, 7 July 1989, Application No. 14038/88. European Court of Human Rights Fifth Section, Case of El-Masri v The Former Yugoslav Republic of Macedonia, Human Rights Judgment, 13 December 2012, Application No. 39630/09. European Court of Human Rights First Section The Case of Hoti v. Croatia, Human Rights Judgment, 26 April 2018, Application no. 63311/14. European Court of Human Rights First Section, Case of Chowdury and Others v Greece, First Section Judgment, 30 March 2017, Application No. 21884/15. European Court of Human Rights First Section, Case of Rantsev v. Cyprus and Russia, Judgment (Merits and Just Satisfaction), 7 January 2010, Application No. 25965/04. European Court of Human Rights First Section, Case of S.M v Croatia, First Section Judgment, 19 July 2018, Application No. 60561/14) (Case referred to the Grand Chamber). European Court of Human Rights Fourth Section, Case of C.N. v. The United Kingdom, Human Rights Judgment, 13 November 2012, Application No. 4239/08. © t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8

503

504

Table of Cases

European Court of Human Rights Fourth Section, Case of Finucane v The United Kingdom, Human Rights Judgment, 1 July 2003, Application No. 29178/95. European Court of Human Rights Grand Chamber, Case of Jeronoviˇcs v Latvia, Chamber Judgment, 5 July 2016, Application No. 44898/10. European Court of Human Rights Second Section, Case of Siliadin v. France, Human Rights Judgment, 26 July 2005, Application No. 73316/01. European Court of Human Rights, Case of Osman v The United Kingdom, Human Rights Judgment, 28 October 1998, Application No. 87/1997/871/1038. European Court of Human Rights, Costello-Roberts v the United Kingdom, Chamber Judgment, 25 March 1993, Application No. 13134/87. Federal High Court of Nigeria Asaba Judicial Division Delta State, Federal Republic of Nigeria v Favour Anware Okwuede, Criminal Case Judgment, 28 September 2009, Charge No: FHC/ASB/24C/09 (Unreported). https://sherloc.unodc.org/ res/cld/case-law/nga/2009/federal_republic_of_nigeria_and_favour_anware_ okwuede_charge_no__fhcasb24c09.html/Federal_Republic_of_Nigeria_and_ Favour_Anware_Okwuede_charge_No.FHC.ASB.24C.09.pdf. Accessed 20 July 2020. High Court of Australia, The Queen v Tang, Appeal Judgment, 28 August 2008, [2008] HCA 39. High Court of Justice Anambra State Awka Judicial Division at Awka, Attorney General v Mrs. Felicia Okafor, Criminal Judgment, 12 May 2007, Suit No: A/12C/06 (Unreported). https://sherloc.unodc.org/res/cld/case-law/nga/2007/_ attorney_general_of_the_federation_and_felicia_okafor_suit_no__a12c06.html/ Attorney_General_of_the_Federation_and_Felicia_Okafor_Suit_No._A.12C. 06.pdf. Accessed 20 July 2020. High Court of Justice Edo State Benin Judicial Division at Benin City, Attorney General of the Federation v Samuel Emwirovbankhoe, Criminal Judgment, 22 April 2008, Suit No. B/20C/2005 (Unreported). https://sherloc.unodc.org/ res/cld/case-law/nga/2008/attorney_general_of_the_federation_and_samuel_ emwirovbankhoe_suit_no__b20c2005_.html/Attorney_General_of_the_Federa tion_and_Samuel_Emwirovbankhoe_Suit_No._B.20C.2005.pdf. Accessed 20 July 2020. High Court of Justice Edo State Benin Judicial Division at Benin City, Attorney General of the Federation v Franca Edith Asiboja, Criminal Judgment, 19 April 2007, Charge No. B/31C/2005(Unreported). https://sherloc.unodc.org/res/cld/ case-law/nga/2007/_hon__attorney_general_of_the_federation_and_franca_ edith_asiboja_charge_no._b31c2005.html/Hon._Attorney_General_of_the_Fed eration_and_Franca_Edith_Asiboja_Charge_No._B.31C.2005.pdf. Accessed 21 March 2013. High Court of Tanzania at Dar es Salaam, Dickson Paulo Sanga v. The Attorney General, Miscellaneous Case, Civil Case No. 29 of 2019, Judgment of 19 February 2020 and 18 May 2020 (Unreported). High Court of Tanzania at Mbeya, John Njwanga v R, Criminal Appeal, 30 December 2016, Criminal Appeal No. 124 of 2016 (Unreported).

Table of Cases

505

High Court of Tanzania, Bernado Ephraim v Holaria Pastory & Another (1990) LRC 757. High Court of Tanzania, D.P Valambhia v Transport Equipment LTD (1993) TLR 91. High Court of Tanzania, Masudi v R (1971) HCD 75. High Court of Uganda at Arua, Uganda v Orwothwun Martin, Criminal Judgment, 7 August 2017, Criminal Session Case No. 0052 of 2017 (Unreported). https://sherloc.unodc.org/res/cld/case-law-doc/traffickingpersonscrimetype/uga/ 2017/case_no__0052_of_2017_html/Case_no_0052_of_2017.pdf. Accessed 21 March 2019. High Court of Uganda at Kampala, Plaintiff v Hasan Awdi, Ali Wadi, Advan Fanjan Redhi and Awdi Sonic (U) LTD, Civil Judgment, 30 January 2015, Civil Suit No. 95 of 2012 (Unreported). https://sherloc.unodc.org/res/cld/case-law-doc/trafficki ngpersonscrimetype/uga/2015/civil_suit_no__95_of_2012_html/Awdi_Civil_2 015.pdf. Accessed. 21 March 2019. High Court of Uganda International Crimes Division at Kalolo, Uganda v Umutoni Annet, Criminal Judgment, 16 October 2014, HCT-00-ICD-CR-SC, No. 003 of 2014 (Unreported). https://sherloc.unodc.org/res/cld/case-law-doc/traffickingp ersonscrimetype/uga/2014/uganda_v__umutoni_annet_html/Uganda_v._Umu tomi_High_Court_2014.pdf. Accessed 21 March 2019. High Court of Justice of Edo State of Nigeria Benin Judicial Division, Court Attorney General of the Federation v Accused, Criminal Judgment, 19 April 2007, Charge No. B/17c/2005 (Unreported). https://sherloc.unodc.org/res/cld/ case-law/nga/2007/attorney_general_of_the_federation_and_e_o._charge_no.b. 17c.2005.html/Attorney_General_of_the_Federation_and_E.O._charge_No.B. 17c.2005.pdf. Accessed 21 March 2019. Inter-American Court of Human Rights, Velásquez Rodriguez v. Honduras, Merits Judgment, 29 July 1988, Series C, No. 4 (1988). International Centre for Settlement of Investment Disputes (ICSID), Archer Daniels Midland Company and Tate & Ingredients Americas, Inc v the United Mexican States, Award Judgment, 21 November 2007, Case No. ARB (AF)/04/05. International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), 19 December 2005, (2005) ICJ Reports 168. International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), New Application Judgment, 3 February 2006, (2006) ICJ Reports 6. International Court of Justice, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia-Herzegovina v Serbia-Montenegro, 26 February 2007, (2007) ICJ Reports 43. International Court of Justice, Case Concerning the Barcelona Traction, Light and Power Company Limited Second Phase (Belgium v Spain), 5 February 1970, (1970) ICJ Reports 1970. International Court of Justice, Case Concerning the Gabˇcíkovo–Nagymaros (Hungary/Slovakia), 25 September 1997, (1997) ICJ Reports 7.

506

Table of Cases

International Court of Justice, Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), Merits Judgment, 24 May 1980, (1980) ICJ Reports 3. International Court of Justice, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 29 April 1999, (1999) ICJ Reports 87. International Court of Justice, LaGrand Case (Germany v. United States of America), Request for the Indication of Provisional Measures, Court Order, 3 March 1999, (1999) ICJ Reports 9. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, (2004) ICJ Reports 136. International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, (1996) ICJ Reports 226. International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits Judgment, 27 June 1986, (1986) ICJ Report 14. International Court of Justice, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, (2012) ICJ Reports 422. International Court of Justice, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951, (1951) ICJ Reports 15. International Criminal Court Trial Chamber II, Prosecutor v Katanga and Ngudjolo Chui, Judgment Pursuant to article 74 of the Statute, 7 March 2014, Case No. ICC-01/04-01/07-3436. International Criminal Court, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment Case, 26 February 2007, (2007) ICJ Reports 43. International Criminal Tribunal for the Former Yugoslavia Appeals Chamber, The Prosecutor v Dusko Tadic, Decision on the Defence of Omission for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94-1-A. International Criminal Tribunal for the Former Yugoslavia Appeals Chamber, Prosecutor v Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Criminal Judgment, 12 June 2002, Case No. IT-96-23 & IT-96-23/1-A. International Criminal Tribunal for the Former Yugoslavia Appeals Chamber, Prosecutor v Duško Tadi´c, Appeal Judgment, 15 July 1999, Case No. IT-94-1-A. International Criminal Tribunal for the Former Yugoslavia Trial Chamber, Prosecutor v Kunarac, Criminal Judgment, 22 February 2001, Case No. IT-96-23. International Criminal Tribunal for the Former Yugoslavia Trial Chamber, Prosecutor v Furundžija, Trial Judgment, 10 December 1998, Case No. IT-95-17/1-T. International Criminal Tribunal for the Former Yugoslavia Trial Chamber, Prosecutor v Duško Tadi´c, Trial Judgment, 7 May 1997, Case No. IT-94-1-T. International Military Tribunal, The United States of America et al. v. Hermann Wilhelm Goring et al., Criminal Judgment, 14 November 1945 – 1 October 1946,

Table of Cases

507

(The Trial of Major War Criminals Before the International Military Tribunal at Nuremberg, Germany). Kisutu Resident Magistrate Court, R v Ahmed Amrani Shebe, Criminal Judgment, 29 August 2018, Criminal Case No. 192 of 2017 (Unreported). Kisutu Resident Magistrate Court, R v January John Karuba, Ntabi Erasto Rusanisha and Obedi Joshua Ntabi, Charge Sheet, Criminal Case No. 44 of 2016 (Unreported). Kisutu Resident Magistrate Court, R v Mohamed Abdou, Criminal Judgment 1 August 2018, Criminal Case No. 304 of 2018 (Unreported). Kisutu Resident Magistrate Court, R v Nelson Willness Kawa, Criminal Judgment, 14 and 29 December 2017, Criminal Case No. 198 of 2017(Unreported). Kisutu Resident Magistrate Court, R v Samson Mbaria Pirias and Lohelo Boniphace Mwambulanga, Criminal Judgment, 4 July 2017, Criminal Case No. 220 of 2017 (Unreported). Kisutu Resident Magistrate Court, Republic v Pierre Damien Habyarabatuma and 14 Others, Criminal Case No. 327 of 2017 (Unreported). Magistrate Court for the Province of Masvingo, The State v Howard Munyanyi and 2 Others, Criminal Judgment, 3 July 2017, Case No. MSVP 804-6/17 (Unreported). https://sherloc.unodc.org/cld/case-law-doc/traffickingpersonscri metype/zwe/2017/the_state_and_howard_munyanyi_and_2_others.html?lng= en&tmpl=htms. Accessed 21 March 2019. Permanent Court of International Justice, Case Concerning the Factory at Chorzów (Germany v. Poland), (Claim for Indemnity) (Jurisdiction), 26 July 1927, PCIJ Series A.—No. 9. Permanent Court of International Justice, Treatment of Polish Nationals and other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 4 February 1932, (1932) PCIJ, Series A/B, No. 44. Regional Court of Kwazulu-Natal at Port Shepstone, The State v Veeran Palan and Edwina Norris, Criminal Judgment, 12 June 2015, Case No: RCD 13/14 (Unreported). https://sherloc.unodc.org/res/cld/case-law-doc/traffickingpersonscrimet ype/zaf/2015/s_v_veeran_palan_and_another_html/State_v_Palan_and_Norris. pdf. Accessed 21 March 2019. Regional Division of Gauteng Pretoria, The State v Onyekachi Okechukwu Eze, Criminal Judgment, 27 November 2017, Case No: 14/546/2013 (Unreported). https://sherloc.unodc.org/cld/v3/htms/cldb/search.html?lng=en#?c=%7B%22filt ers%22:%5B%7B%22fieldName%22:%22en%23caseLaw@country_label_s% 22,%22value%22:%22South%20Africa%22%7D%5D%7D. Accessed 21 March 2019. Resident Magistrate Court, Republic v Mohamed Abdou, Court Proceedings, 1 August 2018, Criminal Case No. 304 of 2018 (Unreported). Special Court for Sierra Leone Trial Chamber II, Prosecutor v Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu, Trial Judgment, 20 June 2007, Case No. SCSL-04-16-T. Supreme Court of Israel sitting as Criminal Appeals, Ibrahim Giulani & Basma Giulani v The State of Israel & the Complainant, Criminal Appeal Judgment,

508

Table of Cases

Criminal Appeal No: 6237/12. https://sherloc.unodc.org/res/cld/case-law-doc/tra ffickingpersonscrimetype/isr/2016/state_of_israel_v__giulani_html/Supreme_C ourt_decision-Giulani.pdf. Accessed 22 March 2019. Supreme Court of Queensland – Court of Appeal, R v Dobie, Application for Extension (Conviction), 18 December 2009, (2009) QCA 394. https://sherloc.unodc.org/res/cld/case-law/aus/2009/r_v_dobie_2009_236_ flr_455_html/R_v_Dobie_2009_QCA_394_18_December_2009.pdf. Accessed 22 March 2019. Supreme Court of the Australian Capital Territory, The Queen v Watcharaporn Nanthahkhum, Court Judgment, 24 May 2012, Case No: 149 of 2010 (Unreported). https://sherloc.unodc.org/res/cld/case-law-doc/traffickingpersonscrimet ype/aus/2012/r_v_watcharaporn_nantahkhum_scc149_of_2010_html/AUS018R_v_Watcharaporn_Nantahkhum_SCC149_of_2010.pdf. Accessed 22 March 2019. The High Court of Ireland, P –v – Chief Superintendent Garda National Immigration Bureau & Ors, Criminal Judgment, 15 April 2015, (2015) IEHC 222, 2013 795 JR.

Index

A Abduction, 50, 367 Abetting, 116, 122, 125, 126, 229, 302, 305, 306, 312, 388, 486 Accreditation, 419 Acquiescence, 199, 200, 229, 323, 385 Acquiesces, 200, 207 Actors, 6, 39, 131, 140, 147, 158, 181–183, 198, 201, 211, 234, 301, 302, 340, 387, 420, 426, 441, 442, 458–461, 484, 493, 495–497 Actus reus, 45, 47, 63, 106, 303, 309, 360 Ad Hoc Committee, 2, 33, 43, 48, 50, 91, 106, 113 Adoption, 41, 47, 61, 73, 91, 101, 103, 118, 134, 137, 184, 228, 229, 269, 287, 310, 313, 321, 324, 365, 366, 371, 372, 375, 381, 482, 486, 490, 491, 497, 498 Adults, 37, 39, 58, 72, 227, 256, 258, 295, 308, 311, 365, 375, 492, 497, 500 Advocacy, 6, 420, 423 Age, 29–31, 40, 52, 57, 100–102, 126– 128, 135, 257, 263, 302, 306, 308, 372–375, 391, 393, 428, 439, 443, 472 Agents, 158, 186, 189, 191, 196, 197, 199, 209, 249, 404 Agricultural, 189, 298 Agriculture, 290, 292, 294, 295, 297, 298, 300, 339 Aid, 121, 126, 204, 205, 293, 346, 366, 437, 492 Aiding, 122, 125, 126, 190, 200, 204, 229, 302, 305, 306, 388, 486 Albinism, 202, 292, 295, 369–371, 441, 491, 500

Aliens, 36, 105, 139, 140, 143, 146, 147, 149, 150, 188, 483 Anti-Trafficking Secretariat (ATS), 8, 418, 442, 456, 457, 461, 463, 465 Apartheid, 196, 205 Apprenticeship, 292, 348, 349, 392, 468, 489 Arbitrary, 200, 265, 296, 438 Armed, 5, 46, 52, 64, 135, 159, 183, 192, 200, 293, 321, 343, 350, 367, 372– 375, 381, 392, 491, 499, 500 Assembly, 2, 29–31, 136, 183, 184, 189, 241, 243, 287, 288, 305, 315, 317, 318, 320, 321, 339, 350, 370, 371, 373, 386, 397, 401, 418–423, 431, 437, 442, 459, 463 Assets, 231, 238–240 Association of Southeast Asian Nations (ASEAN), 2, 53, 69, 97, 115, 226, 229, 230, 232–249, 251, 252, 254, 255, 257, 258, 260, 261, 263–265, 267–271, 422, 427, 431, 433, 437, 438, 441 Assurances, 202, 207 Asylum, 110, 121, 138, 140, 142–144, 146– 148, 156, 209, 253, 424, 483 Attempt, 7, 97, 126, 199, 306, 308, 340, 361 Attempting, 97, 104, 110, 111, 122, 125, 229, 302, 308, 340 Attorney General, 376, 399, 442, 472, 473, 504, 505 Attribution, 12, 130, 186, 187, 190–192, 201, 211, 484 Aut, 123, 232, 241, 243 Availability, 11, 233, 320, 436, 446, 447, 457, 465, 474, 495, 499, 501

© t.m.c. asser press and the author 2021 N. F. Kahimba, Human Trafficking Under International and Tanzanian Law, International Criminal Justice Series 27, https://doi.org/10.1007/978-94-6265-435-8

509

510 Awareness, 94, 103, 113, 117, 130, 134, 155, 248, 249, 300, 320, 371, 419–421, 423, 461, 462, 464

B Bail, 245 Bangladesh, 116, 293, 295, 316 Belgium, 160, 202, 205, 206, 505, 506 Beneficiary, 202 Benefit, 34, 35, 93, 106–108, 110, 126, 127, 155, 202, 209, 232, 238, 255, 270, 309, 319, 340, 346, 347, 351, 378, 380, 431, 488, 498, 500 Best, 5, 94, 101, 104, 120, 121, 128, 129, 134, 137, 146, 249, 262, 266, 366, 396, 421, 425, 438, 439, 443, 445, 446, 460, 462, 464, 495 Bilateral, 94, 102, 103, 112, 113, 117, 124, 152, 185, 238, 239, 245, 246, 249, 268, 404, 419, 422, 423, 463 Borders, 6, 34, 35, 109, 120, 132, 188, 232, 237, 288, 291, 293, 300, 382, 401, 485 Bosnia, 185, 190–193, 232, 505, 506 Breach, 140, 186, 194, 195, 197, 199, 202, 203, 205–207, 209, 315, 484 Brothel, 32, 58, 302, 308, 312, 486 Burundi, 148, 288, 294, 418, 466 Buying, 116, 302–305, 309, 310, 312, 324, 355, 359–361, 377, 422, 486, 489, 492, 498, 500

C Cease, 202 Cessation, 204, 207, 209 Characteristics, 53, 56, 69, 106, 159, 291 Child, 11, 38, 40, 54, 55, 58, 61, 67, 69, 72, 97, 101, 115, 118, 120–122, 126– 129, 131, 134, 145, 146, 148, 158, 228, 236, 256, 257, 261, 263, 264, 266, 269, 293, 306–308, 310, 351, 352, 356, 365, 367, 372, 373, 375, 381, 391, 393, 396, 421, 428, 429, 443, 445, 467, 468, 471, 472, 475, 486, 490–492, 498, 500 Children, 2, 7, 30, 31, 33–35, 37–40, 43, 51, 55, 58, 65, 66, 68, 71, 72, 91, 101, 113, 115–120, 123, 125, 128, 129, 131, 132, 134–136, 143, 145, 148, 152, 157, 160, 207, 226, 247, 249, 253, 254, 256, 257, 260, 262–265,

Index 267, 289, 292, 294–298, 301, 306– 308, 310, 311, 313, 314, 319–322, 339, 347, 350–353, 362, 365–367, 369, 372–374, 381, 383, 391, 393, 418, 420, 422, 425, 427, 428, 430, 435, 436, 443, 444, 456, 462, 468, 471, 472, 483, 485, 486, 490–492, 494, 495, 497, 498, 500 China, 143, 293, 295 Citizens, 107, 139–141, 144, 148, 188, 207, 293, 323, 384, 439 Civil, 43, 93, 98, 100, 103, 104, 120, 130, 134, 135, 140, 145, 236, 250, 262, 263, 270, 271, 301, 399, 442, 463, 493, 495, 499–501 Claim, 50, 121, 135, 146, 151, 156, 157, 159, 160, 187, 190, 200, 206, 207, 209, 232, 233, 270, 442, 495 Clandestine, 34, 151, 153, 154, 370 Coercion, 28, 32, 37, 38, 41, 42, 44, 46, 47, 49–51, 53, 64, 70, 72, 211, 227, 296, 307, 339, 347, 349, 350, 354, 357, 365, 367, 392, 427, 472, 474, 482, 490 Coercive, 35, 38, 39, 44, 48, 53, 57, 158, 347, 355, 384 Collaborate, 94, 120, 153, 154, 417, 421, 438, 444, 460, 461, 496 Collaboration, 135, 236, 403, 418, 430, 435, 439, 458, 496 Collateral, 6, 42, 251, 376, 423 Colour, 140, 141, 144, 145, 147, 148, 187, 369, 425 Commentary, 183, 185–189, 193–196, 202, 204–207, 209, 210, 227–229, 232– 234, 236, 237, 240, 246, 483 Commissioner, 33, 101, 103, 138, 139, 146, 151, 154, 156–160, 226, 227, 232, 369, 436, 443, 444, 456, 483 Community, 29, 32, 33, 41, 60, 62, 69, 73, 91, 106, 143, 157, 184–186, 202, 205, 206, 323, 370, 383, 420, 421, 434, 441, 459, 462, 494, 496 Compassionate, 102, 134, 404, 426, 439, 495 Compensation, 64, 100, 114, 121, 129, 135, 199, 203, 240, 270, 271, 305, 311, 319, 397–399, 437, 441, 468, 493, 495, 498 Composite, 107, 195, 226, 227, 246, 348, 426, 493, 494 Condition, 36, 38, 41, 50, 59, 62, 64, 65, 67, 100, 110, 112, 113, 117, 121, 128, 132, 134, 142, 149, 150, 153, 160,

Index 185, 186, 194, 203, 207, 209, 237, 242, 253, 265, 292–294, 297, 298, 304, 355–358, 364, 380, 391, 425, 440, 500 Confidence, 202, 234 Confiscation, 94, 98, 100, 182, 231, 238– 240, 245, 321, 346, 348, 399, 403, 465, 469, 485, 493 Conflict, 9, 64, 159, 246, 293, 337, 342, 374 Congo, 192, 205, 288, 418, 505 Consensual, 41, 128, 262, 264, 437, 490, 495 Consequences, 6, 10, 11, 41, 43, 48, 50, 56, 96, 103, 126, 185, 202, 203, 207, 250, 262, 292, 323, 344, 345, 362, 385, 392, 431, 434, 493 Conspiracy, 93, 302, 306, 312, 371, 486 Constitutional, 99, 187, 270, 288, 319, 394, 397, 441, 495 Continuing, 190, 195, 203, 207, 232, 246, 340, 434–436, 494, 499 Contracts, 360, 361, 384 Corporations, 39, 182, 188, 229, 340, 377 Corruption, 93, 137, 230–232, 239, 240, 263, 299, 320, 322, 323, 400, 485 Council of Europe, 2, 47, 52, 54, 70–72, 119, 147, 245, 250, 259, 482 Counselling, 99, 128, 129, 262, 263, 265, 266, 388, 419, 435, 437, 494 Countermeasures, 209 Crime against humanity, 61, 64–66, 68 Cruel, 114, 132, 133, 148, 152, 205 Cultural, 46, 52, 63, 103, 134, 142, 144, 145, 152, 200, 247–249, 289, 301, 401, 422, 430 Curricula, 421, 423 Custodia legis, 400 Cyprus, 61, 146, 195, 226, 235, 241, 243, 245, 295, 336, 403, 426, 503

D Damages, 100, 199, 270, 397–399, 437, 442, 493, 495 Debt bondage, 5, 41, 67, 69, 348, 350, 353, 355, 356, 358–361, 365, 381, 468, 488 Deception, 28, 41, 42, 44, 47–50, 54, 64, 72, 227, 339, 347, 349, 353, 354, 365, 391, 427, 467, 472, 474, 482, 492 Deceptive, 157, 350 Dedere, 123, 232, 241, 243 De facto, 55, 63, 64, 189, 304, 355, 358, 383 Defilement, 302, 306, 312, 486

511 De jure, 55, 63, 64, 189, 304, 355, 358 Demand, 5, 103, 114, 120, 130, 138, 202, 247–250, 354, 416, 422–424, 485, 493 Departments, 187, 230, 384, 420, 426, 429, 457, 493, 494, 499 Deportation, 65, 131, 150, 256, 265, 438 Destination, 39, 106, 107, 111, 119, 121, 134, 138, 143, 146, 150, 152, 157, 158, 195, 204, 207, 209, 249, 259, 265, 267–269, 291–294, 346, 421, 426, 430, 438, 444, 483, 485, 495, 497 Detention, 32, 189, 190, 235, 254, 256, 302, 306, 312, 395, 444, 445, 469, 483, 486 Determinants, 417 Dignity, 32, 37, 116, 121, 132, 134, 250, 306, 307, 338, 371, 424, 425, 433, 446, 468 Direction, 189, 191, 192, 299, 305, 308 Directive Principles, 322 Director, 59, 60, 436, 443, 444, 456 Disability, 52, 128, 145, 264, 372, 381, 392 Disabled, 367, 372–374, 381, 392, 404, 425, 429, 430, 436, 443, 445, 491, 494, 495, 499, 500 Discrimination, 52, 119, 139–141, 143–145, 147–151, 153, 157, 159, 196, 201, 205, 247, 250–253, 260, 269, 292, 296, 297, 320, 322, 338, 369, 372, 424, 425, 446, 460 Disposing, 302–305, 309, 311, 312, 324, 355, 360, 486, 490 Dissuasive, 93, 122, 126, 236 Dolus specialis, 55 Domesticated, 315, 316, 338, 486 Double, 242, 245, 359, 490, 491 Draft, 12, 91, 101, 181–190, 192–196, 198, 202–207, 209–211, 246, 292, 296– 298, 314, 318, 383, 484 Dual, 242, 245 Due diligence, 181, 183, 198–201, 211, 231, 234, 245, 323, 484, 497

E Education, 59, 101, 121, 128, 130, 134, 142, 248, 263, 292, 297, 320, 421, 423, 430, 433–435, 443, 445, 494 Effective, 8, 9, 12, 13, 30, 62, 93, 120, 122, 126, 127, 131, 133, 135, 143, 158, 190–192, 197, 200, 204, 207, 208,

512

Index

226, 231, 234–236, 238, 239, 250, 256, 265, 266, 270, 271, 299, 323, 336, 348, 372, 399, 417, 418, 421, 426, 432, 435, 436, 438, 440, 457, 461, 464, 465, 485, 493, 495, 499 Employer, 51, 55, 249, 357, 384, 471 Enjoyment, 11, 121, 140–142, 144, 145, 148, 156, 199, 201, 202, 251, 253, 254, 292, 323, 369, 431, 446, 483 Enslavement, 60, 64–69, 158, 197 Equality, 119–121, 142, 149, 152, 235, 250, 322, 425 Erga omnes, 60, 205, 243 Eritrea, 293, 418 Escape, 120, 190, 357, 364 Estonia, 161 Ethiopia, 293–295, 418 Ethnic, 30, 52, 144, 145, 147, 148, 159, 243 Exhaustion, 207 Exploitation, 4, 6, 9, 10, 28, 30–40, 44– 46, 48, 50–53, 55–58, 61, 63, 65, 67, 69–71, 103, 106, 107, 110, 114, 118, 125, 132, 133, 137, 143, 146, 148, 150, 151, 158, 159, 203, 204, 227– 229, 231, 240, 247–249, 251, 260, 264, 289, 291, 292, 295–298, 303, 305–308, 312–314, 319, 321, 322, 339, 341–344, 347–353, 355, 357– 363, 365, 366, 372, 374–378, 380– 382, 384, 387–393, 400, 401, 418, 422, 424, 427, 428, 433, 436, 445, 446, 466–468, 471, 472, 475, 482, 487–493, 497–501 Extradition, 30–32, 94, 95, 98, 111, 117, 118, 135, 237, 240, 241, 243–245, 348, 402, 403, 419, 423, 493

G Gender, 4, 7, 30, 32, 38, 43, 52, 100, 101, 104, 119–121, 130, 134, 154, 158, 160, 200, 210, 235, 247, 250, 253, 263, 296, 420 Genocide, 185, 190, 192, 193, 205, 505, 506 German, 160 Good Governance, 419, 425, 456, 457 Governmental, 135, 183, 188, 192, 248, 250, 257, 297, 300, 401, 418, 429, 445, 460, 496 Group of Experts on Action against Trafficking in Human Beings (GRETA), 123, 124 Guardian, 145, 266, 267, 310, 366, 381, 382, 391, 492

F Factory, 203, 507 Failure, 146, 187, 188, 193, 196, 197, 199, 200, 202–204, 207, 211, 227, 229, 291, 299, 315, 316, 320, 322, 323, 371, 420, 422, 441, 467–473, 493, 499 Fair trial, 236, 237, 262 Faith, 4, 159, 384 Fake, 360, 379 Fear, 49, 155, 157–160, 210, 299, 357, 381, 395, 421 Financial, 39, 50, 58, 60, 71, 93, 94, 106, 108, 110, 125, 128, 138, 190, 192, 210, 231, 290, 309, 317, 346, 347,

H Harbour, 45–47, 51, 110 Harm, 49, 126, 157, 236, 255, 259–261, 296, 303, 312, 356, 357, 369, 371, 384, 426, 431, 432, 438, 443, 485, 494 Havens, 231, 232, 234, 238 Herzegovina, 185, 190–193, 232, 505, 506 Hires, 188, 364, 367, 372 Honduras, 189, 199, 505 Housing, 46, 60, 99, 101, 262, 494 Humanitarian, 3, 52, 102, 103, 108, 114, 124, 134, 188, 194, 210, 244, 251, 255, 265, 271, 374, 404, 424, 426, 439, 495 Humiliation, 150, 261, 432, 494

364, 378, 402, 437, 442, 488, 491, 498, 500 Finland, 145, 161 Force, 2, 8, 28–32, 35, 39, 41, 44, 47–50, 54, 58, 59, 61, 62, 69, 71–73, 115, 119, 137, 140, 141, 143, 145, 146, 148, 149, 151, 152, 154, 155, 189, 192, 209, 227, 231, 248, 307, 311, 315– 318, 339, 345, 347, 349, 350, 353, 354, 365–367, 373, 388, 392, 427, 472, 474, 482, 486, 490 France, 61, 63, 70, 197, 231, 295, 504 Fraud, 28–30, 41, 44, 47–50, 54, 111, 227, 339, 347, 349, 353, 365, 367, 379, 391, 417, 427, 472, 482, 490, 492 Friendly, 396, 443, 462 Fund, 240, 270, 271, 401, 465

Index I Identity, 60, 99, 104, 105, 110, 111, 113, 120, 122, 134, 138, 151, 152, 160, 200, 259, 261, 266, 322, 347, 379, 396, 425, 432, 435, 493, 494, 501 Illegal, 2, 34, 36–41, 52, 59, 91, 106, 108– 110, 153, 154, 156, 199, 203, 205, 231, 238, 246, 256, 259, 294, 299, 300, 306, 337, 339, 346, 350, 377, 474 Immunity, 109, 431, 494 Impunity, 56, 200, 203, 227, 230, 231, 234, 300, 371, 431 Inaction, 199, 229, 323, 385, 441 Incorporation, 316 India, 116, 293, 295 Inequality, 6, 52, 210, 247, 296, 485 Influence, 51, 73, 120, 210, 231, 291, 305, 307, 383, 389 Informal, 50, 246, 290, 292, 296–298, 383 Informed, 60, 73, 120, 128, 152, 262, 359, 433, 436, 445, 446, 461 Inhuman, 65, 110, 114, 132, 133, 148, 152, 205, 244, 269, 369 Intelligence, 302, 464 Intended, 12, 42, 48, 50, 54, 55, 63, 66, 104, 125, 141, 229, 319, 338, 356, 376, 392, 394, 422, 468, 475, 485, 496 Intent, 40, 43, 55, 65, 186, 302, 304, 307, 372, 386, 389, 471 Internal, 107, 121, 122, 138, 186–190, 204, 238, 271, 291, 292, 298, 299, 311, 314, 316, 319, 384, 485, 491, 497 International Criminal Court (ICC), 49, 61, 65–69, 506 International Labour Organization (ILO), 59, 60, 136, 150, 271, 292, 375 International Law Commission (ILC), 12, 182–190, 192–196, 198, 202–207, 209–211, 246 International Organization for Migration (IOM), 36, 101, 103, 105, 113, 138, 290, 292 Intimidation, 38, 100, 122, 235, 259, 261, 265, 266, 302, 310, 311, 322, 354, 367, 395, 431, 432, 438, 490, 494 Introducing, 359, 360, 462, 490 Investigate, 93, 122, 123, 182, 193, 195, 196, 198–200, 203, 209, 228, 229, 231, 233–237, 245, 299, 314, 323, 340, 371, 394, 395, 441, 492 Invocation, 206, 234 Invoke, 186, 206, 207

513 Ireland, 161, 428, 429 Irregular, 145, 150–155, 192, 248, 253, 427

J Judicare, 123, 232, 241, 243 Jurisdiction, 2, 30, 65, 66, 90, 93, 98, 111, 112, 123, 127, 137, 140, 145–147, 149, 151, 196, 200, 204, 207, 232, 233, 236, 241, 243, 247, 293, 323, 336, 340, 348, 373, 393, 485, 492 Jus cogens, 60, 149, 205

K Kenya, 145, 288, 293–295, 418, 458, 464, 469, 475 Kiota Women Health and Development Organisation (KOWOHEDE), 318 Kiswahili, 337, 338, 386, 489

L Labour, 3, 4, 10, 28, 33, 35, 39, 41, 44, 56, 57, 59–61, 63, 64, 66, 67, 70, 118, 125, 139, 152, 153, 158, 194, 197, 208, 227, 229, 248–250, 270, 289, 292, 294, 295, 301, 302, 304, 312, 314, 341–343, 348, 350, 354, 355, 357– 362, 365, 375, 378, 380, 381, 390, 419, 427, 469–471, 482, 486–489, 491, 498, 500 Laundering, 93, 98, 137, 230–233, 240, 263, 400 Leave, 58, 150, 151, 153, 194 Legal assistance, 94, 95, 98, 111, 116, 118, 121, 239–241, 243–246, 264, 265, 267, 348, 403, 419, 423, 426, 433, 435, 437, 444, 485, 493, 495 Legitimate, 72, 102, 139, 144, 240, 253 Liability, 93, 98, 108, 110, 126, 130, 183, 188, 194, 229, 258, 259, 363, 377– 379, 386, 389, 471, 498, 500 Liberty, 52, 64, 66–68, 92, 152, 199, 242, 269, 296, 306, 307, 341, 357, 397, 431, 444 Livelihood, 134, 248, 298, 435

M Macau, 295 Malawi, 288, 295, 418 Marriage, 41, 67, 154, 296, 356, 359–362, 419, 490

514 Matching, 359, 360, 490 Material, 45, 47, 55, 58, 93, 94, 99, 106, 108, 110, 128, 203, 262–264, 303, 304, 309, 340, 346, 379, 398, 430, 433, 434, 438, 474, 485, 488, 498, 500 Media, 6, 99, 103, 117, 134, 248, 250, 261, 307, 318, 320, 396 Medical, 72, 73, 99, 128, 134, 152, 229, 257, 262–264, 396, 419, 429, 430, 433, 434, 443–445 Membership, 72, 155, 157, 159, 160, 185, 320 Mens rea, 45, 55, 106, 303, 309 Migrant, 2, 7, 10, 33, 36, 89, 91, 106, 109– 111, 113, 114, 138, 140, 142–144, 150–154, 161, 201, 207, 293, 314, 344–346, 427, 487, 497, 498, 500 Migrant Smuggling Protocol, 1, 2, 7, 11, 36, 73, 91, 96, 105, 106, 108–115, 155, 157, 182, 251, 294, 317, 344–346, 483, 486, 487 Mind, 45, 53, 55, 138, 228, 304, 428, 462 Minimum, 28, 44, 56, 69, 71, 128, 130, 139, 210, 228, 341–343, 399, 462, 487, 488 Misconduct, 66, 192, 446 Mistreatment, 139, 150 Monetary, 108, 116, 236, 307, 311 Montenegro, 185, 190–193, 505, 506 Movement, 28, 33–36, 44, 46, 105, 113, 114, 149, 150, 239, 253, 292, 297, 298, 322, 349, 367, 371, 388, 444, 491, 500 Mozambique, 288, 293, 295, 418 Mutatis mutandis, 95, 100, 111, 232, 238, 241 Mutual, 94, 95, 98, 111, 116, 118, 239–241, 243–246, 348, 403, 419, 423, 493 N National, 10, 13, 35, 37, 41, 52, 58–60, 61, 91, 94, 105, 106, 110, 117, 119, 121, 123, 126, 129, 130, 134, 135, 138, 140, 141, 144, 145, 147–152, 159, 182, 184, 198, 226–228, 235, 238, 239, 243, 246, 252, 257–259, 266, 267, 271, 290, 294, 296, 301, 309, 316, 318, 341, 344, 347, 359, 360, 362, 373, 374, 400, 401, 418, 430, 436, 460, 462, 463, 468, 471, 486, 490, 491, 493, 496–499 Nationality, 94, 102, 112, 120, 123, 127, 139–141, 144, 146, 149, 152, 155,

Index 157, 159, 207, 232, 233, 243, 266, 268, 425 Natural, 38, 39, 52, 97, 120, 122, 126, 130, 137, 187, 229, 236, 245, 255, 306, 340 Ne bis in idem, 242 Negative, 6, 43, 117, 147, 155, 194, 197, 198, 250, 292, 308, 320, 321, 356, 363, 434 Negligent, 204 Nepal, 116, 295 Nicaragua, 154, 190–192, 506 Nigeria, 136, 316, 376, 472–474, 497, 504, 505 Non-action, 199 Non-citizens, 3, 138, 139, 141, 144, 149, 150, 153, 253, 402, 424 Non-discrimination, 103, 114, 140, 141, 143, 144, 147–149, 201, 267 Non-Governmental Organisations (NGOs), 43, 95, 103, 104, 117, 120–123, 134– 136, 236, 248, 252, 260, 262, 299, 419, 421, 430, 442, 444, 456, 457, 463, 493, 494, 496 Non-refoulement, 114, 124, 131, 156, 209, 210, 269, 440 Non-state, 158, 181–183, 198, 211, 234, 301, 420, 426, 441, 458, 461, 484, 493, 495, 497 Norway, 161 O Obligations, 8, 12, 13, 57, 60, 90, 96, 100, 103, 105, 106, 113–115, 118, 123, 124, 138, 142, 146, 147, 152, 155, 161, 182, 184, 188, 189, 193–199, 202, 204–207, 209–211, 226, 227, 231, 234, 235, 241, 251, 254, 255, 258, 263, 270, 271, 292, 294, 305, 311, 313, 315, 322, 323, 336–340, 347, 369, 371, 373, 394, 402, 415, 416, 420, 422–426, 430, 434, 436, 444, 446, 455–461, 463–465, 481, 483, 484, 487, 493, 495–497, 499 Obstruction, 93, 98, 230, 231, 440 Oman, 145, 295, 470 Omission, 185, 186, 204, 246, 306, 339, 340, 346, 372, 376, 388, 391, 400, 468 Ordre public, 151 Organ, 61, 72, 126, 187, 188, 190–192, 295, 319, 368, 491 Organised Crime Convention, 2, 7, 12, 52, 53, 90–96, 98–100, 103–105, 111,

Index 113–115, 118, 135, 182, 194, 207, 229, 230, 232–234, 236–248, 259, 260, 262, 265, 270, 294, 313, 316, 317, 338, 345, 347, 393, 399, 401– 403, 416, 424, 431, 433, 437, 441, 474, 482, 483, 486, 497, 498 Organization of American States (OAS), 39, 115, 149, 230 Origin, 29, 32, 39, 46, 105, 117, 119, 134, 140, 141, 144–151, 158, 194, 195, 243, 267, 269, 291, 319, 347, 425, 426, 434, 438, 443, 444, 485, 497 Ostracism, 157, 158, 299 Ownership, 62–68, 205, 297, 304, 356, 459 P Pakistan, 116, 293, 295, 468 Participation, 5, 32, 54, 93, 99, 104, 110, 230, 235, 265, 307, 323, 353, 364, 374, 387, 438, 440, 445, 463, 490 Passive, 94, 112, 123, 127, 230, 233, 351 Passivity, 197, 200 Passports, 417 Payments, 28, 40, 44, 47, 53, 54, 60, 108, 321, 339, 349, 366, 377, 378, 472, 482, 491 Peremptory, 194, 204, 209 Perpetrator, 45, 50, 51, 53–55, 58, 66, 200, 255, 387, 389 Persecution, 156–160, 210 Person, 9, 10, 28, 29, 31, 32, 35, 37–41, 44, 46–54, 58–60, 62–68, 71, 72, 97, 106, 111, 120, 121, 125–127, 130, 133, 139, 144, 149, 151, 152, 157– 160, 187–189, 192, 196, 199, 200, 204, 229, 237, 242, 243, 255–257, 263, 265, 267, 301–313, 319, 322– 324, 336, 338–340, 342, 344, 347– 362, 364–368, 372, 373, 376–390, 392–398, 400, 402, 422, 426–429, 433, 436–438, 443, 444, 467–475, 482, 486, 488–494, 500, 501 Placement, 8, 9, 126, 310, 311, 343, 348, 365, 375–378, 390, 434, 444, 472, 486, 489, 491, 492, 496, 498, 499 Poland, 161 Pornography, 58, 59, 306, 343, 348, 350, 352, 353, 359–362, 364, 365, 374, 381, 384, 488, 490, 498, 500 Position, 5, 10, 28, 34, 35, 38, 41, 44, 47–49, 51–55, 62, 65, 68, 69, 72, 90, 108, 118, 126, 133, 142, 150, 154, 187, 192, 193, 199, 201, 210, 238, 244,

515 250, 255, 256, 258, 259, 264, 267, 269, 291, 305, 307, 308, 311, 313, 316, 321, 337–339, 344, 345, 349, 351, 352, 354, 357, 363, 364, 368, 369, 372, 374, 375, 383, 384, 386, 389–391, 393, 395, 398, 399, 427, 428, 434, 436, 446, 466, 471, 474, 482, 489, 490, 492, 500 Positive, 137, 147, 153, 155, 161, 194, 197, 198, 200, 208, 211, 247, 250, 271, 299, 308, 336, 340, 365, 367, 390, 416, 445, 459 Possession, 64, 109, 110, 239, 304, 309, 310, 376, 377, 379, 388, 400, 428, 445 Poverty, 52, 132, 135, 247, 320, 485 Power, 28, 44, 47, 48, 51, 54, 65, 67, 72, 210, 255, 297, 316, 339, 347, 349, 383, 391, 427, 444, 474, 482, 492 Pregnancy, 128, 264, 297 Pretext, 348–350, 392, 466–468, 470, 475, 489 Primary, 2, 89, 90, 99, 131, 161, 185, 186, 194, 197, 202, 207, 211, 320, 322, 368, 421, 423, 457, 462, 483 Principal, 106, 110, 343, 388, 492 Privacy, 99, 152, 261, 262, 267, 319, 322, 396, 425, 426, 431, 432, 443, 445, 446, 485, 493, 494 Private, 39, 120, 128, 139, 147, 158, 183, 188–191, 196–202, 204, 228–230, 248, 261, 266, 296, 323, 340, 396, 400, 401, 425, 432, 433, 456, 457, 460, 463, 484, 494, 496, 497, 499 Proactive, 235, 261, 395 Proceedings, 98–102, 116, 121, 122, 126– 129, 131, 135, 206, 231, 233, 235, 237, 238, 244, 245, 259, 261, 263, 264, 266, 268, 269, 271, 318, 337, 345, 396, 402, 403, 425, 433, 437, 438, 440–443, 445, 493, 495 Procuration, 302, 306, 308, 312, 313, 379, 380, 486, 489, 491 Proportionate, 10, 93, 98, 122, 126, 139, 236, 254, 379 Prostitution, 4, 5, 10, 28–36, 39, 42, 44, 56– 59, 116, 118, 143, 154, 158, 159, 227, 259, 290, 292, 294–297, 300, 302– 306, 308, 312, 313, 321, 339, 341– 343, 348, 350–353, 359–365, 377, 378, 381, 384, 385, 390, 422, 427, 473, 474, 482, 487, 488, 490, 492, 497–500

516 Punishment, 31, 92, 97, 114, 116, 122, 132, 133, 148, 152, 157, 158, 201, 205, 234, 237, 241, 243, 269, 302, 304, 311, 320, 336, 346, 351, 380, 381, 384, 385, 389, 390, 396, 398, 466, 467 R Race, 140, 141, 144, 145, 147–149, 155, 157, 159, 243 Racial, 31, 143, 144, 159, 196, 205, 369 Rape, 158, 294, 306 Ratification, 7, 8, 137, 154, 194, 305, 315– 317, 345, 373, 427, 486 Receipt, 28, 40, 41, 44, 45, 47, 156, 339, 347, 391, 482 Reception, 121, 125, 316, 438, 439 Recovery, 94, 98, 99, 120, 128, 134, 135, 235, 238–240, 245, 262–265, 348, 399, 403, 421, 426, 434, 441, 485, 494 Recruit, 45–47, 51, 104, 374, 388 Reflection, 120, 128, 184, 235, 264, 265, 438 Refugee, 3, 103, 114, 128, 151, 155–160, 194, 251, 264, 292, 373, 424 Refugee Convention, 155–158, 160 Rehabilitation, 11, 32, 100, 117, 134, 204, 235, 271, 298, 337, 421, 427, 429, 430, 434, 435, 441, 457, 459, 462, 493, 494 Reintegration, 121, 268, 269, 419, 421, 426, 434, 435, 457, 462, 494 Relatives, 60, 99, 259, 265, 292, 293, 295, 383, 395, 443, 444 Religion, 4, 140, 141, 145, 147–149, 152, 155, 157, 159, 243, 322, 425 Religious, 159, 319, 381, 383, 384 Relocation, 122, 259, 432 Remain, 101, 110, 115, 121, 134, 151, 195, 265, 269, 306, 346, 438, 440, 470, 485, 495, 501 Reparation, 197, 203, 207, 209, 271 Repatriation, 97, 101, 102, 117, 119, 121, 131, 134, 135, 153, 207, 235, 245, 265, 267–269, 321, 402, 404, 425, 426, 438, 439, 443, 462, 485, 495, 499 Repetition, 128, 202, 204, 207, 266, 271, 358, 382, 441, 467, 500 Representatives, 99, 128, 129, 135, 186, 398, 437, 456 Rescue, 337, 416, 418, 421, 432, 462, 493, 494

Index Residence, 38, 40, 52, 102, 110, 121, 122, 127, 146, 152, 153, 155, 157, 159, 235, 259, 265, 267, 269, 346, 430, 439, 495 Responsibility, 11, 12, 90, 109, 139, 181– 195, 197–200, 202, 203, 206, 207, 210, 211, 229, 231, 234, 237, 257, 266, 322, 323, 346, 363, 372, 383, 417, 456, 457, 460, 481, 484, 496, 497, 501 Restitution, 100, 114, 203, 270, 271, 398, 441, 442, 495 Retaliation, 100, 122, 235, 259, 261, 265, 266, 431, 432, 438, 494 Retorsions, 210 Retrafficking, 259, 269, 338, 432, 491, 494 Return, 102, 113, 115, 121, 146, 150, 151, 153, 155, 157, 158, 210, 268, 434, 440, 443, 469, 470 Revictimisation, 100, 101, 103, 230, 248, 259, 270, 299, 441 Rural, 134, 292, 297, 298, 302, 314 Rwanda, 205, 288, 294, 418, 466, 505 S Safe, 231, 232, 234, 238, 241, 264, 268, 371, 440, 445, 462 Safety, 99, 100, 102, 110, 114, 121, 134, 260, 261, 268, 269, 319, 395, 404, 425, 426, 429, 432, 434, 439, 443, 446, 495 Saudi Arabia, 145, 208, 295 Savings clause, 57, 114, 117, 124, 251, 424 Secondary, 128, 184, 185, 194, 211, 266, 320, 368, 387, 421, 423, 462 Security, 4, 105, 106, 113, 120, 121, 133, 134, 142, 148, 151, 152, 155, 188, 200, 246, 269, 300, 306, 307, 319, 322, 358, 376, 397, 428, 431, 434, 439, 444, 462, 472, 494, 495 Seizure, 100, 238, 239, 263 Serbia, 185, 190–193, 505, 506 Serfdom, 67, 69, 356 Service, 58, 59, 257, 300, 339, 354–357, 375, 376, 378, 428, 430, 432, 463, 491, 494 Servitude, 5, 28, 40, 44, 56–58, 67, 69, 70, 118, 152, 197, 227, 341–344, 348, 350, 355–361, 365, 376, 378, 380, 381, 390, 427, 470–472, 482, 487, 488, 491, 500 Severity, 48, 237, 242, 380 Sham, 228, 361

Index Shame, 261, 299, 432, 494 Signatory, 338, 424 Siliadin, 61, 63, 70, 197, 504 Simulated, 352, 360, 361 Slave dealing, 302–305, 309, 312, 355, 360, 473, 486, 490 Smuggled, 10, 106–109, 113, 114, 132, 143, 154, 156, 251, 254, 256, 291, 293, 345–347, 487 Smuggling, 2, 7, 9, 10, 12, 33, 36, 89–91, 105, 106, 109–114, 138, 149, 154, 161, 188, 228, 293, 297–300, 314, 341, 343–346, 350, 378, 400, 418, 475, 483, 487, 497–499 Social group, 155, 157, 159, 160 Soldiers, 293, 373 Somalia, 293, 294, 321, 374, 418 South Asian Association for Regional Cooperation (SAARC), 2, 53, 116–119, 234–238, 240–243, 247, 248, 252, 255, 261, 263, 265, 268, 433, 437, 438, 483 Sovereign, 109, 139, 144, 150 Sovereignty, 10, 94, 107, 155, 246 Specialty, 2, 12, 89, 133, 194, 207, 236, 238, 241, 245, 252, 256, 259, 262, 264, 270, 272, 343, 401, 422, 483, 487, 497 Stateless, 3, 123, 138, 142, 144, 145, 147, 149, 151, 253, 424, 439, 483 Statelessness, 140, 151 Status, 34, 37, 52, 60, 62–64, 66–68, 72, 73, 97, 102, 110, 114, 120, 121, 128, 131, 135, 137, 139–142, 145, 147– 149, 153, 156, 158–160, 184, 187, 251, 256, 258, 259, 264, 268, 269, 304, 319, 356–358, 427, 429, 430, 483, 494 Structural, 6, 93, 253, 416 Structure, 41, 187, 339, 361, 423, 457, 461, 485 Subject, 1–3, 11, 43, 46, 58, 60, 93, 96, 97, 110, 111, 125, 140, 149, 184, 186, 190, 206, 209, 242, 251, 255, 258, 269, 301, 302, 304, 312, 320, 351, 352, 354, 368, 370, 378, 381, 383, 385, 388–390, 400, 431, 436, 443, 446, 457, 465, 482, 487, 495, 497, 499, 501 Supply, 39, 250, 291, 340, 349 Swahili, 318, 321, 337–339, 386, 462, 489, 500, 501 Sweden, 295

517 Syndicate, 381, 382, 466, 467, 469

T Tadi´c, 191, 193, 506 Tanganyika, 288, 302, 318 Tanganyika Law Society (TLS), 318 Tanzania, 7, 8, 10–13, 54, 71, 143, 183, 198, 202, 230, 288–303, 305, 306, 308–323, 336–340, 343–347, 349– 352, 354, 355, 361–363, 365, 366, 369–374, 379, 380, 382–386, 393, 394, 397, 399–403, 416–428, 430, 432, 436–442, 444, 446, 455, 457– 460, 462–466, 468–471, 475, 481, 485–488, 491, 493–499, 501, 505 Tanzania Women Lawyers Association (TAWLA), 289, 318 Technology, 300, 307, 352, 396 Threat, 49, 195, 506 TIP Protocol, 2, 7–9, 12, 27, 28, 33, 40, 43– 45, 48, 49, 51–60, 62, 69–73, 90, 91, 96–104, 106, 113, 115, 118, 119, 121, 124, 125, 130–132, 135, 137, 143, 146, 155–157, 182, 189, 194, 195, 207, 226–229, 232, 234–238, 241, 245, 247–249, 251–253, 255–258, 260–263, 265, 267–270, 289, 300, 311, 313, 316, 317, 320, 338, 339, 341–345, 347–349, 352, 368, 369, 391–393, 398, 401, 402, 416, 420, 422–424, 431, 433, 437, 438, 440, 441, 474, 475, 482, 483, 486–490, 492, 493, 495, 497, 498, 500 Tolerate, 158 Toleration, 199 Torture, 65, 114, 132, 150, 152, 188, 205, 294, 445 Tourism, 33, 229, 292, 362, 363, 384, 387, 421, 501 Trafficker, 31, 35, 36, 46, 47, 50, 53, 55, 56, 65, 97, 100, 104, 116, 117, 120, 122–124, 131, 135, 136, 147, 157– 160, 182, 193, 196, 203, 207, 209, 227, 229, 231, 232, 234–236, 238, 245, 259, 264, 268, 293, 300, 310, 313, 314, 319–321, 341, 347, 349, 355, 358, 360, 361, 364, 369, 376– 378, 380, 384, 385, 388, 390, 391, 393, 395, 397–402, 417, 423, 431, 432, 437, 438, 440–442, 445, 468, 489–491, 494, 495

518 Transfer, 28, 41, 44–47, 51, 59, 65, 71, 72, 125, 152, 239, 339, 347, 349, 368, 377, 391, 467, 472, 482 Transformation, 316 Transit, 38, 146, 152, 154, 195, 204, 207, 209, 259, 291, 293, 426, 430, 444, 485, 497 Transnationality, 106, 109, 229, 232, 239 Transport, 37, 40, 41, 46, 47, 51, 104, 293, 298, 304, 337, 346, 349, 388, 420, 464, 493 Truth, 204 U Uganda, 192, 288, 294, 295, 418, 442, 467, 471, 472, 474, 497, 505 Ultra vires, 189 Unaccompanied, 120, 129, 131, 145, 264, 266, 267, 294, 418, 483 Unemployment, 52, 132, 247, 297, 320, 485 United Kingdom, 61, 147, 189, 195, 198, 231, 234, 241, 295, 336, 340, 503, 504 United States, 10, 43, 45, 105, 136, 149, 161, 187, 190, 210, 290–296, 299, 311– 315, 318, 357, 373, 378, 383, 432, 506 Unity, 187 Unlawful, 29, 39, 40, 45, 54, 58, 105, 190, 195, 254, 258, 259, 302, 336, 349, 352–355, 357, 360–364, 367, 368, 372, 374, 389, 391–393, 396, 427, 431, 486, 490–492 Urban, 134, 292, 297, 298, 314 V Velásquez, 189, 198, 505 Violence, 6, 29, 30, 38, 41, 49, 50, 52, 60, 64, 103, 106, 114, 116, 126, 128, 132, 198, 200, 228, 247, 253, 259, 264,

Index 290, 296, 305, 307, 311, 321, 354, 361, 367, 369, 371, 418, 424, 433, 445, 446, 485, 490 Vocational, 421, 433, 435, 443 Voluntary, 36, 42, 44, 46, 60, 73, 94, 102, 108, 118, 121, 240, 265, 267, 268, 352, 359, 361, 364, 367, 388, 430, 438, 485 Vulnerability, 28, 44, 47, 49, 51, 52, 54, 72, 103, 107, 120, 151, 159, 200, 203, 247, 256, 301, 320, 339, 349, 353, 364, 365, 369, 372, 391, 416, 427, 436, 474, 482, 483, 490, 492, 493

W War crime, 61, 66, 373 Welfare, 32, 141, 254, 310, 395, 419, 430, 432, 435, 444, 445 Well-founded, 155, 157–159 Willingness, 127, 131, 261, 366, 367, 421, 425, 445, 465, 471, 490, 494 Witchcraft, 73, 228, 292, 295, 369–371, 471, 491 Witnesses, 94, 98–100, 119, 122, 153, 198, 233, 245, 259, 265, 266, 398, 419, 431, 432, 436, 438 Wrongful, 181, 183, 184, 211, 484

Y Yemen, 295 Yugoslavia, 49, 61, 188, 191, 193, 506

Z Zambia, 288, 295, 418 Zanzibar, 288, 292–294, 296, 298, 301, 312, 313, 315, 318, 337, 351, 369, 393, 403, 417, 419, 420, 425, 432, 436, 456, 457, 486, 496, 498