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How effective are domestic and international legal measures in dealing with human trafficking?

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How effective are domestic and international legal measures in dealing with human trafficking?

International law is a powerful conduit for combating human trafficking; this law is attempting to deal with this international crime in an efficient and effective manner. The most reputable and recent instruments of international law that have set the course for how to define, prevent, and prosecute human trafficking are the United Nations Convention against Transnational Organised Crime and its two related protocols: the United Nations Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children, and the United Nations Protocol against the Smuggling of Migrants by Land, Sea, and Air, which entered into force in 2003-2004. However it is evident that more still needs to be exercised. Trafficking is a lucrative industry; it has been identified as the fasted growing criminal industry in the world, people trafficking has reached epidemic proportions over the past decade, with a global annual market of about $42.5 billion. The United Nations estimates nearly 2.5 million people from 127 different countries are being trafficked around the world. This highlights that although the international community is dealing with crimes of this nature, attempting to protect all individuals, concerning issues still remain that need to be addressed in order to prevent this international crime from occurring.

Human trafficking can be defined as the illegal trade in human beings for the purposes of reproductive slavery, commercial sexual exploitation, forced labor, or a modern-day form of slavery. Anti-trafficking laws are problematic to enforce because victims of trafficking are hesitant to identify traffickers for fear of repercussion. Furthermore, trafficking is a crime that transcends borders, and therefore jurisdictions. Applying international law to a person who resides in another state is a costly and complex endeavour. Additionally, human trafficking usually violates several laws, and is not a one-time event. Building a case against traffickers can take a great deal of time, resources, and energy. In countries where resources are limited, these complexities can hinder enforcement of anti-trafficking laws.

There are many different aspects that cause human trafficking, it can be highlighted that there is an increasing demand for this crime, men around the world profit in pleasure and in price from the exploitation of women and children. Poverty and global disparities in the rule of law are conditions in which human trafficking, like HIV/AIDS and other killers of the poor, thrives. In poorer regions of the world where education and employment opportunities are limited the most vulnerable in society such as runaways, refugees, or other displaced persons are the most common victims of human trafficking. People who are seeking opportunity and entry to other countries may be picked up by traffickers and misled into thinking that they will be free after being smuggled across the border. In other cases, such as armed conflict and some trafficked humans are captured through slave raiding. Trafficking of children often involves exploitation of the parents' extreme poverty. The latter may sell children to traffickers in order to pay off debts or gain income or they may be deceived concerning the prospects of training and a better life for their children.

One of the most problematic issues of eliminating trafficking is compliance with international law. Measures for compliance with international treaties include signature, ratification, and enforcement of international agreements. Once a state signs and ratifies a treaty, it is subject to monitoring by UN committees, which receive input from nongovernmental organisations. Additionally, states are expected to submit regular reports regarding their level of compliance with the treaty. As of 2008, there are 143 parties to the United Nations Convention against Transnational Organised Crime, 119 parties to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, and 112 parties to the United Nations Protocol against the Smuggling of Migrants by Land, Sea and Air. The Trafficking Protocol is unique from other treaties because it was created as a law enforcement instrument, which, in theory, gives it more influence than aspirational agreements. An example of international efforts in dealing with human trafficking can be recognized through the Obama administration, it views the fight against human trafficking, at home and abroad, as an important priority on the foreign policy agenda. The United States funds 140 anti-trafficking programs in nearly 70 countries, as well as 42 domestic task forces that bring state and local authorities together with nongovernmental organisations to combat trafficking. Although this can be recognized as an effective way to minimize and prevent human trafficking from occurring, there is still however much more that can be exercised.

Anther dilemma of enforcing anti-trafficking laws is the lack of training of the local enforcement officers within the state. Even if the state has implemented anti-trafficking laws, it is not likely that the border patrol officers, federal agents, and local police officers are well-versed in international or domestic laws in regards to human trafficking. Victims of trafficking are often treated as criminals or illegal immigrants, and either arrested or deported. Additionally, since trafficking victims are usually not in their country of origin, there is often a language barrier between enforcement officers and the victims, making information-gathering problematic. The vast resources needed to ensure that the officers are able to properly enforce anti-trafficking laws are limited or unavailable in most states. However, one of the goals of the UN is to help build awareness of the issue and provide technical assistance. The assistance would include: draft legislation, manuals for various law enforcement agencies and victims, and fact-sheets for raising awareness. Nations, such as the United States, have already begun implementing awareness programs for law enforcement officers. Additionally, NGOs throughout the world play a crucial role in raising awareness about and monitoring human trafficking. Although many obstacles arise when dealing with this crime, the international community is working to effectively deal with the legal measures that handle human trafficking.

Highlighted through Domestic law, in the past decade, Australia has taken many positive steps forward in the fight against human trafficking. However it has been a long, slow and reluctant process to bring these plans into action. In 2005, the Criminal Code Amendment (Trafficking in Persons) Act 2005 was introduced as an act to amend The Criminal Code (Slavery and Sexual Servitude) Act 1999. This act established legislation to formally criminalise trafficking and related crimes, and increase penalties for trafficking related offenses. It was this very legislation that was to serve the purpose of providing the Australian Government with the precision and authority to pursue an aggressive criminal justice response. Although in forming its counter trafficking policy so late, it can be interpreted that in some respects Australia has chosen a reserved and overly guarded approach, which lacks the spark of outrage common elsewhere and consequently fails to achieve substantial results in the areas of protection for victims, prevention and prosecution of offenders. 

It is now recognized that the Asia-Pacific region is increasing the amount of incidences of human trafficking, particularly where that trafficking is for the purposes of sexual servitude. Plainly, as Australia is now a destination country and market for this type of offending, this nation carries the responsibility to address the problem vigorously. Australia is party to a number of international conventions that prohibit human trafficking this includes: The Slavery Convention, ratified in 1927; The United Nations Convention against Transnational Organized Crime, ratified in 2004; and The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, ratified in October 2005. Australian federal legislation now contains 5 categories of offences that encompass the international obligations to criminalise and combat human trafficking. Those categories are: slavery, sexual servitude, deceptive recruiting, human trafficking and debt bondage. These offences are serious and carry maximum penalties of up to 25 years for an offence of slavery or trafficking in children. This highlights the way in which Australia is exercising the prevention and prosecution of this inhumane crime.

It can be demonstrated that Australia’s experience is relatively recent with human trafficking as for there has been considerable workings through legal complexities that have emerged. Police investigations have shown that human trafficking in Australia is carried out by small but highly sophisticated organized crime networks. These frequently involve family and business connections between Australians and their overseas contacts. The majority of victims are from Southeast Asia or South Korea, with Thailand being the principal source of trafficked women. Many of the women have previously worked within the sex industry in Bangkok, Macau, Japan or Singapore.

In August 2008 the High Court of Australia, in the case of R v Wei Tang, defined the crime of slavery in a way that addresses the reality of women trafficked into Australia, along with highlighting both the legal and practical challenges involved in prosecuting a sexual slavery matter in Australia. The case involved five Thai women who were brought to Australia to work in a brothel in the State of Victoria. The brothel was owned by the defendant, Wei Tang. Each woman entered into an agreement in Thailand to come to Australia to work in the sex industry. Their agreements required them to incur a debt of between $35,000 and $45,000 AUD which they would pay off by servicing clients of the brothel. Upon arrival in Australia, the women’s passports were confiscated and kept at the brothel, and restrictions were placed on their freedom of movement whilst they were repaying their debts. The women were required to work at the brothel 6 days a week, earning $110 for each client. Of that $110, $50 was deducted from the debt and the remainder of the proceeds went to the establishment. The women were given the option of working on their free day and retaining the $50 per client, but only upon that day. Whilst under contract each woman was required to work in the defendant’s brothel six days per week, serving up to 900 customers over a period of 4-6 months. Project Respect’s media spokesperson, Katherine Maltzahn, outlined the High Court’s decision as having the following impact: ‘One, the Court has provided powerful clarity to investigators, prosecutors, and governments about what elements of slavery need to be proved in order to secure convictions. Two, the Court has embraced a modern understanding of how the crime of slavery operates. Three, the Court has found that consent to come to Australia for prostitution is not equal to consent to enslavement or the conditions of slavery’. On 27 June 2009 two men were found guilty in the Supreme Court of Victoria of possessing a slave in relation to sexual slavery and human trafficking. This case marked the first formal legal action in Victoria dealing with sex slavery and human trafficking. These recent changes to the Australian law show a growing commitment within the government and legal community to manage human trafficking and sex slavery. These steps have been significant, but there is still much work in the field that needs to be accomplished.

It can be highlighted that many challenges can arise in prosecuting a matter of this nature. It seems that the central problems in identifying and effectively confronting human trafficking in Australia’s experience are: the illegal and clandestine nature of the activity, bridging cultural and linguistic barriers to trust between prosecuting authorities and victims, not uncommonly, a related lack of co-operation of victims and witnesses with government authorities. Given all of these factors these victims of sexual exploitation require specialized and ongoing support, often for lengthy periods, to enable them to effectively participate in Australia’s criminal justice system. It has been determined that as a result of the shame and stigma that is attached to prostitution, victims may provide a number of different versions of the truth in order to shield their families from the reality of their life in Australia. This presents difficulties to the prosecution in presenting credible, admissible and reliable evidence to the court at trial. It is critical for juries to be brought to an understanding of the context in which the victims have been exploited and how they have responded to investigating authorities. These issues demonstrate the problematic aspects of human trafficking within Australia, along with the areas to which need to be addressed in order to effectively deal with this crime. However the Australian Government has more recently increased its efforts to provide protection and care to victims of trafficking by ensuring that victims can access support services regardless of whether they assist police with an investigation or prosecution. The Australian Government supports a public awareness campaign with advertisements in daily newspapers that encourage victims and communities to call the police hotline, and widely publicizing prosecutions against traffickers. This reinforces the effective role that Australia is promoting in relation to human trafficking.

The Anti-Slavery Project is an NGO that is the only specialist legal and policy centre in Australia focused on slavery, trafficking and extreme labour exploitation. It is dedicated to eliminating all forms of trafficking and slavery through a range of direct service and advocacy programs, along with providing comprehensive legal advice, representation and assistance to people who have experienced trafficking or slavery in Australia, including advice about immigration, citizenship, human rights, employment law, family law, criminal law, victim’s compensation and more. This NGO aspires to to promote a human rights response that prioritises the needs and concerns of survivors, improve and expand legal protections and benefits for survivors, along with to increase collaboration between community and government agencies to effectively address slavery and human trafficking crimes, mobilize public awareness and support for survivors, and human trafficking and to empower survivors to act as agents of social change. The Anti-Slavery project is an organisation that clearly illustrates the effective role that is being exercised in order to eradicate trafficking and slavery in this international community to thus prevent this crime from occurring.

Although human trafficking is a complex issue, the international legal instruments have been implemented to aid trafficking victims and to combat this worldwide epidemic, in an attempt to deal with this inhuman crime. Even states that are not a party to the United Nations Convention against Transnational Organized Crime and its two related protocols are obligated to protect the rights of trafficked persons under provisions in the Universal Declaration of Human Rights, which comprises customary international law. The issues of compliance and enforcement of anti-trafficking laws are problematic, but not impossible to overcome, however there is still a long way to go in order to overcome the problematic issues that are embodied within this crime. Australia has been recognized as relative newcomers to this area of prosecution. Its international nature poses particular challenges for our prosecutors. The developing Australian response to human trafficking has been one that has involved the whole of government, embracing a national policing strategy with specialist police investigation teams, a victim support program, which includes long-term residence and care for foreign victims, and extensive co-operation within our region. Nations throughout this diverse world must honestly recognize their role in combating this world-wide epidemic, because trafficking continues to negatively impact millions of people every year. Trafficking, like pollution, is everyone’s problem. The world collectively objected to slavery, and it will require a collective effort once again to abolish the practice of human trafficking in an effective manner.

By Emma Brookes

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