Raising the stakes will lower impunity [Human Rights Features, Volume 5 (October

Raising the stakes will lower impunity

Background paper on the role of national human rights institutions in the prevention of trafficking of women and children

The issue of trafficking in people is not new to the Asia Pacific Forum of National Human Rights Institutions (APF). At the Third Annual Meeting of the APF, held in Jakarta in 1998, the non-governmental (NGO) facilitating team advised the APF to "move as quickly as possible to reform…prostitution and trafficking laws to make them consistent with their respective Penal Codes; non-discriminatory; and in par with international human rights standards, particularly those designed to protect the victims of trafficking."

The 1999 meeting of the APF in Manila further developed this topic. Anne Gallagher, in her capacity as Advisor on Trafficking for the Office of the United Nations High Commissioner for Human Rights, authored a report entitled 'The Role of National Institutions in Advancing the Human Rights of Women: A Case Study on Trafficking in the Asia-Pacific Region'. This document described the appalling frequency with which trafficking in human beings occurs in the Asia Pacific region and suggested ways for national human rights institutions (NHRIs) to assist in combating the problem.

She stated, inter alia, that "[w]hile trafficking does occur between continents it remains essentially a regional issue. There is a consequential need to focus on regional and sub-regional approaches with aim… to coordinate legislation and to improve-cross-border cooperation", that "National Human Rights Institutions are 'an under-utilized resource in the fight against trafficking'", and that "National Institutions in countries of origin have a special responsibility in the area of prevention… National Institutions in destination countries must focus their attention primarily on protection of the rights of trafficked persons."

In the 1999 Concluding Statement, APF members stated: "Special attention was given at the meeting to the trafficking in women and girls…Attention was also drawn to the need for a coordinated regional approach that would facilitate practical responses to entrenched forms of discrimination against women".

The problem of trafficking was raised a second time at the sixth annual meeting of the APF held in September 2001. The APF's background paper on trafficking was based on Ms Gallagher's initial report. Little new material was added - in some cases entire sentences or paragraphs are identical to those in Ms Gallagher's original text - and there was no mention of international, regional, or national protocols. This despite the widely acknowledged need for a common understanding of legal mechanisms to combat trafficking.

Equally noteworthy is the fact that reports on developments such as the 2000 Palermo Trafficking Protocol, the formation of the South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, and the 1999 Bangkok Declaration on Irregular Migration were available on the internet but were not included in the paper.

In their conclusion to the 2001 meeting, APF members "welcomed the idea that practical projects should be developed to combat trans-border trafficking" but did not record concrete plans to do so.

The APF's most recent background paper provided exhaustive legal analysis that served as the basis for discussion. NHRIs in the Asia Pacific have also had three years to consider the issues that were outlined in Ms Gallagher's 1999 report and reiterated nearly word for word in 2001.

In anticipation of the framing of a concrete regional task plan by the APF, the Asia Pacific Human Rights Network drafted a proposal for combating trafficking that incorporated three ideas that have been central to previous APF discussions.

One, awareness of the fact that trafficking is a trans-national problem, and the APF must therefore take advantage of its international membership to create a regional approach.

Two, this approach must make use of the unique opportunities for intervention existing in the NHRI framework.

And finally, as noted by Ms Gallagher in her initial report, international organisations such as UNIFEM, and NGOs such as Maiti Nepal, one of the key aspects in any programme to reduce trafficking is that of prevention in the form of proper law enforcement.

As Anu Radha Koirala of Maiti Nepal stated over five years ago: "In the past emphasis was placed on tackling the supply side of the phenomenon… Now the demand side of the phenomenon is increasingly recognized as a pivotal concern. It is the sex exploiters, the customers and the seedy side of business sector and their chain of allies… which must equally be countered and penalized."

In 1999, the South Asia Human Rights Documentation Centre (SAHRDC), acting on behalf of the Office of the High Commissioner for Human Rights (OHCHR), developed proposals aimed at reducing trafficking. SAHRDC recommended that the OHCHR commit resources, when they become available, to developing a project aimed at reducing trafficking by increasing the effectiveness of local and cross border law enforcement. The Asia Pacific Human Rights Network (APHRN) acknowledged these recommendations in its draft plan.

The APHRN approach to trafficking aims to create an integrated system of enforcement mechanisms to be monitored by regional NHRIs and the national institutions of Nepal and India, as well as their respective police forces. It must be noted that both the Nepal Human Rights Commission and the Indian National Human Rights Commission have, in theory, committed themselves to developing and implementing such a plan. The plan outlined by APHRN makes use of the existing criminal justice system without sidestepping the human rights element involved in trafficking.

APHRN recommends that a pilot anti-trafficking project be conducted in any two of the areas in the border districts of Nepal most affected by trafficking. The results of the project should be used to develop a broad framework for regional cooperation. A pilot project should be designed with a long-term perspective to ensure sustainability of interventions.

Low risk, high returns

Under the status quo, trafficking is a low risk, highly lucrative venture for those in control. Unless the stakes are raised substantially, there is no real disincentive for those profiting now or potentially in the future - not only in countries into which people are trafficked but also in countries of origin and transit.

No matter how vigorous the efforts to change community norms and empower potential victims, without a real fear of capture, prosecution and conviction, traffickers can be expected to continue as usual. It is only when the climate of impunity is destroyed that social support and mobilisation programmes will make an impact. The root causes of trafficking must be addressed. But, with finite resources available, countries need to act strategically.

An ideal project could be spread over two 18-month periods before being evaluated and extended to the rest of the country. The first phase would be the evolutionary phase where pilot projects are commenced at the national level, cross-border and with two Village Development Councils (VDCs) in each of the districts. The subsequent phase would be the enhancement phase which incorporates the lessons learnt in the ongoing initiatives and extends the coverage at the districts level to a further two VDCs in each of the same districts.

APHRN offers recommendations that could serve as guidelines for the national institutions of India and Nepal in their strategies to enforce legal mechanisms.

They include, inter alia, the examination, assessment, and revision of existing legislative and administrative provisions; the creation of a Special Task Force and the creation of a National Task Force that consists of the Project Consultant and representatives nominated by the Chairperson of NHRC, the Chief Justice of the Supreme Court, the Attorney General, the Inspector General of Police, the Ministry for Women, Children and Social Welfare (MWCSW), and the UN Interagency Human Rights Task Force. The proposal outlines measures to augment the Nepal and Indian police forces, methods for collecting information on alleged traffickers, the establishment of a regional database on trafficked persons, and methods for monitoring the project on the national and international levels.

Any improvements made with respect to investigation and apprehension risk being wasted if corresponding efforts are not made to ensure the integrity and effectiveness of adjudication. APHRN also offers several suggestions aimed at enhancing the judicial integrity of trafficking initiatives. They include suggestions for the creation and augmentation, of the existing Special Court, which is currently inadequate in Nepal, and issues to consider when establishing new courts; suggestions for the role of NHRIs in developing a human rights based code of conduct; and methods of selection and appointment for members of special courts.

In addition to the operational details of cross-border co-ordination, a number of jurisdictional and other legal questions must be resolved, such as the admissibility in Nepalese courts of witness statements and other evidence obtained in India (and vice versa) and the adequacy of existing extradition provisions. Basic human rights protection should be guaranteed for all trafficked victims, whether or not they agree to testify against their perpetrators.

APHRN suggests that a legal consultant work with the Interpol Divisions of the Indian Central Bureau of Investigation (CBI) and the Nepal police to develop procedures governing the sharing and exchange of information and to establish a clearinghouse of information on trafficking activities accessible to designated police officers in each country.

The proposal provides a list of specific activities the legal consultant, the Nepal NHRC, and the Indian NHRC could engage in.

Stressing the urgency of STD and HIV/AIDS prevention, APHRN offers recommendations for the assistance of the NHRIs, which should be implemented in co-ordination with the MWCSW and the Ministry of Health. Lastly, the proposal outlines key issues that must be considered regarding developmental initiatives and domestic and cross-border coordination.

The NHRCs of Nepal and India have agreed in principle to develop a pilot cross-border anti-trafficking project in 2003. APHRN recognises that there are numerous social and economic factors contributing to widespread trafficking in people. However the unique role of the NHRI as both a governmental and a human rights institution makes law enforcement an area where the maximum efficiency can be achieved.