Combating Human Trafficking

 

 Combating Human Trafficking[1]

 Mr. Govind Prasad Thapa, DIG

 Human trafficking is a growing menace. This sickening industry is flourishing. On one hand, it has to be dealt with wider and stern laws and, effective enforcement while at the same time, we have to protect the rights of victims and support their rehabilitation. It all requires wide vision, closer understanding, cooperation, coordination and honest commitment of the nations concerned. It also requires the concerted efforts of many agencies and individuals. As the problem is international, we need international measures to deal with it.

 There are several issues, regarding this crime, which require clarity. Among them, the definitions of the term trafficking, prostitution, migration, and repatriation need a clear perspective.

 It is said that the definition of trafficking is not universal today. There is no unanimity on it. There is a need for identifying the characteristics of the word  ‘trafficking’ and universally defined it. Previously trafficking was more or less concerned with prostitution in women and children only. But these days trafficking has been for various other reasons too. Prostitution may be one of them. It is, also, not limited to women and children only. The current definition of trafficking usually includes the non-consensus movement of people within or across borders for the purpose of exploitation of labor.

 The economic, social, and cultural factors seem to have compelled people to migrate for better livelihoods and better conditions across borders. The poor education and lack of awareness among most women and children have made them dependent on brokers and their relatives. These brokers often abuse and exploit them at the origin, transit, and destination point in the name of assistance. It only worsens the situation. On one hand, there is demand for the right to free movement in search of better economic activities, and on the other, there is every possibility of abuse and exploitation.

 The migration may take place with the full consent of affected persons. Then the ‘consent’ becomes a very important and deciding factor in such a situation. We have to be very cautious while investigating such cases. We should be able to distinguish ‘voluntary migration’ from ‘trafficking’. But again it is a very difficult part. The affected person may have gone with full consent to work in a foreign country but not to work in slavery-like conditions. Therefore the consent could be out of intimidation, coercion, fraud, and out of the influence of power or authority. We have to be very much sure while investigating cases of such nature. We must be particularly concerned whether the consent was voluntary or otherwise.

 It is rather difficult to find out the mens rea and actus reus elements while conducting investigations of such crimes. Many cases have failed in the courts because of the absence or lack of evidence against the suspect. A minor, who is taken to a destination (with or without consent) to work, may not produce anything of evidential value to substantiate the investigation. In such a situation the prosecution may not be ascertained. Very often, suspects go scot-free in circumstances of absence or lack of evidence.

 Another issue, which is directly related to trafficking, is the right to choose a profession. There has been growing demand for the freedom to choose one’s profession. Which, if we concede, would allow choosing prostitution as one’s profession. We ought to be very much clear about prostitution. We must have a clear perspective on whether it is a problem of morality, labor, human rights, migration, public law, and order, or crime. There is confusion and very often the views of non-governmental organizations and States differ. Once we are clear about it then we can be in a position to treat it accordingly.

 There is also a demand for the right to migration for livelihood. The demand calls for the complete withdrawal of restriction and intervention. But, at the same time, the right to protection from slavery-like practices must be respected and addressed. Then, first of all, the modality to punish offenders in an extraterritorial jurisdiction, without challenging the rights of an affected person needs to be developed.  The countries of origin, transit, and destination have to agree upon a suitable modality bilaterally or multilaterally.

 The issue of repatriation or return of affected persons to their origin states is equally complex. There is an appeal that the repatriation of affected persons should be done on the basis of the voluntary consent of the affected person; that the affected person should be provided with all rights to legal matters, assistance, restitution, and compensation. There is equally great pressure upon States that affected person’s concerns should get preference to legal matters. So there is a need for a clear national and international perspective on these issues too.

 There has been strong criticism against the existing criminal justice system. Today, our criminal justice system is considered ineffective to deliver justice to many victims. The system is being criticized for being too autocratic and formal, expensive, unfair, slow, and humiliating.  There is a demand for a new paradigm of victim protection to be part of jurisprudence and judicial process. There are several agencies associated with the system but their efforts are not coordinated. The criminal justice system should be made more accessible and less intimidating for people who are victims of crimes. Police, as well as other law enforcement agencies, need to develop a more positive, sympathetic attitude towards them.

 It is said that the crux of the problem of trafficking is the appalling poverty in the villages followed by the lack of education and awareness. Most of those girls, who were sold, did not know what kind of life they would lead in the new destinations. Policing and administrative matters may help but ultimately the key to solving the problem lies in alleviating poverty and generating employment opportunities. There is also a need for improving our familial, social, and cultural beliefs, rites, and customs.

 Considering all these push and pull factors in trafficking, a short-sighted strategy is never going to help control this crime. A clinical, rather than symptomatic, approach will have to be given preference. For that reason, we need to be more organized, systematic, committed, concerted, and coordinated in our thoughts and actions.

---

[1] Workshop on Trafficking in Women and Children in South Asia, Aswin 1, 2056, Kathmandu, Nepal

 

'Will I ever get justice?' Nepal accused of failing trafficking survivors

 

'Will I ever get justice?' Nepal accused of failing trafficking survivors

The Guardian, May 26, 2017

Rights groups claim no one has received compensation since law entitling survivors of human trafficking was introduced a decade ago

Rights groups in Nepal say they do not know of a single survivor of human trafficking who has received compensation under a law introduced a decade ago.

An act that came into force in 2007 guarantees compensation for trafficking victims, but only after the perpetrator has been convicted, a caveat that has left survivors facing years of traumatic court proceedings and threats from their traffickers.

A new report in which 125 trafficking cases were reviewed found that, while courts awarded compensation in more than half the cases, no one has so far received it.

Sabin Shrestha, executive director of the Forum for Women, Law and Development (FWLD), which produced the study, said: “The biggest tragedy for us is that the conviction rate is good. The perpetrators are being punished … but not a single survivor has benefited.”

Four other experts, with decades of experience in the field, also said they were unaware of any case where a survivor had received compensation.

The government initially rebutted the claims. Radhika Aryal, a senior civil servant at the women, children and social welfare ministry, said: “The government agencies provide compensation to the survivor, according to the court’s verdict. We have been doing so in many cases … without delay.”

Aryal later admitted, however, that she knew of only two cases of trafficking victims receiving compensation.

More typical are the stories of women like Shanti, who was trafficked to India at the age of 13. Shanti (not her real name) waited nine years for her case to go through the courts, but is yet to receive any payment.

“I have faced threats from the traffickers … I couldn’t spend a single day in peace as I always felt insecure before the verdict,” she said. “I couldn’t develop as a person, as I had to keep visiting my past through the courts.”

The law states that compensation should be paid out of the fine levied on the perpetrators, leaving survivors in limbo until the legal process is complete. If the trafficker cannot pay, the government must do so. Proving that the perpetrator does not have the funds is itself a lengthy and difficult process, however.

“Though the court verdict says I should be getting compensation, as far as I understand … I will have to prove that the culprit is not rich enough to pay compensation; only then will the government give me the amount,” said Shanti.

Even if Shanti eventually secures the payment, it is unlikely to reflect the ordeal she has been through. Research by the FWLD found that, in almost two-thirds of cases, courts ordered compensation of just 50,000 Nepalese rupees (£380).

The funds awarded are typically only 50% of the trafficker’s fine, with the remainder going to the government.

“How can the government keep half of any compensation given to survivors?” said Benu Gurung, executive director of the Alliance Against Trafficking in Women and Children in Nepal. “We demand all of the fine is given to the victim.”

Gurung added that some people find it is easier, and more lucrative, to accept hush money from the traffickers than go through the courts.

“From a survivor’s perspective, rather than face threats from traffickers, or risk being exposed as a victim of trafficking, it is better to accept a payoff, especially when you have no confidence that you will ever receive compensation,” said Gurung.

Rights groups are calling for immediate interim financial support for survivors, higher rates of reparations and greater efforts to make survivors aware of their right to recompense.

“We survivors demand the government compensate us first and later get the money from the culprit,” said Shanti. “How long will it take? Will I ever get justice?”