Asia Pacific Human Rights Network (APHRN)

Secretariat: SOUTH ASIA HUMAN RIGHTS DOCUMENTATION CENTRE  (SAHRDC)

B-6/6, Safdarjung Enclave Extension, New Delhi 110 029, India

Phone: +91-11-2619 2717, 2619 2706, 2619 1120

Fax: +91-11-2619 1120

Email: secretariat@aphrn.org

Home Page: www.aphrn.org

 Seventh Annual Meeting On The Role of the Asia Pacific Forum

In the Protection and Promotion of Human Rights

New Delhi, India, 11 – 13 November 2002

     The Role Of National Human Rights Institutions In The Prevention of 

Trafficking Of Women And Children– Background Paper

 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 Forum 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.”[1]  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.  In addition to providing broad suggestions about using NHRIs through their educative, advisory, complaint and enquiry functions, 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”[2], that “National Human Rights Institutions are ‘an under-utilized resource in the fight against trafficking’”[3], 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.”[4]  In the 1999 Concluding Statement, members of the APF 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”[5].

The problem of trafficking was again raised at the Sixth Annual Meeting of the APF, in September 2001 in Colombo.  The background paper on trafficking was, as noted in the first footnote, based on Ms. Gallagher’s initial report.[6]  Little new material was added—in some cases entire sentences or paragraphs are identical to Ms. Gallagher’s original text—and there is no mention of international, regional, or national protocols.  This despite the widely acknowledged need for a common understanding of legal mechanisms to combat trafficking.[7]  Equally noteworthy is the fact that 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, the 1999 Bangkok Declaration on Irregular Migration, and a joint project between the United Nations High Commission on Human Rights and His Majesty’s Government of Nepal were all available on the internet but were not included in the paper. [8]  At the end of the Sixth Meeting, APF members “welcomed the idea that practical projects should be developed to combat trans-border trafficking”[9] but did not record concrete plans to do so.

Although much of the information presented in the most recent background paper might be available to individuals already concerned with trafficking issues, the Asia Pacific Human Rights Network (APHRN) welcomes its exhaustive legal analysis as a platform for informed discussion. Other documents concerning the legality of trafficking that APF members might have consulted after giving “special attention” to the subject could include: a 1996 workshop on trafficking in women and children, organised by the Bangladeshi NGO UBINIG, produced an eleven page outline of international and national conventions, constitutional provisions and legal instruments dealing with trafficking; the Technical Consultative Meeting on Anti-Trafficking Programs in South Asia, held in Kathmandu in September 2001, resulted in six reports addressing different legal aspects of trafficking, later published by the United States Agency for International Development; and the Asian Development Bank released an exhaustive study that included legal mechanisms that are available to those who wish to combat trafficking.  It should be noted that this is merely a list of compilations of pertinent legal materials; international, regional, and country specific information is also available to interested individuals and organisations on the internet and in print form.  Asia Pacific NHRIs 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.

There is thus great optimism that APF Members, armed with the 2002 ACJ Background Paper and prior knowledge from a plethora of national initiatives[10], will use the 7^th meeting to form a concrete regional task plan.  With this in mind, the Asia Pacific Human Rights Network has drafted a proposal for combating trafficking that incorporates three ideas that have been central to APF discussions since the beginning: (1) awareness of the fact that trafficking is a trans-national problem, and as such the APF needs to take advantage of its international membership to create a regional approach; (2) this approach must make use of the unique opportunities for intervention existing in the NHRI framework; and (3) as noted by Ms. Gallagher’s initial report, international organisations such as UNIFEM, and NGOs such as Maiti Nepal, one of the key aspects in any program to reduce trafficking is that of prevention in the form of proper law enforcement.[11]  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.”[12] 

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

The APHRN approach to trafficking creates an integrated system of enforcement mechanisms that should be monitored by regional NHRIs in general and the national institutions of Nepal and India in specific, and their respective police forces.  We note 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.[13]  The plan outlined here makes use of the existing criminal justice system without ignoring the human rights element involved in trafficking.  We recognise that there are numerous social and economic factors contributing to widespread trafficking in people, however the unique role of NHRI as both a governmental and a human rights institution makes law enforcement the area where maximum efficiency can be achieved.

Under the status quo, trafficking is a low risk, highly lucrative venture for those in control.  Unless the stakes are seriously raised, not only in countries into which people are trafficked but also in countries in origin and transit, there is no real disincentive for those profiting now or potentially profiting in the future. No matter how vigorous the efforts to change community norms and empower potential victims, without a real fear of capture, prosecution and conviction these traffickers will continue on with business as usual. It is only once the climate of impunity is destroyed that social support and mobilisation programs will really be able to make an impact.  All of the root causes of trafficking must be addressed, but with finite resources available, countries need to act strategically in approaching the problem.

APHRN recommends a pilot anti-trafficking project be conducted in any 2 of the high prone trafficking areas in the border districts of Nepal. The results of the project should be used to develop a broad framework for regional co-operation.  A pilot project should be designed with a long-term perspective to ensure sustainability of interventions. An ideal project could be for two eighteen month periods or phases 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 2 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 2 VDCs in each of the same districts.

APHRN offers the several 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, Chief Justice of the Supreme Court, the Attorney General, the Inspector General of Police, the Ministry of Women, Children and Social Welfare (MWCSW), and the UN Interagency Human Rights Task Force.  The proposal outlines measures to augment the Nepali 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 that are made with respect to investigation and apprehension risk being wasted if corresponding efforts are not made to ensure the integrity and effectiveness of adjudication.  Thus APHRN 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; suggestion for the role of NHRI in developing a human rights based Code of Conduct; and methods of selection and appointment for members of the 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 shall 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 should engage in.

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

The National Human Rights Commissions of Nepal and India have agreed in principle to develop a pilot cross-border trafficking in 2003[14].  The plan outlined below makes use of the existing criminal justice system without ignoring the human rights element involved in trafficking. APHRN recognises that there are numerous social and economic factors contributing to widespread trafficking in people, however the unique role of NHRI as both a governmental and a human rights institution makes law enforcement the area where maximum efficiency can be achieved.