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KITTI

ILO_TRAFFICKING
INTERNATIONAL LEGAL FRAMEWORKS

Early Trafficking Conventions: Evolution of the Concept of Trafficking in Children

A few decades ago the term trafficking had a very different connotation and was understood to be an issue that affected only women. As reflected by the term “White Slavery”, trafficking was closely linked to the kidnapping and abduction of women and their sale for sexual slavery.  The image conjured was one of women in shackles being herded together against their will to provide sexual services for men in countries other than their own. Hence, the initial international treaties focused on ‘forced recruitment and transport of women’.
In 1895 the first international conference on trafficking of women was held. This was followed in 1904 by a meeting of 16 states where the first international agreement against ‘White Slavery’, the International Agreement for the Suppression of the White Slave Trade’ was formulated. The aim of the agreement was to combat ‘the procuring of women or girls for immoral purposes abroad’.[1]  Six years later a new convention was drafted which broadened the scope by including ‘traffic in women within national boundaries’ within its purview. [2] This Convention bound states to punish ‘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 of full age for immoral purposes’.
Both the 1904 and 1910 Conventions deal only with recruitment, the process through which the women are brought to the brothels/forced into prostitution, and do not address conditions in brothels. The closing statement of the Convention states the ‘case of retention against her will, of a woman or girl in a house of prostitution could not, in spite of its gravity, be included in the present Convention, because it is exclusively a question of national legislation.’[3]

The 1949 Convention on the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, the first trafficking convention to use gender-neutral language, also makes no mention of children. In Article 1 of the Convention parties are required to punish any person who, to gratify the passions of another:

(1)   procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person;
(2)   exploits prostitution of another person, even with the consent of that person.
This Convention, which has been criticized for its narrow definition of trafficking and lack of an enforcement mechanism, continues the tradition of the “white slave” model by conflating trafficking with the exploitation of prostitution. Punishment is also extended to keeping, managing or financing a brothel [Article 2 (1)] and knowingly letting or renting a building or other place for the purpose of prostitution of others [Article 2 (2)]. The Convention was ratified by only 66 states, but this definition of trafficking was accepted by most of the countries in South Asia. 
The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery 1956 is the first Convention to specifically deal with the exploitation of children related to slavery and similar practices. In Article 1 (d) the Convention defines slavery as ‘any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or his labour’. This is the first Convention to identify the various practices that constitute slavery such as debt bondage and forced marriage.[4]

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organised Crime 2000

During the last few months of 2000, the United Nations Convention against Transnational Organized Crime, added the Protocol to prevent Suppress and Trafficking in Persons, especially Women and Children.  The document was a consensus document that took form after many hours of deliberation.  The Protocol defines trafficking as “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”.
Though the definition is cumbersome, it is a major development in the law of trafficking.   In contrast to the earlier definition of trafficking in the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, the Protocol of 2000 makes significant changes.  Firstly, the Protocol distinguishes between women and children and a child is defined as ‘any person’ under eighteen years of age’.[5] For women there must be transfer or transportation across borders but it must involve some form of coercion or abuse of vulnerability.  With regard to children, fraud, deception coercion or abuse is not necessary.  Mere recruitment, transportation or transfer is enough[6] to incur criminal liability. Accordingly Article 3 (c) states ‘the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if it does not involve any of the means, such as fraud and coercion set forth in the previous paragraphs.
In addition, the Protocol links trafficking to a wide variety of purposes and the definition is not only connected to the exploitation of prostitution.  It includes among other end purposes, such practices as forced labour, removal of organs or other slavery-like practices.  The language of the protocol itself is a compromise, reflecting the various positions of diverse groups and interests. 
Further, the Protocol also pays heed to the special requirements of child survivors of trafficking and asks each State party to ‘take into account, in applying the provisions of this article (on assistance to and protection of victims of trafficking), 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’.[7] Moreover, States are bound to take measures to prevent trafficking. The Protocol requires parties to ‘protect…especially women and children, from re-victimization’[8] and take measures through bilateral and multilateral co-operation to alleviate factors that make…children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity’.[9] Hence, the Protocol pays attention to the underlying causes of trafficking of children and demands appropriate action from State parties. It is also required to sensitise and train immigration and other relevant officials on the needs of children. The Protocol explicitly states
‘the training should also take into account the need to consider…child sensitive issues…’.[10]  In comparison with previous trafficking conventions the 2000 Protocol is a major advancement towards the protection of the rights of trafficked children.

The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography

The Protocol provides definitions of the sale of children, child prostitution and child pornography[11] and requires each state party to ensure that certain minimum legislative protection against certain acts. These acts include:
(i)                Offering, delivering or accepting, by whatever means, a child for the purpose of:
a.      Sexual exploitation of the child;
b.     Transfer of organs of the child for profit;
c.      Engagement of the child in forced labour;
(ii)              Improperly inducing consent, as an intermediary for the adoption of a child in violation of applicable international legal instruments on adoption;
(iii)            Offering, obtaining, procuring or providing a child for child prostitution as defined in article 2;
(iv)            Producing, distributing, disseminating, importing, exporting, offering, selling or possessing for the above purposes child pornography as defined in article 2.

The Protocol also focuses on the need to ensure the needs of child victims are met and they are not re-victimized by the justice system. To this end the Protocol requires States to adopt certain measures such as court procedures ‘to recognise their special needs, including their special needs as witnesses’[12], ‘providing appropriate support services to child victims throughout the legal process’[13], ‘protecting…the privacy and identity of the child’[14] and ‘providing…for the safety of child victims, as well as that of their families and witnesses on their behalf from intimidation and retaliation’[15].

The Convention on the Rights of the Child

This Convention, which contains the core rights and standards relating to the right of children, defines a child as ‘every human being below the age of eighteen years’.[16] Many provisions of the Convention deal with the issue of illegal transfer of children and many other acts that are performed during the course of trafficking and/or are the end products of trafficking. For example, article 11 requests States to take action to combat the illicit transfer and non-return of children abroad. Another provision of the Convention deals specifically with trafficking whereby States are bound to take measures to ‘prevent the abduction of, the sale of or the traffic in children for any purpose or in any form’. [17]
In relation to the end products of trafficking, such as labour or sexual exploitation or trafficking for adoption, several articles in the Convention explicitly deal with these issues. Article 32 focuses on the right of the child to be protected from ‘economic exploitation’ and other work that might be ‘hazardous or interfere with the child’s education, or be harmful to the child’s health or physical, mental, spiritual, moral or social development’. This article also requires States to set a minimum age for employment, appropriate regulation and penalties for the contravention of this provision.
While article 36 of the CRC requires States to “protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare”, article 34 obliges State parties to protect children from all forms of sexual exploitation and sexual abuse and take national and bilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
The Convention also deals with adoption and puts in place various safeguards to ensure adoption is conducted through legal means with the consent of the persons concerned and guarantees the best interests of the child.[18] It also specifically mentions the adoption should not ‘result in improper financial gain for those involved in it’.[19]
The needs of victims of any violation of these rights are also given attention in the Convention. Article 20 is particularly relevant to child trafficking victims as it states ‘a child temporarily or permanently deprived of his or her family environment…shall be entitled to special protection and assistance…’ The physical and psychological recovery of all child victims is the responsibility of the State, which has to ensure the ‘social integration of a child victim…in an environment which fosters the health, self-respect and dignity of the child’.[20]

ILO Convention 182 – Worst Forms of Child Labour Convention, 1999

Since the end products of trafficking are also the concern of this paper, Convention 182 is of particular importance, since it deals with various forms of labour exploitation to which trafficked children are subjected. As in the CRC and the ILO Convention on Minimum Age for Admission to Employment, in this Convention too a child is defined as a person under the age of 18[21]. Worst forms of labour include slavery, sale and trafficking of children, debt bondage, forced or compulsory labour and use of children for prostitution and pornography.[22] The Convention also requires States to “establish or designate appropriate mechanisms to monitor the implementation of the provisions giving effect to this Convention”[23]. According to the Convention States have to design and implement programmes to eliminate as a priority worst forms of child labour[24] and in doing so have to pay attention to the ‘special situation of girls’.[25]
ILO Convention 138 – Minimum Age Convention, 1973
This Convention requires State parties to abolish child labour and “raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons”[26]. Further, the Convention decrees that the minimum age should not be less than the age of completion of compulsory schooling, which in any case should not be less than 15 years[27]. States “whose economy and educational facilities are insufficiently developed may, after consultation with the organisations of employers and workers concerned, where such exist, initially specify a minimum age of 14 years”[28].
The protection of children from work that may jeopardise their health, safety or morals is also one of the concerns of the Convention, which clearly sets 18 as the admission age for any work ‘which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons.[29] An exception to this does exist in the Convention which allows such work for 16 year olds after extensive national consultation between local authorities, employers organisations and other relevant institutions on the proviso ‘the health, safety or morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity’.[30]
Recommended Principles and Guidelines on Human Rights and Human Trafficking issued by UN High Commissioner for Human Rights
The UN High Commissioner for Human Rights has issued guidelines for States on the issue of trafficking, which reiterate the ‘primacy of human rights’ and the imperative to approach the issue from a human rights perspective. The principles deal with various issues related to trafficking such as prevention, identification of trafficked persons, protection and assistance to trafficked persons, research, analysis, evaluation and dissemination, the role of law enforcement and remedies. The guidelines also contain a comprehensive section on special measures for the protection and support of child victims of trafficking which aim to ensure States provide adequate protection and assistance to child victims of trafficking. 

REGIONAL CONVENTIONS

SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution
The SAARC Convention 2002 as its title clearly states is a Convention, which deals with Trafficking in Women and Children only for the purpose of Prostitution. This Convention follows the early approach to trafficking, which linked trafficking only to prostitution and sexual exploitation. Hence, the Convention instead of following the 2000 Protocol in its approach and broadening the definition of trafficking to include diverse end products, such as forced labour and organ harvesting, focuses on prostitution. A child is defined as a person under 18 years[31] while trafficking is defined as the ‘moving, selling or buying of women and children for prostitution within and outside a country for monetary or other considerations with or without the consent of the person subjected to trafficking’.[32]
States are required to punish those who keep, maintain, manage or finance a place used for trafficking and those who knowingly rent a building for such purpose.[33] Where training of officials is concerned the Convention does not explicitly require that relevant officials be given training to deal sensitively with victims of trafficking but rather focuses on the law and order aspect and declares they should be given training to ‘effectively conduct inquiries, investigations and prosecution of offences’[34] and law enforcement agencies and judiciary be sensitised ‘in respect of the offences under the Convention and other related factors that encourage trafficking in women and children’.[35] The provisions on repatriation of victims do not make it mandatory for the state to ensure the safety of the trafficked person or where possible engage in voluntary repatriation. The Convention requires seven ratifications to come into force. At present only Bangladesh, India, Sri Lanka, Maldives and Bhutan                                             have ratified the Convention.
SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia
The Convention follows the CRC and defines a child as a person below 18 years, unless under national law majority is attained earlier[36] and requests State parties to ‘uphold the best interests of the child as a principle of paramount importance’. Trafficking and its end products are also dealt with in the Convention, which asks States to ‘ensure that their national laws protect the child from any form of discrimination, abuse, neglect, exploitation, torture or degrading treatment, trafficking and violence’.[37] Further, the Convention also deals with worst forms of child labour and exploitation in a separate provision where it calls upon States to adopt a multi-pronged strategy to deal with the issue.  Bangladesh, India, Sri Lanka, Maldives and Bhutan have ratified the Convention.

THAILAND

INTRODUCTION

Thailand is a source, transit and destination country, where persons are trafficked primarily for the purposes of sexual exploitation and forced labour. As a source country, Thai women and girls are often trafficked to Australia, Bahrain, Japan, Malaysia, Singapore, South Africa, Taiwan, Europe, and North America for commercial sexual exploitation.[38] A significant number of children trafficked from Myannmar, Laos, Cambodia, and the People’s Republic of China (P.R.C.), the province of Yunnan in particular, are economic migrants who wind up in forced labour and commercial sexual exploitation in Thailand.[39]
Regional economic disparities fuel significant illegal migration into Thailand, presenting traffickers opportunities to move victims into labour or sexual exploitation.[40] Women and girls are trafficked from the highly impoverished North and Northeastern regions of the country for the above purposes.  Those trafficked are often the rural poor and are from ethnic minorities.[41]
The U.S. State Department “Trafficking in Persons” Report places Thailand on its ‘Tier 2’ Watch list,  and states that although Thailand ‘does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so.’[42] The Government of Thailand has made significant efforts in addressing the issue of human trafficking through various measures. The Prime Minister proclaimed, at the National Conference on Human Trafficking held on August 6, 2004, the fight against human trafficking as the priority of the national agenda.[43]  However, any progress made due to legal reform is marred by the tacit support granted by the government to the commercial sex industry which generates revenues for the government in terms of tourism. 
RATIFICATION OF INTERNATIONAL CONVENTIONS
The Thai government has signed the UN Convention on the Rights of the Child, the World Declaration of the Survival, Protection and Development of Children and Plan of Action and the Protocol to Prevent, Suppress & Punish Trafficking in Persons. The government of Thailand has also ratified ILO Conventions relevant to child labour, namely the Forced Labour Convention, 1920, ILO Convention 182, Elimination of Worst Forms of Child Labor and the Minimum Age (Underground Work) Convention, 1965.

THE CONSTITUTION OF THE KINGDOM OF THAILAND

The Constitution of 1997, although not addressing the problem of trafficking directly, does grant the child certain rights. Section 53 of the Constitution states that :
‘Children, youth and family members shall have the right to be protected by the State against violence and unfair treatment. Children and youth with no guardian shall have the right to receive care and education from the State, as provided by law.’[44]
The Constitution also addresses the right to education of all children.  Under  Section 43 of the Constitution, education is to be provided for twelve years without charge,[45] but only nine of those twelve years are compulsory, [46] which allows the children to remain in school until the age of fifteen or sixteen, as the required enrollment ages for Thai children is between six and seven years of age.[47]  If the proposed twelve year compulsory education scheme is endorsed, it is expected that child labour will become practically non-existent.  While the careers that are customarily pursued by children themselves would remain, older workers would enter into these fields in place of children thereby reducing the risk factor.[48]
The Constitution protects against potential end products of trafficking.  For example, Section 51 states that ‘Forced labour shall not be imposed except by virtue of the law specifically enacted for the purpose of averting imminent public calamity or by virtue of the law which provides for its imposition during the time when the country is in a state of war or armed conflict, or when a state of emergency or martial law is declared.’[49]
However, due to the fact that the Constitution and its protections are only limited to those with citizenship, those trafficked from other countries cannot appeal to the same fundamental rights as Thai citizens.  The lack of citizenship also acts as a risk factor for internal trafficking within approximately a half a million non-Thai hill tribe people living in northern Thailand.[50]
 

TRAFFICKING

1) Measures in Prevention and Suppression of Trafficking in Women and Children Act of 1997
This act replaces the Trafficking in Women and Girls Act of 1928.  The former statute specifically exempted trafficking victims in Thailand from imprisonment or fine, however they had to be sent to a state reform institution for at least thirty days, portraying those that were trafficked as women or girls in need of “moral rehabilitation”.[51] The new act does not include similar labeling of the victims and has been designed more to deal with the various forms of present-day trafficking, whereby officials were given wider authority to search and inspect establishments.
The Act criminalizes the acts of ‘trafficking, the buying or selling, vending, bringing from or sending to, receiving, detaining, or confining any woman or child or arranging for any woman or child to act or receive any act, for sexual gratification of the third person, for an indecent sexual purpose, or for gaining any illegal benefit for him/herself or another person, with or without the consent of the woman or girl’[52].Although the acts which incur liability, such as buying, selling etc are recognized the Act links the act to the only one end product of trafficking, sexual exploitation. ‘Sexual gratification’ and ‘indecent sexual purpose’ are the end products recognized by the Act which fails to criminalize the other end products such as bonded labour. Further the Act states that committing any one of these acts for the purpose of ‘gaining any illegal benefit for him/herself or another person is also identified as an end purpose. This provision will actually make prosecution harder as proof of benefit would have to be presented. Rather, if the Act had merely stipulated the commission of certain acts as attracting penal sanctions there would be no need to prove the offender obtained benefit, only that the acts took place.
As a result, in cases where the end result is not prostitution, traffickers are not prosecuted for trafficking and the related human rights abuses inflicted on the workers, but are prosecuted instead under the Immigration Act, for harbouring illegal migrants or the Labour Act, for hiring illegal labour or child labour.[53] This had a significant effect on the treatment of by authorities of trafficked children. For example, in the case of several Burmese women and girls trafficked to a garment factory, the staff of a Thai NGO, the Foundation for Women (FFW) reported that, ‘The problem was the definition of 'trafficking'. The police and the prosecutor did not think that these women and girls had the right to be 'complainants' against the employer. They were not seen as trafficked persons. These women and girls rescued from the factory were seen as illegal workers because they illegally entered Thailand to work in the garment factory and they were not forced or lured to come with the agent. But they were forced to work every day for many hours, they were beaten if their work was not satisfactory and they were locked in the building and unable to go out.’[54] The treating of the trafficking victims as illegal immigrants, even being charged with illegal entry or having fake passports, is a significant flaw in the Act.
Section 10 allows an official, defined in the Act as ‘a government official not lower than the third level, or the superior administrative or police official appointed by the Minister for the execution of this Act’, to detain a child ‘for the ‘benefit of prevention and suppression of the offence’ or for ‘rescuing a child who may be a victim of such offence’ for not more than half an hour.  If the official feels longer detention is necessary the Act requires him to record the detention in an official report, inform the Director-General of the Police Department or the provincial governor of the jurisdiction and detain the child for not more than twenty-four hours. Since the definition of a government official is wide to give power to detain a child without a court order to such a large number of officials, especially since in many cases trafficking occurs with the complicity of government officials, provides space for abuse of power and corruption. The fact the Act even allows detention for more than twenty-four hours not exceeding ten days with the permission of the Director-General of the Police Department of the Provincial Governor, without any judicial oversight is cause for concern. The last paragraph of the section seems to indicate the true intention of the detention which is to obtain the testimony of the child. Scant regard is paid to the interests and needs of the child.
There are also several provisions in the Act to provide assistance to the victims of trafficking. Section 11 mentions a primary shelter for the victims and repatriation of the victim.[55] However, under the section on repatriation, little mention is given to the consideration of the consent of the victims to repatriation, raising the spectre of coercion.
Despite the fact that the new Act is a vast improvement on the previously existing legislation, there still are a few problems. Although the new law has been expanded to include all children, defined as ‘person(s) whose age is not over eighteen years’, some sections seem to apply only to women and girls, such as section 10. Also, Section 5 discusses indecent sexual acts with or without the consent of the woman or girl, excluding boys entirely, which seems to revert to the earlier act on the prevention of the trafficking of females.[56]
There is also a great deal of discretion granted to officials in this process, relating to the inspection of sites, making arrests and determining the level of assistance given to the victims.  For example, section 11 allows the official concerned ‘to use his/her judgment in giving appropriate assistance to the …child…in providing food, shelter and repatriation to her/his original country or residence’. Since most often officials are not particularly sensitized to deal with the issue in way the takes the rights, needs and interests of the child the Act should not allow important matter such as provision of assistance and repatriation to be at the discretion of the official.  Regardless of the fact numerous NGOs have cited the corruption of officials as the prime reason behind the prevalence of the trafficking problem this Act continues to grant substantial power to the officials with no regard for oversight.  It is therefore imperative there are checks and balances in place to ensure that power is not abused and there is no discrimination in the application of the Act.
Additionally, the support granted to the victims of trafficking appears very minimal. Repatriation is not an option that is appealing to many, in light of the push factors such as the lack of employment, abuse or poverty that make these children prey to traffickers.  There needs to be more programs for long-term care of the victims and emphasis must be placed on rehabilitation for these children as well as training in trades that make them more saleable in the job market, thus decreasing the risk of re-trafficking.
2) Draft Prevention and Suppression of Human Trafficking Act of 2003
The Act is intended to amend the earlier 1997 Act which as stated above focused solely on trafficking for sexual purposes while ignoring trafficking for other purposes and charged the victims of human trafficking themselves with criminal offenses, such as illegal entry and or fake passports. This draft Act was approved by the cabinet on June 14, 2005 is now under the consideration of the Council of State.[57]
Under this Act, human trafficking has been broadened to refer to ‘the recruitment, transportation, transfer, harboring 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 payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. The consent of a victim of trafficking in children and women to the intended exploitation shall be irrelevant where any of the means aforementioned have been used,’[58]thereby including other purposes for trafficking in addition to sexual activity.
In addition, the Draft Human Trafficking Act will allow Thailand to prosecute every offender of human trafficking no matter where the offence is committed, i.e. it gives extra-territorial jurisdiction. There is also more provision for victim care, with less disclosure of the names of the victims and witnesses for their safety and to protect their reputations. As well as having remedies in the criminal courts, victims may claim compensation from the offender for any damages caused by human trafficking.  Victims will also be provided with longer term care in terms of physical, psycho-social, legal, educational, and health care assistance.[59] 
Finally, the Act establishes a fund to support suppression and prevention of human trafficking, and welfare protection of trafficked victims. The fund will be established through annual budgetary contributions by the government, funding from intergovernmental and international organizations, donations from the private sector and confiscated assets of trafficking offenders.[60]
Though this draft is more progressive than the existing Act, there needs to be more attention paid to the training and the sensitization of the officials implementing these regulations.  Without proper individuals addressing the needs of the children, children run the risk of being re-victimized by the system. As the officials are granted a great deal of discretion by the legislation some sort of standardized practices have to be established to ensure unbiased treatment of the children and transparency in the process.
3) Penal Code Amendment Act of 1997 and Penal Code
The Thai Penal Code was amended in 1997 to include violations related to trafficking and set the penalties proportionate to these offences.  The Code prescribes that procuring, luring, or trafficking any person, especially a child even with his or her consent for an indecent sexual act with another person is a crime.[61] Receiving, selling, procuring, luring, trafficking a person for illegal benefit is also a crime under Thai law.[62] Additionally, Thai law provides that taking or sending a person out of the Kingdom by use of fraudulent or deceitful means, threat, violence, unjust influence or compulsion as well as bringing in or sending a person out of the Kingdom or buying or selling a person in order to enslave such person are criminal offences.[63] The problem with this provision, which recognizes receiving as an offence separate to trafficking, is that it conflates trafficking with procuring and luring for ‘sexual gratification of another person’, i.e. sexual exploitation. It hence appears to confuse the offences of procuring, luring a person into prostitution with trafficking.
In 2004, under the Penal Code and the accompanying Act for the Prevention and Suppression of Trafficking in Women and Children of 1997 discussed above, the government had reported 307 trafficking-related arrests, 66 prosecutions, and 12 convictions – an increase in arrests over the previous year. Sentences handed down for trafficking cases remained light, with an average sentence of three years’ imprisonment. However, a number of sentences in trafficking cases were severe, with imprisonment of up to 50 years. In early March 2005, a Thai court convicted a Cambodian woman for trafficking eight Cambodian girls to Thailand and Malaysia; the trafficker was sentenced to 85 years’ imprisonment. [64]
However, there is a disconnect between this Act and other legislation dealing with children such as the Child Protection Act of 1997, as there is a different penalty for those under fifteen and those from fifteen to eighteen, in spite of the fact that the Thai government itself considers children to be under the age of eighteen.  There is a consideration of the ‘maturity’ of the child which seems to render the act less heinous, but this goes against both Thai Law and Thailand’s international obligations.
Procedures in Cases Involving Human Trafficking
1) The Criminal Procedure Amendment Act of 1999 and the Criminal Procedure Code
The provisions of the Criminal Procedure Code have been amended to include procedures that would help in the combat of trafficking as well as protect the victims.  The Code provides that:
·        The statement of trafficked women and children shall be promptly taken upon rescue. 
·        The victims shall be sent to a primary shelter after the statements are taken. 
·        If the victims are foreign women or children, the police inquiry official shall make a proposal to the immigration officials to grant leniency to the woman or child. 
·        The trafficked victims may be detained for factual clarification for a maximum of half an hour. If necessary, the detention may be extended to ten days provided that the permission of the Director General of the Police Department is obtained.
·        During the initial inquiry, investigation and trial, the police inquiry official shall inform the Public Welfare Department or a non-governmental organization to provide or arrange to have an official experienced in working with women and children such as a social worker or psychologist participate in such proceedings.
·        In addition, the use of an interpreter is permitted, if they cannot speak the national language.
·        The Trial can also be conducted behind closed doors if it is ‘in the interest of public order or good morals’. [65]
In terms of children in particular, the law prescribes that the statement of the child be taken in privacy in a suitable place for the child and a psychologist or social worker, a person who the child has requested to be present, and a public prosecutor shall participate in such an inquiry. The child may also reject such a person upon which such person shall be replaced. To avoid the child having to appear in court, provision is made for video and audio recording of the statement which may be later used as evidence.[66]
The Code and its amendments also provide that before an accused is prosecuted, when there is reasonable ground to believe that a witness will travel out of the country, has no fixed residence or resides a distance from the court or will be tampered with or there is any other reason arising from necessity which will cause difficulty in bringing the witness to testify in the future, the public prosecutor may file an application to the court requesting an order to examine such witness forthwith. When the court receives such application, it may immediately examine the witness, and the accused counsel may cross examine the witness. If the accused cannot cross examine the witness, the court will cross examine the witness on its behalf. The testimony of such witness will be admitting as evidence if the accused is later prosecuted.[67] Though this provision will assist in prosecuting traffickers it does raise questions regarding the rights of the accused.
Often, cases of trafficking are published in the newspaper and open to the public, thereby offering no consideration to the victims. This will render it difficult for the victims, especially children, to reintegrate into society as they will be discriminated against and placed at a disadvantage.  Therefore, there needs to be closed door trials and publication of person details of victims should be banned. 
Other Laws Related to Trafficking
1) Immigration Act of 1979
This Act considers any foreigner without a legal document in Thailand to be an illegal immigrant, which is a legal offense punishable with two years’ imprisonment and a fine.  As mentioned above, trafficked people have often been charged under this act and have been treated the same as illegal immigrants.[68]  Therefore, they may have to pay a fine or stay in prison, after which they are detained in an Immigration Detention Centre and then sent home. When treated like illegal immigrants, little attention is paid to the trauma that many of these children have undergone due to being trafficked.
Thailand, however, has recently passed a Regulation allowing illegal immigrants from Myanmar, Laos and Cambodia to register and apply for work permits as of August 2001, thereby allowing trafficked persons to stay and work and avoid problems of repatriation.  Citizenship by naturalization in Thailand requires that one must have been there for 5 yrs, and there are heavy penalties for falsifications.[69]
2) The Memorandum of Understanding on Common Guidelines of Practices among Concerned Agencies for Operation in Case Women and Children are Victims of Human Trafficking B.E. of 1999
The Memorandum of Understanding (MOU) is a non-binding agreement signed between the Prime Ministers Office, police, Ministry of Public Welfare and NGOs. It recommends measures for co-operation between police and public welfare officials regarding the treatment of trafficked persons, both Thai nationals and nationals of other countries, and to improve chances of successfully prosecuting traffickers. In defining trafficking, the MOU adds elements of slavery-like labour practices, forced begging and 'other inhumane acts'.[70]
The MOU states that foreign women and children who have been trafficked into Thailand should not be treated as illegal migrants and therefore stipulates that after a statement from a victim is taken, the official is to submit information to the Immigration Service to grant leniency under the Immigration Act and give assistance as provided for in Section 11 of the Trafficking Act. In accordance with the MOU, the Deputy Minister of Labour announced in February 2000 that Thailand would start hosting the trafficked women and children in the Department of Welfare shelters, instead of treating them like illegal immigrants. [71]
Women and children trafficked to Thailand who agree to testify against traffickers are permitted under the MOU to stay in Thailand for the duration of the trial and are expected to be housed in a shelter and are entitled to food, clothing, medical care and counseling. Information then will be collected from the trafficked person by public welfare officials who will then pass it on to the police in the event that it can be used as evidence to prosecute the trafficker.[72]
 Linking the provision of temporary residence permits to willingness to testify and repatriating the trafficked person after the testimony or trial is callous and takes a law and order approach rather than a human rights approach to the issue.
Since the Memorandum of Understanding was drafted in conjunction with NGOs and other civil society groups that have practical experience on the ground in addressing the needs of those trafficked, it lends a degree of legitimacy to the MOU.  The NGOs play an important oversight role to the actions of the police officials.  Acting in tandem, the government and civil society can hope to effectively combat trafficking.[73]
3) Memorandum of Understanding Between The Government of The Kingdom of Thailand and The Government of The Kingdom of Cambodia on Bilateral Cooperation for Eliminating Trafficking in Children and Women and Assisting Victims of Trafficking of 2003
This quasi legal agreement which addresses women and children that have been trafficked as well as the prevention of trafficking considers as the end result, including and not limited to ‘prostitution, forced or exploitative domestic labour, bonded labour and other forms of hazardous, dangerous and exploitative labour, servile marriage, false adoption, sex tourism and entertainment, pornography, begging and slavery by the use of drugs on children and women.’[74] Although some crimes, such as the harvesting of organs, are not included in this list, it is nonetheless quite expansive.
There are provisions on both ends for care and rehabilitation of the victims. In addition, there are legal provisions to ensure that the victims have access to justice.  In terms of repatriation, the consideration is that children and women who have been identified as victims are not deported but instead repatriation will be arranged and conducted in ‘their best interest’.[75] There is limited elaboration on what this exactly means, although it appears that there is a process involved in these decisions. Hopefully, the victims’ consent is a necessity for the repatriation process to occur but due to the fact it states that if the victim consents to repatriation, there is no necessity to undergo procedures, it does not seem that consent is necessary. There are also provisions for reintegration into society within this MOU.
This agreement, recognizing the need for nations to cooperate with one another in order to stop the problem of child trafficking, is an important step in addressing the situation of trafficking in Thailand due to the flow of migrants from Cambodia to Thailand.  The statements in the MOU are very broad; however, they can act as a useful framework which can build into more specific practices.
LAWS RELATING TO THE PREVENTION OF TRAFFICKING
1) Job Placement Agencies and Job Seekers Protection Act of 1985
Job placement agencies are often used as fronts for traffickers to recruit children who are seeking jobs away from their home countries. Thailand prescribes punishments against job placement agencies and those who violate legal provisions concerning recruitment for overseas work.  Under Thai law, job placement agencies are liable to arrange for job seekers to return to Thailand, and to pay for transportation, accommodation and food until job seekers arrive in Thailand, in the event that job seekers do not receive the job stipulated in the job placement agreement.  Failure to comply with such provision shall subject the job placement agency to two years imprisonment or a maximum fine of 40000 baht.[76] This law, however, is difficult to police as the victims are often in other countries and where there is no cooperation with the country that the victim has been trafficked to, prosecution of the traffickers that use these agencies as fronts will be next to impossible.
2) Child Adoption Act of 1979 and Ministerial Regulation No. 9 Issued under the Child Adoption Act of 1979
Children are often ‘adopted’ under false pretenses and later trafficked to other countries. Under the Act and the Ministerial Regulation which elucidates many of the provisions in the Act, a probationary period is imposed as a precondition to the adoption of a child in Thailand.[77]  All adoptive parents require extensive documentation, especially in the event the adoptive parents are foreign.[78]
However, there is relatively little procedure when transferring the child to a blood relative, although there is still a risk of the child being ill-treated or even trafficked.[79]  This is a practice that must be changed to make the adoption laws more effective.  Also, there need to be background checks into the adoptive parents and in particular, checks into the criminal record.
3) Anti-Money Laundering Act of 1999 (AMLO’s Translation)
The Act is an attempt to curb traffickers by making the activities that they use to launder their money illegal.  The trafficking industry in Thailand is underground so any money made has to be laundered in order for them to benefit from it and escape detention by the state. This law will prevent the money laundered from being used again as a means to continue trafficking.  All parties, even aliens if not extradited, can be charged under this act.[80]  Assets made through committing a predicate offence are illegal, one of which is trafficking.[81]
Although trafficking is included in this act, it seems to primarily be spoken of in reference to ‘sexual offenses pertaining to procuring, seducing, or taking or enticing an indecent act on women or children in order to gratify the sexual desire of another person.’[82] It goes on to discuss offenses of ‘procuring, seducing, enticing or kidnapping a person for the purpose of the prostitution trade, or offenses relating to being an owner of a prostitution business, or an operator, or a manager of place of prostitution business, or an operator, or a manager of place of prostitution business, or supervising persons who commit prostitution for trade in business.’ [83] There is no explicit mention of child labour or begging for example, which may lead the enforcement officials to ignore these types of businesses when addressing money laundering.
 
LAWS THAT PROTECT CHILDREN FROM THE END PRODUCTS OF TRAFFICKING
1) Prostitution
Prostitution Prevention and Suppression Act of 1996
This act replaced the earlier Suppression of Prostitution Act of 1960, under which prostitution was criminalized and prostitutes, and to a certain extent, those that procured and benefited from their exploitation were penalized while their clients escaped penalties. It also continued to punish those that had been forced into prostitution and was in conflict with the 1956 Penal Code which assigned higher penalties to the same offenses.[84] 
Under the current Act, procurement of prostitutes is established as an offence.  Such offence includes procuring, enticing, luring other persons to engage in prostitution or sheltering prostitutes, with or without the victim’s consent. Offences against children are treated as aggravated offences.[85]For example,  procuring a child between the age of fifteen to eighteen or a person under fifteen years of age incur penalties of five to fifteen years imprisonment and ten to twenty years imprisonment respectively.[86] Clients are also penalized by section 8 which has higher penalties for sexual intercourse with a child in a prostitution establishment. The shortcoming of this section is that it only appears to apply to having sex with a child in a prostitution establishment whereas many children may be employed as street walkers or engaged in sex work through other means.
If the offender detains, confines, assaults or uses physical force to force a person to perform an act of prostitution, the minimum sentence is ten to twenty years, increased to life imprisonment if the offence causes serious bodily injury and to life imprisonment or death if the offence causes a fatality.[87] Parents who have knowledge and connives in the commission of offences prescribed in section 9, i.e. coercion or pushing into prostitution in any way, against their child who is less than eighteen years and ‘under their parental control’ is liable to imprisonment of four to twenty years and a fine of eighty thousand to four hundred thousand baht. Since many parents force their children into prostitution this provision is a step in the correct direction.
Although this Act does not contain any specific provision which decriminalizes children engaged in prostitution there are certain sections which in practice would ensure the child is not penalized. For example if the accused is under eighteen years and has committed no other crime, the offender can be placed in vocational training or a primary shelter.[88] Section 34 allows the court to take into account factors like the child’s former life, conduct, health, mental condition etc and decide that punishment is not appropriate for the child. The court can instead make protection and occupational development available to the child.[89] These provisions are necessary to promote the reintegration of child commercial sex workers and trafficked children into society.
Although the Act does provide for the setting up of Primary Admittance and Protection and Occupational Development Centres there are no specific standards stipulated for the functioning of these Centres. However, the Act does allow for the revocation of the licence granted to such a centre if it does not abide by the Rules and Regulations prescribed by the Government.  More provisions need to exist in the Act in order to help those who are prostituted after being trafficked, especially among children.  There is no mention of assistance to these women and children in terms of counseling, legal aid, shelter, access to education or vocational training to prevent the re-entry into prostitution. 
2) Rape
Penal Code
Statutory rape of a female child under thirteen years of age is seven to twenty years, a fine of 14-40,000 baht or the death penalty. If the victim is under fifteen, the penalty is decreased slightly; imprisonment of four to twenty years, or a fine of 8-40,000 baht.[90]  The maximum age for the victims of statutory rape is eighteen, although again the ‘maturity’ factor is noted, despite the fact that all are children. Grievous bodily harm/use of weapons in the crime is punishable by life imprisonment or an increase in the prison term.  In Thailand, the crime of statutory rape can only be committed against female children and there is no similar law to afford male children the same form of remedy.
Another highly problematic section of the Penal Code on statutory Rrape states that ‘if the offence is committed to a girl of 13-15 years and the court later allows the offender to marry the victim (with parental consent), the offender is not punished.’ This is a heinous breach of the rights of the girl child.[91]  After she has been raped, she is then made to live with the offender who has raped her and the offender avoids any penalty. The implicit assumption is that the offender has now made the victim, who has been sullied by his actions, an ‘honest woman’, and is now living with his crimes; therefore, all is well.  If statutory rape is considered a crime by society due to the fact that consent cannot be given by one that is underage, why, in the event that the judge considers it prudent, should the victim have to marry someone who has committed a criminal act, especially given the young age of the victim? The parents, as they would have to consent if the child is under fifteen according to Thai Family Law, the judge and even the girl child herself, may not want the victim to live with the social stigma of being raped, but marrying her to the person who has committed the crime against her, seems unlikely to allow her to have a fulfilling relationship.
As in most of the above cases, there are both penalties in terms of fines and prison sentences as well. Undoubtedly, it is up to the discretion of the judge as to which penalty to impose, perhaps even both.  More research needs to be conducted to determine whether the fines are being used more often and therefore suggestive of the fact that if the offender is wealthy, they can afford to get off without a prison sentence.
Assault
Although not specifically listed as an end result of trafficking, the Penal Code defines the offence of assault as causing injury to another person’s body or mind, which can occur during trafficking. The base penalty for assault is a maximum two year prison sentence and/or a 1,000 baht fine. The prison term may be increased if premeditated, particularly cruel or causing grievous bodily harm, or if benefits are obtained from the actions. [92]
Begging
The Penal Code provides that using a child as a tool for begging or committing an act that promotes begging shall subject the offender to imprisonment ‘not exceeding one month or a fine not exceeding one thousand baht or both,’ thereby criminalizing begging as an end product of trafficking.[93]  However, as the Department of Public Welfare, the Department that is responsible for decreasing the number of child beggars, has joined hands with the police to arrest homeless children and beggars, penalties for foreign gangs forcing migrant children to beg have become much harsher.[94] 
However, arresting these homeless children, criminalizing what are often survival strategies, is not the most effective way to resolve the begging problem.  These children, after being taken out of the situation of trafficking under which they may have been coerced to be beggars, need to be given counseling, thus granting them an opportunity to discuss their experiences, and education and vocational training to prevent them from being re-trafficking.
Coercion
Coercion is often an aspect of trafficking. The Penal Code criminalizes coercion with the penalty being a maximum of three years imprisonment and/or a fine of 6,000 baht for compelling a person to do or not to do any act or to suffer anything by putting him/her in threat of injury to life, body, reputation, property or by committing a violent act.[95] Most importantly, Thai law exempts the offender from liability if an offence is committed under coercion,[96] which can be used to prevent the victims of trafficking from being charged with ‘crimes’, such as prostitution or begging, that are committed under the coercion of their traffickers.
Child Labour
1) Labour Protection Act of 1998
Under this Act, an employer must n

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