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