NCA Malawi UNTOC TIP Protocol and Legislation October 2011

8/2/2019 NCA Malawi UNTOC TIP Protocol and Legislation October 2011

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Preventing, suppressing and punishingTrafficking in Persons

Implementing the Protocol on Trafficking in Persons through legislation, policy andpartnerships

Adv Johan Kruger

Regional Project Coordinator & Legal Advisor (SADC): Trafficking in Persons & Violence against WomenUNODC Southern Af rica

Scope of presentation

Scope

United Nations Convention against Transnational

Organized CrimeProtocol on Trafficking in Persons

Key obligations of States Parties

Implementing the Protocol

A strategy framework focusing on national

coordination

UNODC activities


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UNODC mandate

UN Secretariat

UNODCMandates from GAand ECOSOC (CCPCJ and CND)

Organized crime and trafficking Corruption Criminal justice reform Health and livelihoods Terrorism prevention

Guardian ofUNTOCand ProtocolsTrafficking, Smuggling

and Firearms

Promotes ratification and global adherence

Assists States in implementation

Normative services through development of l egislation,policy and strategies

Technical and legal advice and criminal justice capacity bui ldingand other assistance

Research and analysis

Programmesand projects

United Nations Convention against TransnationalOrganized CrimeAdo ted on 15 November 2000 and entered into force

The Convention

on 29 September 2003 (147 signatories and 162 StatesParties)

Promote international cooperation to prevent andcombat transnational organised crime more effectively


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United Nations Convention against TransnationalOrganized CrimeSupplemented by three additional Protocols

The Convention

Protocol to Prevent, Suppress and Punish Trafficking inPersons Especially Women and Children

Protocol against the Smuggling of Migrants by Land, Sea andAir

Protocol against the Illicit Manufacturing of and Trafficking inFirearms, their Parts and Components and Ammunition

All four instruments open for signature until 12 December 2002 (thereafter by accession)

United Nations Convention against TransnationalOrganized Crime

The Convention

Requires criminalisation of specific offences

Requires introduction of specific control measures(protection of victims and witnesses)

Provides for forfeiture of proceeds of crime

romo es n erna ona coopera on ex ra on, mu ua

legal assistance and joint investigations)

Provides for training, research and information-sharing

measures

Encourages preventive policies and measures


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States Parties required to criminalise specific offences

The Convention

Participation in an organised criminal group (Art 5)

Laundering of proceeds of crime (Art 6)

Public sector corruption (Art 8)

Obstruction of justice (Art 23)

Conventional offence or "serious" offence withtransnational aspect involving organised criminal group


The Convention

,

and corruption

Measures to combat money-laundering (Art 7)

Measures against corruption (Art 9)

Liability of legal persons (Art 10)

Confiscation and seizure Art 12 13

Disposal of confiscated proceeds of crime and property (Art

14)

Determination and establishment of jurisdiction (Art 15)


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The Convention

Extradition (Art 16)

Transfer of sentenced persons (Art 17)

Mutual legal assistance (Art 18)

Joint investigations (Art 19)

S ecial investi ative techni ues Art 20

Transfer of criminal proceedings (Art 21)

Measures to enhance cooperation with law enforcement

authorities (Art 26)


The Convention

Law enforcement cooperation (Art 27)

Collection, exchange and analysis of information on the

nature of organized crime (Art 28)

Training and technical assistance (Art 29)

Establishment of criminal records Art 22

Protection and support of victims and witnesses

Protection of witnesses (Art 24)

Assistance and protection of victims (Art 25)


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The Convention

Prevention (Art 31)

Administrative provisions

Conference of the Parties to the Convention (Art 32)

Secretariat (Art 33)

Settlement of disputes (Art 35)

Signature, ratification, acceptance, approval and accession

(Art 36)

The Convention and Protocols

Relation between Convention and Protocols

(UNTOC Art 37(2))

Protocols shall be interpreted together with Convention taking

into account purpose of Protocol (UNTOC Art 37(4)) Provisions of Convention shall apply mutatis mutandis to

Protocols (TIPP and SOMP Art 1 )

,

Confiscation and seizure

International cooperation

Extradition

Mutual legal assistance


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The Convention and Protocols

Relation between Convention and Protocols

regarded as offences established in accordance with Convention

(TIPP Art 1(3))

Convention and Protocol requirements are a minimum standards

domestic measures may be broader in scope or more severe

as long as all obligations specified in Convention and Protocols

have been fulfilled UNTOC Art 34 3

Protocol to Prevent, Suppress and PunishTrafficking in Persons

Protocol on Trafficking in Persons

on 25 December 2003 (117 signatories, 146 States

Parties)

Interpreted and applied in a way that is not

discriminatory to persons on the ground that they are

Does not narrow or diminish rights, obligations or

responsibilities in terms of other international

instruments only supplements (TIPP Art 14)


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GENERAL

PROVISIONS

PROTECTION OF VICTIMS

OF TRAFFICKING IN

PERSON

PREVENTION

COOPERATION

AND OTHER MEASURES

FINAL

PROVISIONS

STRUCTURE OF THE PROTOCOL

Article 5(2)(a)

Criminalization

Article 7

Status of victims oftrafficking in persons in

receiving States

Article 6

Assistence to and protectionof victims of trafficking in

persons

Article 10

Information exchange and training

Article 9

Prevention of trafficking in persons

Article 8

Repatriation of victims oftrafficking in persons

Article 13

Legitimacy and validity of documents

Article 12

Security and control of documents

Article 11

Border measures

Protocol to Prevent, Suppress and PunishTrafficking in Persons


Prevent and combat human trafficking

Protect and assist victims of trafficking with fullrespect to human rights

Promote cooperation between State Parties


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Definition of trafficking (Art 3 (a))

[action (what is done):] the recruitment, transportation,

transfer, harbouring, or receipt of persons

[means (how it is done):] by means of the threat or use of

force, coercion, abduction, fraud, deception, abuse of power

or vulnerability, or giving payments or benefits to a person in

[purpose (why it is done):] for the purpose of exploitation,

which includes exploiting the prostitution of others, sexual

exploitation, forced labour, slavery or similar practices, and

the removal of organs.


Definition of trafficking (Art 3 (a))


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Definition of trafficking /2 (Art 3(b) and(c))

Exploitation shall at minimum include

exp o a on roug pros u on or

other forms of sexual exploitation,

forced labor or services, slavery or

practices similar to slavery, servitude

or removal of organs

Consent of victim irrelevant where illicit

means are es a s eConsent of a child irrelevant (under

age of 18)

Means not required as element in

trafficking of children

Trafficking or Smuggling?

Definition Matrix Trafficking or SmugglingTrafficking in Trafficking in Smuggling of

Victim's age 18 years and above Below 18 years Irrelevant

Mental element Intent Intent Intent

Material element ActMeans

Exploitative purpose

ActExploitative purpose

Act (procurement ofillegal entry)

Purpose (financial orother material benefit)

Consent of

victim

Irrelevant once means

are established

Irrelevant

No need to establish

means

Smuggled persons

consent to be

smuggled

Transnationality Not required Not required Required

Involvement of

organised crime

Not required Not required Not required


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Differences between trafficking and smuggling

Consent

Migrants consent to being smuggled, although often in dangerous or

degrading conditions

Trafficking victims never consent or consent is rendered meaningless by

the coercive, deceptive or abusive actions of the traffickers

Exploitation

Smuggling usually ends with arrival of migrants at cross-borderdestination smuggling in principle a crime against the state

Trafficking involves ongoing exploitation of victims to generate illicit

profits for traffickers trafficking in principle a crime against the person


Differences between trafficking and smuggling

Transnationality

Smuggling always transnational

Trafficking can be domestic or transnational

Subject of criminal activity

Trafficking in principle and primarily crime against the individual

Smuggling in principle and primarily crime against the state


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Criminalisation (Art 5)

when committed intentionally (Art 5(1))

Criminalise attempt, participation, organizing or

directing others to commit the offence (Art 5(2))


Scope of application (Art 4)

Protocol to cases where at least

one of offences has some element

of "transnationality" and somedegree of involvement of an

"organized criminal group"

These elements should not be

incorporated into national

legislation (UNTOC Article 32 (2))


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Purpose and scope of the Protocol

Assistance, Protection and Repatriation (Art 6, 7and 8) State Parties shall in terms of domestic laws

Consider measures to protect safety, privacy and identity of victims

Inform the victims about court proceedings

Ensure legal measures to allow victims to seek compensation

Endeavour to provide for physical, psychological and social recovery of

victims

Consider measures to grant temporary or permanent residence

Verify nationality and status

Facilitate and accept return of own nationals and permanent residents

Facilitate repatriation subject to safeguards


Prevention (Art 9, 10, 11, 12 and 13)

Implement social and economic measures to address the root

causes of traffickin and smu lin such as overt and lack of

economic opportunities

Undertake public information campaigns

Ensure that commercial carriers check travel documents of

passengers

Enhance the effectiveness of border controls

Improve the security of travel documents

Speed up bilateral cooperation in verifying validity of travel

documents

Train law enforcement, immigration and other relevant officials


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Information Exchange and Cooperation (Art 10 and14)

Cooperate and exchange information with other States

Informal cooperation and information exchange

Information exchange on means and methods

Cooperation between border control agencies

Verification of travel and identity documents

Facilitate confiscation of proceeds of crime, property,

equipment or other instrumentalities of crime

Cooperate with international organizations and NGOs

Obligations of States Parties

Key obligations of States Parties

Criminalization UNTOC Art 5, 6, 8, 23 and 34; TIPP Art 5;

SOMP Art 6

Victim protection UNTOC Art 25; TIPP Art 6; SOMP Art 16)

Investigation

Prosecution, adjudication and sanctions UNTOC Art 11



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Implementing the Protocol

Implementing the Protocol - a policy framework

Legal basis

Criminalisation

Criminaljustice-driven

Criminal activity

Victim-centred

approach

Human ri hts

Nationalcoordination

andcooperation

Internationalcooperation

andcoordination

Resources

Personnelan a es

Internationalobligations

roac ve

reactiveinvestigations

Prosecution

Re-victimisation

Witnesses

Inter-sectoralapproach

Multi-facettedapproach

HarmonisationMLA, extradition,joint operations

and assetforfeiture

Budget

Structures

Training

Main cross-cutting challenges

Main cross-cutting challenges

Capacity-building and development

Monitoring and evaluation

Allocation of sufficient financial and other resources aconsistent challenge in practical implementation of anti-trafficking in persons activities.


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Guiding policy principles for addressing thechallenges

-

Guiding principles for addressing the challenges

Principle of non-discrimination

Gender-sensitive approach

Child-rights approach and child participation

International legal framework including UN Trafficking Protocol

Comprehensive international approach

Interdisciplinary, coordinated, integrated approach

Evidence-based approach

Sustainability

Strategy framework

Strategy framework

ProtectionInternational

cooperation andcoordination

ProsecutionNational

coordinationand cooperation


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Key questions

National coordination and cooperation

Does a mechanism exist for coordinating, monitoring and

evaluating overall anti-human trafficking strategy at national

level?

Is mechanism based on the participation of all relevant

stakeholders, including civil society, private sector, employers

Specific questions


Is multidisciplinary coordinating group functioning effectively,

including regarding decision-making processes?

Has a national plan of action been adopted?

Is coordination mechanism based on multidisciplinary and

cross-sectoral approach?

Which entities are involved in national response to trafficking

in persons?

Are views of trafficked persons represented in group?

Are anti-trafficking strategy and national action plan

monitored and evaluated on a regular basis?


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Specific questions


What are designated tasks of coordination mechanism?

Does coordination mechanism identify needs for training and

capacity building?

In the absence of coordination mechanism, does another

organisation or mechanism such as national human rights

institution monitor national anti-human trafficking actions?Does government provide funding for a coordination

mechanism?

Specific objectives


Coordinate responses

Respond effectively and appropriately

Ensure formulation of coherent and comprehensive public

policies

Promote cooperation among relevant governmental

institutions, NGOs and civil society


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Minimum standards


Coordination of stakeholders involved

Comprehensive and coherent national policies addressing

prevention, protection, and prosecution

Harmonisation of public policies related to trafficking in

persons (crime prevention, migration, employment, health,

security, non-discrimination, economic development andhuman rights and refugee protection etc.)

Cooperation agreements or framework between relevant

government institutions, NGOs and civil society in place

Implementation measures


Identify and assess all existing policies or measures

Conduct impact assessment of existing policies, strategies

actions and measures

Adopt comprehensive strategy and/or plan of action to

prevent, suppress and prosecute trafficking in persons

Establish multidisciplinary coordination mechanism in charge

of implementing coordinated national response


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Establish system or mechanism of cooperation to exchange

information between law enforcement, immigration and other

relevant authorities (article 10(1) TIP Protocol)

Conduct impact assessment of actions and measures,

monitoring and follow-up of the implementation of integrated

situation

Ongoing and regular review of strategy/plan of action



Ensure effective cooperation through formal agreements and

informal arrangements on prevention and victim assistance

Appropriate housing

Counselling and information, in particular regarding legal rights

Medical, psychological and material assistance

Employment, educational and training opportunities


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Promote effective cooperation through the development of

formal cooperation agreements

Identifying partners

Clearly defined purpose of cooperation

Principles of cooperation

Detailed definition of distribution of responsibilities

Details of cooperation procedure between the partners

Procedure of mutual communication of information

Entry into force and amendment

Funding of NGO cooperation partners

Operational indicators


Adoption of legal or administrative measures to establish a

coordination body or structure

Existence of dedicated or assigned budgets to implement

strategy or plan of action and coordinated activities

Evidence of clear and effective division of labour among

government entities dealing with trafficking in persons

Coordination mechanism meets regularly

Centralized system for data collection and/or coordination on

trafficking in persons in place


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Regular monitoring and evaluation of national trafficking in

persons response (prevention, protection, prosecution

national coordination and international cooperation)

Production of annual reports or thematic reports

Updates of the strategy/plan of action on the basis of regular

assessmentsEvidence that the coordination mechanism adapts to

national, regional and international circumstances



NGOs and/or other relevant organisations included in

coordination body or structure

Existence of national anti-trafficking initiative involving NGOs

and other relevant organisation in their development and

execution

Communication network in place

Victim identification mechanism in place

Referral mechanism in place


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UNODC interventions

UNODC activities

assistance in strengthening

criminal justice responses

Prevention and awareness-raising

Data collection and research

Legislative assistance

Strategic planning and policy

development Criminal justice system responses

Victim protection and support


UN.GIFT (www.ungift.org)

Adv Johan Kruger

UNODC Regional Office for Southern Africa

Office: +27 (0)12 342 2424

Mobile: +27 ( ) 215 52

Email:[email protected]

www.unodc.org

Documents

NCA Malawi UNTOC TIP Protocol and Legislation October 2011