For the Council of Europe, the Convention on Action against Trafficking in Human Beings stands at the core of legally binding, comprehensive anti-trafficking standards. The Convention follows a human rights and victim-centred approach, covering all types of trafficking (national/international, non-/organised crime-related, all forms of exploitation), and establishes an independent monitoring mechanism, GRETA, the only such mechanism to date in the anti-trafficking field. The trafficking definition is taken from the Palermo Protocol, consisting in the case of children, of two elements only: action and exploitative intention (Article 4(c)). In the Preamble, an explicit “child-rights approach” is called for, and child-focused standards are mainstreamed across all implementation areas. Concerning prevention, for instance, Article 5(5) mandates the creation of “protective environments” for children, linking anti-trafficking National Referral Mechanisms (NRM) to the concept of integrated child protection systems,59 as promoted by UNICEF, the Council of Europe, the European Union, and others.60 In relation to assistance, services should be available, accessible, and acceptable to trafficked children. This requires targeted measures to identify children, treat them as under-age in case of doubt, provide legal guardians if unaccompanied or otherwise warranted in the child’s best interests (e.g., in case of potential involvement of parents in the trafficking process), provide qualified shelters and staff, and access to information, services and compensation, as well as safe return only after best interests determination (Articles 10–16). A recurrent implementation gap observed by GRETA is the lack of policies to address children in risk situations leaving institutions on their own – children who then “disappear”.61 As far as prosecution is concerned, the Convention requires particular protection and safety for children as witnesses and victims during court proceedings. Moreover, application of the principle of non-punishment (Article 26) to children forced to commit petty crimes remains a critical test case for State compliance.62
Conclusions and recommendations
There are several persistent challenges for comprehensive responses to child trafficking. Conceptual clarity about the interrelatedness of child trafficking with (other) forms of child exploitation, forced labour, sale of children, and slavery-like practices is still lacking. The optimism of some commentators about the two-element-only definition, which would make identification of trafficked children and their traffickers “easier”,63 cannot be shared, nor confirmed by practice. Research and work by monitoring bodies shows inconsistent approaches and a need for a debate on how to prevent overly broad interpretation and application of the trafficking concept. Child trafficking should be confined to cases where perpetrators deliberately move children into situations of dependency, and for serious forms of exploitation only. In other cases, existing frameworks to address, e.g., child labour and sexual exploitation, should apply.
Anti-trafficking discourses need to be reframed profoundly and ambitiously:
Responses to child trafficking need to go beyond viewing it simply as a sub-issue of trafficking in human beings. A comprehensive approach that places the human rights of children at its core is needed to effectively address all forms of abuse and exploitation of children, including trafficking. Such a framework is designed to safeguard children’s rights at all times, prevent child exploitation and abuse and empower the child to make informed choices, recognize risky propositions and face the future with confidence – even after an exploitative experience has occurred.64
Consequently, instead of, perhaps, isolated Action Plans on child trafficking, integrated approaches should be adopted, with child-focused anti-trafficking referral mechanisms incorporated into more comprehensive rights-based child protection systems, while maintaining the specialist nature of services. Consideration should be given to sensitising and strengthening regional child protection co-ordination and co-operation bodies, including for family tracing, safe return, and cross-border monitoring of cases. Investments should be made in child-focused collection of data and research, including impact assessment of policies and services. In order to counter-balance the still dominant criminal justice approach on trafficking, priority should be given to comprehensive, socio-economic policy-oriented prevention approaches. Law enforcement, the justice sector, and service providers alike should be familiar with policies to prevent criminalisation of victims, and with the application of the principle of non-punishment to trafficked children. In all such efforts, a child rights-based approach makes it essential to consider appropriate direct involvement of former trafficked children, as well as of professionals working directly with them, in programme and policy development and evaluation in order to benefit directly from their expertise.
Notes
* The author is grateful for research assistance provided by Berrin Seidel.
1 For recent data, see the UNHCR’s Refugees, Migrants Emergency Response website, http://reliefweb.int/topics/refugeesmigrants-emergency-europe; and IOM’s Migration Flows – Europe Portal, https://migration.iom.int/europe/.
2 See, for example, UNHCR Chief’s Statement of 4 September 2015; Europol estimates published in media, see: 10,000 refugee children are missing, The Observer, 30 January 2016; statement by ECPAT members of 20 October 2015, Refugee crisis in Europe and rights of children.
3 For a mapping of child protection systems across the 28 EU Member States, with preliminary findings on challenges, see the EU Fundamental Rights Agency website, http://fra.europa.eu/en/publication/2015/mapping-child-protection-systems-eu.
4 See the Council of Europe’s Group of Experts on Action Against Trafficking in Human Beings (GRETA), Statement on the Occasion of the 9th EU Anti-Trafficking Day, Governments Must Act to Prevent and Combat Child Trafficking Along Migration Routes (16 October 2015).
5 The term ‘child’ refers to the definition in Article 1 of the UN Convention on the Rights of the Child, covering all persons below the age of 18 years. Moreover, instead of the term ‘victim’, which implies weakness and passivity, running counter to efforts to empower children, reference is generally made to ‘trafficked children’ or ‘affected children’.
6 For instance, reference is often made to “1.2 million children” being trafficked every year. This figure, however, has its origin in out-dated estimates of an ILO publication of 2002.
7 UNODC, Global Report on Trafficking in Persons (2014), p. 29 & 31.
8 EUROSTAT, Trafficking in Human Beings –2015 Edition (EUROSTAT Statistical Working Papers), pp. 18–25.
9 On typical risk factors, see Cancedda, A., De Micheli, B., Dimitrova, D., and Brigitte Slot, B., Study on High-risk Groups for Trafficking in Human Beings (Ecorys/Fondazione Giacomo Brodolini/EC, 2015), p. 27.
10 CoE, GRETA, 4th General Report on GRETA’s Activities, Covering the Period From 1 August 2013 to 30 September 2014 (2015), p. 32.
11 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (‘Palermo Protocol’), General Assembly Resolution 55/25 of 15 November 2000, Annex II.
12 Gallagher, A.T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), p. 53.
13 Article 3(a).
14 Gallagher, A.T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), p. 25.
15 A ‘child’ is defined, in Article 3(d), as, “any person under eighteen years of age”, in line with the definition contained in the UN Convention on the Rights of the Child.
16 Text available at the ASEAN Website.
17 Article 3(b).
18 See, for instance, the critical comments by Dottridge, M. and Jordan, A., Children, Adolescents and Human Trafficking: Making Sense of a Complex Problem (Issue Paper 5/2012), p. 8.
19 Challenging the current child trafficking discourse, see Howard, N., “Accountable to Whom? Accountable for What? Understanding Anti-child Trafficking Discourse and Policy in Southern Benin�
�� (2012) 1 Anti-Trafficking Review 43. See, also, authors Viviene Cree, Tanja Bastia, and Mike Dottridge at the Open-Democracy platform.
20 Gallagher, A.T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), p. 50.
21 Ibid., 50–51.
22 See, for instance, examples given in Dottridge, M., Kids as Commodities? Child Trafficking and What to Do About It (Terre des Hommes, 2004), p. 16; UNODC, Global Report on Trafficking in Persons (2014), p. 32; UNICEF, Child Trafficking in Europe – A Broad Vision to Put Children First (2008), p. 8.
23 Gallagher, A.T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), p. 49.
24 Dottridge, M. and Jordan, A., Children, Adolescents and Human Trafficking: Making Sense of a Complex Problem (Issue Paper 5/2012), p. 15.
25 UNICEF, Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe (2006), pp. 13–16. See, also, Articles 2(b) & (c) of the 2000 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography.
26 See Article 3(a) of the 1999 ILO Convention on the Worst Forms of Child Labour (No. 182).
27 See UNICEF, Child Trafficking in Europe – A Broad Vision to Put Children First (2008), p. 13.
28 Gallagher, A.T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), p. 41.
29 Regulated by the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, adopted by the Hague Conference on Private International Law in 1993.
30 UNICEF, Handbook on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (2009), p. 10.
31 See, also, Gallagher, A.T., “Making Human Rights the Centre of Thinking About Trafficking Stops us From Being Sidetracked by the Slick Arguments of Those Who Would Prefer It Approached as a Straightforward Issue of Migration, of Public Order, or of Organized Crime” in The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), p. 3.
32 See Gallagher, A.T., The International Law of Human Trafficking (Cambridge: Cambridge University Press, 2010), pp. 248–251; referring, also, to some initial reluctance by governments and the international human rights movement to address trafficking, at 2–5. On the level of non-binding standards, see the 2002 Recommended Principles and Guidelines on Human Rights and Human Trafficking, issued by the UN Office of the High Commissioner for Human Rights; and its 2010 Commentary.
33 This was one of the main findings from the European Court of Human Rights judgment in Rantsev v. Cyprus and Russia, App. No. 25965/04 (2010). For an overview of relevant State obligations in relation to trafficking, see Planitzer, J., Trafficking in Human Beings and Human Rights – The Role of the Council of Europe Convention on Action Against Trafficking in Human Beings (Wien/Graz: Neuer Wissenschaftlicher Verlag, 2014), pp. 51–89.
34 General Assembly Resolution 44/25 of 20 November 1989, in force since 2nd September 1990 (196 ratifications as of January 2016). The Palermo Protocol asserts to pay, “particular attention to women and children”, containing also a few provisions directly addressing children; but it does not speak of legal entitlements of children. For UN Charter-based mechanisms also addressing child trafficking (e.g., Universal Periodic Review, UN Special Rapporteur on trafficking in persons, especially women and children; on the sale of children, child prostitution, and child pornography; and on contemporary forms of slavery, including its causes and consequences), see: www.ohchr.org/EN/HRBodies/SP/Pages/Welcomepage.aspx.
35 Hodgkin, R. and Newell, P., Implementation Handbook for the Convention on the Rights of the Child (3rd edition, New York: UNICEF, 2007), p. 531 & 532.
36 Not to be equated with the more elaborate “trafficking” notion in the Palermo Protocol adopted more than a decade later.
37 These provisions should also be read in conjunction with child-focused standards developed in international treaties dealing with child labour/worst forms of child labour (ILO) and inter-country adoption (such as the 1993 Hague Convention on Protection of Children and Cooperation in Respect of inter-country Adoption).
38 General Assembly Resolution A/RES/54/263 of 25 May 2000, Annex II, in force since 18 January 2002 (171 ratifications as of 8 January 2016). Next to another 2000 CRC Protocol on children and armed conflict, it is worth noting a third Optional Protocol of 2011, which allows for an individual complaint and an inquiry procedure (in case of patterns of grave or systematic child rights violations), with significant potential for application also to trafficking cases.
39 In terms of general/structural measures of child rights implementation, see UN CRC Committee, General Comment No. 5 (2003), UN-Doc CRC/GC/2003/5 (27/11/2003) –ranging from legal reform to co-ordination of all levels of government, adoption of national strategies, and developing a research agenda.
40 See UN CRC Committee, General Comment No. 5 (2003), UN-Doc CRC/GC/2003/5 (27/11/2003), para 12.
41 UN CRC Committee, General Comment No. 12 (2009), UN-Doc CRC/C/GC/12 (27/07/2009), at paras 21 & 28/29.
42 In the context of working children, see, for example, Liebel, M., Protecting the Rights of Working Children Instead of Banning Child Labour: Bolivia Tries a New Legislative Approach (Policy Paper, 2014).
43 UN CRC Committee, General Comment No. 12 (2009), UN-Doc CRC/C/GC/12 (27/07/2009), para 12.
44 Cancedda, A., De Micheli, B., Dimitrova, D., and Slot, B., Study on High-risk Groups for Trafficking in Human Beings (2015), p. 85.
45 See, for instance, recommendations for further participatory research involving Roma communities, including children, in Dimitrova, K., Ivanova, S., and Alexandrova, Y., Child Trafficking Among Vulnerable Roma Communities – Results of Country Studies in Austria, Bulgaria, Greece, Italy, Hungary, Romania and Slovakia (CONFRONT Project Synthesis Report, Center for the Study of Democracy, Sofia, 2015), pp. 45–47. See, also, Dottridge, M., Young People’s Voices on Child Trafficking: Experiences from South Eastern Europe (Innocenti Working Paper, 2008), p. 48.
46 A collection of guidelines for professionals for interviewing children can be found already in the UNICEF, Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe (2006).
47 See, most recently, the Convention against Trafficking in Persons, Especially Women and Children, adopted by the Association of Southeast Asian Nations (ASEAN) in November 2015. The South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution (2002) has an even narrower scope.
48 Text available at: http://pages.au.int/acerwc/documents/african-charter-rights-and-welfare-child-acrwc.
49 Text available at: https://www1.umn.edu/humanrts/instree/loas2005.html.
50 Entered into force: 15 August 1997. Text available at: www.oas.org/dil/treaties_B-57_Inter-American_Convention_on_International_Traffic_in_Minors.htm.
51 Article 2(b) –with “minor” being defined, in line with the CRC, as: “human being below the age of eighteen”.
52 See the 2003 OSCE Action Plan to Combat Trafficking in Human Beings (with the 2013 Addendum); as well as the 2005 Addendum Addressing Special Needs of Child Victims of Trafficking for Protection and Assistance; and the 2015 Commentary to the OSCE Action Plan to Combat Trafficking in Human Beings and its Addendums. Also, in 2003, the post of the OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings was established.
53 See Task Force against Trafficking in Human Beings; and Expert Group on Children at Risk, Guidelines Promoting the Human Rights and the Best Interests of the Child in Transnational Child Protection Cases (2015).
54 Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, [2011] OJ L101/1.
55 For a detailed analysis of the provisions, see the Joint UN Commen
tary on the EU Directive – A Human Rights-based Approach, issued in 2011 by UNODC, OHCHR, UNHCR, UNICEF, ILO, and UN Women.
56 Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who co-operate with the competent authorities.
57 For critical comments on such conditional residence, see, for instance, Planitzer, J., Trafficking in Human Beings and Human Rights – The Role of the Council of Europe Convention on Action Against Trafficking in Human Beings (Wien/Graz: Neuer Wissenschaftlicher Verlag, 2014), 106.
58 See, EU Fundamental Rights Agency (FRA), Guardianship for Children Deprived of Parental Care – A Handbook to Reinforce Guardianship Systems to Cater for the Specific Needs of Child Victims of Trafficking (2014).
59 See, for instance, the analysis contained in UNICEF/UNHCR/Save the Children/World Vision, A Better Way to Protect All Children: The Theory and Practice of Child Protection Systems (Conference Report, UNICEF 2013).
60 See, for instance, the initiative by the European Commission to establish quality criteria for such systems, as included in the Reflection paper “Coordination and Cooperation in Integrated Child Protection Systems”, presented at the 9th European Forum on the Rights of the Child in June 2015; as well as the FRA Mapping of EU Child Protection Systems, as referred to above.
61 CoE/GRETA, 5th General Report on GRETA’s Activities (2016), pp. 36–39.
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