This month, Dr. Serguei Chloukhine sits down with A CONTRARIO to discuss Russian organized crime and its impact on society. Professor Serguei Cheloukhine, is a Professor in the Department of Law, Police Science and Criminal Justice at John Jay College in New York, USA. He is the author of many articles and books on Russian organized crime, including: Russian Organized Corruption Networks and their International Trajectories (2011). Continue reading
Written by: Andrea Domenici, LLM International Crime and Justice, University of Turin
There is a close link between mafia and health and it is not a matter of only bullets and bombs.
Often the public reaction to Mafia groups takes place only on occasions of bloodshed, especially when these acts involve people who were able to direct public attention for their efforts against these criminal organizations. In Italy the cases of Judges Falcone and Borsellino were emblematic; the killing of the two magistrates and their bodyguards by the mafia created general indignation in the public opinion with the effect of extensive and engaging street demonstrations and the State was forced, both on a legal than an operational plan, to deal with decision against the problem of Cosa Nostra in Sicily. Continue reading
By David Ellero, Senior Specialist at Europol
“… do not ever forget, when you hear the progress of lights praised, that the loveliest trick of the Devil is to persuade you that he does not exist”.
When asked to write on Italian Organised Crime (ITOC), the first thing that comes into my mind is the above mentioned quote, which summarizes the main threat the latter poses to the European Union. In Italy of course the situation is quite different, since the experience Judiciary authorities and Law Enforcement have built up in the course of decades of fights against ITOC have refined both their skills and most importantly their legislative tools.
One for all, the Italian Criminal Code has a specific definition for “Mafia-type Organised Crime” which constitutes a crime per se and identifies the “Mafia” as an Organised Crime Group whose participants:
- commit criminal offences;
- Manage or in any way control, either directly or indirectly, economic activities, concessions, authorizations, public contracts and services;
- Obtain unlawful profits or advantages for themselves or for any other persons;
- Prevent or limit the freedom to vote, or to get votes for themselves or for other persons on the occasion of an election,
All this by taking advantage of the intimidating power of the association.
In Italy it is in fact the condition of submission derived from the intimidating power of the criminal group which is tackled and inherently differentiates a group of criminals perpetrating a crime from a “Mafia-type” organised crime group.
But when I started this article, it was my intention to identify the main threat Italian Organised Crime poses to the European Union and I will therefore move forward.
Whilst in the areas of origin of the main ITOC groups the latter have an extremely tight control over the territory and its population (which effectively constitutes the base of their power, to the point that often little or no crimes are committed without permission from the local Clans) this rarely happens outside, where economic power is sought rather than military.
In this period of economic turmoil, infact, the Italian Mafias face the opposite problem of legitimate businesses: the latter struggle to receive money to invest, the first have too much money and constantly attempt to inject it in the “legitimate” economy.
To give an idea of the scope of these criminal groups and their economic capabilities, the Ndrangheta alone has recently been estimated to have a 44 Billion Euro a year income, 62% of which deriving from drug trafficking alone.
At this point it is easy to determine the main threat these groups pose to the EU, which consists in undermining the real economy: since they do not need to produce with a margin of profit (their purpose is mainly money laundering) in the long run little or no legitimate businesses will be able to afford the competition and will be out of the market.
As a simple example, Mafias have always been particularly active in the construction industry and in the real estate market: these two fields are closely related to each other and often investigations uncover large criminal networks that manage to control all the phases related to these crime fields.
In an ideal, simplified scenario:
- through the power of intimidation deriving from being associated to a Mafia Clan (or through corruption or simply thanks to unlimited economic resources), a certain group can acquire (in or outside Italy) a certain portion of land;
- through links to the local administrative offices (again, corruption, infiltration or simple intimidation is often enough), the portion of land can change its destination, i.e. from agricultural use to building residential apartments;
- Mafia-owned (or controlled) construction companies build the residential apartments;
- Mafia-owned real estate agencies put them on sale on the real estate market;
- “investors” are called to invest in these residential apartments, and often do so by moving assets through numerous banks located in several different countries, in order to “conceal” their real nature.
Often all the steps above are managed by the same OCG that can therefore create an effective method to launder money without exposing too much to Law Enforcement attention.
Of course if all these steps would take place in Italy, i.e., with the tools provided to the investigators by Italian law it would be quite manageable to identify this scheme and pursue those responsible. This is extremely difficult when the scheme takes place in different countries.
Firstly, as I mentioned at the beginning of this article, in Italy “Mafia” is a crime per se and can therefore be investigated effectively through wiretappings, interceptions and other technical means regardless of the predicate offence. In this scenario the investigative hypothesis would be that Mafia related subjects are carrying out a series of activities to infiltrate the real estate and this would be enough to start up an investigation. An indication that individuals sentenced for Mafia are constantly present of the construction sites or that their relatives or acquaintances are present in the companies that are carrying out the building activities on site is often key to incriminate the latter and confiscate the whole series of properties, in some cases even without a criminal sentence of the suspects
Would these simple indicators be enough for another country to kick off an effective investigation? Would another country wiretap a suspect just based on his affiliation to a Mafia group? These are just a few of the key issues to which the EU legislator (EU Parliament – Committee on Organised Crime, Corruption and Money Laundering – CRIM) is currently trying to find a solution, but this is extremely difficult since EU Member States have extremely different juridical cultures.
In the meanwhile Europol has set up a dedicated project on Italian Organised Crime created to support those countries who wish to fight against these specific syndicates. Because of its position at the centre of the EU’s security architecture Europol is infact best placed to inform its operational partners on the risks linked to the presence of Italian organised crime within their respective boundaries. It’s a first step against an effective and comprehensive anti-Mafia strategy, but the only way to fight these specific OCG is by sharing all information related to them and promoting efficient Law Enforcement cooperation.
Written by Lina Laurinaviciute
Setting the Scene
The famous Doctor Who once made a splendid remark on the issue of weapons: “You want weapons? […] Books are the best weapon in the world. […] Arm yourself!” Unfortunately, in a real world, the wide availability of different kind weapons and ammunition has led to human suffering, political repression, crime and terror among civilian populations. The flows of arms in all parts of the world can be sourced through diversion from State stockpiles and other legal circuits, recycling from previous conflicts in the concerned State or in the neighbouring countries, State-sponsored supplies to proxies, strategic caches of arms stored in anticipation of conflict, illegal manufacturing and other means.
Irresponsible transfers of conventional weapons destabilize security in a region, enable the violation of the United Nations Security Council (hereinafter – UNSC) arms embargoes and contribute to human rights abuses. Consequently, in countries experiencing conflict and high levels of violence investment is discouraged and hence development is disrupted. It is evident that, the widespread availability of weapons tends to prolong conflicts, facilitate violations of international humanitarian law (also known as law of war or law of armed conflict), and put civilians at high risk of death or injury from weapons-related violence even after armed conflicts have ended.
On 2 April 2013, the UN General Assembly has witnessed an event, to which the Secretary-General Ban Ki-moon referred as “a victory for the world’s people.” The UN Member-states voted by 154 votes to three, with 23 abstentions (including Russia and China, which are among the world’s biggest exporters), to control a trade worth between $170 million and $320 million per year. As a consequence, the poorly regulated arms trade has devastating, multifaceted effects. These include fueling violence and armed conflict, hindering efforts to promote socioeconomic development and creating a permanent atmosphere of fear and instability in conflict settings.
Therefore, the Article 2 of the newly adopted Arms Trade Treaty (hereinafter – ATT) sets its scope to regulate the international trade in conventional arms, from small arms to battle tanks. Namely it is applied to: battle tanks; armoured combat vehicles; large-calibre artillery systems; combat aircraft; attack helicopters; warships; missiles and missile launchers; and small arms and light weapons.
The treaty prohibits states from exporting conventional weapons in violation of arms embargoes, or weapons that would be used for acts of genocide, crimes against humanity, war crimes or terrorism. It also requires states to prevent conventional weapons reaching the black market. Thus it is expected that it will put a stop to destabilizing arms flows from its signatories to conflict regions. It will prevent human rights abusers and violators of the law of war from being supplied with arms. And it will help keep warlords, pirates, and gangs from acquiring these deadly tools.
Indeed, the majority of modern day intra-State conflicts have been fought mainly with small arms and light weapons. However, recent events in Libya and Syria underscore the continued misuse of heavier conventional weapons – including tanks, heavy artillery, helicopters and aircraft – against civilians. Although it is often difficult to anticipate that a government will eventually use its weaponry against civilian populations, it is expected that the ATT will compel exporters to exercise enhanced diligence in analysing early warning signs that may help them assess the risk that transferred weapons would be used to commit grave human rights violations.
Indeed, the use of explosive weapons in populated areas, including man-portable or vehicle-mounted grenades, rocket-propelled grenade launchers, missiles and mortars, can have indiscriminate and devastating impact on civilians, particularly children. For instance, in Yemen, 71 percent of the child conflict casualties in 2009 were a direct result of shelling of civilian areas by all parties to the conflict.
Moreover, the high availability of small arms and the presence of armed violence create threats to humanitarian personnel and can force humanitarian organizations to evacuate their staff from high-risk areas or suspend their programmes, thus depriving affected people of badly needed assistance. For example, in Pakistan, humanitarian actors indicate ongoing hostilities as the most significant impediment to access. Also, the Lord’s Resistance Army since 2009 has carried out armed attacks, including against refugee settlements, in South Sudan, Central African Republic and in the Democratic Republic of Congo during which scores of civilians were killed, thousands of civilians were forced to flee, serious disruptions to the distribution of humanitarian assistance was evident as well.
Beyond fueling armed conflicts, the availability of firearms due to the poorly regulated arms transfers is a major factor sustaining organized crime and terrorism in all regions. The recent events in Libya, for example, presented an opportunity for various criminal and terrorist groups to procure firearms and ammunitions from looted government stockpiles. While Somali pirates reportedly received about US$170 million in ransom in 2011 for hijacked vessels and crews. It is important to mention, that piracy and armed robbery against ships affect the freedom of shipping and the safety of vital shipping lanes, carrying around 90 percent of the world trade.
There is also a specific relationship between firearm availability and high levels of homicide. It is estimated that 42 percent of the overall global homicides are committed with firearms. This percentage is considerably higher in regions where homicides are often associated with the illicit activities of organized criminal groups. In some regions, misuse and illicit trafficking of firearms and their ammunition is often associated with other crimes, in particular drug trafficking. In these situations, the ability of security institutions, such as the police and the military, to enforce the law is greatly diminished in the face of the power of well-armed organized crime groups with ready access to arms in the black market, thus undermining the social fabric of entire communities.
In this regard, Africa, Latin America and the Caribbean are the three most affected regions in the world by both arms trafficking and small arms misuse, and share similar challenges fighting against the illicit arms circulation. Interestingly, “the studies on seized arms reveal the use of a variety of arms in street and organized crime. For example, handguns are the preferred weapon used in the commission of most street crime, while military-style arms are used by organized criminals, such as by the drug cartels in Mexico and in the favelas in Brazil.”
The problem of a poorly regulated arms trade was well noted by the UN, which stated that: “the absence of a global framework regulating the international trade in all conventional arms has obscured transparency, comparability and accountability.” However, it took almost a decade to agree on principles to control the flow of such arms.
The Birth of the Treaty
Unlike trade in chemical, biological and nuclear weapons, trade in conventional weapons was not regulated in a comprehensive treaty at the international level. The initiative on the current principles of the ATT have been started by Dr. Oscar Arias who in 1995, led a group of fellow Nobel Peace Prize Laureates in announcing their support for the international regulation of the trade in conventional arms. Of the many advocacy initiatives undertaken in support of the ATT, the “Million Faces Petition” of the Control Arms campaign gained the greatest international attention. The Petition, which comprised individual portraits as expressions of support, was formally submitted to UN Secretary General Kofi Annan in June 2006.
After some months, the process within the UN system began with General Assembly Resolution 61/89 of December 2006 entitled “Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms”. In this resolution, the General Assembly requested countries to submit their views on the feasibility, scope and draft parameters for a comprehensive, legally binding instrument on the import, export and transfer of conventional arms. Following those views, the General Assembly adopted a second resolution on an ATT (Resolution 63/240) in 2008. In this resolution the UN General Assembly decided to establish an open ended working group, which would be open to all states, to further consider the possible elements of the future agreement on the arms trade.
A year after, in 2009, the UN General Assembly adopted Resolution 64/48 in which UN member states decided to convene a UN conference on an Arms Trade Treaty in 2012 with the scope “to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms”. Importantly, under the US administration of President Barack Obama, the US changed its position and after voting against the ATT in 2006 and 2008, it finally supported this process. Undoubtedly, this support was conditional on success of the future negotiations as well as for the agreement being reached in consensus.
After years of advocacy for a worldwide ATT and four intensive weeks of diplomatic bargaining, in July 2012 the UN convened a conference to negotiate a legally binding arms trade treaty. Unfortunately, the final negotiation round did not result in an agreement to which all 193 countries of the UN could commit. At the end of the negotiations, the US blocked an agreement by declaring that it needed more time to reach a consensus. Russia, North Korea, Cuba and Venezuela supported this position. It was mutually agreed, however, that: “Arms export controls can only be effective if implemented at the global level, in a coherent and consistent manner” as the “poorly regulated trade in conventional arms and ammunition fuels conflict, poverty and human rights abuses all over the world”. Therefore, it was decided to continue negotiations at the next years (2013) conference with a view to concluding the ATT. Finally, the treaty was adopted in April, 2013.
A Glance Inside the Treaty
The preamble of the treaty recognizes “that civilians, particularly women and children, account for the vast majority of those affected by armed conflict and armed violence” and “the challenges faced by victims of armed conflict and their need for an adequate care, rehabilitation and social and economic inclusion.” The treaty also recalls that States Parties to the treaty are determined to act in accordance with the duty to ensure respect to IHL.” One of the purposes of the treaty is to reduce human suffering by establishing the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms. To reach these goals, the treaty sets forth the principles of sovereignty and non-intervention, transparency and universality.
As mentioned before, the Article 2 of the treaty sets out the scope of conventional arms to which the treaty shall apply. It explicitly refers to the seven major categories of conventional arms already included in the UN Register of Conventional Arms, plus small arms and light weapons. Ammunition, munitions, and parts and components for these conventional arms are also covered in Articles 3 and 4.
Article 2 also includes activities to which the treaty shall apply: These are “activities of the international trade” that comprise export, import, transit, trans-shipment, and brokering. Particularly, it aims to prevent and suppress illicit production, trafficking and illicit brokering of conventional arms.
However, the ATT “does not aim to impede or interfere with the lawful ownership and use of weapons.” According to the ATT, Governments remain primarily responsible for keeping to the rule of law. However, before approving the transfers of weapons or ammunition, States Parties to the ATT are required to assess the risk that transferred arms would be used by national armed and security forces, private security companies or other armed State or non-State actors to foment regional instability, to commit grave violations of international humanitarian law and human rights law (e.g. genocide, crimes against humanity, war crimes) or to engage in other forms of politically or criminally motivated armed violence (e.g. terrorism; transnational organised crime, corruption). The common standards should also help States to assess the risk that transferred arms will end up in areas proscribed by UNSC embargoes.
Moreover, States Parties must establish and maintain a national control system, including a national control list of weapons and items covered. They must also maintain national records of export authorizations or actual exports, and report on their implementation of the treaty as well as authorized or actual exports and imports of conventional arms (but not ammunition or parts and components).
The treaty will open for signature on June 3, 2013 at UN headquarters in New York. It will enter into force 90 days following the 50th ratification, acceptance, or approval with the Depositary. Despite the poor monitoring mechanism (the Conference of States parties has a function to review implementation, and consider amendments and issues relating to the treaty interpretation) “the text now has to be implemented in good faith so as to positively affect the lives, health and well-being of millions of people around the world. If properly implemented, it will prevent arms transfers when there is a manifest risk that war crimes or serious violations of human rights will be committed.”
Prospects of the Treaty
Without adequate regulation of international arms transfers based on high common standards to guide national decisions on these transfers, it is easier for arms to be diverted to the illicit market for use in armed conflict, criminal activities and violence, including organized crime groups. With every transfer it authorizes, a government deciding on exporting weapons must realize the profound international responsibility of that decision. And conversely, an importing government must ensure that it will use these weapons only to provide the safety and security for its people and that it has the capacity to safeguard all weapons within its possession throughout their life cycle.
Undoubtedly, the ATT is a significant milestone on the way towards the goal to reduce the flows of the illicit arms and to reduce human suffering. However, this treaty lacks specific indicators as well as specific provisions about arms transfer towards non-State Actors. Furthermore, the obligation of reporting and the monitoring system suggested by the ATT is hardly sufficient for its successful implementation. The treaty also does not pay enough attention to the criminalization of illicit conducts.
Unfortunately, each weakness in the treaty as well as resistance of states on reaching the substantial agreements on the arms trade has a huge cost of human life and dignity. Those suffering the most from the adverse effects of the arms trade are men, women, girls and boys trapped in situations of armed violence and conflict, often in conditions of poverty, deprivation and extreme inequality, where they are all too frequently on the receiving end of the misuse of arms by State armed and security forces, non-State armed groups and criminal gangs. As President Dwight D. Eisenhower well mentioned: “Every gun that is made, every warship launched, every rocket fired signifies in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. […] Under the clouds of war, it is humanity hanging on a cross of iron.”
 Doctor Who, “Tooth and Claw”, Russell T. Davies.
 UNODA Occasional Papers, The Impact of the Poorly Regulated Arms Transfers on the Work of the United Nations, United Nations Coordinating Action on Small Arms (CASA), 2013, p. 3.
 A conventional weapon can be defined as a weapon that is neither a nuclear, biological nor a chemical weapon (i.e. not a weapon of mass destruction).
 ICRC, Arms Trade Treaty: A historic step towards reducing human suffering, available at: <http://www.icrc.org/eng/resources/documents/news-release/2013/02-04-weapons-arms-trade-treaty.htm>, (Last visited on 27 May, 2013).
 See supra note 4.
 The biggest arm suppliers: US, Russia, China, Ukraine, Germany, France, UK, Italy, Netherlands, Spain. See also: BBC, UN passes historic arms trade treaty by huge majority, available at: <http://www.bbc.co.uk/news/world-us-canada-21998394>, (Last visited on 27 May, 2013).
 The Globalization of Crime: A Transnational Organized Crime Threat Assessment, United Nations publication, Sales No. E.10.IV.6, 2010.
 See supra note 2, p. 1.
 See supra note 4.
 See supra note 2, p.6.
 Ibid., p. 24.
 Save the Children, Devastating Impact: Explosive weapons and children, 2011, p. 5.
 See supra note 2, p.19.
 Ibid., p. 12.
 UNHCR News, 14 May 2010.
 See supra note 2, p. 23.
 Ibid., p. 20.
 Ibid., p. 16.
 Ibid., p. 2.
 Holtom, P. and Wezeman, S. T., Towards an arms trade treaty?, SIPRI Yearbook 2007: Armaments, Disarmament and International Security, Oxford, 2007.
 Control Arms Campaign, Million Faces Petition, available at: <http://www.controlarms.org/million_faces/index.php>, (Last visited on 28 May, 2013).
 The EU Non-Proliferation Consortium, The European Union’s Involvement in Negotiating an Arms Trade Treaty, No. 23 December 2012, p. 3.
 UN General Assembly Resolution 64/48, 12 January 2010.
 See supra note 24, p. 3.
 Ibid. p. 2.
 UN General Assembly, The Arms Trade Treaty, A/CONF.217/2013/L.3, Preamble.
 See supra note 5.
 Revolvers and self-loading pistols, rifles and carbines, assault rifles, sub-machine guns and light machine guns. See also: UN, General and Complete Disarmament: Small Arms, Report of the Panel of Governmental Experts on Small Arms, available at: <http://www.un.org/Depts/ddar/Firstcom/SGreport52/a52298.html>, (Last visited on 27 May, 2013).
 Heavy machine guns, hand-held under-barrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles, portable launchers of anti-tank missile and rocket systems; portable launchers of anti-aircraft missile systems (MANPADS); and mortars of calibres of less than 100 mm. See also: UN, General and Complete Disarmament: Small Arms, Report of the Panel of Governmental Experts on Small Arms, available at: <http://www.un.org/Depts/ddar/Firstcom/SGreport52/a52298.html>, (Last visited on 27 May, 2013).
 See supra note 4.
 See supra note 2, p. 3.
 See supra note 24, p.13.
 See supra note 29, Article 22.
 See supra note 5.
 See supra note 2, p. 21.
 See supra note 5.
 See supra note 2, p. 2.
* Picture source: Reuters.
Written by Garima Tiwari
( http://www.glogster.com and http://www.gandhiforchildren.org)
The recent case of an Indian new-born baby allegedly sold for 800,000 rupees ($ 14,750) over Facebook, opened up many questions on the prevalence and working of child trafficking racket in the country. The boy, born in a hospital in Ludhiana in the northern state of Punjab, was sold twice before the deal on the social networking site. The infant’s grandfather allegedly first snatched the child from his own daughter, telling her he had been stillborn, to sell him to a nurse for 45,000 rupees. The nurse, in turn, reportedly sold the baby for 300,000 rupees to a hospital lab assistant. The infant was then allegedly put up for sale on Facebook by the lab assistant, and a businessman from New Delhi is accused of offering 800,000 rupees for him after seeing photographs. The police raided the businessman’s house and recovered the child. They also arrested five people including the grandfather and another man accused of facilitating the deals. Tens of thousands of children in India are thought to be trafficked every year, some for adoption but also many for bonded labour, begging or sexual exploitation.[i] That is hardly the experience of most parents. Since 2007, when the exposure of a serial killer in Nithari, on the outskirts of New Delhi, revealed that local police had ignored parents’ pleas that their children had disappeared, evidence has piled up showing that officials continue to disregard complaints of missing children.[ii]
Many, many such incidents are repeatedly reported with multitude of reasons for trafficking and sad implications. Take for example, Smita a sixteen year old girl was taken from her village in Jharkhand, India and subjected to various forms of sexual abuse and exploitation at the hand of her employers including rape. When rescued her parents refused to take her back since she had been tainted by rape. Falling sex ratios in Haryana and Punjab has led to a need for trafficking of brides from villages in Orissa, Jharkhand, Bihar, Assam and West Bengal, who have been sold off by the parents. Jyoti, age fourteen, was sold and married to a 40-year old man for Rs 15,000 in order to produce a mail heir[iii]
This post highlights the need for urgent action by the authorities to fight child trafficking in India. A huge number of children from a place called Tarai in Nepal are trafficked to India everyday and they fall victims to child labor. Approximately 90,000 children went missing in India in 2011 alone. Nearly half of these cases remain unsolved. Thus, while there is movement of children through procurement and sale from one country to another, with India being both a supplier as well as a “consumer”, there is internal “movement” of children within the country itself – one town to another, one district to another and one state to another. It is undertaken in an organised manner, by organised syndicates or by individuals, and sometimes informal groups. Relatives and parents are part of this as well.[iv] Children as young as 5 years are sold to traffickers by their parents who are in need of money and brought to India. These children are trafficked to various parts of India like Delhi, Mumbai and Kolkata and are made to work in cloth factories, have to stitch bags and perform various hazardous and odd jobs. [v] In 2012 about 250 Nepali children were rescued from the India-Nepal border. There are number of unregistered orphanages in Nepal which are trafficking children to different parts of the world and Indian human rights activists speculate that there are thousands of Nepali children who work in India. In March 2013, 38 tribal children, including 32 minors were rescued who were being taken by train for bonded labor. [vi]Their parents were given an advance amount of Rs 1,000 for a bonded labour of 40 days for the children, to work at the under construction site of railway tracks in Nagpur in India. The agents involved in trafficking usually give these minor girls the look of a married woman so that they are not easily caught. The boys were to be paid a daily wage of Rs 160 and girls Rs 150.
The chart below shows some of the methods of trafficking:
Chart taken from the Manual For Social Workers : Dealing with child victims of trafficking and commercial sex exploitation[vii]
The Indian Constitution under Article 23 specifically prohibits human trafficking, asserting that all citizens have the right to be protected from exploitation. Article 36 of the Convention on the Rights of the Child provides for protection of children from exploitation and physical and psychological recovery and article 39 of the CRC provides for the social reintegration of child victims of exploitation. In India, various laws like Juvenile Justice (Care and Protection) Act of 2000 (JJA), Immoral Traffic (Prevention) Act of 1956 (ITPA) amended in 1986, and the like, are providing support, care, and protection to these children in various State Homes across the country.
In June 2011, India ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplemented the 2000 UN Convention Against Transnational Organised Crime. India’s response to the problem of trafficking has been considerably influenced by its Trafficking in Person (TIP )Report rankings. The definition of trafficking under the UN TIP Protocol is the “recruitment, transportation, transfer, harbouring or receipt of persons” by using “force[,] . . . coercion, abduction, fraud, [and] deception” to control and exploit another person, including, but not limited to, sex exploitation.Between 2001 and 2003, India figured in Tier Two of the TIP Report before being demoted to the Tier Two Watch List. It was only in May 2011 when India ratified the UN Protocol that it made its way once again into the Tier Two List. India’s response to the trafficking problem in terms of abolishing trafficking isn’t unique in the sub-continent. Indeed, the 2002 SAARC Convention on Preventing and Combating Trafficking in Women and Children defines trafficking as sex trafficking following a 1949 UN Convention, rather than the 2000 UN Protocol.[viii]
While India has ratified the UN Convention for the Suppression of the Trafficking in Persons, without reservation, and enacted ITPA in response showing its intention to fight trafficking, Section 7 of the said act which penalizes those who prostitute in or near public places, and Section 8, which penalizes the solicitation of sex, both of which have in practice justified the police’s arrest and imprisonment of trafficked women who have been forced into prostitution and who have no knowledge or control over the brothel’s proximity to public places. Amending the law to exclude Sections 7 and 8 would decriminalize the activities of trafficking victims who are forced to solicit for sex. In 2006, a bill to amend the ITPA was proposed by India’s Ministry of Women and Child Development, which would decriminalize prostitution and instead would penalize prostitutes’ clients. The law currently contains provisions that penalize brothel owners, managers, and traffickers. The Ministry of Home Affairs also set up specialized police units in major Indian cities in 2011 with the sole task of investigating sex trafficking cases and arresting traffickers and brothel owners and managers. These police officers were specially trained and sensitized to understand how trafficking rings operate. However, the police lack the resources to investigate and make arrests on every trafficking case. [ix] Even after arrest the judicial process is so slow that while one is being put under trial, the whole trafficking ring keeps flourishing.
The recent Criminal Law Amendment Act, 2013 recognises trafficking as an offence in the Section 370 of the Indian Penal Code . This is on the similar lines as the Palermo Protocol, also ratified by India in May 2011, following a Supreme Court judgement defining trafficking in a public interest litigation (PIL) field by Bachpan Bachao Andolan in 2011. The bill targets the entire process that leads to trafficking of a person and also makes the employment of a trafficked person and subsequent sexual exploitation a specific offence under Section 370 A.[x] While the old section 370 of Indian Penal Code dealt with only buying or disposing of any person as a slave the new section will take in its purview buying or disposing of any person for various kinds of exploitation including slavery. This provision includes organ trade as well. As the explanation further clarifies “exploitation” would also include prostitution. This is in addition to the ITP Act, 1956. The new section also ensures that persons involved at each and every stage of trafficking chain are brought within the criminal justice system.Also by specifically including that if a person is brought with his/her consent, where such consent is obtained through force, coercion, fraud, deception or under abuse of power, the same will amount to trafficking, the law has been substantially strengthened. This will cover all situations where girls who happen to be major are duped with promises of marriage and willingly accompany the traffickers who exploit them in various ways. While earlier no specific offence was made out for the mere bringing of the girl in question now that too is criminalized. It has also been specifically added in the provision that consent of the victim is immaterial for the determination of the offence.The new section also differentiates the instances of trafficking major persons from minor persons. This differentiation is brought about by providing separate penalty for each with higher minimum sentence for trafficking minor persons.In addition the section also provides for enhanced punishment for repeated offender as well as where the offender traffics more than one person at the same time. By providing that trafficking in minor persons on a repeated conviction will attract imprisonment for life (meaning the remaining natural life) the law has been substantially changed.[xi] This will surely act as a big deterrent. Involvement of a public servant including a police officer shall entitle him to life imprisonment which shall mean the remaining natural life.[xii] Addition of the section 370 A further adds strength to trafficking related law by criminalizing employment of a trafficked (major/minor) person. A person who has even reason to believe or apprehension that the minor/major person employed by them has been trafficked will make them criminally liable. This places a huge responsibility on the employers who were till now, let off easily under the not so strict provisions of the child labour laws and juvenile related laws. Here also a higher minimum prison term is prescribed where a minor person is involved. Also important is the fact that irrespective of age of the person employed, simply employing a trafficked person is an offence. This provision will go a long way in ensuring that people verify the antecedents of the placement agencies as also get the police verification of the persons employed. This will also aide in curbing the huge demand for labour who are victims of unsafe migration.[xiii]
The enactment of the law on paper with no real training and support to the functionaries would be futile and therefore, what is needed now is “actual”, “planned” and “effective” implementation. Involving the community participation in the whole implementation process would create a greater impact. The procedures and technicalities should not reduce the ambitious legislations to empty words, because at stake here are the children- the future of the nation.
(For those who want to get a deeper understand of the brutality of the child trafficking rackets I recommend the movie recently screened at the Cannes Film Festival on May 22 titled: “Oass- The Dew Drop”, which is inspired by a real-life story of abduction of an 11-year-old Nepalese girl who is sold to a brothel in Delhi by her aunt. (http://www.youtube.com/user/OassTheFilm))
[i] Police Rescue Indian baby allegedly sold on facebook, April 24, 2013 available at http://www.thehindubusinessline.com/news/police-rescue-indian-baby-allegedly-sold-on-facebook/article4650168.ece
[ii] Jason Overdorf, Indian Chilld Trafficking on the Rise, May 5, 2013 available at http://www.salon.com/2013/05/05/child_trafficking_in_india_on_the_rise_partner/
[iv] Child Trafficking in India available at http://www.haqcrc.org/publications/child-trafficking-india
[v] Darker Side of India: Child Trafficking on the Rise,27th March 2013, available at http://www.siliconindia.com/news/general/Darker-Side-of-India-Child-Trafficking-on-the-Rise-nid-144134-cid-1.html
[vi] Rashmi Drolia,Child Trafficking: 38 Children Rescued from Railway Station, 15th March 2013,available at http://articles.timesofindia.indiatimes.com/2013-03-15/raipur/37744973_1_railway-station-tribal-children-needy-children
[viii] Prabha Kotiswaran, India has to rethink human trafficking, The Hindu Business Line, march 27th 2012, available at http://www.thehindubusinessline.com/opinion/india-has-to-rethink-human-trafficking/article3251458.ece
[ix] Anusree Garg, Anti Trafficking Legislation Inadequately Combatting Sex Trafficking in India, March 2013, The Human Rights Brief, available at The Human Rights Brief, http://hrbrief.org/2013/03/anti-trafficking-legislation-inadequately-combating-sex-trafficking-in-india/
[xi] Piecemeal Approach available at http://www.frontline.in/social-issues/general-issues/piecemeal-approach/article4431434.ece
[xii] Rajul Jain Human Trafficking And Law: Understanding Criminal Law (Amendment) Ordinance, 2013 available at http://nlrd.org/resources-womens-rights/anti-trafficking/anti-trafficking-government-notificationsadvisories/human-trafficking-and-law-understanding-criminal-law-amendment-ordinance-2013