A Note On The ICJ Judgement In NICARAGUA v COLOMBIA and its relevance to International Crime and Criminal Law

Written by: Professor Steven Haines[1]

On 19 November 2012 in The Hague, the International Court of Justice (ICJ) handed down its Judgement in the case between Nicaragua and Colombia concerning the two States’ dispute over territory and maritime jurisdiction in the south-western region of the Caribbean.[2] The following day, Claire O’Neill McCleskey posted an article on the InSightCrime website in which she raised the possibility that the Court’s decision would have negative consequences in relation to the combating of serious crime in the region.[3]   What was it about the case that prompted this immediate reaction – and was that reaction justified?  Indeed, are there any international criminal law consequences of the Judgement?  The aim of this note is to provide a brief account of the case, its background and the manner in which the Court dealt with it, and to follow that up with some comment on whether or not there are likely to be significant consequences in relation to international crime and criminal law.

Background to the Case

The case was initiated by Nicaragua in December 2001.  Seventy-three years earlier, the 1928 Barcenas-Esguerra Treaty had dealt with issues of sovereignty of islands in the region and for some time after that there was no obvious dispute between the two States.  There were certainly no maritime boundary issues because, in 1928, the only cause for such would have been a dispute over overlapping claims to three nautical mile territorial seas; the islands were so far offshore (over 100 nautical miles) that this was simply not an issue – or regarded as potentially so.

On the basis of its interpretation of the 1928 treaty, Colombia exercised sovereignty over several islands that were in very much closer proximity to the Nicaraguan coast than they were to Colombia’s.  Three island groups in particular – San Andres, Providencia and Santa Catalina – were habitable islands that were expressly dealt with in the 1928 treaty.  Today they are important tourist destinations in the region.  San Andres (pop: 70,000) is just over 100 nautical miles from the Nicaraguan coast, while Providencia (pop: 5,000) and Santa Catalina are about 50 nautical miles to the north east of San Andres and about 125 nautical miles from the Nicaraguan coast.  All three islands are in the region of 380 nautical miles from the Colombian coast.  Two other physical features located to the north of San Andres, Providencia and Santa Catalina – Quitasueňo and Serrana – are very low lying, uninhabited banks or cays that were not expressly covered by the provisions of the 1928 treaty but which Colombia has always since then regarded as its territory.  There was, though, some doubt as to the extent to which Quitasueno remained dry at high tide, a factor that the Court was required to consider.  If it remained above sea level at high tide, it would be classed as an island and would generate a territorial sea – although almost certainly not an EEZ, as to do so it would need to be able to sustain human habitation or economic life under Article 121(3) of the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS).  If it was submerged at high tide it would not qualify for island status, would not be appropriable as sovereign territory, and could not, therefore, generate a territorial sea or any other jurisdictional zone.

At the time the 1928 treaty was negotiated, the potential for substantial resource exploitation in the waters between the two States had not been a consideration and had not influenced the terms of the treaty. The islands claimed by Colombia generated a three mile territorial sea but Colombian sovereignty over them had relatively little geo-political, legal or, indeed, economic, impact on the region.  As the resources of the continental shelf emerged as a significant factor shaping the law of the sea in the second half of the twentieth century, however, the terms of the 1928 treaty increasingly came to be seen by Nicaragua as disadvantageous. Colombian sovereignty over the islands would have substantial impact as newly extended coastal state jurisdiction was established.  The location of the islands had the potential greatly to restrict the extent of Nicaraguan continental shelf and exclusive economic claims while at the same time giving Colombia a disproportionately large area of jurisdiction.  Nicaragua came to regard the situation as inequitable in the new era of extended jurisdiction and maritime resource exploitation, especially given the fact that the islands at the heart of the dispute were three times as distant from the Colombian mainland as they were from the Nicaraguan.  The latter began to challenge Colombian sovereignty of the islands. The result was that the claims of both States to continental shelf and exclusive economic jurisdiction overlapped significantly and the dispute intensified as the potential for economic exploitation increased.

In very general terms, this is the historical background to the dispute (more detail can be found in the Court’s Judgement and in the papers presented by both sides during the case.) Nicaragua took the case to the ICJ confident that the Court would award it sovereignty over key islands.  It then expected the Court to define a maritime boundary using Nicaraguan sovereignty of the islands to establish its continental shelf and exclusive economic zone (EEZ) in substantial areas previously claimed by Colombia.  Colombia, on the other hand, while reluctant to place the dispute with the Court, was anticipating a rejection of Nicaraguan claims for sovereignty over the islands, which it assumed would leave the Colombian claimed continental shelf and EEZ largely intact.

The Progress of the Case and the Court’s Judgement

The Court took seventeen days short of eleven years to reach its Judgement. One might ask why it took so long.  The answer lies in a combination of procedural requirements, the need for the Court initially to consider its own jurisdiction before moving on to the merits of the dispute itself, and technical complexities.

Following Nicaragua’s filing of its Application in 2001, there followed the usual promulgation by the Court of deadlines for the submission of the Nicaraguan Memorial and the Colombian Counter-Memorial; these were set for April and June 2003 respectively.  In July 2003, however, Colombia raised preliminary objections as to the Court’s jurisdiction and the proceedings on the merits were duly suspended.  Public hearings on the preliminary objections were held in June 2007 and the Court handed down its judgement on these in December that year.  With one important exception (see below), it concluded that it did have jurisdiction to adjudicate on the dispute.

Colombia was then given a new deadline of 11 November 2008 to submit its Counter-Memorial on the merits.  This was met and there followed a further round of deadlines for a Nicaraguan Reply (18 September 2009) and a Colombian Rejoinder (18 June 2010).  Public hearings on the merits were eventually held between 23 April and 4 May 2012, with the Judgement handed down six months later.

Maritime boundary disputes are frequently complicated by technical factors and this was certainly true in this case, in which hydrographic evidence concerning maritime features and tidal effects was submitted to the Court by both parties. Their representatives in the proceedings included both legal counsel and scientific and technical advisers, and each party challenged the other’s scientific and technical methodologies in the process.  The principal technical issues in focus in relation to the question of sovereignty were to do with whether or not certain physical features qualified as islands or cays, or were merely raised banks that only dried at some point below high tide. The precise physical characteristics of the features and of the tides that affected them were important in determining whether or not it was possible for either State to claim them as territory and whether they would then, as a consequence, generate extensions of coastal state jurisdiction (territorial jurisdiction, exclusive economic jurisdiction, or jurisdiction over the continental shelf).  Following the determination of sovereignty, further technical details were to do with the construction of the single maritime boundary delimiting the two States’ continental shelves and EEZs.

While the time taken to reach the Judgement following Nicaragua’s initiation of the case may appear unduly excessive to those unfamiliar with the ICJ’s proceedings, it was by no means unusual, and the technical issues were also complex.  The time was necessary for all of the details of the case to be thoroughly researched and presented and then analysed by the Court.

Nicaragua submitted the dispute to the ICJ to achieve two objectives: first, a ruling that it has sovereignty of various islands and cays located between Nicaragua and Colombia; and, second, the delimitation by the Court of the maritime boundary between the two States.  One can see that Nicaragua wished to be granted sovereignty of certain islands in order to maximise the extent of its continental shelf and exclusive economic zone – the islands having a potentially significant influence on the extent of the resource zones that would be partially generated by them.

While the case was reasonably complex at the technical level, we need only briefly state its outcome.  The result was somewhat unexpected from the point of view of both parties.  To start with, the Court had concluded in its Judgement on Colombia’s Preliminary Objections that it had no jurisdiction to consider Nicaragua’s claim to the islands of San Andres, Providencia and Santa Catalina because sovereignty had been determined in Colombia’s favour by the 1928 treaty.  In effect, it was ruling in favour of Colombian claims to sovereignty over the islands.  It also confirmed Colombian sovereignty over various other islands, including Quitesueno and Serrana.  What it then went on to do was acknowledge the need, for reasons of equity, to grant no significance to Quitesueno and Serrana in relation to delimitation of the continental shelf or EEZ.  While Colombia has the right to a 12 nautical mile territorial sea around these islands, it has no prospect of relying on them to generate either a continental shelf or an EEZ. The islands were effectively left as Colombian territorial enclaves within the Nicaraguan continental shelf and EEZ.  While welcoming the Court’s decision over sovereignty, Colombia effectively lost the case in the final analysis because of the extensive sea area (approximately 30,000 square miles of ocean) it lost as a result of the ruling.

The Impact of the Case on International Crime and Criminal Law

It must be said that on first reflecting on this case, it appears to have no substantial relevance to international criminal law at all.  As already explained, it was to do with rival maritime claims that, while producing tension, had not previously resulted in the parties to the dispute resorting to force.  One narrow definition of ‘international criminal law’ is that implied in the Statute of the International Criminal Court (ICC), which has jurisdiction over genocide, war crimes, crimes against humanity and aggression. Unless war were to break out between the two States, it is virtually impossible to imagine circumstances in which the case would have relevance to ICC-based criminal law.

Both Nicaragua and Colombia have accepted the Court’s Judgement, although the latter feels aggrieved by it.  Apart from initially challenging the ICJ’s jurisdiction, Colombia has subsequently been highly critical of its ruling.  Colombian president, Juan Manuel Santos, declared on 28 November that the Judgement was ‘unjust and erroneous’ and announced that his government would ‘no longer recognise the World Court in border disputes’.[4] He went on to say, however, that Colombia’s ‘emphatic rejection’ of the resultant maritime boundary would not result in any extra-legal action; it will only rely on international legal processes to challenge it.  It must be said that it is difficult to imagine what legal processes Colombia now intends to resort to.  The ICJ’s Judgement is final and there is no avenue for appeal against a Court Judgement, which is legally binding on the parties.  Despite post-Judgement rhetoric, Colombia has so far not acted irresponsibly in relation to it and remains within the law.  On current assessment, its disappointment with the Judgement seems unlikely to cause the dispute to rumble on, and certainly not to the extent that force will be deployed (which would raise questions concerning aggression and the application of the law of armed conflict/international humanitarian law).  We can reasonably hope that the dispute has been resolved peacefully and that both parties will respect that.

We can also reasonably rule out the possibility of this case having any relevance to ICC-based international criminal law.  If, however, we adopt a broader definition of what constitutes ‘international crime’ there is at least a suggestion that the Judgement has consequences.  A broader definition arguably includes all serious crimes having a significant international dimension.  Given the international nature of the oceans, crimes committed at sea will almost invariably have potentially significant international dimensions.

One group of crimes with profound international consequences is to do with the manufacture, sale and trafficking of illicit narcotics.  These activities are a seriously worrying feature in the Central American/Caribbean region, with Colombia itself a major source of illicit narcotics, with cartels like the Medellin, Cali and Norte del Valle extensively engaged in the production and export of drugs into North America, using maritime routes through the region.  It was the narcotics problem in the region that prompted McCleskey to post her article and to ask whether the Court’s ruling would be ‘Good news for drug traffickers’.  Her interjection was perhaps a little surprising, but it clearly demands some consideration, at the very least.

Unfortunate Consequences for Law Enforcement?

The thrust of McCleskey’s article was that the substantial reduction in the extent of Colombia’s maritime jurisdiction and consequential increase in Nicaragua’s, combined with the latter’s relatively weak navy, would undermine efforts to combat the narcotics trafficking activities of drugs cartels operating out of Colombian territory and using the waters off Nicaragua to traffic narcotics from Colombia to the United States (see map below).  A key consideration is that a number of criminal groups operating out of Colombia have recently been using sea routes through the San Andres islands.  This activity has been targeted by the Colombian navy but, McCleskey suggests, Colombia’s loss of jurisdiction over waters very close to the islands will undermine these efforts.  To quote from her article:

‘……the withdrawal of the Colombian Navy, from what are now Nicaraguan waters, may benefit drug traffickers operating in the region, among them the Revolutionary Armed Forces of Colombia (FARC) and the Urabenos, due to the comparative weakness of the Nicaraguan Navy. Colombia…..has a large, modernized navy, while Nicaragua’s navy is small and relatively low-tech.’


Source: www.InSightCrime.org

According to The Economist newspaper, in an article published on 8 December 2012, ‘Nicaragua celebrated (the Judgement) by dispatching ships to patrol its new waters. “By now [the navy has] established sovereignty in that whole territory,” said Daniel Ortega, its president’.  This comment was from an article that also included the map below.[5]  That map, as well as the title of The Economist article, makes reference to Colombian (and ‘former Colombian’) ‘territorial waters’.  When coupled with the quote from Daniel Ortega, in which he refers to the Nicaraguan navy having established ‘sovereignty in that whole territory’ judged by the ICJ to be within Nicaragua’s continental shelf and EEZ, an uninformed reader may gain the wholly erroneous impression that the waters in question now have the status of Nicaraguan territory.  The same impression is gained from a reading of McCleskey’s article on the possibility of the Court’s ruling advantaging Colombian drug cartels and those trafficking their wares.  The two articles reinforce each other’s fundamental misunderstanding of the juridical status of the waters subject to the ICJ’s Judgement.

The Economist

Source: The Economist, 8 Dec 12

The impression that may be gained from the two articles and the manner in which they have been presented is that law enforcement activities targeting drugs traffickers in the region will be significantly affected by the Colombian navy’s inability now to operate in those waters affected by the dispute before the ICJ.  This, to put if very simply and starkly, is just plain nonsense.  The authors of these two articles seem to lack an adequate level of understanding of the juridical nature of the waters in question.  The legal or juridical status of the waters is as continental shelf or EEZ.  These are both resource zones whose legal significance is restricted to activities of an economic nature.

There is absolutely nothing in the law of the sea preventing the Colombian navy operating throughout this region up to, but admittedly not within, the outer limit of the Nicaraguan territorial sea (which is a mere 12 nautical miles from the Nicaraguan coast).    Maritime law enforcement operations are not affected by the range of rights and obligations contained in the 1982 UNCLOS, the instrument that is the formal source of both continental shelf and exclusive economic jurisdictions.  The existence of neither continental shelf nor exclusive economic jurisdictions results in rights or obligations that significantly curtail naval operational activities.  Navies do have to operate taking into account the rights of those vessels engaged in legitimate resource exploitation activities, within both jurisdictions, but the chances of navies’ obligations in this respect resulting in any serious undermining of their ability to conduct drug interdiction operations are virtually nil.  The relevant parts of 1982 UNCLOS are also now widely recognised as forming a part of the customary international law of the sea and are, therefore, binding on all States – even those that are not themselves party to the convention.  Colombia has the right to deploy its navy up to the limits of the Nicaraguan 12 nautical mile territorial sea and, in order to give meaning to that right, Nicaragua is under a correlative obligation not to prevent it doing so.  The waters above the continental shelf and forming the EEZ are, for non-economic purposes, to be regarded still as having the status of the high seas.

Closing Remarks

One of the most worrying issues within the law of the sea at present is the potential for coastal States to assume rights and to impose obligations on others that are no part of the consensus arrangements that were codified in 1982 UNCLOS.  That convention was a package deal that balanced the extension and enhancement of coastal state jurisdiction with the freedom to use the high seas for navigation and other legitimate activities.  The suggestion that navies should remove themselves from other States’ areas of continental shelf jurisdiction or EEZs serves profoundly to undermine that balance and the pattern of rights and correlative obligations that define zones of maritime jurisdiction.  Statements, such as that made by President Ortega to the effect that the Nicaraguan navy had secured the new ‘territory’ granted to Nicaragua by the ICJ, are arguably irresponsible political rhetoric; they are arguably also deserving of some measure of challenge from other States.  When respectable internationally renowned publications like The Economist fail to use the correct terminology when describing issues of this nature, there is also a need for their errors to be highlighted; if they are not they may add to the gradual spread of erroneous assumptions about vital rights and obligations at sea.

This ICJ Judgement should in no substantial manner adversely affect the way in which the Colombian navy goes about its lawful business interdicting illicit narcotics traffickers in the waters of the south-western Caribbean.  Indeed, there may even be some hope of enhanced cooperation in the region now that this dispute is legally settled.  Both Colombia and Nicaragua have clear national interest in putting an end to this traffic through their waters – and the United States also has a major interest in supporting them both.  Perhaps now that the territorial and maritime boundary dispute is resolved, a responsible diplomatic approach by the US to bring the two parties together in a spirit of cooperation will see drug interdiction improved in these waters.  In resolving the dispute, the ICJ has probably done much to stabilise and normalise relations between Nicaragua and Colombia.  In the long term, far from benefiting the drugs cartels, this Judgement may well serve to create the conditions for a further curtailing of their activities.

[1]  Professor at University of Greenwich, United Kingdom

[2]   Territorial and Maritime Dispute (Nicaragua v Colombia), Judgement, 19 November 2012.

[4]   See article by Associated Press ‘Colombia’s president: We will no longer recognize World Court in border disputes’ at www.todaycolombia,co/2012/11/29

[5]    ‘An islet for a sea: Colombia smarts from a loss of territorial waters’, The Economist, 8 December 2012.

Let My People Go: Blowing the Whistle Upon African States

By Ronald Rogo   rogo.ronald@gmail.com

I have heard about the problem of human trafficking[1] for eons. Horrid stories about the pain of individuals held against their will within and outside their borders. The numbers are numbing: conservative estimate of 600,000-800,000 victims being trafficked annually across international borders. Many more cases are not reported, especially trafficking that occurs within the national borders.Resolutions have therefore been passed about how governments will fight the menace and ensure that future generations do not have to fight these ghosts again.

As a source market, the situation in Africa is just as dire, if not more, compared to other parts of the world. For example, according to the Global Report on Trafficking in Persons by the UNODC in some parts of Africa and the Mekong region, children are the majority (up to 100% in parts of West Africa) of the persons being trafficked. Needless to say, hundreds of thousands of Africans have been subject to sexual, physical and psychological abuse. Most Africans could identify one or two individuals who have been subjected to these inhuman conditions. For Africans, human trafficking is a chilling re-enactment of the trans-Atlantic slave trade. Only that this time the African governments are complicit, by design or default, in the entire business (others would argue that, yet again, the leaders are complicit…but that is a discussion for another day).

But let me fair. It is not entirely correct to state that nothing has been done by the African leaders. Numerous conferences have been held in the continent where the issue of human trafficking has been discussed. Glossy paged reports with policy and legal commitments have also been prepared. We have even passed laws that outlaw human trafficking[2].  In fact, even some of the highest public officials have created time out of their busy schedules to open these conferences, deliver the opening remarks and encourage the participants of the commitment of their respective governments on this issue. But that is all. After this, the documents are filed and shelved until the next donor conference when they would be dusted again and the speeches brushed up. The rigmarole. And that is exactly my problem.

While the rest of the world has developed regional instruments to tackle their specific needs on human trafficking, Africa has stagnated. In 2005, for example, the Council of Europe Convention on Action against Trafficking in Human Beings was established to assist combat human trafficking problem in the European Union. In addition, the European regional court-has established important jurisprudence in the area of human trafficking.

Africa developed the Ouagadougou Action Plan[3], where member states pledged to havea comprehensive legislative and institutional framework that covers all aspects of trafficking in human beings in line with the UN Convention” and to “Ensure the effective prosecution of those suspected of involvement in trafficking in human beings, and deterrent penalties for those found guilty of trafficking”. However, as we shall see, these noble intentions have not been met by actual progress.  In contrast, one would barely get a case that signifies the importance of human trafficking in Africa. For example, while child sex trafficking was outlawed in Kenya in 2006 there has not been any significant reported case to date[4]. Even in situations where the victims’ cases have been filed in the European capitals the source countries have often inexplicably failed to take similar actions against the perpetrators. To put it more succinctly “Law enforcement systems have fail(ed) to prevent trafficking, punish traffickers, and protect those who are trafficked. In general, the failure of law enforcement officials to ensure security, particularly in the context of conflict, means that traffickers can act extremely violently with impunity”[5].

It seems to me that since the victims of human trafficking are mostly women and children-and conversely the beneficiaries are predominantly male[6]-the problem of human trafficking does not affect the power relations. The political power brokers can therefore afford to bury their heads in the sand. For instance, one would be hard pressed to recount an instance when an individual Parliamentarian in Africa has, suo moto, raised concern about the impact of human trafficking on their citizenry. Others would state that there are bigger problems to deal with in Africa. But what, pray tell, would be more urgent than preventing the decimation of the population in the continent?

Lack of the appropriate resources is often stated as an important barrier to effective combating of human trafficking. I would agree but qualify. Africa lacks willing implementers of the policies. People who will bite the bullet and get on with the task of rescuing generations of enslaved victims. Fighting human trafficking, just like drug trafficking, requires the expertise of a skilled police force. Specialised police units with the skills of identifying and being able to expose these tight networks need to have been created. So typically, if one would have to succeed one would need lots of solid evidence and co-operation of the victim. Most African states have not yet put these in place (although,  I submit, this is more for lack of the will and determination rather than a lack of resources).

Lastly, until African governments address the inequality situation in the continent human trafficking will continue being a problem. Most of the victims are deceived by the promise of a better life across the shores. Lack of employment opportunities, capital to start businesses or an investment climate for small businesses has led to the vulnerability of millions of young people. The Ouagadougou Action Plan identified  poverty, unbalanced wealth distribution, unemployment, armed conflicts, poor law enforcement system, degraded environment, poor governance, societies under stress as well as non inclusive societies, corruption, lack of education and human rights violations including , increased demand for sex trade and sex tourism as the root causes of trafficking in human in Africa. We have the diagnosis. Now let us treat the disease. Urgently.

[1] The UN Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention Against Transnational Organized Crime (the Palermo Protocol) defines human 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.”

[2] While a step in the right direction, the type and number of laws are still wanting. Few countries in Africa have specific legislation outlawing human trafficking as a specific offence (these include Djobouti, Ethiopia, Rwanda, Tanzania, Mozambique, the Gambia, Ghana, Liberia, Mauritaina, Senegal, Sierra Leone, Egypt and Nigeria). More countries only have laws that address only one specific form of human trafficking. In the USA, however, there are four different laws to combat human trafficking- The Victims of Trafficking and Violence Protection Act of 2000, the Trafficking Victims Protection Reauthorization Act of 2003, the Trafficking Victims Protection Reauthorization Act of 2005, and the Trafficking Victims Protection Reauthorization Act of 2008. In addition, an Office to Monitor and Combat Trafficking in Persons has been established under the State Department to co-ordinate efforts to prevent and prosecute perpetrators of human trafficking.

[3] Ouagadougou Action Plan To Combat Trafficking In Human Beings, Especially Women And Children As Adopted by the Ministerial Conference On Migration And Development, Tripoli, 22-23 November 2006

[4] However, it is important to applaud the efforts of the Nigerian government which prosecuted 209 trafficking cases in 2011, resulting in 23 convictions. While the numbers are low compared to the number of victims these efforts forecast what should happen if the rest of the states were as serious about combating human trafficking.

[5] HUMAN TRAFFICKING IN EASTERN AFRICA: Research Assessment and Baseline Information in Tanzania, Kenya, Uganda, and Burundi (Report by International Organization of Migration)

[6] The ILO estimates the annual proceeds from human trafficking at 32 billion US Dollars. This, no doubt, is a profitable enterprise with interests. The report can be accessed online at http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_090356.pdf

An Overview of the Italian Response to Child Trafficking

Written by: Noemi Fantoni [1]**

All forms of trafficking in human beings including sexual exploitation of children are universally prohibited.  In order to comply with its international obligations, Italy introduced a number of changes in its criminal legislation, so that it continued to protect the principle of the “best interest of the child.” The offence of sexual exploitation of children was introduced into the Italian Criminal Code only in 1996, by art.609-bis of the Law No. 66 which punishes violent behavior against children. Subsequent legislation was passed again in 1998 which prohibited sex tourism and juvenile prostitution.[2] It was, however, only in 2003 that Law No. 228/2003 on Measures against Trafficking Persons (also called Anti-Trafficking Law) was amended as to include a specific provision of the offence of sexual exploitation of children. This was in order to ensure compliance of the Italian legislation with the treaties and other regional and international obligations that Italy submitted to.   

So what does the Italian legislation aim to accomplish with regards to trafficking of minors? Article 18 of the Immigration Consolidation Act requires creation of a Social Assistance and Integration Programme, which took more than 2 years to bring into existence.  Currently the Programme also serves to penalize the crime of trafficking by using the trafficking definitions found in the Palermo Protocol. All the measures which form the Programme are managed by the Inter-ministerial Committee. The Programme provides several tools, such as:[3] a free Help-line (a national hotline against trafficking) and the “Voluntary Repatriation Programme” which is run by the Italian branch of the International Organisation for Migration (IOM) in collaboration with the Ministry of Interior which provides programs for temporary assistance and long term social protection.[4]

The main objectives of the free Help-line are to provide detailed information on legislation and services granted to trafficked persons in Italy and, upon request, refer them to the specialised anti- trafficking (THB) agencies. In most cases, the territorial branches of the free Help-line are managed by the same NGOs and public institutions responsible for the implementation of projects funded within the Article 18 Programme. Information is provided in the various languages spoken by the target groups and it is free and active 24 hours since January 2007. The hotline provides assistance and information not only to victim of THB for sexual exploitation but also to victims of trafficking for the purpose of labour exploitation.[5]

All local branches provide information in various languages on several issues (immigration law, social and health services, programme of social assistance and integration, etc.); provide psychological support; provide legal advice; assess if the conditions for the application of the Article 18 procedures are in place; provide information about the available accommodation solutions; and place or refer victims to the accredited Article 18 agency located in the geographical area where the victim resides.

Another instrument which has aided Italy in combatting child trafficking is the Osservatorio Nazionale Tratta,[6] an Italian online portal which offers information on various aspects of the THB phenomenon. The portal was established by Department of Equal Opportunity within the European Equal-Project Observation and Resource Centre for THB, coordinated by the Association on the Road in partnership with other NGOs and governmental bodies. The portal is the most updated secondary source on THB issues within Italy (SIRIT – Sistema Informatizzato di Raccolta Informazioni sulla Tratta), where it is possible to complete individual courses for victims accepted under social protection under Article 18 or Article 13 of the Anti-Trafficking Law but its access is restricted. It gathers national statistical data from different institutions and offers an overview of the national and international legal framework against trafficking for monitoring and analyzing this phenomenon.[7]  This is connected with the Anti-Mafia National Direction (Direzione Nazionale Anti-Mafia – DNA) and its local Districts (Direzioni Distrettuali Antimafia  – DDA) which specifically concerns itself with of all crimes in Articles 600 and 601 of the Criminal Code (slavery, servitude, trafficking).[8]

In the last decade, several awareness-raising campaigns have been run in collaboration with the General Directorate of the Italian Cooperation for Progress of the Ministry of Foreign Affairs, together with the Department of Rights and Equal Opportunities[9] and with some of the most relevant Italian NGOs. The direct participation of children in awareness-raising efforts is considered particularly relevant by the government, civil society, and NGOs fighting child trafficking.[10] Moreover, the Department for Rights and Equal Opportunities collects some key information on victims of trafficking through project reports that organisations and local authorities send to the Department every six months and on an annual basis.

In fact, the Department for Equal Opportunities every year calls upon the public for project proposals to provide and guarantee proper assistance and protection to trafficked persons. From 2000 to 2010, Department for Equal Opportunities helped to fund a total of 710 projects, in all the Italian regions (out of them 613 long term projects were financed under Article 18 and 97 short term projects under the Anti-Trafficking Law).[11]

In 2010 the Department for Equal Opportunities started to work for the implementation and set up of a National Action Plan, although it became into force only a year after.  The Plan analyzed the specific needs of trafficked/exploited children; it has a gender based approach, has cross-cutting issues to the national strategy to be developed and including minimum standards for protection and standard operating procedure for the referral of victims to the proper service providers. Nevertheless until now the Italian government has not yet appointed a National Rapporteur or equivalent mechanism. The technical board, called the Observatory and National Resource Centre on Trafficking in Human Beings, has the purpose of designing new tools and knowledge and monitoring systems on the different forms of exploitation linked to trafficking, proposing at the same time, liaison tools for different kinds of organisations working at different levels for the protection of trafficked persons and working in combating the phenomenon, for the purpose of influencing  positive policies and interventions in the sector.

Incorporating both short term and long term strategies, the Anti-Trafficking Law provides victims with three to six months of assistance while Article 18 guarantees victims shelter benefits for one year, subject to judicial review. As a matter of fact the law does not specify how often a permit can be renewed, and so it can technically be renewed until the child has reached the age of 18. Article 18[12] grants a special residence permit to foreigners, whatever their age, who are presumed to have been victims of violence or severe exploitation, whose life is at risk as a result of their desire either to escape from the control of criminal organisations or to cooperate with police and prosecutors. A residence permit may be granted without the victim reporting the traffickers, because exploitation and the associated danger for the victim are a sufficient condition for it to be obtained. Foreign child victims of trafficking receive an automatic residence permit until they reach 18 years old. The Italian legal system does not allow the deportation of foreign children below the age of 18, unless the minor constitutes a danger for public or a danger to state security.[13] A similar provision has been recently enacted for unaccompanied minors who are EU citizens.

In the end these victims receive a residence permit for education or for work, allowing them to remain in Italy.[14] The persons (including children) who are part of this Programme benefit from social services, educational provisions, and labour information in order to find a permanent job, while the Anti-Trafficking Law establishes a special aid programme granting on a temporary basis suitable accommodation and food and healthcare.

While the legislation in Italy is multidimensional (it also includes provisions for prosecutions, etc), focusing on the needs of victims and creating preventative efforts, allows for the Italian local communities to engage in combatting this crime, in addition to protecting vulnerable youth, who at times, against their own will, are far away from home.  The world has a responsibility to help those who cannot help themselves and because of their vulnerabilities are targeted so that criminals can make a profit.

[1] Noemi Fantoni is a graduate of the University of Torino (LLM) in 2012 and is currently a trainee with the European Union Parliament in Civil Liberties and Justice Unit. Noemi has worked with various NGO’s relating to child rights, most recently in Mongolia with Amici dei Bambini. She can be reached at noemi.fantoni@gmail.com for more information regarding Italian Child Trafficking laws.

** Unless otherwise noted, the author has translated the laws from Italian into English for the purposes of this post.

[2] Law No. 269, on 3rd August 1998, Norme conto lo sfruttamento della prostituzione, della pornografia, del turismo sessuale in danno di minori, quali nuove forme di riduzione di schiavitù. (http://www.normattiva.it/atto/caricaDettaglioAtto?atto.dataPubblicazioneGazzetta=1998-08-10&atto.codiceRedazionale=098G0337).

[3] Associazione On the Road, Isabella Orfano and Marco Bufo, The Italian system of assistance and integration of victims of trafficking in human beings, page. 9. (available in http://ec.europa.eu/anti-trafficking/download.action;jsessionid=GRPqPPcYfFkbL7CT7yWgyTVWNvG9gzjhwBBZkH81Rn22j7tLyXZ6!-1401219818?nodeId=e06d5560-83ce-4df1-ae98-832b58224819&fileName=The+Italian+system+of+assistance+and+integration+of+victims+of+).

[4] Idem., page.6.

[6] Web site of Osservatorio Nazionale Tratta –ONT- (www.osservatoriotratta.it).

[7]International Centre for Migration Policy Development (ICMPD), Study on the assessment of the extent of different types of Trafficking in Human Beings in EU countries, April 2010, page.184.

[8] Giuseppina Valentina D’Angelo and Isabella Orfano, European Commission, Italian Report, Law enforcement agencies and NGOs co-operation in the prevention and victim assistance of trafficking in human  beings for the purpose of sexual exploitation (THBSE), Agis Programme 2005,  COOP-TRAF JLS/2005/AGIS/156, page. 19. (available: c.europa.eu/anti-trafficking/download.action;jsessionid=5RLNPvCFWpkSvnKPpy7x9vWPFnhN51WwLLQB9r1JDGqhGpjRLh1F!511069867?nodeId=3c5774ae-4f5a-4bc8-b1c3-7abe2b7e7d32&file).

[9] Prime Minister’s Office, which is the central public authority in charge of promoting and coordinating policies and actions on anti-trafficking, with specific regard to a human rights based and victim centered approach. 

[11]European Commission, Fight Against Trafficking Human Beings, Italy. (available in: c.europa.eu/anti-trafficking/showNIPsection.action;jsessionid=2z1KPlFG8gJLTvHYG66lJ3nXh5T7w8TjmQDpPCSCn9hLLprgYVJ1!511069867?sectionId=688).

[12] The implementation of the programme, pursuit by article 18 of the Law No. 286/1998 (the Immigration Consolidation Act),  are co-financed by the State (70%) and local authorities (30%), coordinated by a special Inter-Ministerial Committee and provided by local authorities  and/or accredited non-profit organizations. The Programme is managed by the Inter-ministerial Committee for the Implementation of Art. 18 of the Law No. 286/1998 (the Immigration Consolidation Act ), the managing body of the Programme, that is composed of representatives of the Department for Rights and Equal Opportunities, the Ministry of Justice, the Ministry of Welfare and the Ministry of Interior. Idem., page. 34.

[13] Article 19, par. 2, of Italy/Decreto legislativo n. 286/1998 (25.7.1998) available at http://www.giustizia.it/cassazione/leggi/dlgs286_98.html (02.07.2008).

[14] Associazione On the Road, Isabella Orfano and Marco Bufo, The Italian system of assistance and integration of victims of trafficking in human beings. Page. 4. (available in http://ec.europa.eu/anti-trafficking/download.action;jsessionid=GRPqPPcYfFkbL7CT7yWgyTVWNvG9gzjhwBBZkH81Rn22j7tLyXZ6!-1401219818?nodeId=e06d5560-83ce-4df1-ae98-832b58224819&fileName=The+Italian+system+of+assistance+and+integration+of+victims+of+).

EU Response to the Crime of Human Trafficking

Written by Lina Laurinaviciute

“Trafficking in human beings is the slavery of our times” stresses the European Commission.[1] This position is largely reflected in the European Union (hereinafter EU) political interventions, which are usually seen in the international arena as exemplary with regard to fighting the crime of human trafficking in Europe. Indeed, the political commitment at the EU level to address this problem was established with large number of initiatives, measures and funding programmes both within the EU and external countries since the 1990s.[2]

However, the current economic situation faced by the EU countries raises business opportunities for traffickers. Human trafficking is considered to be one of the most profitable criminal activities worldwide, which estimated global annual profits are 31.6 billion U.S. dollars[3]. The warning of a dramatic increase in human trafficking put this complex issue involving criminality and law enforcement back on the political agenda of the EU and its Member States. Despite the lack of the reliable data, which makes it very problematic to develop comprehensive and effective measures to fight human trafficking, the estimated number of people trafficked to or within the EU amounts to several hundred thousand a year.[4]

Data collected by the European Commission in September 2011 shows that 76 % of registered victims of human trafficking were trafficked for sexual exploitation,14 % for forced labour, 3 % for forced begging,1 % for domestic servitude and the rest 6 % for criminal activities, removal of organs, etc. It also shows that women and girls are the main victims of this crime (79 %). Most Member States reported that majority of victims from within the EU come mainly from Romania, Bulgaria, Poland and Hungary, whereas most victims from non-EU countries are from Nigeria, Vietnam, Ukraine, Russia and China.[5]

While systematically collected and managed data on human trafficking remains essential for the efficient response to this crime, legal instruments to approach human trafficking need be harmonized within the EU Member States.

Human Trafficking is specifically prohibited by the Charter of Fundamental Rights of the European Union, which states that: “Trafficking in human beings is prohibited.”[6] A lot of attention has also been paid to the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (hereinafter Palermo Protocol) and the Council of Europe Convention on Actions against Trafficking in Human Beings.[7] Indeed, in the EU human trafficking is defined uniformly according to the Palermo Protocol: “Trafficking in persons shall mean 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”.[8]

In the case of Rantsev v Cyprus and Russia the European Court of Human Rights provided a decisive human rights benchmark with clear obligations for the EU Member States to take the necessary steps to address different areas of human trafficking. These include recruitment, investigation, prosecution, protection of human rights, and providing assistance to victims. If the authorities are aware of a case of human trafficking, or that an individual risks being a victim of this crime, they are obliged to take appropriate measures.[9]

However, despite the obligations for the Member States to criminalise all possible acts that constitute human trafficking and to provide an adequate framework to protect victims of this crime, not all Member States have ratified the above mentioned legal instruments. As well, there are still legislative gaps in their transposition into domestic legislation. Therefore, “the elements determining Trafficking in Human Beings vary considerably across EU Member States.”[10]

A major step forward was the adoption of the new Directive on preventing and combating trafficking in human beings, in 2011.[11] The Directive adopts a comprehensive approach to human trafficking from a gender (as beforehand mentioned, women and children are particularly affected) and human rights perspective. It supports the harmonisation of the EU Member States’ criminal laws, possibility not to prosecute and apply penalties to victims for unlawful activities they were forced to commit by the traffickers, possibility to prosecute the EU nationals for human trafficking offences committed in another EU State or outside the EU. It also includes robust provisions on victim’s protection, including special measures for children as well as victims’ support, such as shelters, medical and psychological assistance, translation services.[12] The new Directive also requires Member States to set up a ‘National Rapporteur’ responsible for monitoring and implementation of anti-trafficking policy at national level. Whereas the European Commission has already appointed an EU Anti-trafficking Coordinator who will oversee the implementation of the EU Strategy towards the eradication of trafficking in human beings 2012-2016 (hereinafter the EU Strategy).[13]

The EU Strategy focuses on prevention, protection, prosecution, partnerships and also increasing knowledge on emerging concerns related to human trafficking.[14] This instrument reflects a number of EU initiatives in various policy areas which contribute to addressing human trafficking. For instance, the development of guidelines to improve identification of victims; the guidelines on child protection systems; the improvement of access to information for victims of their rights and support for them to exercise these rights effectively; the measures to reduce the demand for and supply of services and goods by victims of human trafficking; the development of the EU-wide guidance on future prevention measures and gender-sensitive information campaigns, as the awareness-raising campaigns already implemented in the Member States were evaluated as insufficient in their scale and impact.

These and others EU instruments determine that any approach to human trafficking must be based on the needs of victims. This also means that the measures against this crime must involve work in countries of origin, transit and destination. As an example, the case of Siliadin v. France in 2005, was the first human trafficking case considered by the European Court of Human Rights. The applicant, a female Togolese national who lived in Paris, had served as an unpaid servant for several years as minor and her passport was confiscated. In this case the Court held that it could not be considered that the applicant had been held in slavery in the traditional sense of that concept but considered that the applicant had, at the least, been subjected to forced labour.[15]

Despite a decade of efforts, the statistical figures show that a total number of cases related to human trafficking prosecuted in the EU remains low (1534 cases in 2008,1445-  in 2009, 1144 in 2010).[16] It is also clear, that human trafficking extends beyond individual Member States. Therefore the investigation and prosecution of human trafficking face additional problems. For instance, in the case Kodos v. Prosecutor General’s Office of the Republic of Lithuania (2010) the Prosecutor General’s Office sought the defendant from another Member State for the purpose of prosecution for sexual exploitation of 8 Lithuanian women in the United Kingdom.[17]

Furthermore, “the trends, patterns and working methods of traffickers are changing in all the different forms of trafficking in human beings, adapting to changing patterns of demand and supply”.[18] For example, in the Roma father casein Italy (2010), the father who sold his underage daughter for 200,000 Euros to people who were exploiting her for criminal activities (forcing her to steal) was charged with enslavement.[19]

Thus to better investigate and prosecute traffickers and further increase cross-border cooperation and centralise knowledge on human trafficking, Member States are required to establish national multidisciplinary law-enforcement units on human trafficking. Such units would function as contact points for the EU agencies, in particular Europol.[20] The national authorities of Member States and the EU agencies are also encouraged to create where relevant joint investigation teams and involve Europol and Eurojust in all cross-border trafficking cases.[21]

Further, in accordance with the new Directive for monitoring and evaluation of the implementation of measures addressing human trafficking in the EU, the European Commission will present report every two years to the European Council and the European Parliament. The first report is to be issued in 2014,[22] while the attention to the problems and possible actions by the EU agencies and Member States is brought every year on 18th October, the EU Anti-Trafficking Day.

All the EU existing and intended legal instruments and measures seem to establish a holistic system on preventing and combating human trafficking and protecting its victims. However, the effect of these efforts will depend to a large extent on the will of the Member States to implement those instruments in domestic laws in a harmonized and fair manner, cooperation of all the provided actors within and outside the EU, as well as funding opportunities for these actions.

[1]The European Commission, Communication From the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016, COM(2012) 286 final, 19 June 2012, [hereinafter The EU Strategy], p. 3.

[2]TheEuropean Commission, Communication on trafficking in women for the purpose of sexual exploitation, COM(96) 567 final; European Commission, Communication on Fighting trafficking in human beings: an integrated approach and proposals for an action plan, COM(2005) 514 final; The EU Plan on best practices, standards and procedures for combating and preventing trafficking in human beings, 2005/C 311/01; European Commission, Commission working document on the Evaluation and monitoring of the implementation of the EU plan, COM(2008) 657, final.

[3] Patrick Besler, Forced Labour and Human Trafficking: Estimating the Profits, working paper, International Labour Office, 2005.

[4]The European Commission, Trafficking in human beings, available at: http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/trafficking-in-human-beings/index_en.htm, [accessed 5 November 2012].

[5]The EU Strategy, supra note 1, p. 2.

[6]The Charter of Fundamental Rights of the European Union, 2000/C 364/01, Article 5.

[7]United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,

supplementing the United Nations Convention against Transnational Organized Crime, 2000, [hereinafter Palermo Protocol]; The Council of Europe, Convention on Action against Trafficking in Human Beings, CETS No.197, 16 May 2005.

[8]Palermo Protocol, Article 3.

[9]European Court of Human Rights, Rantsev v. Cyprus and Russia, Application No 25965/04, Judgment (final), 10 May 2010.

[10]International Centre for Migration Policy Development, Study on the Assessment of the Extent of Different Types of Trafficking in Human Beings in EU Countries, April 2010, p. 2.

[11]Directive 2011/36/EU of the European Parliament and the Council on preventing and combating trafficking in human beings and protecting its victims, L 101/1, 15 April 2011.

[13]The EU Strategy, supra note 1, p. 4.

[14]Supra note 12.

[15]European Court of Human Rights, Siliadin v. France , Application No. 73316/01 , Judgment (final), 26 October 2005.

[16]The EU Strategy, supra note 1, p. 9.

[17]Royal Courts of Justice, Kodos v. Prosecutor General’s Office of the Republic of Lithuania, Case No: CO/12374/2009, Judgment, 28 April 2010.

[18]The EU Strategy, supra note 1, p. 14.

[19]Supreme Court of Cassation, V. Criminal Section, The Roma father case, Case No. 35923, Judgment, 6 October 2010.

[20]The EU Strategy, supra note 1, p. 9.

[21]Ibid., p. 10.

[22]Ibid., p. 14.

* The poster is designed by RJDaae: http://rjdaae.deviantart.com.

Human Trafficking and Prostitution in India

Written by Garima Tiwari

“The red light district in Bombay generates at least $400 million per annum in revenue, with 100000 prostitutes serving 365 days a year, at the average rate of 6 customers per day at $2 each.”[i]

When Robert Friedman, wrote this in 1996, he must not have though that the industry was there to survive and flourish with even more vigour, crime and torture and become the largest in Asia. For ages, the commercial sex trade has been the chief destination for trafficked girls in India.[ii]Sex tourism involving underage girls still remains a highly profitable business, a billion-a-year industry in 2009, with a 30 percent increase from previous years.

India is listed in the Tier II list of the United Nations which includes countries which have failed to combat human trafficking. India continues to be a source, destination and transit country for forced labor and sex trafficking. According to a report by the Ministry for Women and Child Development, India has nearly 2.5 million prostitutes in nearly 300,000 brothels in 1,100 red-light areas across the country. 90% or more estimated as in-country and 5 to 10% to cross-border trafficking, reported mainly from Bangladesh and Nepal. The routes of trafficking do not exclude Europe and specifically to UK and United States.[iii] Around 1.2 million children are involved in prostitution in India.

The trafficking of girls from Nepal into India for forced prostitution is perhaps one of the busiest slave sex trafficking routes anywhere in the world; with estimated 5,000-10,000 Nepali women and girls trafficked to India each year.[iv] An estimated 100,000-200,000 Nepali trafficked persons are in India. [v] In addition to being a destination, India is also a transit country for Nepalese and Bangladeshi women trafficked to Pakistan, Western Asia, and the Middle East and for women trafficked from the Russian Federation to Thailand. [vi] Asia –Pacific therefore, has seen ‘feminization of migration’-with more population movement being that of women. The feminization of migration gives rise to specific problematic forms of migration, such as the commercialized migration of women and girls as domestic workers and caregivers, often resulting in the trafficking of women for labor and sexual exploitation.[vii]

Much of the attention on human trafficking focuses on those who are trafficked across national borders every year, and, in many cases, forced to work as prostitutes or virtual slaves. But those numbers don’t include victims trafficked within India — a country so large and diverse that victims taken hundreds of miles away where a different language is spoken have little chance of finding their way home. There are increasing reports of females from northeastern states and Odisha subjected to servile marriages in states with low female-to-male child sex ratios, including Haryana and Punjab. Maoist armed groups known as the Naxalites forcibly recruited children into their ranks. Establishments of sex trafficking are moving from more traditional locations – such as brothels – to locations that are harder to find, and are also shifting from urban areas to rural areas, where there is less detection.[viii] Not to hide, the rise of HIV/AIDS patients and vulnerable groups. Anyone who has watched ‘Slumdog Millionaire’ the Oscar-winning movie would have seen tiny speck of this dark side of India.

This remains, despite the fact that India has a fairly wide framework of laws enacted by the Parliament as well as some State legislatures, apart from the Constitutional provisions.[ix]Poor implementation along with low conviction rates, and serious corruption adds to the problem. But all is not lost, efforts from social activists, educated citizenry and international support towards combating this modern slavery, has started showing some impact.

(A Birds eye view of the problem and efforts can be seen in the video created by the UNODC Regional Office for South Asia at: http://www.youtube.com/watch?v=9yJWvphsa3A)

[i] Robert I. Friedman, “India’s Shame: Sexual Slavery and Political Corruption leading to an AIDS catastrophe, The Nation, 8th April 1996

[ii] P. M. Nair, Sankar Sen, Trafficking In Women And Children In India( Orient Blackswan) 2005

[iii] India, Trafficking in Persons Report 2008. U.S. Department of State (June 4, 2008)

[iv] Koirala A, Banskota HK, Khadka BR: Cross border interception – A strategy of prevention of trafficking women from Nepal. Int Conf AIDS :15. 2004, Jul 11–16

[v] Mukherji KK, Muherjee S. (2007): Girls and women in prostitution in India Department of Women and Child Development, New Delhi, India

[vi] Joffres, C., Mills, E., Joffres, M., Khanna, T., Walia, H., & Grund, D. (2008). Sexual slavery without borders: trafficking for commercial sexual exploitation in India. International Journal for Equity in Health, 7, Pg.1–11.

[vii] The Female Face of Migration, Background Paper available at http://www.caritas.org/includes/pdf/backgroundmigration.pdf

[viii] Trafficking in Persons Report 2012, at http://www.state.gov/j/tip/rls/tiprpt/2012/index.htm

[ix] Article 23 – Article 39 of the Constitution of India The inherent provisions of these articles has been incorporated under suppression immoral Traffic in Women and Girls Act of 1956(SITA) and Traffic in persons (prevention)Act 1986(PITA)an amendment to (SITA). There are 25 provisions relevant to fight trafficking Indian Penal Code, 1860!