TRAFFICKING IN INDIA AND INTERNATIONAL HUMANITARIAN LAW

ABSTRACT

This article underscores a concern which is generally cold shouldered i.e. trafficking of virginal women and children during armed aggression and conflicts, their anatomy of berserk bedevilment and their penurious predicament. Chapter I introduces and highlights the rampant trafficking during armed conflicts which is governed by International Humanitarian law. Chapter II bring forth the types of trafficking prevalent in contemporary India, recent and past instances. Chapter III analyzes the legal machinery prevalent in India by throwing light upon detailed analysis of International Humanitarian law, legislations, few judgments and International Conventions. Chapter IV examines and inspects the loopholes and lacunas in the present implementation of International Humanitarian law. Chapter V concludes the article with pertinent suggestions and steps. Withal this think-piece puts muscle on the statutory structure and legislation in India germane to this issue in coalition with the International Humanitarian law. Thereafter this composition highlights the locks which stymies the statues to gain full momentum in paper and also in praxis. This article also submits suggestions, appropriate amplifications and apropos measures and methods to bring into full swing the International Humanitarian law, allay affected and by and by abolish the anathema of trafficking of innocuous women and children during armed conflicts.

 

I.    INTRODUCTION

Human trafficking is a crime of crimes. It is a bag of crimes. One can bulldoze out abduction, kidnapping, illegal detainment, illegal confinement, sexual assault, outraging modesty, rape, etc. But a clandestine contention which is generally let fall between the cracks is the flagrant trafficking, enforced prostitution and slavery carried out during armed conflicts. Its days of yore can be trailed back to 1990 when sexual violence was adopted as a tool of warfare and genocide and its alarming concerns in Europe and Africa.

 Armed conflicts abet the plague of trafficking women and children. Innocent women and children are most assailable during this time and can be referred as Achilles heel, as any attack on women and children of any community amidst war has a demoralizing and intimidating effect on the enemy. Women going to garner firewood or queuing for food are the most exposed to these. Children are often trafficked and sent into war zones as militants, porters, cook or for sexual activities. This practice is checked by International Humanitarian Law which is a law which deals with crimes during armed conflicts. Ironically there is no direct clause reference in the Humanitarian Laws which mentions trafficking but is construed from its clauses. Even after the (formal) end there is instability and law enforcement agencies are more inclined towards restoring law and order in conflicted areas and this void created provides traffickers a lenient condition to facilitate trafficking.

A study by International Labor Organization (ILO) in 2004 found that hill tribes of Nepal have been disproportionate victims of trafficking. The study shows that out of total trafficked persons, 43.1 percent belong to hill ethnic groups followed by 23.8 percent from Brahmin/Chhetri; 22.4 percent from occupational castes; 3.3 percent from Tharu and Chaudhary communities, and 7.2 percent from Terai and others.[1]Around 12,000 Nepalese women and children are trafficked every year to India for the purpose of prostitution. The Maoists conflict, which is more concentrated in the areas of hill tribes, has further increased the vulnerability of the hill tribes to trafficking.

According to a report of the government of India of 1998 “about 60% of the victims (of trafficking) belong to the Scheduled Castes and Scheduled Tribes and the Other Backward Castes”. This is not surprising considering that tribal peoples have been disproportionate victims of forced displacement of the development projects undertaken in India. According to the Ministry of Tribal Affairs of the government of India, “Nearly 85.39 lakh tribals had been displaced until 1990 on account of some mega project or the other, reservation of forests as National Parks etc. Tribals constitute at least 55.16 percent of the total displaced people in the country.” The fact that the tribals who constitute about 8.1 percent of the total population of the country also constitute 55.16% of total displaced people is indicative of the massive victimization of tribal peoples. According to the 10th Five Year Plan of the Government of India, out of the 8.54 million of the tribals displaced between 1951 and 1990 in the states of Andhra Pradesh, Bihar, Gujarat, Maharashtra, Madhya Pradesh, Rajasthan and Orissa, only 2.12 million (24.8 per cent) could be resettled, so far.[2]In order to gain a broader overview we need to know which types of trafficking exists in India and how these trafficked humans are transferred outside India, which is dealt in Chapter 2.

 

                             II.    TRAFFICKING IN CONTEMPORARY INDIA

Trafficking can be mainly pigeonholed into eight broad contours in contemporary India:-

·         Trafficking for Commercial Sexual Exploitation

·         Harvesting Organs

·         Supply of Victims for Prostitution in Middle East

·         Trafficking for Child Labor and Child Militants

·         Trafficking of Women for Domestic Work

·         Bride Trafficking

 

A.    TraffickingForCommercialSexualExploitation

Trafficking and sexual slavery are inextricably linked to conflicts, especially the Dalit women and children are extremely vulnerable. Majority of abducted women either by government, military forces or paramilitaries of rebel militias is held for sexual servitude and enforced military prostitution. The most commonly known case of systematically organized military sexual slavery during wartime is the abduction of 200,000 women mainly Korean and Philippine by the Japanese army during WW II. Officially organized by military leadership, these women were held in “comfort stations” frequented by Japanese soldiers.

    B.    Harvesting Organs

 

The most vulnerable under this group are the people suffering from pangs of abject poverty, unemployment, or people with no alternative income support or persons who are heavily indebted. During the 1947 Indo-Pak War the ruthless agents took advantage of the situation and duped or forced indigents and illiterate to sell their organs with a promise of providing future medical assurance, some Dalits and Tribals were also coerced to sell their kidneys at gunpoint and were left to suffer .

In a recent case, an EU led court in Kosovo has found five men guilty of trafficking in human kidneys taken from patients duped into selling their organs taking advantage of the post-war turmoil in 1991.[3]HYPERLINK “http://www.dfn.org.uk/info/slavery/42-information/slavery/185-o HYPERLINK “http://www.dfn.org.uk/info/slavery/42-information/slavery/185-[4]

 

C.    Supply of Victims for Prostitution to Middle East

Indian women are trafficked to the war torn Middle East for commercial sexual exploitation. There are also victims of labor trafficking among the thousands of Indians who migrate willingly every year to the Middle East, Europe, and the United States to work as domestic servants and low-skilled laborers. In most cases, such workers are the victims of fraudulent recruitment practices that lead them directly into situations of forced labor, including debt bondage; in other castes, high debts incurred to pay recruitment fees leave them vulnerable to exploitation by unscrupulous employers in the destination countries, where some are subjected to conditions of involuntary servitude, including non-payment of wages, restrictions on movement, unlawful withholding of passports, and physical or sexual abuse. Men and women from Bangladesh and Nepal are trafficked through India for forced labor and for commercial sexual exploitation into Middle East. Indian nationals travel to Nepal and within the country for child sex tourism. Once the children and women reach there, the war –torn Middle East acts a breeding ground for further facilitating trafficking owing to the law and orderdisorder  due to armed conflicts

                 D.Trafficking for Child Labour and Child Militants

Children are most prone to trafficking during times of conflict and unrest. Hundreds of thousands of children are used as soldiers in armed conflicts around the world. Many children are abducted and beaten into submission, others join military groups to escape poverty, to defend their communities or out of a feeling of revenge.

Sometimes children are abducted by rebels and then sent to live in labour camps around mines or drug growing plantations, which are central pillars of war economies and sources for wealth accumulation by war lords. In mines and on plantations children are commandeered as slave workers, porters or guards. They may also be brought as domestic labour for the local men who control and benefit from the mines or plantations.

E.    Forced Marriages and Subsequent Trafficking

Another common phenomenon amidst war and armed conflicts are forced marriages However, the biggest losers could be the women who were abducted and raped by rebels in the conflicts. Some of the women are held against their will and forced into marriages, in exchange for the marriage, the women normally get protection from the rebels as well as food and shelter.It is one of the forms of violence perpetrated against women alongside rape, losing land and as well as witnessing families’ members being killed.

It not only violates International human rights laws as well as many national domestic laws, some scholars also regard forced marriages as another form of sexual slavery.

 

 

III.    LEGALFRAMEWORKANALYSIS

 

Although India has a plethora of laws and legislation but it would not be incorrect to say that the laws have not worked out to their breath 

A.    Defining Trafficking

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Trafficking Protocol) that was adopted in the year 2000 and came into force in December 2003, has perhaps brought the much-needed and widespread consensus on a working definition of trafficking at the global level.

Article 3 of the Protocol defines trafficking as:

(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving 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 labor or services, slavery or practices similar to slavery, servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

(c) The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered “trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article;(d) “Child” shall mean any person under eighteen years of age.

 

B.    International Humanitarian Law

International Humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. International humanitarian law obliquely entails the crime of sex trafficking but it is applicable only in war time, in comparison to International human rights law, which applies amidst peacetime. Sex trafficking is subsumed under the crimes of rape and forced prostitution. In practice, forced prostitution has often been included in the analysis of rape that typically precedes or accompanies sex trafficking or forced prostitution in time of war. Stern laws for curbing trafficking came only after the Nuremberg Trials, previously there were laws but not effective. The Hague Convention 1907 provided indirect protection for rape but after 1919 Commission on Responsibilities Authors of War and Enforcement of Penalties to inquire into offences of World War included for the first time “trafficking” was labeled as a war crime.

During the World War II Germans and Japanese forced many women into brothels in 1940, nevertheless the trafficking and prostitution included in the Nuremberg trials. The l949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War provides that “women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.”Article 4(2)(e) of Protocol II to the Geneva Conventions, which applies to non-international conflicts, forbids “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.” Presumably, sex trafficking is covered in Protocol II under “enforced prostitution.” Therefore, the Geneva Conventions treat forced prostitution and sex trafficking as a separate crime, even though the imposition of sanctions for violations of this crime continues to be practically non-existent on of 1949 but there are other agreements also which give force to International Humanitarian Law.

 

                                     C.    Constitutional Provisions

Table 1:Constitutional Provisions

Article 14	Equality before law	The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India.
Article 15	Prohibition of Discrimination on grounds of religion, race, caste, sex or place of birth	(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (3) Nothing in this article shall prevent the State from making any special provisions for women and children
Article 21	Protection of life and personal liberty	No person shall be deprived of his life or personal liberty except according to procedure established by law
Article 21-A	Right to education	The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine
Article 23	Prohibition of traffic in human beings and forced labor	(1) Traffic in human beings and begar and other similar forms of forced labor are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them
Article 24	Prohibition of employment of children in factories ,etc.	No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Article 39-A	Equal justice and free legal aid	The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

 

                                                D.    Special Legislations

Table 2: Special Legislations

Legislation	Purpose
The protection of Children from Sexual Offences Act, 2012(Notified on 14 December 2012)	The Protection of Children from Sexual Offences Act, 2012 has been enacted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue of sexual offences against children. Sexual offences are currently covered under different sections of IPC. The IPC does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims. The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. These offences have been clearly defined for the first time in law. The Act provides for stringent punishments, which have been graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court
Immoral Traffic (Prevention) Act, 1956	To combat commercial sexual exploitation and prohibits prostitution. It has provisions for providing rehabilitation and protection to victims of commercial sexual exploitation.
The Juvenile Justice (Care and Protection of Children) Act, 2000	Defines a child and provides provisions for care and protection of children. It has provisions which provide for protection measures for the repatriation and rehabilitation of children.
Child Labour (Prohibition and Regulation) Act, 1986	It has provisions which prohibit child labour. The law has provisions for rehabilitation of child labour.
Bonded Labour System (Abolition) Act, 1976	It defines and prohibits Bonded Labour. It has provision for punishment for bonded labour and provides for rehabilitation measures for bonded labours.
Inter-State Migrant Workmen (regulation of employment Conditions) Act, 1979	It provides for institutional machinery to provide safe migration opportunities for labour.
The Goa Children’s Act, 2003	The Goa Children Act is a State Legislation. This legislation provides for holistic care and protection of children. It also has the definition of human trafficking as per the UN Protocol
Maharashtra Control of organized Crime Act, 1999	Inter alia it provides for punishment of persons indulging in organized crime related to prostitution
Transplantation of Human organs Act, 1994	Provides for regulatory mechanism to monitor organ transplants
The Emigration Act, 1983	The Act provides for regulatory mechanism for recruitment agencies and related punishments.
Cara guidelines	The guidelines provide for mechanisms to regulate adoptions. It has provisions to prevent human trafficking through adoptions.

 

E.    International Conventions

 

Table 3: International Conventions

Name of Convention	Status for India
UN Convention on the Rights of the Child	Ratified on 11 December, 1992
Optional Protocol to CRC on Sale of Children, Child Prostitution, Child Pornography	Signed on 15 November, 2004
Optional Protocol to CRC on involvement of Children in Armed Conflict	Signed on 15 November, 2004
Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children	Ratified on 5 May, 2011
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)	Ratified on 9 July, 1993, with a declaration/ Reservation
SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution 2002 and SAARC Convention on Regional Arrangements for the Promotion of Child Welfare in South Asia	Signed on 5 January, 2002, at the Eleventh SAARC Summit in Kathmandu on 4-6 January, 2002
Covenant on Economic, Social and Cultural Rights	10 July, 1979
Covenant on Civil and Political Rights	10 July, 1979
Convention Against Torture	Signed 4 October, 1997
ILO Convention No.105 Abolition of Forced Labour, 1957	18 May,2000

                                            F.    Judicial Mandates

 

The Supreme Court and the various High Courts have been taking up cases for strengthening of the Institutional Machinery and various statutory agencies mandated by various laws. The court, while exercising its jurisdiction for enforcement of fundamental rights has given various landmark judgments for strengthening government response in combating trafficking. The Supreme Court has also set up various panels and committees to ensure that there are various monitoring mechanisms in place for the enforcement of rights of trafficked victims and also to ensure implementation of the law. Apart from this, the courts have also been creating mechanisms for victim protection and various guidelines for victim’s rights in terms of court procedure. Some of the various proactive landmark judgments related to combating human trafficking are provided below.

Table 4: Judgments

Case	Judgment Brief
People’s union for Democratic Rights Vs. Union of India[5]	While considering a PIL on Bonded Labour the Supreme Court Defined the meaning of Forced Labourvis a vis Article 23 of the Constitution of India
Laxmi Kant Pandey Vs. Union of India (1984)[6]	Guidelines for Inter Country adoptions laid down to check trafficking through adoption rackets
BandhuaMuktiMorcha Vs. union of India and others[7]	Rehabilitation of bonded labour ordered and Vigilance Committee set up in prone areas
SanthalParganaAntyodayaAshram Vs. State of Bihar and others[8]	Release Certificates to be provided to bonded labour who are liberated. The released bonded labourers must be rehabilitated by the State government on a permanent basis
public union for Civil Liberties Vs. State of Tamil Nadu& others[9]	NHRC made the Nodal Agency for monitoring the rehabilitation of bonded labour in the country
Vishal Jeet Vs. Union of India[10]	Formation of Advisory Committee ordered for all States and Union Government to combat trafficking. The Advisory Committee to make suggestions for the measures to be taken in eradicating child prostitution, and the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of trafficked victims of commercial sexual exploitation.
M C Mehta Vs. State of Tamil Nadu[11]	In this Public Interest Litigation, the Supreme Court laid down various measures which need to be taken in order to provide rehabilitation & support to the child labour and his family
MadhuKishwar Vs. State of Bihar[12]	In this case, the Supreme Court considered the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) and held the same to be an integral scheme of the Fundamental Rights and the Directive Principles. Gaurav Jain Vs. Union of India(1997) 8 SCC
Gaurav Jain Vs. Union of India[13]	While clearly stating the violation of Right to Life of trafficked victims the Supreme Court ordered the Union Government to form a Committee to frame the National Plan of Action and to conduct an in-depth study into these problems and evolve such suitable schemes for rehabilitation of trafficked women and children
Prerna Vs. State of Maharashtra[14]	Court lays down process for care and protection of trafficked children. It stated that Advocates cannot appear before the Child Welfare Committee to take custody of trafficked child
Munni Vs. State of Maharashtra[15]	Child Welfare Committees have the final say to dispose of the cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs, protection and restoration to their family.
GeetaKanchaTamang Vs. State of Mahrashtra[16]	Sealing of brothels will ensure in curbing organized crime.
State of A.P. Vs. BodemSundaraRao[17]	Courts should grant stricter punishment for crimes of sexual offences. It stated that courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society’s cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court’s verdict in the measure of punishment
State of Punjab Vs. Gurmit Singh[18]	Sexual offenders should not be shown leniency. Examination of the victim should be in camera and anonymity of the victim should be maintained. No questions should be asked on a victims character.
HORI LAL Vs. Commissioner of police, Delhi&ors respondents[19]	The Court in its order dated 14/11/2002 laid out guidelines for effective search of the kidnapped minor girls, which are to be followed by the Investigation Officer in all the states
Kamaljit Vs. State of NCT of Delhi[20]	Trafficking is an organized crime and stringent measures are required to combat it. In this case the Court upheld the validity of imposing MCOCA on the accused
Court on its own motion[21]	High Court orders the creation of Zipnet in order to monitor missing children and orders for registration of FIR in all cases of missing children.
Court on its Own Motion Vs. Govt of  nCt of Delhi[22]	Action Plan to combat child labour in Delhi. It also lays down guidelines for post rescue care and protection of children.
BachpanBachaoAndolanvsUnion of India and Ors.[23]	Supreme Court orders for mandatory registration of First Information Report (FIR) in cases of missing children and appropriate steps should be taken to see that follow up investigation is taken up immediately thereafter.

 

IV.   IMPLEMENTATION OVERVIEW

Incriminating statues are abundant, statistics of justice unblushingly escalate, the implemental will is culpably absent; remedial laws and instruments are available in the books; what defeats the success of measures is the double speak of the executive echelons and the reluctance to harness the voluntary bodies working in the field into the execution conferring statutory powers necessary for fulfillment of the spirit and purpose of legislative instrument. Judicial macho wilts against unwittingly against genocide species.

Sadly, there are countless examples of violation of International Humanitarian law. Increasingly, the victims of war are civilians. However, there are important cases where International Humanitarian Law has made a difference in protecting civilians, prisoners, the sick and the wounded, and in restricting the use of barbaric weapons. Given that this body of law applies during times of extreme violence, implementing the law will always be a matter of great difficulty. That said, striving for effective compliance remains as urgent as ever. Some imminent impediments in implementation of law are:

Ø  PSO (Peace support operation) members may “unknowingly” and knowingly be clients of trafficked women or even

Ø  actively involved in the trafficking. There are various reports, particularly from Bosnia and Kosovo, where clients knew that the women they consorted with were trafficked.

Ø  PSO members are under diplomatic immunity even if they perpetrate the same.

Ø  Weak monitoring, prosecution and legal justice system.

Ø  The warlords who gain economic profit from trafficking bribe the officials heavily to facilitate their operation

Ø  Exclusion of  trafficking as a war crime under ICC statute (currently, it is recognized as a crime against humanity only);

Ø  Lack of awareness of post war trafficking issue and training for preventing amongst soldiers and commons

Ø  Poor rehabilitation for victims

Ø  Non-realization of the role and responsibility of third States not party to an armed conflict to take appropriate action to “ensure respect” for international humanitarian law; and  the strategies or tools that might be considered in order to non- international armed conflict and adherence to International Humanitarian Law

 

V    CONCLUSION&SUGGESTIONS

The socially sensitive activists and voluntary organizations should be vested with statutory power to enforce legal proceedings. They must be carefully chosen for commitment, courage, integrity, and training so that the mission of the law may prove functionally fruitful for the frightened gender. The law keeps it promises not only through uniformed and armed lawmen miscellany but also popular catalyst willing to serve and backed by positive credentials and community acceptability. Implemental radicalism with democratic instrumentalism is a creative mutation necessary for legislative fulfillment. But one strong caution: politicization and graft pollution may creep surreptitiously and must be resisted.

Below are some suggestions and steps to curb this menace:

Ø  Respect and Adherence to the law must be inculcated and armed forces along with general people should be taught the rules of IHA.

Ø  Transgression of these rules must be treated with strong punitive measures and States must pass laws protecting red cross and red crescent emblems

Ø  Diplomatic immunity should be abrogated in war crimes such as trafficking and prostitution

Ø  Special Programs that address economic, social, health and legal aspects of abducted and enslaved women and children, must be developed and implemented

Ø  Systematic research and documentation of extent, condition, actors and actual process of trafficking from war zones must be done.

Ø  The law and order disorder in post-war must be dealt with an iron hand by the nation.

Ø  Including trafficking as a war crime under ICC statute (currently, it is recognized as a crime against humanity only);

Ø  Strengthening the prosecution of gender based war crimes and trafficking by international or regional war crime tribunals.

Ø  Effective rehabilitation and anti-trafficking policies must become an integral part of national and international policies

Ø  The prosecution and legal justice policy must be consolidated.

Ø  Prevention, awareness and training programs must be launched on a national and international level.

Submitted by:
Sakshat Bansal 4th year
Ganesh Khanna 1st year
CNLU,Patna