GLOBALIZED, WIRED, SEX TRAFFICKING IN WOMEN
AND CHILDREN: a worldwide, dehumanizing, epidemic of poverty, disease,
corruption, collaboration, crime, violence, murder, SLAVERY, and THE VALUING OF
UNPRECEDENTED PROFITS AT THE EXPENSE OF HUMAN DIGNITY, DECENCY, AND THE RULE OF
LAW
By Vanessa von Struensee, JD, MPH
INTRODUCTION
Trafficking
in women for the purpose of sexual exploitation is an increasing type of
international organized crime
generating high profits with low risk for traffickers. Thousands
of women are being trafficked from developing countries to Western Europe and
brought into conditions in which their basic human rights are violated.
Only a minority of cases is reported and convictions of traffickers are rare.
Public concern and international awareness have increased through the work of
non-governmental organizations (NGOs), the United Nations,
and the Council of Europe.
The Justice and Home Affairs (JHA) Council of the European Union agreed to a
set of recommendations in November 1993 to the Member States to counter
trafficking and in
addition to a number of resolutions, the European Parliament produced a
unanimous report and resolution on trafficking in human beings in December
1995.
EXPLOITATION OF WOMEN FROM DEVELOPING
COUNTRIES
For
years, trafficking rings have thrived on the exploitation of women
from developing countries.
Recently countries of the former Soviet Union have become their latest targets.
Where old Soviet economic systems have been disrupted or discarded, there has
been economic contraction and hyperinflation, which has wiped out people's
savings and security. Many of these countries are still writing their laws and
developing their constitutions.
In
Ukraine, where women account for more than 60% of those who have lost their
jobs in recent years, trafficking in women
has become a goldmine.
Lured by false promises, misled by false information on migration regulations,
many women fall prey to unscrupulous traffickers, allowing their dream for a
better life to be exploited. The United Nations estimates that 4 million people
are trafficked each year,
resulting in $7 billion in profits to criminal groups. [17] Many
countries have weak, unenforced or no laws against trafficking in human beings,
often making it less risky and more profitable to criminal groups than drug or
arms trafficking.
PUBLIC HEALTH ILLS OF
TRAFFICKING
With increased economic globalization,
trafficking in women from poor to wealthier countries appears to be on the
rise,
accompanied by economic and public health ills. Trafficking networks may
recruit and transport women legally or illegally for slavery-like work,
including forced prostitution, sweatshop labor, and exploitative domestic
servitude. Increased
economic globalization and privatization
has resulted in an increased feminization of poverty, forcing greater numbers
of women worldwide to migrate in search of work. Seeking
economic opportunities abroad, women turn to a variety of resources, including
newspaper ads, acquaintances, marriage agencies, labor recruiters, and modeling
agencies. They accept
positions as nannies, maids, sex workers, dancers, factory workers, and
hostesses. Many of
these migrants end up as victims of illegal and unscrupulous trafficking
networks. Trafficking, according to U.S. Senate Resolution 82 on Trafficking,
"involves one or more forms of kidnapping, false imprisonment, rape,
battering, forced labor, or slavery-like practices which violate fundamental
human rights." [26]
Contemporary
population movements are characterized by increasing pressures by individuals
seeking, through migration, either to escape war, persecution, poverty, or
human rights violations, or simply to find better economic opportunities.[27].
This is the irregular migration phenomenon of which trafficking is one part -
albeit often a particularly abusive part, especially as it relates to women and
children. In
discussions on trafficking, particular attention has to be given to the
question of the voluntariness [29]of
the migrants' movement, because it has legal consequences as we will see below.
Trafficking in women has severely negative consequences for the women
and societies involved. It is an issue that involves both gender and basic
human rights abuses.[31]
The human rights of women include their right to have control over, and decide
freely on matters relating to their sexuality, including sexual and
reproductive health, free of coercion, discrimination and violence.
Trafficking in women is violence against women. The 4th World Conference on
Women
addressed the physical, sexual, and psychological harm that this poses to its
victims. It proposed several recommendations to governments of origin, transit
and destination.
Studies on the
health of women in the sex industry indicate that many women have serious
health problems and are exposed to life-threatening risks. Female prostitutes
suffer from infectious diseases, sexually transmitted diseases, injuries from
violence, drug and alcohol addictions, depression and other mental health
problems as a result of trauma.Women
who are prostitutes or trafficked have serious health problems and cannot get
out of prostitution whence they discover its evil horror.
While female sexual slavery is permitted to exist on a monumental scale, we
cannot assert that violence against women is a problem taken seriously beyond
politically correct rhetoric.
HUMAN RIGHTS VIOLATIONS AND TRAFFICKING
Today,
women are trafficked from South to North, from South to South and from East to
West [36]
the flows are from poorer countries to countries where the standard of living
for an average person is relatively higher. The fact that lesser developed
countries' populations are used for trafficking supports the recognition of a
right to development as a human right. Trafficking
is linked with forced prostitution
that follows false promises of well-paid jobs. However,
not all women are trafficked for sexual exploitation. Many are traded for
marriage, as domestic and construction workers, or as beggars. And too many of
these women become victims of forced labor, in many cases suffering deprivation
of freedom and appropriation of income, or being forced into slave-like
practices.[41]
Selling desperate women into sexual bondage is an entrenched criminal
enterprise in the robust global economy.
The seemingly economic hopelessness in the Newly Independent States'
transitional economies opened what experts call the most lucrative market of
all to Russian criminal gangs: Eastern European women with little to sustain
them but their hopes.
Pimps,
law-enforcement officials and relief groups all agree that Ukrainian and
Russian women are now the most valuable in the trade.
Because their immigration is often illegal -- and because some percentage of
the women choose to work as prostitutes -- statistics are difficult to assess.
But the United Nations estimates that 4 million people throughout the world are
trafficked each year.
Trafficking
in women and girls
for the purpose of sexual exploitation
is an open and flagrant human rights
violation occurring around the world.
When a woman or child is trafficked or sexually exploited, they are denied the
most basic human rights, and in the worst case, they are denied their right to
life. Prostitution and sexual exploitation have devastating health and quality
of life effects on its victims.
In
Western Europe alone, the International Organisation for Migration estimates
that around 500,000 women per year are trafficked from poorer regions in the
world.
Several factors lead women to look for working possibilities in other
countries. In Eastern Europe, women have been the victims of the political and
economic changes of the 1990s with the dismantlement of the former Soviet Union
social security structures and are today highly represented in unemployment
statistics. In Europe,
an increasing portion of the trafficked women comes from the former socialist
countries. A growing amount
of women who want to search for work abroad are deceived by traffickers into
leaving their countries, believing that they will work as dancers or hostesses,
or even as prostitutes, but instead end up living under slave-like conditions
where their fundamental human rights
are abused by the profiteer/pimp. For criminal groups, trafficking in women is
a very profitable with revenues more than seven billion dollars annually from
trafficking in human beings.
RUSSIAN AND UKRAINIAN TRAFFICKED WOMEN
The
political and economic transition during the 90s has altered almost every
aspect of life in Eastern Europe and the newly independent Baltic States. Along
with the welcomed political liberty came vast economic problems with inflation,
unemployment and lack of social programs to support the transition.
Women proved to be major victims of the negative effects of the privatization,
globalization, and related changes. With
less access to the formal labor sector women are over represented in
unemployment statistics throughout the former Soviet Union with greater
feminization of poverty as a consequence.
In the Russian Federation women represent between 70 and 95 percent of the
unemployed. For many
women, sexual services and domestic work are the only survival options
available. With the
closing of public childcare centers and reduction of pensions, women found
themselves with the responsibility of being the support of the family with no
possibilities for employment.
There
are sound economic justifications for women of the newly independent Baltic
States to seek employment outside their countries, for women who do have jobs,
wages are low and sexual harassment at the workplace is common.
Also, in the post socialist mixture of old traditions and new ideas, old ideals
and new western influence, accepting the offers of a trafficker may be a
fantasy for young women to break away from the authority of the old traditions,
a way of trying to manifest freedom. Migration to Western Europe for work
appears at first a promising option for women in Eastern Europe. However, there
are very few ways of legally migrating for work in the European Union. Thus,
the courageous women who have decided to try their luck and realize their
dreams have to rely on middlemen and traffickers in order to migrate. The
criminal groups exploit the fact that visas and working permits are required
and can continue doing this because of government inaction, or even worse,
government complicity in the form of corrupt officials.
Ukraine -- and to a lesser degree its Slavic neighbors Russia and Belarus --
have replaced Thailand and the Philippines as the epicenter of the global
business in trafficking women.
The
Ukrainian problem has been worsened by their ravaged economy, an underdeveloped
and underfunded system of law enforcement, and criminal gangs that grow more
brazen each year.
Young European women are in demand, and Ukraine, a country of 51 million
people, can supply. Sources far and wide, including the World Bank and the
popular press present a clear story of chaos and economic dislocation in
Russia, Ukraine, and the other newly independent states and their struggling,
disastrous, transitional economies.
Federal employment statistics in Ukraine indicate that more than two-thirds of
the unemployed are women.
Of those who have lost their jobs since the Soviet Union dissolved in 1991,
more than 80 percent are women. The average salary in Ukraine today is
slightly less than $30 a month, but it is half that in the small towns that criminal
gangs favor for recruiting women to work abroad.
In that climate, looking for work in foreign countries has increasingly become
a dream of survival. Money, newly found
freedom after living in repressive countries, village life disintegrating throughout
much of the former Soviet world, and women trying to explore and adapt all
result in their taking this risk.
"After the wall fell down, the Ukrainian people tried to live in
the new circumstances," said Ms. Shved. "It was very hard, and it
gets no easier. Girls now have few opportunities yet great freedom. They see
'Pretty Woman,' or movies and ads with the same point, that somebody who is
rich will rescue them. The glory and ease of wealth is almost the basic point
of the Western advertising that we see. Here the towns are dying. What jobs
there are go to men. So they leave."
The
women answer ads from employment agencies promising to find them work in a
foreign country, where Russian crime gangs play a central role. Often
the ads are vague or blatantly untrue. Most of the thousands of Ukrainian women
who go abroad each year are illegal immigrants who do not work in the sex
business. Often they apply for a legal visa -- to dance, or work in a bar --
and then stay after it expires.
Although trafficked women can be found almost anywhere, the destinations for
most trafficked women are countries and cities where there are large sex
industry centers and where prostitution is legalized or widely tolerated.
Although some women may appear to voluntarily enter prostitution, this number
could never meet the demand. If prostitution were a desirable, rewarding,
lucrative job, traffickers would not have to deceive, coerce and enslave.
Popular destinations for trafficked women are countries where prostitution is
legal such as the Netherlands and Germany. According to Michael Platzer, Head
of Operations for the United Nation’s Center for International Crime
Prevention, "The laws help the gangsters.
Prostitution is semi-legal in many places and that makes enforcement
tricky. In most cases punishment is very light."
Many go to Turkey and Germany, where Russian crime groups are particularly
powerful. Officials in Italy estimate that at least 30,000 Ukrainian women are
employed illegally there now. Most are domestic workers, but a growing
number are prostitutes, some of them having been promised work as domestics
only to find out their jobs were prostitution, others knew it would be
prostitution, but had no idea what they were getting into and then cannot get out.
PROSTITUTION AS VIOLENCE AGAINST WOMEN
Many
NGOs view trafficking in women as an important issue.
There is disagreement on whether prostitution is violence against women
on how to handle trafficking and prostitution and the key conflict lies in differing
viewpoints on prostitution.
Some organizations want to treat trafficking and prostitution as aspects of the
same problem and consequently fight both at the same time. This causes problems
for organizations wanting to stop trafficking in women but to legalize
prostitution. Discussions
are underway and many NGOs try to exclude prostitution from the discussion of
trafficking in order to obtain some sort of consensus. However, when examining
the nature of prostitution deeply, its health effects, its dynamics, it is
clear that notions of legalizing prostitution are incompatible with maintaining
the dignity of a human being. Prostitution and trafficking are not victimless
crimes, or just another form of work, as pimps and apologists for the sex industry
would have us believe. Even when women voluntarily enter into these situations,
in hope of making money or finding a better life, the dynamics of the brutal,
often the illegal sex industry quickly leaves the women with few options and
powerless to leave.
Observers of the evolution of the United Nations World Conferences on Women
would attest that building a consensus for resolutions has not come easily at
many of these forums,
but we must keep prostitution on the agenda.
Since
the trafficking of women for purposes of sexual exploitation is not a new
phenomenon, international laws were drafted and ratified in the earlier half of
this century. In 1949, the United Nations General Assembly passed the
Convention for the Suppression of Traffic in Persons and of the Exploitation of
the Prostitution of Others. The convention states that "prostitution and
the accompanying evil of the traffic in persons for the purpose of prostitution
are incompatible with the dignity and worth of the human person and endanger the
welfare of the individual, the family and the community."
Ukraine is a signatory of the 1949 Convention (1954), along with Latvia (1992),
Belarus (1956), and the Russian Federation (1954). The 1949 Convention states
that consent of the trafficked person is irrelevant to the prosecution of the
exploiter. The 1949 Convention was not widely ratified and did not create a
monitoring body, so there has been no ongoing evaluation of its implementation
or effectiveness. In 1998 at the United Nations Commission on the Status of
Women, the World Federation of the Ukrainian Women’s Organizations and World
Movement of Mothers called for governments to
work toward suppressing the trafficking of women and girls and
implementing the 1949 Convention. Currently, the 1949 Convention is under
strong attack by those who favor legalized prostitution and even
"consensual trafficking." The trend toward legalization of the
sex industry and narrower definitions
of trafficking which require proof of
coercion or force will make the conviction of traffickers very difficult and
will greatly benefit transnational criminal networks. Another approach to
ending trafficking is to end the demand for women to be used in prostitution.
In 1998, Sweden passed a law on violence against women that created a new offense-"gross violation
of a woman’s integrity."
Prostitution was included as a type of violence against women. As of January 1, 1999, the "purchase of
sexual services" was prohibited, punishable by fines and/or imprisonment up to six months.
The Swedish government was clear that
this new offense marked Sweden’s attitude
toward prostitution as an "undesirable social phenomenon" and an act of violence against women. The
new offense of gross violation of a woman’s integrity and the prohibition on
purchase of sexual services aims to eliminate acts of violence that stand in
the way of equality for women. Sweden’s
approach recognizes the harm done to women under conditions of sexual exploitation.
Their approach starts from the premise that women have the right to dignity,
integrity and equality. Legalization of prostitution is sometimes thought to be
a solution to trafficking in women, but evidence seems to show that legalized
sex industries actually result in increased trafficking to meet the demand for
women to be used in the legal sex industries. Increased activity of organized
crime networks also accompanies increases in trafficking.
WIRED TRAFFICKING
The
Internet has become the latest place for promoting the global trafficking and
sexual exploitation of women.
The information superhighway is used to actively engage in the buying and
selling of women and children. Catalogs of mail order brides, commercial sex
tours, videoconferencing bringing live strip shows to the Internet: it is all
there-and worse.
Because there is still scant regulation of the Internet, the traffickers and
promoters of sexual exploitation have virtual carte blanche.
Currently,
there are details on finding and buying prostitutes available for 97 European
cities. A few
countries in Europe
and the United States have
now made it possible to press charges against men for their sexual abuse of
children while in other countries. Every country should have such a law, and
enforce it. In
addition, it should be illegal to use the Internet to post information on the
finding and sexually exploiting women and children.
As
we all know the new technologies of the Internet have leapt over national
borders and lawmakers are scrambling to catch-up.
Internet users have adopted and defend an unbridled libertarianism. Any kind of
regulation or restriction is met with vigorous protest. Even limited
restrictions on the transmission of child pornography are greeted with cries of
restriction of freedom of speech. If expressions of concern or condemnation of
forms of sexual exploitation of women and children on the Internet are
minimized by claims of the need for internet freedom and free speech,
it is imperative that we must define sexual exploitation as human rights violations
and crimes against women,
which we will not allow in our communities or on the Internet.
LIMITED UNITED STATES ACTIONS AGAINST
TRAFFICKING
On
a trip to Ukraine late in 1997, Hillary Rodham Clinton
spoke out about the new slave trade that has developed so rapidly there.
The United States and the European Union have worked together to educate young
women about the
dangers of working abroad. Other initiatives, such as of deportation for
prisoners, victims' shelters and counseling, have also been discussed.
Yet the problem is complex, and involves matters such as countries’ still
legalizing prostitution,
faulty concepts behind the victims "voluntariness" and
"choice" in participating
and an entrenched, criminal, network with more money and power than some
governments.
Senate
bill number S600 introduced in the U.S. Senate called the "International
Trafficking of Women and Children Victim Protection Act
and its companion House Bill HR 1238
are aimed at
providing temporary asylum for immigrant victims and stopping federal
assistance to the foreign governments that are directly involved in the
international sex trafficking trade.
On March 11, 1999, U.S. Senator Paul Wellstone introduced in the U.S. Senate
Bill S.600 for the
purpose of condemning and combating international trafficking in women and
children and protecting victims' rights.
This Bill, co-sponsored by Senators Dianne Feinstein, Barbara Boxer and
Patty Murray, if enacted, would begin to tackle this hideous form of slavery.
But solutions are not simple.
Criminal gangs risk little by ferrying women out of the country; indeed, many
of the women go "voluntarily". Laws are vague,
cooperation between countries rare
and punishment of traffickers, almost nonexistent.
International organizations’ mainstreaming of
gender and
attempting to raise the status of women are occurring, but the problem is far
more complex, deep, insidious, corrupt, and multifaceted, involving
significant criminal enforcement challenges and the darkest realms of human
nature.
Broadening
the concept of asylum in the United States would be helpful in alleviating part
of this tragic problem. Asylum
is provided for in the modern law of civilized nations to protect victims of
selected human rights violations occurring globally. The
typical human rights victim is portrayed in both legal and human rights
literature as a male dissident, tortured or imprisoned by the State. The
statistics, however, prove most of the world's asylee population is female.
Frequently, officials of the government are directly responsible for such acts
of violence. Other
times, the government of a State knowingly tolerates or approves of a social
pattern of widespread violence against women, making the government indirectly
responsible for the violence.
Some
women may end up as victims of trafficking and exploitation through officially
legal routes. In
other instances, women knowingly agree to migrate for work in the sex industry,
but then are coerced into debt bondage where they are forced to repay their
trafficker and/or employer for transportation and other "fees."
Further, because these women may have entered the U.S. or other countries
illegally and are often working in an illegal industry, they are afraid to turn
to local authorities for help and are unable to file civil suits against their
abusers or have access to other protections provided by labor laws. In such
cases, the criminalization of prostitution where the victim p[rostitute is
prosecuted "adds to the burden of women who are already victims,"
noted Mary Robinson, UN High Commissioner for Human Rights.
BEING TRAFFICKED IS A DESPERATE ACT
Since
January 1999, 102 countries have been meeting at the United Nations in Vienna
to draft a new Convention against Transnational Organized Crime.
The purpose of the Convention is to define areas of law enforcement
cooperation, legal procedures and other measures between States relating to all
forms of transnational crime. Three "Additional Protocols" are also
being drafted that address Trafficking in Persons, Especially Women and
Children; Smuggling of Migrants by Land, Air and Sea; and Illicit Manufacturing
of and Trafficking in Firearms, Their Parts and Components and Ammunition.
There have been three ad hoc sessions during 1999 where the Protocol on the
Trafficking in Persons, Especially Women and Children has been discussed. In
the beginning sessions, the texts of the main Convention and the Trafficking in
Persons Protocol reflected the history and the principles of past human rights
instruments, including
the 1949 Convention on the Suppression of the Trafficking in Persons and the
Exploitation of the Prostitution of Others, Convention on the Elimination of
Discrimination Against Women and the Convention on the Rights of the Child. At
this point in the drafting, all of these human rights convention references
have been deleted from the text
The
core and most contentious part of the Trafficking in Persons Protocol is the
definition of trafficking itself. In the present version of Article 2 of the
Draft Protocol on the Trafficking in Persons, there are two competing
definitions of trafficking.
In general, the pro-sex work lobby and some governmental delegations are trying
to edit the terms "trafficking for prostitution" and "sexual
exploitation" from the entire text. With the exception of the definition
of trafficking being debated in Article 2, Option 2, the word "prostitution" is not mentioned in
any other article of the Trafficking in Persons Protocol. The Coalition Against
Trafficking in Women and its partner organizations have responded that since
most trafficking is for sexual exploitation, a trafficking Convention should
name and specify the major purpose for which trafficking occurs.
LACK OF RULE OF LAW AND TRAFFICKED WOMEN
Ineffective
privatization, the lack of law enforcement, lack of rule of law,
the professionalization of organized crime, and the absence of a legal culture
have allowed organized crime to flourish from trafficking. The Russian mafiya is one of the premier actors.
Recruiting methods and the trafficking problem and its relation to Russian
crime gangs were exposed in a two-year study by the Washington-based nonprofit
group Global Survival Network. (GSN).
The GSN network, after undercover interviews with gangsters, pimps and corrupt
officials, found that
local police forces -- often those best able to prevent trafficking – are least
interested in helping. That
is not the view at Ukraine's parliament -- which has passed new laws to
protect young women.
In
addition to a lack of relevant property and criminal law,
the Newly Independent States also lack relevant contract law.
The longer a government waits to take action against organized crime the harder
the mafiya will be to dislodge. If
the mafiya does become so entrenched
in the former Soviet Union that the local governments cannot remove it, then it
poses not only a domestic threat but also an international threat.
A major threat is that the mafiya is in charge of nuclear weapons.
If governments cannot control the mafiya, how do we expect trafficked women to
stand up against them? The
Russian economy has been a disaster story of corruption.
Organized crime controls Russian politics, economics, and society. In
Russia today, there are over 5,000 gangs, 3,000 hardened criminals, 300 mob
bosses, and 150 illegal organizations with international connections.
Approximately 40,000 Russian business and industrial enterprises are controlled
by organized crime. Their combined output is higher than the gross national
product of many members of the United Nations. The Russian mafiya is estimated to turn over in excess of $10 billion a year.
More Russians died of criminal violence in 1993 than were killed during nine
years of war in Afghanistan.
In 1994, criminals took 118 people hostage in Moscow alone. Ten Western
businessmen were kidnapped for ransom in 1995, and one of them murdered. The
situation in the other Newly Independent States of the former Soviet Union is
worse, with criminal gangs even controlling the value of some national
currencies.
Investigations
by the Global Survival Network documented the involvement of government
officials in the trafficking of women from Russia. Trafficking
in women has arguably the highest profit margin and lowest risk of almost any
type of illegal activity. According to Michael Platzer, United Nations Center
for International Crime Prevention, "There’s a lot of talk about drugs,
but it’s the white slave trade that earns the biggest money for criminal groups
in Eastern Europe." Corruption of officials through bribes and even
collaboration of officials in criminal networks enables traffickers to operate in
communities and states. Officials in key positions and at many levels use their
authority to provide protection to criminal activities. During a two-year
investigation of trafficking in women from Russia, the Global Survival Network
found evidence of government collaboration in the Interior Ministry, the
Federal Security Service and the Ministry of Foreign Affairs. As the influence
of criminal networks deepens, the corruption goes beyond an act of occasionally
ignoring illegal activity to providing protection by blocking legislation that
would hinder the activities of the groups. As law enforcement personnel and
government officials become more corrupt and members of the crime groups gain
more influence, the line between the state and the criminal networks starts to
blur. This merging of criminal networks and the government seems to have
occurred in many of the states that have emerged from the Soviet Union. Under
these circumstances it is difficult to intervene in the succession of
corruption, collaboration, crime and profit.
Trafficking
in women as a shadow economy does not bring financial prosperity to local
communities. The women often end up with nothing, or any money they earn comes
at great cost to their health, emotional well being and standing in the community.
The money made by the criminal networks does not stay in poor communities or
countries, but is laundered through bank accounts of criminal bosses in
financial centers, such US, Western European countries or in off-shore
accounts. Centered in Moscow and the Ukrainian capital, Kiev, the networks
trafficking women run east to Japan and Thailand, where thousands of young
Slavic women now work against their will as prostitutes, and west to the
Adriatic Coast and beyond. Russian crime gangs based in Moscow control the
routes. Israel is
a fairly typical destination. Prostitution is not illegal there, and with
250,000 foreign male workers -- most of whom are single or here without their
wives -- the demand is great. Police officials estimate that there are 25,000
paid sexual transactions every day.
The efficient, brutal routine endured by trafficked women -- dozens of
countries -- rarely varies. Women are held in apartments, bars and makeshift
brothels; there they service, by their own count, as many as 15 clients a day;
often they sleep in shifts, four to a bed.
Few ever testify against their traffickers. Those who do risk death. In 1998 in
Istanbul, Turkey, according to Ukrainian police investigators, two women were
thrown to their deaths from a balcony while six of their Russian friends
watched. In Serbia, in 1998, said a
young Ukrainian woman who escaped in October, a woman who refused to work as a
prostitute was beheaded in public. As
Senator Sam Nunn has argued, "crime, and particularly organized crime, has
become one of the most dangerous forces to arise from the collapse of the
Soviet system."
In
the Newly Independent States of the former Soviet Union, the mafiya has undermined economic reform,
aggravated the public's dissatisfaction with their current regimes, and
subverted government decisions. Nevertheless, in spite of all the negative
effects associated with the presence of the mafiya
in these transitional states, several academics and economists, like Yegor
Gaidar, Yeltsin's first deputy Prime Minister, maintain that corruption in a
market economy is not unprecedented.
Despite the fact that the presence of the mafiya
in a transitional economy may have certain benefits, and that opportunistic
American and other government sponsored advisors participated in the
corruption, the reform
that would render the mafiya obsolete
might never occur, if a transitional government does not take immediate action
against the mafiya.
Crime
and its impact on the development of democracy is the primary concern of many
Russian politicians. In April 1994, another Russian Member of Parliament was
gunned down in front of his home on the outskirts of Moscow in a gang-style
shooting. In
commenting on this incident, members of the Duma have expressed their
displeasure with having to serve alongside other members of the Duma who are
connected, or believed to be connected, to organized crime groups. In fact,
Mafiya leaders actually encourage criminals to seek seats in the Duma because
of the broad immunity conferred on those elected to the Russian parliament, and
it is a well-known fact that a number of individuals have run for office solely
to avoid prison sentences.
Law
enforcement sources report a dramatic increase in this problem over the last
two years in the New Jersey and New York area.
The Baltic trafficked women in the United States are recruited, managed and
transported by Russian Organized Crime (ROC) syndicates into the United States,
as in other countries, and used primarily as sex slaves, go-go dancers, and
indentured household workers. The Russian mafiya is a very powerful, grave,
international threat. Some sources argue it has had the support of
international organizations and the United States Agency for International
Development contractor Harvard Institute for International Development as a
necessary evil in the privatization efforts of newly independent Russia.
The United Nations has estimated that 4 million people (both men and women) are
trafficked annually, resulting in profits to criminal groups of up to $7
billion.
In
Russia, a country already suffering from political and economic disaster, it is
reported that an estimated 80 percent of the private enterprises and commercial
banks are forced to pay a tribute of 10 to 25 percent of their profits to
organized crime. They use the banks to launder money and avoid paying taxes
desperately needed by the government to pay salaries and debts.
All too often we hear of government and military personnel in Russia not being
paid for months.
To further cripple the economy, these crime groups dominate economic sectors,
such as petroleum distribution, pharmaceuticals and consumer products
distribution.
Law enforcement
agencies throughout the United States are now taking the activities of Russian
Organized Crime (ROC) seriously. ROC is spreading rapidly to states like
California, Colorado, Illinois, and Florida. One of the reasons for this rapid
spread is because ROC in the New York / New Jersey area is forced to pay a
"tax" to the La Cosa Nostra (LCN) crime syndicate on the profits they
make on illegal activities. There
are over 12,000 crime groups in Russia - triple what it was in 1992 - with no
sign of slowing down. These groups are getting stronger and stronger and using
Russia as the base for their global activities. Currently, there are about 30
ROC syndicates operating in the United States. Many of these ROC groups in the
United States continue to have strong ties to organized crime groups in Russia
and Ukraine. There was one individual who was sent from Russia "to control
all Russian organized crime in the United States and Canada." He is
Vyacheslav Ivankov, who is currently serving a 9-year federal prison sentence
in New York for extorting $3.5million from two Russian businessmen.
Just recently, billions of dollars have been channeled through the Bank of New
York in the last year.
This is believed to be the largest money laundering operation ever uncovered in
the United States.
ROC's sophistication poses grave challenges to legislative and law enforcement
authorities, and their violent nature has rendered their victims extremely
vulnerable. Trafficking in women and children is a global human rights issue
that requires a comprehensive response from government and non-government
organizations around the world. These organizations have to work on a parallel
level to develop anti-trafficking programs. The victims, instead of support,
face "prosecution or shocking indifference," says Caldwell of the Global
Survival Network.
Until now, the trafficking in Russian women has taken a back seat to U.S. law
enforcement's efforts to fight such Russian mafiya activities as extortion,
medical insurance fraud, and scams to evade gasoline excise taxes. But several
important cases have recently demonstrated the possible connection between the
trafficking in women and other forms of racketeering, according to Justice
Department sources.
Ukrainian-American
police management consultant, Walter Zalisko, recommends that United States
policy should do more for trafficking victims.
The
next session of the UN Transnational Crimes Commission will discuss and debate
the Trafficking in Persons Protocol during the week of February 28-March 3,
2000. There will be an "informal meeting" on the Trafficking in
Persons Protocol from January 17-28 from which NGOs have been excluded. Other
sessions at which the Trafficking in Persons
Protocol will be discussed are during the week of June 12-16 and during
the week of July 24-28 2000. There will
also be a four week session in October, 2000, with all these sessions taking
place at the United Nations in Vienna. The United States is pushing for this
Convention and its Protocols to be finished quickly by the end of the year
2000. Many NGOs and governments want to do away with the 1949 Convention
arguing that it is "ineffective, regressive, outmoded and
moralistic." Barring that, they want to supersede it with this new
Convention against Transnational Organized Crime and the Trafficking in Persons
Protocol.
Ever since the UN Declaration on Violence
against Women and the Platform of Action
emerging from the 4th World Women’s Conference in Beijing, "forced
prostitution" has been the language advocated in UN circles. The sex
industry can only benefit from this terminology since it helps shield pimps and
profiteers from prosecution and goes a long way toward making pimping
legitimate.
The
United Nations has recognized trafficking as a form of slavery and violence
against women. It has also been condemned by numerous international human
rights documents.
Moreover, because trafficking is a problem that transcends national borders, it
demands a transnational response. Collaborative relationships must be formed
between the "sending countries" of the former Eastern Bloc, Asia,
Africa and Latin America, and "receiving countries" in the wealthier
nations of North America and Western Europe. What governments have failed to
understand, or have chosen to ignore, is that trafficking is a contravention of
basic human rights that has been condemned by an array of international
conventions, treaties, and other instruments. Furthermore, practices routinely
used by traffickers, such as debt bondage, threats, intimidation, and
withholding of wages are illegal under national laws. A trafficked person must
be treated not as a criminal but as a fully empowered human being. If each
government focused on these human rights abuses when they are inflicted on
foreign women residing within their national borders, they would be addressing
fundamental human rights violations associated with trafficking operations. A
broader, more consistent approach to stopping the traffic in women is clearly
needed. State action in and of itself is only part of the solution, it is
therefore important that any attempt to curb trafficking addresses not only law
enforcement and immigration authorities, but the need to educate women
worldwide.
TRAFFICKING AND INTERNATIONAL LAW AND
INSTITUTIONS
Trafficking
of women is symptomatic of the globalized world economic order and
sociopolitical climate polarizations, corruption, and tensions. The global
landscape continues to be defined by a constellation of dependent
relationships, and intractable forces of change continue to create violations
and inequities. The credibility of the rule of law appears ineffective to
alleviate oppressions and address criminal networks around the globe. Alongside
the consolidation of wealth and power in the hands of a few nongovernmental
authorities, sprout human rights campaigns and documents aspiring to the
protection of human dignity. Although there is a steadily evolving global
culture of adherence to human rights standards, breaches and abuses remain
flagrant and deplorable. An obvious constraint on the international human rights
regime lies in the nature of those who govern, and the nature of conciliatory
power. Although common interests and the adverse repercussions of flagrant
abuse in the international arena generally motivate sovereign States to fulfill
their treaty obligations in good faith, systematic reliance on the political
will and cooperation of the States is clearly insufficient. Governments have a
long history of disparity between the theory and practice of their
pronouncements and ideals. So do individuals. The complexities of the
trafficking issue underscores the fact that there is as much a need to develop
effective implementation mechanisms for the protection of human rights as there
is to proclaim those rights. While legal rights do exert some influence, they are
essentially dependent variables. Even when accompanied by stiff mechanisms that
monitor reception and implementation, they have a limited capacity to compel
any particular course of action. Rights impose correlative duties on others to
refrain from acting against the interests of the persons holding the rights.
Hence, human rights are of practical significance only if corresponding legal
obligations are established. By the same token, unless a duty can be
effectively enforced, it is merely a voluntary obligation subject to the whim
of the addressee. Given the decentralized character of the world arena and the
complexity of most of the issues it handles, the ideals and objectives of
sociolegal reform require implementation measures that are both more aggressive
and independent from existing power structures.
Global
problems are those that by their very nature transcend the capacity of the
nation-state to deal with them effectively as an independent entity. For
instance, global threats to the environment; massive, persistent gross
violation of human rights; and the protection and use of natural resources in
the global commons are problems that are far beyond the capabilities of even
the strongest nation-states. The U.N. may have a constructive role to play
as a forum for the determination of the public interest of the globalizing
international community, as the main U.N. organs have directly contributed to
promoting the international "public interest"--a notion well-known in
domestic public law, The U.N.'s role in promoting participation
of nonstate Actors in international lawmaking, dispute resolution, and forming
a network of global governance, can also be directed to solving trafficking and
corruption problems. There is a need to develop a global legal framework in
order to curb the power and influence of such global actors as corrupt
governments, multinational corporations (MNCs) and powerful interest groups.
The U.N.-initiated code of conduct for MNCs is an early example for what is
advocated as the U.N.'s legislative role in dealing with certain global
problems.
Finally, The role of the U.N. in promoting
the progressive development of interactions in the field of global concerns can
also be applied to trafficking: promoting the understanding of public interest
norms such as erga omnes and/or jus cogens norms
If humankind is to survive, the global challenges such as effective global
environmental protection, prevention of gross violations of human rights such
as trafficking in women and children, and starvation, torture, must be
addressed. "The ability of individual States, particularly the larger
ones, to choose freely to opt out of a global governance for survival, cannot
be viewed as compatible with the notion of a legal order. Given the record of the
U.N. General Assembly in promoting the notion of international public interest
as a legitimizing factor in the pursuance of vital interests of the
international community, it could also play an important role in reconsidering
and reshaping the very basis of the international legal order itself and making
it fit to be the normative framework, not only of a system of self-interested
States, but of that of an emerging global society."
They can try these traffickers ala Pinochet
and view trafficking as crimes against peace and against humanity.
Although
the clandestine and criminal nature hides the actual incidence of trafficking,
it is perceived to be a growing problem since its root causes - poverty, scarce
resources, lack of opportunities for and low status of women, and political and
economic instability, as well as the growth of networks of transborder
organized crime continue to be global factors. Strategies to address these root
factors should be facilitated and supported by the United Nations and its
Member States, and at the same time measures should be strengthened to
discourage traffickers, protect those who are vulnerable to trafficking, offer
legal, physical and psychological protection and empowerment to victims of
trafficking, and address the futures of women and children who have been
victims of trafficking. States should accord the highest priority to crime
prevention and law enforcement policies in relation to this issue. They should
ensure that specific offences related to trafficking exist and are widely and
clearly defined, and that the penalties for these offences adequately reflect
their gravity. International, regional, subregional and bilateral
intergovernmental agreements should be formulated and enforced in order to
ensure and facilitate the prosecution of offenders, irrespective of location.
States should introduce legislation incorporating extraterritorial jurisdiction
to facilitate the prosecution of traffickers, as well as clear extradition
procedures for trafficking-related offences. Measures should also be introduced
to allow confiscation of the criminal revenue of trafficking networks. Judicial
cooperation and information sharing between Member States should be encouraged
and facilitated.
Measures
to encourage victims of trafficking to identify traffickers and act as
witnesses in criminal prosecutions should also be explored. These might include
restrictions on deportation where victims are prepared to act as witnesses, and
witness protection measures. Victims of trafficking should have access to
legal, psychological and medical assistance. Victims of trafficking should be
awarded compensation through criminal compensation schemes, which could be
financed through the confiscated criminal revenue of traffickers.
Intergovernmental agreements to guarantee the voluntary and safe return of
women and ensure that protection and support is provided to trafficked women
awaiting repatriation proceedings should be elaborated. The human rights of
victims should be assured and steps should be taken to ensure they are not
criminalized or imprisoned. Bilateral
agreements obliging cooperation between local immigration officials and
consulates to assist trafficked women should be developed and publicized. Measures to guarantee the voluntary and safe
return of trafficked women should be put in place, and any barriers for
trafficked women to return to their countries, with or without passports or
identification documents, should be eliminated. Broad efforts to strengthen
training and public awareness of civil servants dealing with migration,
particularly those at embassies and consulates and those in charge of the
delivery of visas, should be increased, and Governments should train law
enforcement officials at all levels with respect to trafficking, violence
against women and recognition of trafficking situations, including
identification of front companies and groups.
Broad-based ongoing educational and awareness-raising campaigns,
including the media, to combat domestic and international trafficking should be
introduced nationally, regionally, regionally and internationally. Vulnerable
groups should be particularly targeted and community-based strategies employed.
Relevant cases and evidence should be collected, shared, and the modus operandi of traffickers should be
encouraged so as to provide a concrete basis for legal and policy change.
CONCLUSION
By
all means, strategies aimed at trafficking should focus on trafficking and the
criminal nature of this activity and those involved in this conduct, rather
than on the activity of the victims of trafficking, whose human rights should
be assured.
Additional Resources on Trafficking
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Trafficking in Women from Ukraine Research Project
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U.S. - Ukraine Research Partnership
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U.S.
National Institute of Justice
Ukrainian Academy of Law Sciences
 Partnership
Overview
International
Round Table on Combating Trafficking in Women and Children with
the Purpose of their Sexual Exploitation and Involvement in the
Sex Industry, Zaporizhia State University, Zaporizhia, Ukraine, May
2000
Resolution of
the International Round Table on Combating Trafficking in Women and Children
with the Purpose of their Sexual Exploitation and Involvement in the Sex
Industry, Zaporizhia State University, Zaporizhia, Ukraine, May 11,
2000
Publications
The 'Natasha'
Trade: The Transnational Shadow Market of Trafficking in Women, Journal
of International Affairs, Spring 2000. (Russian / Русский)
The 'Natasha' Trade:
Transnational Sex Trafficking, National Institute of Justice Journal,
No. 246, January 2001.
News on Trafficking of Ukrainian Women
2001
2000
1999
Additional
information on trafficking in women from Ukraine
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For excellent links go to Q Web
http://www.qweb.kvinnoforum.se/trafficking/links.html, and for
exhaustive resources and papers go to Women's Human Rights Resources at
http://www.law-lib.utoronto.ca/Diana/; See
generally Cherif M. Bassiouni, Enslavement as an International Crime, 23
NEW YORK UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLITICS, 445-517 (1991);
Brussa, Lica, SURVEY ON PROSTITUTION, MIGRATION AND TRAFFIC IN WOMEN: HISTORY
AND CURRENT SITUATION (Strasbourg: Council of Europe, 1991) See also Dolgopol, Ustinia, Women's
Voices, Women's Pain, 17 HUMAN RIGHTS QUARTERLY, 127-54 (1995). (The author
was a member of an mission sent by the International Commission of Jurists to
the Philippines, Japan, the Republic of Korea, and the Democratic People's of
Korea to interview government officials and victims of military sexual
slavery); See also Hsu, Yvonne Park,
"Comfort Women" from Korea: Japan's World War II Sex Slaves and the
Legitimacy of Their Claims for Reparations, 2 PACIFIC RIM LAW AND POLITICS
JOURNAL, 97-129 (1993). See also Nina
Lassen, Slavery and Slaverylike
Practices: United Nations Standards and Implementation, 57 NORDIC JOURNAL OF
INTERNATIONAL LAW, 197-227 (1988); See
also Parker, Karen & Chew,
Jennifer, Compensation for Japan's World War II War Rape Victims, 17
HASTINGS INTERNATIONAL AND COMPARATIVE LAW REVIEW, 497-549 (1994); See also Toepfer, Susan J. & Wells, Bryan S., The Worldwide Market for
Sex: A Review of International and Regional Legal Prohibitions Regarding
Trafficking in Women, 2 MICHIGAN JOURNAL OF GENDER AND LAW, (1994), 83-128; See also Yu, Tong Reparations for Former Comfort Women of World War II, 36
HARVARD INTERNATIONAL LAW JOURNAL, 528-40 (1995). Zoglin, Kathryn, United
Nation Action Against Slavery: A Critical Evaluation, 8 HUMAN RIGHTS QUARTERLY,
306-39 (1986).
See, e.g., infra notes 27,
31 and 154.
See, e.g., Alliance Against Traffic in Women (GAATW),
Removing the Whore Stigma: Report on the Asia and Pacific Regional Consultation
on Prostitution (Bangkok, Thailand: GAATW, 1997). GAATW, Practical Guide to
Assisting Trafficked Women (Bangkok, Thailand: GAATW, 1997). GAATW, Regional
Meeting on Trafficking in Women, Forced Labor, and Slavery-like Practice in
Asia and Pacific (Bangkok, Thailand: GAATW, 1997). Global Survival Network
(GSN), Crime & Servitude: An Expose of the Traffic of Women for
Prostitution from the Newly Independent States (Washington, D.C.: GSN, 1997).
GSN, Trafficking of NIS Women Abroad: Moscow Conference Report (Washington,
D.C.: GSN, 1998)[hereinafter GSN study]. Human Rights Watch, Women's Rights
Project, Trafficking of Women and Girls into Forced Prostitution and Coerced
Marriage (New York: Human Rights Watch, 1995). Human Rights Watch, Women's
Rights Project, Asia Watch, A Modern Form of Slavery: Trafficking of Burmese
Women and Girls into Brothels in Thailand (New York: Human Rights Watch, 1993).
Siriporn Skrobanek, Nattaya Boonpakdee and Chutima Jantateero, The Traffic in
Women: Human Realities of the International Sex Trade (Bangkok, Thailand:
Foundation for Women, 1997). Marjan Wijers and Lin Lap-Chew, Trafficking in
Women, Forced Labour and Slavery-like Practices in Marriage, Domestic Labour
and Prostitution (The Netherlands: Foundation Against Trafficking/STV, 1997).
Bruno, Ellen. Sacrifice: The Story of Child Prostitutes from Burma. (50 minute
documentary).
Michael Specter, Contraband Women -- A Special Report.
Traffickers' New Cargo: Naive Slavic Women. The New York Times. January 11,
1998; see also Kanics, Jyothi.
Foreign Policy in Focus: Trafficking in Women. Global Survival Network Vol. 3,
No 30 October1998; see also Victoria
Pope, "Trafficking in women:
Procuring Russians for sex abroad--even in America " US News and World
Report Online, http://www.usnews.com/usnews/issue/970407/7ring.htm (April 7,
1997).
See
generally
Gennady M. Danilenko Implementation of International Law in CIS States: Theory
and Practice, 10 Eur. Jnl. Intl Law 1 (1999)(the entire first 9 years of the
Journal are now available in full text on the Journal website www.ejil.org.); See also Bohdan Futey , Remarks on
file, Harvard Ukrainian Research Institute (Judge Futey gave an excellent
presentation on the legal challenges facing Ukraine at the Harvard Ukrainian
Research Institute in November 1999. See generally
The American Bar Association Central and Eastern European Law Initiative at
http://www.abanet.org/ceeli/home.html
Irene Jarosewich, "Reports on Trafficking of
Women in Europe: Most who Seek Rescue are from Ukraine," The Ukrainian
Weekly, August 9, 1998, No. 32, Vol. LXVI at
http://www.ukrweekly.com/Archive/1998/329802.shtml. The largest number of women in Europe who
seek to be rescued from forced prostitution and other forced sexual activity
are from Ukraine, according to statistics from European police reports.
Therefore, first from among all the republics of the former Soviet Union,
Ukraine was chosen as the country in which to open a field office of the
international anti-trafficking organization La Strada. Kateryna Levchenko is
the national coordinator of La Strada-Ukraine.
The
International Organization for Migration (IOM) has carried out an Information
Campaign in Ukraine as part of a joint US-EU Initiative on Prevention of
Trafficking in Women. In order to establish a sound basis for its information
dissemination activities, IOM conducted research in regions across Ukraine and
gathered first-hand information on the problem of trafficking in women as well
as the profile of potential victims. The report is an analysis of the surveys
and interviews carried out in ten regions of Ukraine as part of the research
activities. Documents related to the information campaign against trafficking
in women from Ukraine: Information
Campaign Against Trafficking in Women from Ukraine Research
report - July 1998; Trafficking
and Prostitution:
The Growing Exploitation of Migrant Women from Central and Eastern Europe,
(MIP) May 1995.
Available
on line at IOM website
http://www.iom.int/migrationweb/Focus_Areas/Trafficking_in_Migrants.
[hereinafter IOM study]
[17] Jyothi
Kanics, Global Survival Network Editors: Tom Barry (IRC) and Martha Honey (IPS)
In Focus; Trafficking In Women 3 In Focus 30 (October 1998) on line at www.foreignpolicy-infocus.org/briefs/vol3/v3n30wom.html
; See also Specter supra note 12.
See generally Zillah Eisenstein, "Stop Stomping on the Rest of Us:
Retrieving Publicness from the Privatization of the Globe", 4 Ind. J.
Global Legal Stud. 59 (1996) (arguing the process of globalization is leading
to increasing privatization, and that privatization, compounds to substantial
suffering for women globally.); Susan
H. Williams, "Globalization, Privatization, and a Feminist Public," 4
Ind. J.Global Legal Stud. 97 (1996) "Globalization" as
the process through which forces and persons that transcend national boundaries
shape the quality of life and law within nations. Multinational corporations
are one of the major actors in globalization. Globalization is also driven by
economic forces other than transnational corporations (e.g., the
interrelationship of monetary systems) and noneconomic forces which cross
national boundaries and destroy economic assets (e.g., the destruction of the
environment, the transmission of diseases).
With
the globalization of public health and looking at the global problems posed by
infectious diseases, a case can be made for the need for the mobilization of
public health efforts in connection with health effects and diseases caused by
trafficking. This transnational health issue should be a matter of great
concern. See James Grant Snell,
Mandatory HIV Testing and Prostitution: The World's Oldest Profession and the
World's Newest Deadly Disease, 45 Hastings L.J. 1565, 1568 (1994). See
e.g., David P. Fidler, Globalization, International Law, and Emerging
Infectious Diseases, 2 Emerging Infectious Diseases 77 (Apr.-June1996); David
P. Fidler, Mission Impossible? International Law and Infectious Diseases, 10
Temp. Int'l & Comp. L.J. 493 (1996); David P. Fidler, Return of the Fourth
Horseman: Emerging Infectious Diseases and International Law, 81 Minn. L. Rev.
771 (1997); David P. Fidler, The Role
of International Law in the Control of Emerging Infectious Diseases, 95 Bull.
de l'Institut Pasteur 57 (1997). Jeffrey Dunoff, From Green to Global: Toward
the Transformation of International Environmental Law, 19 Harv. Envtl. L. Rev.
241(1995). The Institute of Medicine defined "public health" as
"organized community efforts aimed at the prevention of disease and
promotion of health. It links many disciplines and rests upon the scientific
core of epidemiology." Institute of Med., The Future of Public Health 41
(1988)[hereinafter Future of Public Health]. Epidemiology is "[t]he branch
of medicine that deals with the incidence and transmission of disease in
populations, esp[ecially] with the aim of controlling it . . . ." The New
Shorter Oxford English Dictionary 836 (1993); Seth F. Berkley, AIDS in the
Global Village: Why U.S. Physicians Should Care About HIV Outside the United
States, 268 JAMA 3368, 3369 (Dec. 16,1992) (stating that the distinction
between domestic and international health is obsolete); James W. LeDuc, World
Health Organization Strategy for Emerging Infectious Diseases, 275 JAMA 318,
318 (Jan. 24, 1996) ("national health has become an international
challenge"); George A. Gellert et al.,
The Obsolescence of Distinct Domestic and International Health Sectors, 10 J.
Pub. Health Pol'y 421,421 (1989) ("traditional and historical bases for
differentiating domestic and international health in Western nations have . .
.lost meaning"). The Institute of Medicine noted that in the United States
"the earliest definition of public health's mission was . . . control of
epidemic disease." Although the concept of public health has broadened to
include more than the control of infectious diseases, this goal remains a fundamental element of public health
strategies in the United States and at the World Health Organization see
World Health Organization, World Health Report 1996: Fighting Disease, Fostering
Development (1996) [hereinafter World Health Report 1996]. In addition, as the
Institute of Medicine points out, the role of the government in public health
is "indispensable." Fidler, Globalization, International Law, and
Emerging Infectious Diseases, supra
at 78 (arguing that public health policy has been denationalized because a
country cannot tackle emerging infectious diseases by itself); Laurie Garrett, The Coming Plague: Newly
Emerging Diseases in a World Out of Balance 263 (1994) (noting the
unprecedented scale of multiple-partnering during the late twentieth century). See also World Health Report 1996, at 17 (stating that "[i]ncreases in the
number of sexual partners have been the main factor in the spread of HIV
infection and other sexually transmitted diseases"). World Health Report 1996, at 33 (stating
that the WHO estimates "that at least 333 million new cases of sexually
transmitted diseases, other than HIV infection, occurred in 1995"). By the
year 2000, twenty-six million adults will be infected with HIV worldwide. Id. at 31. The WHO notes, for example,
that "tuberculosis has formed a lethal partnership with HIV." Id. at 27; see generally Mary E. Wilson, Travel and the Emergence of
Infectious Diseases, 1 Emerging Infectious Diseases 39 (Apr.-June 1995); See also Summary: The Global Burden of Disease: A Comprehensive Assignment
of Mortality and Disability from Diseases, Injuries, and Risk Factors in 1990
and Projected to 2020 (Christopher J.L. Murray & Alan D. Lopez eds., 1996)
[hereinafter Global Burden of Disease]. Allyn L. Taylor, Making the World
Health Organization Work: A Legal Framework for Universal Access to the
Conditions for Health, 18 Am. J.L. & Med. 301, 302 (1992). The U.S.
Department of State, for example, has argued that HIV/AIDS alone
"threatens the sustainable development of many countries." U.S.
Department of State, United States International Strategy on HIV/AIDS (Dept. of
State Pub. 10296) (Sept. 1995), at 1 [hereinafter U.S. International Strategy
on HIV/AIDS]. See also Confronting a
Calamity, 31 UN Chron., June 1994, at 48, 49 (stating that AIDS "threatens
to undermine development efforts, depleting workforces and striking many
sectors of the economy").
Dorchen Leidholdt, Position Paper of the Coalition
Against Trafficking in Women, Coalition Against Trafficking in Women
http://www.uri.edu/artsci/wms/hughes/catw/posit1.htm.
Forms
of privatization arise by this process of globalization. Economic privatization
is encouraged. Economic privatization is the abdication of public
responsibility for the economic welfare of the people. Eisenstein supra
note 19 points to moves to deregulate workplaces and to cut back on welfare
programs--including medical coverage for the poor and elderly and vaccinations
for children--as typical of this abdication.
Economic privatization is related to the fact that "[t]ransnational
capital needs privatization of multiple publics." Multinational
corporations do not wish to bother with a different regulatory and
administrative systems in the different countries in which they function. The
corporations can choose to locate their operations where they are least likely
to be hindered by laws, thus generating a race to the bottom: countries must
compete for corporate capital by reducing regulations that serve the welfare of
their people in order to pander to the corporations. See also A Citizen's Guide to the World Trade Organization
by the Working Group on the WTO/MAI July 1999, available at
http://www.Citizen.org/pctrade/gattwto/gatthome/html (arguing how the WTO
favors deregulation at the expense of health, labor and the environment); See
also Jean Grossholtz, Globalization-What it Means for Activists in
Peacework Issue 299 at 9 (October 1999).
Political
privatization is another form. The increasingly global scope of issues, forces,
and institutions affecting persons
leads to a decrease of the significance of the local and national
political arenas in which they exercise citizen rights. People respond to this
change by focusing more on the individual material consumption made possible by
global markets and less of their attention on the construction of a collective
social world. In other words, globalization encourages people to see themselves
as private consumers rather than as public citizens. See Eisenstein supra note
19, See
also Alfred C. Aman, Jr., Indiana Journal of Global Legal Studies: "An
Introduction", 1 Ind. J. Global Legal Stud. 1, 1-2 (1993); Jost Delbrück,
"Globalization of Law, Politics, and Markets--Implications for Domestic
Law--A European Perspective," 1 Ind. J. Global Legal Stud. 9, 10-11
(1993); See Katherine Van Wezel Stone, Labor and the Global Economy: Four
Approaches to Transnational Labor Regulation, 16 Mich. J. Int'l L. 987, 989
(1995). Contemporary observers have argued that many of the forces of modern
life, including but not limited to globalization, have a similar effect. Cf. Michael Sandel, Democracy's
Discontent 200-08 (1996) (the increasing scale and complexity of twentieth
century life has led to "the loss of a public realm within which men and
women could deliberate about their common destiny"). Alfred C. Aman, Jr.
has pointed out that globalization "means different things in different
contexts . . . ." Alfred C. Aman, Jr., An Introduction, 1 Ind. J. Global
Legal Stud. 1, 1 (1993). See, e.g., Benedict Kingsbury,
TheTuna-Dolphin Controversy, The World Trade Organization, and the Liberal
Project to Reconceptualize International Law, 5 Y.B. Int'l Env. L.1, 4 (1994) (
"'[g]lobalization' may have many different meanings"). Delbrück, supra argues that globalization
"denotes a process of denationalization of clusters of political, economic
and social activities." Jost Delbrück, Globalization of Law, Politics, and
Markets--Implications for Domestic Law--A European Perspective, 1 Ind. J.Global
Legal Stud. 9, 11 (1993). See also
Gordon R. Walker & Mark A. Fox, Globalization: An Analytical Framework, 3
Ind. J. Global Legal Stud. 375, 380 (1996) ( "[t]he key feature which
underlies the concept of globalization . . . is the irrelevance of national
boundaries in markets ").
[26] The
resolution, which was introduced in 1998, states: on Trafficking,
"involves one or more forms of
kidnapping, false imprisonment, rape, battering, forced labor, or
slavery-like practices which violate fundamental human rights." " Trafficking consists of
all acts involved in the recruitment or transportation of persons within or
across borders, involving deception, coercion or force, abuse of authority,
debt bondage or fraud, for the purpose of placing persons in situations of
abuse or exploitation such as forced prostitution, battering and extreme
cruelty, sweatshop labor or exploitative domestic servitude."
U.S. Senate Resolution
82.
[27] FORTY
SECOND SESSION THE COMMISSION ON THE
STATUS OF WOMENSTATEMENT BY MRS.
NARCISA ESCALER Deputy Director General ITEM 3(c):
FOLLOW-UP TO THE FOURTH WORLD CONFERENCE ON WOMEN New York, 2 March 1998
STATEMENT BY THE INTERNATIONAL ORGANIZATION FOR MIGRATION (IOM) TO THE
COMMISSION ON THE STATUS OF WOMEN
[29] For
many migrants who struggle to escape poverty or political and social
insecurity, and are insufficiently aware of the pitfalls of irregular migration, it seems worth paying a
fee to try their luck, allowing their dream for a better life to be exploited
by traffickers. Yet in many instances, trafficked migrants are misled by
erroneous information on conditions and driven by economic despair or
large-scale violence. In such cases, the migrant's freedom of choice is so seriously impaired that the
voluntariness of the transaction must
be questioned. IOM study supra note 10. On the issue of voluntariness see,
e.g. Catharine A. MacKinnon, Prostitution and Civil Rights, Michigan
Journal of Gender & Law, Volume 1: 13-31 (1993). (arguing that women in
prostitution are denied every imaginable civil right, prostitution as
consisting in the denial of women's humanity, no matter how humanity is
defined). The legal right to be free from torture and cruel and inhuman or
degrading treatment is recognized by most nations and is internationally
guaranteed. In prostitution, women are tortured through repeated rape and in
all the more conventionally recognized ways. Women are prostituted precisely in
order to be degraded and subjected to cruel and brutal treatment without human
limits; it is the opportunity to do this that is exchanged when women are
bought and sold for sex. Pointing to a
study of street prostitutes in Toronto (Fry infra)which found that
about ninety percent of prostitutes wanted to leave but could not,
MacKinnon persuasively argues that if they cannot leave, they are sexual
slaves. Id. MacKinnon writes “ The Thirteenth Amendment, which applies
whether or not the state is involved,
may help. The Thirteenth Amendment prohibits slavery and involuntary servitude.
It, and its implementing statutes, was passed to invalidate the chattel slavery
of African-Americans and kindred social institutions. Its language that slavery "shall [not] exist" gives
support to its affirmative elimination. The Thirteenth Amendment has been
applied to invalidate a range of arrangements of forced labor and exploitative
servitude. The slavery of African-Americans is not the first or last example of
enslavement, although it has rightly been one of the most notorious. To apply
the Thirteenth Amendment to prostitution is not to equate prostitution with the
chattel slavery of African-Americans but to draw on common features of institutions of forcible
inequality in the context of the Thirteenth Amendment's implementation. Compared with slavery of
African-Americans, prostitution is older, more pervasive across cultures, does
not include as much non-sexual exploitation, and is based on sex, and sex and
race combined. “ Id. (Catharine A.
MacKinnon is Professor of Law at the University of Michigan Law School. She engineered the legal claim for
sexual harassment as sex discrimination and
is currently representing women and children survivors of genocidal rape
and prostitution in Croatia and Bosnia-Herzegovina). See also ELIZABETH FRY, SOCIETY OF TORONTO, STREETWORK OUTREACH
WITH ADULT FEMALE STREET PROSTITUTES 13
(May 1987) ("Approximately 90% of the
women contacted indicated they wished to stop working on the streets at
some point, but felt unable or unclear
above how to even begin this process. U.S. CONST. amend. XIII. § 1
("Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within the United States, or any place
subject to their jurisdiction."); See
also Robertson v. Baldwin, 165 U.S. 275, 282 (1897) (Justice Brown
said that "involuntary servitude" was added to "slavery" to
cover the peonage of Mexicans and the trade in Chinese labor); Butler v.
Perry, 240 U.S. 328, 332 (1916) ("[T]he term involuntary servitude was
intended to cover those forms of compulsory labor akin to African slavery which in practical operation would
tend to produce like undesirable results."); See Bailey v. Alabama, 219 U.S. 219, 241 (1911)
("[T]he words involuntary servitude have a 'larger meaning than
slavery."') (quoting The
Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 69 (1872)). Also the Ninth
Circuit has stated: [Y]esterday's slave
may be today's migrant worker or domestic servant. Today's involuntary servitor is not always black;
he or she may just as well be Asian,
Hispanic, or a member of some other minority group. Also, the methods
of subjugating people's wills have
changed from blatant slavery to more subtle, if equally effective, forms of coercion. United States v. Mussry, 726 F.2d 1448, 1451-52 (9th Cir.
1984) cert. denied, 469 U.S. 855
(1984). United States v. Kozminski, 487 U.S. 931, 949-50 (1988). For an
analysis of combined psychological and economic coercion, see United States
v. Shackney, 333 F.2d 475 (2d Cir. 1964). See Kozminski, 487
U.S. at 952 (mental retardation); United States v. King, 840 F.2d 1276 (6th Cir.), cert. denied, 488 U.S. 894 (1988) (children); United States v.
Mussry, 726 F.2d 1448, 1450 (9th Cir.), cert.
denied, 469 U.S. 855 (1984)
(non-English speaking, passports withheld, paid little money for
services); Bernal v. United States,
241 F. 339, 341 (5th Cir.1917), cert.
denied, 245 U.S. 672 (1918) (alienage without support, "did not know
her way about town").
“Indentured
servitude has long been legally prohibited in the United States, even prior to
the passage of the Thirteenth Amendment. In interpreting the Thirteenth Amendment in contemporary peonage contexts,
courts have been far less concerned with whether the condition was
voluntarily entered and far more with whether the subsequent service was
involuntary. That victims believe they have no viable alternative but to serve in the ways in
which they are being forced has also supported a finding of coercion, and with
it the conclusion that the condition is one of enslavement. Involuntary
servitude has embraced situations in which a person has made a difficult but
rational decision to remain in bondage.
If the legal standards for involuntary servitude developed outside the
sexual context are applied to the facts
of prostitution, the situations of most of the women in it are clearly prohibited. In prostitution, human beings
are bought and sold as chattel for use in
"distinctly personal service.")” MacKinnon supra
nn. 40-46
The
devastating psychological effects on trafficked women are immeasurable.
Suicides are common, sexually transmitted diseases are being spread at a faster
rate, and the death toll due to HIV/AIDS is rising dramatically. In Ukraine
alone, there has been a 440% increase in reported cases of HIV/AIDS in the last
two years. In a country where modern medical care is virtually unknown, this
death problem is catastrophic. See
Zalisko infra note 72. The New York Times reported that the
"selling of naive and desperate young women into sexual bondage has become
one of the fastest-growing criminal enterprises in the robust global
economy." Specter supra note 12.
In a November 1997 address in Lviv, Ukraine, First Lady Hillary Clinton
denounced trafficking in women as a fundamental "violation of human
rights...nothing less than modern slavery." Mrs. Clinton added that,
"the U.S. Government has now identified Russian Organized Crime and this
problem as a priority issue." Quoted
in Zalisko infra note 72. But
isn't that what the Ukrainian community has been telling them for years? An
example of this global problem is the recent arrest of "Peter G.", a German citizen, on
36charges of trafficking in human beings, promoting prostitution and bribery.
He had at least 30 Slavic women working for him in brothels he owned, and
police suspect he was responsible for trafficking up to 600 women and young
girls under false pretenses. One of Peter G.'s victims was a 15-year old girl,
who answered an ad for a baby-sitter in America", and stated that two men
confiscated her passport, raped and beat her, and forced her to have sex with
as many as twenty clients a day. Another example is the case of a young woman
in Monmouth County (NJ) who was hired as a homemaker. The young woman was not
allowed to leave the house, telephone family in Ukraine, or go shopping
unescorted. She was sexually assaulted by the homeowner when his wife was not
home, and threatened if she were to expose these assaults. She was told that
the police would not believe her, and that if she did happen to contact the
police they would imprison her and subsequently deport her. Cited in Zalisko infra note 72. Not all
trafficked women wind up as go-go dancers or prostitutes. Many find themselves
in jobs we might believe are perfectly legitimate. The job itself may be
legitimate, but the conditions under which the women work are not. In most
cases the woman's passport is taken away, she is not permitted contact with the
outside world, wages are typically below minimum wage, no medical benefits are
provided, and most often she is required to work at least 18 hours a day. The
very same people whom they have come to trust often victimize them in the home.
This form of enslavement is no less insidious than one in which the woman is
forced into sexual slavery and all her personal freedoms and choices are
denied. Some Walter's article For data on rape in prostitution, see Leidholdt, infra note 44; See also Mimi H. Silbert & Ayala M. Pines, Occupational
Hazards of Street Prostitutes, 8 CRIM. JUST
BEHAV. 395, 397 (1981) (70% of San Francisco street prostitutes reported
rape by clients an average of 31
times); COUNCIL FOR PROSTITUTION ALTERNATIVES,
1991 ANNUAL REPORT 4 (48% of prostitutes were raped by pimps an average
of 16 times a year, 79% by johns an
average of 33 times a year). For data on beatings, see COUNCIL FOR
PROSTITUTION ALTERNATIVES, supra at 4
(63% were beaten by pimps an average of 58 times a year). For data on
mortality, see PORNOGRAPHYAND PROSTITUTION IN CANADA: REPORT OF THE SPECIAL
COMMITTEE ON PORNOGRAPHY AND
PROSTITUTION, VOLUME II 350 (1985) (finding that in Canada the mortality rate for prostituted women is
40 times the national average); Leidholdt,
infra note 44 at 138 n.15 (the Justice Department
estimates that a third of the over
4,000 women killed by serial murderers in 1982 were prostitutes). See Mimi H. Silbert & Ayala M.
Pines, Entrance into Prostitution, 13 YOUTH & SOCIETY 471, 479 (1982) (60%
of prostitutes were sexually abused in childhood); Leidholdt, infra note 44 , at 136 n.4 (quoting MIMI SILBERT, SEXUAL ASSAULT
OF PROSTITUTES: PHASE ONE 40 (1980))
(66% of subjects are sexually assaulted by
father or father figure); THE COUNCIL FOR PROSTITUTION ALTERNATIVES,
1991 ANNUAL REPORT 3 (85% of clients have histories of sexual abuse in
childhood, 70% most frequently by their fathers). For a discussion of the
"voluntariness" illusion, see
Leidholdt, infra note 44 at
136-138.
[31] See generally Convention on the
Elimination of All Forms of Discrimination Against Women, Sept. 3, 1981, 1249
U.N.T.S. 14.; International Convention for the Suppression of the Traffic of
Women and Children, Sept. 30, 1921-Mar. 31, 1922, 9 L.N.T.S. 415; Convention
for the Suppression of the Traffic in Persons and the Exploitation of the
Prostitution of Others, Mar. 19, 1950, 96 U.N.T.S. 271; International Agreement
for the Suppression of the White Slave Traffic, Mar. 18, 1904, 35 Stat. 1979, 1
L.N.T.S. 83; International Convention
for the Suppression of the White Slave Traffic, May 4, 1910, 211 Consol. T.S.
45; International Convention for the Suppression of the Traffic in Women in the
Full Age, Oct. 11, 1933, 150 L.N.T.S. 431; Human Rights Convention to Suppress
the Slave Trade and Slavery (25 Sep 26); and Protocol (7 Dec 53)Convention
Concerning Forced Labor (28 Jun 30)Universal Declaration of Human Rights
(1948). The United Nations Convention Concerning Freedom of Association and
Protection of the Right to Organize (9 Jul 48); Convention on the Prevention
and Punishment of Genocide (9 Dec 48); Convention Concerning the Application of
the Principles of the Right to Organize and to Bargain Collectively (1 Jul49);
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field. (12 Aug 49);Geneva Convention (II) for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea (12 Aug 49)Geneva Convention (III) Relative to the Treatment of
Prisoners of War (12 Aug 49);Geneva Convention (IV) Relative to the Protection
of Civilian Persons in Time of War (12 Aug 49); Convention for the Suppression
of the Traffic in Persons and of the Exploitation of the Prostitution of Others
(21 Mar50);European Convention on Human Rights (4 Nov 50); Convention on the
Political Rights of Women (31 Mar 53); Supplementary Convention on the
Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar
to Slavery (7 Sep 56); Convention Concerning the Abolition of Forced Labor (25
Jun 1957); International Convention on the Elimination of All Forms of Racial
Discrimination (7 Mar 66); International Covenant on Economic, Social and
Cultural Rights (16 Dec 66).International Covenant on Civil and Political
Rights (16 Dec 66); and Optional Protocol Protocol relating to the Status of
Refugees (31 Jan 67); American Convention on Human Rights (22 Nov 69);
Convention Concerning Minimum Age for Admission to Employment (26 Jun 73);
Convention on the Elimination of All Forms of Discrimination Against Women (18
Dec 81); Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (10 Dec
84).Convention on the Rights of the Child (20 Nov 89); International Convention
on the Protection of the Rights of all Migrant Workers and Members of their
Families (18Dec 90); Draft Declaration on the Rights of Indigenous Peoples
(1992), International Indian Treaty Council Convention on the Protection of
Children and Cooperation in Respect of Intercountry Adoption (29 May 93);
United Nations World Conference on Human Rights: Vienna Declaration and Action
Programme (25 Jun 93); 1994 Draft Declaration of Principles on Human Rights and
the Environment Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and Measures
for the Protection of Children (19 Oct 96); Council of Europe: Convention on
Human Rights and Biomedicine (4 April 1997).
The Universal Declaration of Human Rights
(1948); The Universal Declaration of Human Rights (UDHR), ratified by the
United Nations in 1948, has grown into the primary accepted definition of human
rights. The UDHR, in article two,
maintains: "Everyone is entitled to all the rights and freedoms set forth
in this Declaration, without distinction of any kind, such as race, color, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status." It further proclaims that "[a]ll
are equal before the law and are entitled without any discrimination to equal
protection of the law." The most powerful language in the UDHR is found in
article fourteen. It sets forth the expectation that all member countries will
protect against human rights violations and provide the remedy of asylum to
those who cannot gain protection from human rights violations in their
countries of origin. Specifically, it declares that "[e]veryone has the
right to seek and to enjoy in other countries asylum from persecution."
The UDHR is the linchpin in the generally accepted human rights definition.
Although the UDHR is not directly binding upon non-signatory countries, it does embody the international consensus
regarding the definition of human rights.
The UDHR proves extremely useful in the analysis of physical violence
against women and its treatment in the law of asylum. For example, articles
three and five identify bodily integrity and safety as basic human rights. Therefore, rape, torture, assault, and other
physical abuses committed against women necessarily constitute human rights
violations.
The Declaration on the Elimination of
Discrimination Against Women (1967). Declaration on the Elimination of
Discrimination Against Women, G.A. Res. 2263, U.N. GAOR, 22nd Sess., Agenda
Item 53, U.N. Doc. A/RES/2263 (1967) [hereinafter DEDAW]) The Declaration on
the Elimination of Discrimination Against Women (DEDAW was the first major
instrument to focus exclusively on the issues of sex discrimination and women's
rights. DEDAW calls for all U.N. Member Nations to "abolish existing laws,
customs, regulations and practices which are discriminatory against women, and
to establish adequate legal protection for equal rights of men and women."
The Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) was subsequently enacted to put into effect the recommendations of
DEDAW and create legally binding obligations upon signatory nations.
Unfortunately, some western States have made several reservations to the CEDAW;
Convention on the Elimination of All Forms of Discrimination Against Women,
opened for signature Mar. 1, 1980, 19 I.L.M. 33 (1980) [hereinafter
CEDAW]. CEDAW defines sex
discrimination as "any distinction, exclusion or restriction made on the basis
of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women . . . of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field of public life." Id. art. 1. Natalie K. Hevener,
International Law and the Status of Women 215 (1983). Human Rights in a
Changing East-West Perspective 350 (Allan Rosas & Jan Hegleson eds., 1990);
Hilary Charlesworth et al., Feminist
Approaches to International Law, 85 Am. J. Int'l. L. 613, 633 (1991). The
pattern of reservations to [CEDAW] underlines the inadequacy of the present
normative structure of international law. The international community is
prepared to formally acknowledge the considerable problems of inequality faced
by women, but only, it seems, if individual States are not required as a result
to alter patriarchal practices that subordinate women. See Phillip R. Trimble, International Law, World Order, and
Critical Legal Studies, 42 Stan. L. Rev. 811 (1990). Reservations to the CEDAW
constitute an implicit recognition by the international community that the
reserving countries have the authority to continue to mistreat their female
citizens. Id many of these reservations appear to be based upon the concept of
a patriarchal relationship between men and women. Hilary Charlesworth has noted
that CEDAW establishes much weaker implementation procedures than other U.N.
human rights conventions, such as those related to racial discrimination and
political and civil rights, and CEDAW has been subject to many more reservations
than comparable human rights documents. The continued existence of reservations
to CEDAW most certainly deteriorates the protection of the human rights of
women globally. Schenk infra note 115
nn. 45- 52.
Janice G. Raymond,
Health Effects of Prostitution, Coalition Against Trafficking in Women ,1998.
.http://www.uri.edu/artsci/wms/hughes/catw/health. Selected national and international studies, research projects
and various women’s programs have begun
to address the health burden of violence against women. Such projects have
especially focused on the health consequences to women of battering or domestic
violence, rape and sexual assault,
child sexual abuse and incest, and female genital mutilation. See,
e.g., World Bank Discussion Papers
255, Violence Against Women: the Hidden
Health Burden. In depicting the health effects of such forms of violence against women, these projects
attempt to make the violence, harm and human rights violations to women
visible. When violence against women is considered, prostitution is often
exempted from the category of violence
against women. However, a consideration of the dire health consequences of
prostitution demonstrates that prostitution not only gravely impairs women’s
health but firmly belongs in the category
of violence against women. The health consequences to women from
prostitution are the same injuries and
infections suffered by women who are subjected to other forms of violence against women including
physical injuries (bruises, broken bones, black eyes,
concussions). A 1994 study conducted
with 68 women in Minneapolis/St.Paul who had been prostituted for at
least six months found that half the
women had been physically assaulted by their
purchasers, and a third of these experienced purchaser assaults at
least several times a year. 23% of
those assaulted were beaten severely enough to have suffered broken bones. Two
experienced violence so vicious that they
were beaten into a coma. Furthermore, 90% of the women in this study
had experienced violence in their
personal relationships resulting in miscarriage, stabbing, loss of
consciousness, and head injuries. See
Ruth Parriott, Health Experiences of Twin
Cities Women Used in Prostitution: Survey Findings and Recommendations.
Unpublished, May 1994. Available from Breaking Free, 1821 University Ave.,
Suite 312, South, St. Paul, Minnesota 55104; The sex of prostitution is
physically harmful to women in prostitution. STDs (including HIV/AIDS,
chlamydia, gonorrhea, herpes, human papilloma virus, and syphilis) are
alarmingly high among women in prostitution. Only 15 % of the women in the
Minneapolis/St. Paul study had never contracted one of the STDs, not including
AIDS, most injurious to health (chlamydia, syphilis, gonorrheal,herpes). General
gynecological problems, but in particular chronic pelvic pain and pelvic
inflammatory disease (PID), plague
women in prostitution. The Minneapolis/St. Paul study reported that 31%
of the women interviewed had
experienced at least one episode of PID which
accounts for most of the serious illness associated with STD infection.
Among these women, there was also a high incidence of positive pap smears,
several times greater than the Minnesota Department of Health’s cervical cancer screening program for low and middle
income women. More STD episodes can
increase the risk of cervical cancer.
Another physical effect of prostitution is unwanted pregnancy and miscarriage. Over two-thirds of the women in
the Minneapolis/St. Paul study had an average of three pregnancies during their
time in prostitution, which they
attempted to bring to term. Other health effects include irritable bowel syndrome, as well as partial and permanent disability.
The emotional health
consequences of prostitution include severe trauma, stress, depression,
anxiety, self-medication through alcohol and drug abuse; and eating disorders.
Almost all the women in the Minneapolis/St. Paul study categorized themselves as chemically
addicted. Crack cocaine and alcohol
were used most frequently. Ultimately, women in prostitution are also at
special risk for self-mutilation, suicide and homicide. 46% of the women
in the Minneapolis/St. Paul study had
attempted suicide, and 19% had tried to harm themselves physically in other
ways. More succinctly, women in
prostitution suffer the same broken bones, concussions, STDs, chronic pelvic
pain, and extreme stress and trauma that
women who have been battered, raped and sexually abused endure. In fact,
the case can be made that women in prostitution -- because they are
subject to being battered, raped and
sexually abused all at the same time over an
extensive period of time -- suffer these health consequences more intensively and consistently. For example, in another
survey of 55 victims/survivors of
prostitution who used the services of the Council for Prostitution
Alternative in Portland, Oregon, 78%
were victims of rape by pimps and male buyers an average of 49 times a year;
84% were the victims of aggravated assault
and were thus horribly beaten, often requiring emergency room
attention and hospitalization; 53% were
victims of sexual abuse and torture; and 27% were mutilated. Susan Kay Hunter, quoting oral testimony collected by the Council for Prostitution
Alternatives in "Prostitution is Cruelty and Abuse to Women and
Children." Feminist Broadcast
Quarterly, Spring 1993. Available from the Council for Prostitution
Alternatives, 519
Southwest Park Avenue, Suite 208, Portland, Oregon 97205; also available from
the Coalition Against Trafficking in Women. Jodi L. Jacobson, "The Other Epidemic." World Watch. May-June 1992, pp. 10-17.
Malka Marcovich , "Peace or War: An International
Approach to Prostitution and Trafficking," Movement for the Abolition of
Prostitution and Pornography , International Seminar on Militaries and
Gender 25th – 26th November 1999
Leeds, UK (perplexed at Europe's legalization of prostitution inquires "Do
we accept that Europe, pretending to be the cradle of Human Rights, promotes in
the name of peace, consensus, liberty,
democracy and economic empowerment, a system which by legalizing prostitution
normalizes domination, torture, cruel, inhuman and degrading treatment"; See also
Katherine M. DePasquale,The Effects of Prostitution, http://www.feminista.com/v1n5/depasquale.html; See also Specter
supra note 12. Similar to child sexual abuse, the female child prostitute
may experience the psychological feelings of guilt, shame, anxiety, depression,
and low self-esteem. She may also commit suicide. Psychiarist Judith Lewis
Herman noted that survivors of prolonged sexual abuse suffer from complex
post-traumatic stress disorder (CPTS) CPTS is the psychological alteration of
consciousness, self-perception, and relationships with others. First, Herman
notes that victims may have an alteration in consciousness which may include
amnesia, blackouts, and transient disassociative episodes. Second, the victim's
exposure to continuous abuse leads to the alteration of self-perception. The
victim may feel a sense of helplessness, shame, guilt, and a sense of
defilement. Survivors of abuse are vulnerable to repeated victimization The
child victim may suffer from chronic suicidal preoccupation and inflict
self-injury. Self-injury has been characterized as a pathological soothing mechanism
and can take the form of vomiting, purging, using drugs, and exposing oneself
to danger Furthermore, the long term effects on the child victim may result in
her inability to integrate with society. Her alteration in relations with
others may result in her being isolated, withdrawn, distrusting, and unable to
sustain intimate relationships. As noted above, trauma depends on the
individual involved and "on the degree of resilience of the affected
person." In response to being raped, some rape victims may suffer from
lingering fear and may "spend a lifetime dealing with the trauma and
lasting terror." Judith Lewis Herman Trauma and Recovery (New York
1992) nn 9-96.
[36] Dorchen Leidholdt , Position
Paper for the Coalition Against Trafficking in Women,
Special
Seminar on Trafficking, Prostitution and the Global Sex Industry, United
Nations Working Group on Contemporary Forms of Slavery, Organized by Coalition
Against Trafficking in Women, International Movement Against Discrimination and
Racism, International Human Rights Law Group and Anti-slavery
Geneva,
Switzerland June 21, 1999, http://www.uri.edu/artsci/wms/hughes/catw/posit1.htm
Brussa, Licia, SURVEY ON PROSTITUTION, MIGRATION AND
TRAFFIC IN WOMEN: HISTORY AND CURRENT SITUATION (Strasbourg: Council of Europe,
1991); Demleitner, Nora V., Forced Prostitution: Naming an International
Offense, 18 FORDHAM INTERNATIONAL LAW JOURNAL, 163-97 (1994);Reanda,
Laura, Prostitution as a Human Rights Question: Problems and Prospects of
United Nations Action, 13 HUMAN RIGHTS QUARTERLY, 202-28 (1991;
Scibelli, Pasqua, Empowering Prostitutes: A Proposal for International Legal Reform,
10 HARVARD WOMEN'S LAW JOURNAL, 117-57 (1987); Thomas, Dorothy Q. & Levi,
Robin S., Common Abuses Against Women, in WOMEN AND INTERNATIONAL HUMAN
RIGHTS LAW, v.1, Askin and Koenig (eds.), 139-76 (Ardsley: Transnational
Publishers Inc. 1999).
[41] Crime & Servitude:
An Exposé of the Traffic in Women for
Prostitution from the Newly
Independent States A report
prepared by Gillian Caldwell, Steven Galster, and Nadia Steinzor of the Global
Survival Network. For presentation at
an international conference on "The Trafficking of NIS Women Abroad," Moscow, Russia, Nov.
3-7 (1997)[hereinafter GSN Report].
The Coalition
Against Trafficking in Women is a feminist human rights nongovernmental organization that works internationally to
oppose all forms of sexual exploitation. They provide the following
definitions. " Sexual exploitation is a practice by which person(s)
achieve sexual gratification or financial gain or advancement through the abuse
of a person's sexuality by abrogating that person's human right to dignity,
equality, autonomy, and physical and mental well-being. Sexual exploitation
includes sexual harassment, rape, incest, battering, pornography and
prostitution. Prostitution includes
casual, brothel, or military prostitution, sex tourism, mail order bride
selling and trafficking in women. The Harm: Sexual exploitation preys on women
and children made vulnerable by poverty and economic development policies
and practices; refugee and displaced
persons; and on women in the migrating process. Prostitution victimizes all women, justifies the sale of any woman, and reduces all women to sex. Sexual
exploitation eroticizes women's inequality. Sexual exploitation is a vehicle
for racism and "first world" domination, disproportionately
victimizing minority and "third
world" women. Local and
global sex industries are systematically violating women's rights on an ever - increasing scale. Sexual exploitation violates the human
rights of anyone subjected to it, whether female or male, adult or child,
Northern or Southern. The Solution:
Decriminalize the women in prostitution. Criminalize the men who buy women and
children and anyone who promotes
sexual exploitation, particularly pimps and
procurers. Reject State policies and practices that channel women into
conditions of sexual exploitation. Provide education and employment
opportunities that enhance women's
worth and status, thereby diminishing the necessity for the women to turn to prostitution. The Vision: It is a fundamental right to be free of sexual
exploitation in all its forms. Women have the right to sexual integrity
and autonomy. " See Leidholdt supra note 21.
Margaret
A. Healy, Prosecuting Child Sex Tourists at Home: Do Laws in Sweden, Australia,
and the United States Safeguard the Rights of Children as Mandated by
International Law? 18 Fordham Int'l L.J. 1852, (1995); See also von Struensee, Violence, Exploitation
and Children, Highlights of the United Nations Children’s Convention and
International Response to Children’s Human Rights," 18 Suff. Trans L Rev.
589 (1990).
Swedish
Study supra note 10; Convention on
the Rights of the Child: Report of the Third Committee, U.N. GAOR, 44th Sess.,
Agenda Item 108, U.N. Doc. A/44/736(1989) [hereinafter Convention]. The Thai
government does not do enough to combat child prostitution. The government
appears to view prostitution as a key
to regional development and foreign currency. Cynthia Price Cohen, Child Sexual
Exploitation in Developing Countries, 44 Rev. of Int'l Comm'n of Jurists 36, 42
n. (1990); Children on the Altar, Indianapolis Star, June 17, 1995, at A4;
Susan Kay Hunter, Prostitution is Cruelty and Abuse to Women and Children, 1
Mich. J. Gender & L. 91, 93-94 (1993).
In developing
countries, it has also been estimated that "70 percent of female
infertility... is caused by sexually transmitted diseases that can be traced
back to their husbands or partners. See
Jacobson, Jodi L. "The Other Epidemic." World Watch. May-June 1992,
pp. 10-17. Among women in rural Africa,
female infertility is widespread from
husbands or partners who migrate to urban areas, buy commercial sex,
and bring home infection and sexually
transmitted diseases. Women in
prostitution industries have been blamed for this epidemic of STDs when,
in reality, studies confirm that it is men who buy sex in the process of
migration who carry the disease from one prostituted woman to another and ultimately back to their wives and
girlfriends. In what becomes a vicious cycle, infertility leads to divorce and,
in some cases, the ex-wife who is cast aside herself turns to prostitution to
survive. "The movement of abandoned
or rejected ‘barren’ women to urban prostitution has been documented
in Niger, Uganda, and the Central
African Republic. Numerous studies in
Africa and Asia by the World Bank and a number of international
research organizations have found that
divorced or separated women comprise the great majority of prostitutes or
‘semi’ prostitutes’ Id. at 13." A major health effect of the mass
male consumption of commercial sex and the expansion of sex industries in
developing countries, is not only a rampant
increase in sexually transmitted diseases but an exponential increase in
infertility. The further effects of this vicious cycle insure that a whole new
segment of women who are abandoned by their husbands due to infertility, are
propelled into prostitution for survival. Until prostitution is accepted as
violence against women and a violation of women’s human rights, the health
consequences of prostitution cannot be addressed adequately. Until the health burden
of prostitution is made visible, the violence of prostitution will remain
hidden.
"Trafficking
and Prostitution: The Growing Exploitation of Migrant Women from Central and
Eastern Europe," IOM, May 1995).
See Zillah Eisenstein, supra
note 19; See also Alfred C. Aman,
Jr., Indiana Journal of Global Legal Studies: An Introduction, 1 Ind. J. Global
Legal Stud. 1, 1-2 (1993); Jost Delbrück, Globalization of Law, Politics, and
Markets--Implications for Domestic Law--A European Perspective, 1 Ind. J.
Global Legal Stud. 9, 10-11 (1993). See
also
Susan H. Williams supra note 19.
See, e.g., Captive Daughters This American non-profit
organization page is dedicated to end the sex trafficking of girls, especially
in Asia. The site includes links to other organizations in Asia and the U.S.
who are opposed to the sexual slavery of women and a bibliography of print
resources on the topic. Coalition
Against Trafficking in Women The site includes publications,
statements, testimony, and contact information on issues related to sexual
slavery and international trafficking in women. The Coalition is a feminist
non-governmental organization made up of individuals and groups from around the
world. Global
Alliance Against Traffic in Women This non-governmental
organization is based in Thailand. Its aim is to ensure that the human rights
of women are taken into consideration by authorities and agencies working
against the global traffic in women. The site explains the position of GAATW on
sexual slavery and details reports made on the situation in Asia, as well as a
letter to participants of a workshop in Uganda. The purpose of this
organization is to support action by grassroots women's rights groups. International
Labour Organization Important International Labour Organization
(ILO) Conventions can be found by searching the ILO site. In particular,
Conventions on Forced Labour (No. 29), Abolition of Forced Labour (No.105), On
Freedom of Association (No. 87), and Protection of Wages (No. 95) are relevant.
Also relevant is the ILO Convention Concerning the Prohibition and Immediate
Action For the Elimination of the Worst Forms of Child Labour adopted by the
International Labour Conference at its 87th session in June, 1999. Korean 'Comfort Women' and Japanese Military Sexual
Slavery The Korean Council for Women Drafted for Military Sexual
Slavery by Japan maintains the site which can be searched for news, resources,
and activities related to problem of sexual slavery. The problem of the
Japanese military enslavement of women occurred during the1930-40's. The
council estimates that 80% of the approximately 200,000 women captured as
sexual slaves were Korean. The
President's Interagency Council on Women [USA] Established in
the U.S. in August 1995, the Council's mandate is to "make sure that all
the effort and good ideas actually get implemented when we get back home."
The Council is charged with coordinating the implementation of the Platform for
Action adopted at Beijing, including the U.S. commitments announced there. It
also "develops related initiatives to further women's progress and engages
in outreach and public education to support the successful implementation of
the Conference agreements." The site contains information about US support
for women and girls in Afghanistan, trafficking in women and girls, and the
Beijing plus 5 review. Special Rapporteur of the Commission on
Human Rights on the Sale of Children, Child Prostitution and Child Pornography
This is a series of Resolutions and Reports by the special rapporteur. The
current rapporteur is Ms. Ofeilia Calcetas-Santos (Phillipines) (as of December
1999 and since 1994). This page also links to other important United Nations
documents relating to the sale of children, child prostitution and child
pornography. The materials are available in English, French and Spanish Special
Rapporteur on the Sale of Children This part of the United
Nations site provides a series of links to resolutions and reports of the
Special Rapporteur on the Sale of Children. Commission on Human Rights
resolution 1999/40 relates specifically to trafficking in women and girls. The
material is also available in French and Spanish. United Nations High Commissioner For
Human Rights--slavery, forced labour, etc. This section of the
High Commissioner's site provides a list of relevant treaties under the heading
"Slavery, servitude, forced labour and similar institutions and practices."
United States State Department, Office
of the Senior Coordinator for International Women's Rights Issues The
Office of the Senior Coordinator for International Women's Issues is congressionally
mandated to promote the human rights of women within American foreign policy.
The site includes links to information on several international law related
subjects including Trafficking in Women and Girls, Beijing Platform for Action,
Women 2000: Beijing Plus Five, and America's Commitment reports.
Janice G. Raymond , PROSTITUTION AS VIOLENCE AGAINST
WOMEN: NGO STONEWALLING IN BEIJING AND ELSEWHERE, Women’s Studies International
Forum, Vol. 21, No. 1, pp. 1-9, 1998.
International policies and legislation increasingly omit prostitution per se from the category of
violence against women. Various
governmental and non-governmental groups make efforts to distinguish and to legitimize certain practices of sexual
exploitation, drawing distinctions,
for example, between "forced" and "free" prostitution.
These efforts culminated in lobbying
for what would be finally included in the
Beijing Declaration and Platform for Action that emerged from the
Fourth World Women’s Conference in
Beijing. This article addresses these efforts; the NGOs who advocate such
distinctions; and the consequences of revising
the harm done to women in prostitution into a consenting act. The Beijing Declaration and Platform for
Action that emerged from the Fourth
World Women’s Conference in Beijing is clear in its condemnation of violence against women. It denounces the
systematic rape of women in wartime and advocates prosecuting perpetrators as
war criminals. It acknowledges that domestic violence is a worldwide problem
and urges governmental intervention.
And it condemns genital mutilation of girls and sexual harassment as human rights violations (United Nations,
1995a, pp. 51-65). What the Platform excludes as violence against women,
however is prostitution per se from the
category of human rights violations. This effort culminated especially in lobbying for what would be finally
included in the Platform for Action in
Beijing (Center for Women’s Global Leadership, 1995, p. 16) (1). Many NGOs --
instead of viewing prostitution itself as violence against women, and thus a
human rights violation -- acted on the
assumption that prostitution is a human right, a right of woman to do
what she wants with her body. In this
article, Raymond addresses the role of NGOs
and their positions on prostitution and sex trafficking. The philosophy
that prostitution is a human right has been advanced, in international forums such as Beijing, by
drawing distinctions between forced and
free, adult and child, third world and first world prostitution, and between
prostitution and trafficking . These distinctions are then used to make some forms of prostitution acceptable
and legitimate, revising the harm that
is done to women in prostitution into a consenting act and excluding prostitution from the category of
violence against women. The sex industry, Raymond argues, thrives on this
language and these distinctions. When distinctions are made between forced and
free prostitution, for example, it
becomes almost insurmountable for many, if not most, women in prostitution to prove that they have been
forced. When distinctions are made
between child and adult prostitution, the age of consent in some countries
is simply reduced. In practice, the age of children in prostitution is becoming
lower and lower; Human Rights /Asia, in their report on the trafficking of Nepali girls and women into
India (1995, p. 15), states that the
average age of the thousands of Nepali girls recruited every year for
prostitution in Indian brothels, has dropped from 14-16 years of age
during the 1980s, to 10-14 years of age
during the 1990s. NGOs that work to abolish institutionalized trafficking and
prostitution per se receive funding, reports Raymond, only if they adhere to
these distinctions; only if they call prostitutes commercial sex workers; only
if they refer to prostitution as "forced prostitution;" only if they
separate trafficking from prostitution and
focus on closed brothels where women are kept in obvious indentured conditions; and only if they work with other
groups who accept these conditions and distinctions. Some governments who have
vocally opposed making prostitution a violation of human rights are also
funding NGOs, such as the Dutch
Foundation Against Trafficking in Women (STV) and its international offshoot,
the Global Alliance Against Traffic in Women (GAATW), which take similar
positions. Thus governments and funding agencies are able to exert enormous
influence over the agenda of what gets
counted as violence against women. Increasingly, prostitution per se
is declared a violence-free zone.
Raymond points to the fact that the
recent report of Human Rights Watch/Asia, referred to previously and which is
entitled Rape for Profit, is a carefully researched and sensitively written report on the trafficking of Nepali
Girls and Women into India’s Brothels. Yet after documenting the extreme youth,
the poverty, the horrendous abuse, the coercion, and outright abduction of
young 10-14 year old girls into
prostitution in India, the Report goes on to refer to them as "sex workers" (Human Rights
Watch/Asia, 1995, e.g., pp. 13, 49, 65). In
a footnote designed to show that the researchers are familiar with
the controversy over this term, the
report says: "...many activists in India who work with trafficking victims object to its use (i.e., the term
sex worker or commercial sex
worker)..." (Human Rights Watch/Asia, 1995, note 15 at p. 13). Raymond concludes that A new Convention
Against All Forms of Sexual Exploitation speaks to the seriousness of the violation of merchandising
women and children sexually. It proclaims that the international community will
not tolerate this abuse, regardless of the victim’s age, consent, race or
geography. It declares for the first time that all sexual exploitation is a
violation of a person’s human rights.
It promotes social and economic remedies for women in prostitution, without
minimizing the enforcement measures that are necessary to thwart and punish the
perpetrators and customers. And it provides mechanisms for international supervision. This new
Convention Against All Forms of Sexual Exploitation recognizes that there can
be no supply of women and children without the male demand for the sex of prostitution; without the
sex industry’s commodification of women
and children; without the direct and/or tacit approval of governments in fostering sex tourism, for
example, or zoned areas of
prostitution; and without the exporting of a western sexual liberalism
that depicts prostitution as sexual pleasure and liberation, calls it work, and
tells us that prostitution is about a
woman’s right to control her own body! The new Convention Against All Forms of
Sexual Exploitation recognizes that
women’s human rights are seriously threatened by the massive and growing sexual exploitation of women, and
that international policy and legislation must be made more effective in the
struggle against sexual exploitation. Finally, it affirms that all women have
the right to sexual autonomy and
integrity. Holland is a primary example
where the age of consent has recently been lowered to 12. At the same time that
Holland has articulated opposition to
child prostitution, it has decreased the age of consent. Among other
things, this effectively means that any girl over age 12 can be presumed to
consent to prostitution, and that adult
men who engage in sex with any girl beyond
age 12 cannot be punished. The age of consent has long been a
contested legal area, a most famous
example being the turn of the century reformers’ campaigns to raise the age of
consent from ten to sixteen in Britain (Jeffreys, 1985, p. 54). In
conversations with prospective funders, it has been suggested to representatives of the Coalition Against
Trafficking in Women, of which Raymond is a Director, that its future funding
possibilities would be enhanced if we were willing to
"compromise" on the
forced/free distinction and "dignify" women in prostitution as
"sex workers." The government of the Netherlands has been
one of the most vocal proponents --
within the European Union, at the Beijing conference, and elsewhere -- that prostitution per se is not
violence against women, that
distinctions between forced and free prostitution are necessary, and
that prostitution should be accepted as
"sex work." They have funded several NGOs which work in a
non-governmental capacity to promote the above
goals. This proposed Convention Against Sexual Exploitation, launched by
the Coalition Against Trafficking in
Women with the support of UNESCO, is
presently being circulated in draft form. It is a product of
ongoing consultations, meeting and
conferences of nongovernmental organizations, human right and women’s rights
groups in major world regions. Id. See also Anti-Slavery International, Redefining
Prostitution as Sex Work on the International Agenda (1997).
Malka
Marcovich "Human Rights - A European Challenge?" (1999) points to the irony that the European Union wants to reaffirm
basic principals of human rights. It is within these considerations that a
strong, but covert battle is taking
place on the question of the legalization of the market of the body. On one
side, Sweden has established a new norm with its new law that criminalizes the men who buy sexual
services--since January 1999. On the other side, wherever possible, the
Netherlands is pushing the norm which
legalizes pimping. Through a new law proposed on February 2, 1999 in the
Dutch parliament, brothels will be legalized. The Netherlands also pushes for
this new norm in any debate that takes place among the European Parliament, the
Council of Europe, or in any international forum and organization. The question
of equality between men and women has become one important issue in the
European Union in 1984, when the Commission of the Rights of Women was created. In 1993, the question of
trafficking also became an issue, but disconnected from the issue of
prostitution. In 1997, an inter-ministerial
conference in The Hague tried to establish common guidelines to combat
trafficking. The question of violence against women has also become a crucial
issue, t at the same time, prostitution has been excluded from the theme of
violence against women. Every year funds have been given on a specific aspect
of violence against women. The Daphne
funds were created for this purpose and are awarded to NGOs working in
cooperation in different countries of the
European Union. In 1997-1998, the Daphne Funds were awarded to projects
against trafficking, but excluded programs that precisely dealt with
prostitution. In 1999, the Daphne
funds were given to projects against domestic violence within the conceptual
framework of the year: "the year of zero tolerance of violence against women". It is interesting to
notice that large public campaigns are operated to address the questions of
equality and violence against women, and at the same time, the issue of
prostitution has been systematically put aside because it is connected with the
economic growth of the sex industry. The Dutch, with the complicity or
solidarity of most of the countries of the EU, have conceptualized and pushed
their liberal project which makes of the human body a consumer product. Even if
European citizens elect the parliament, there is no strong civil lobby that can
influence its decisions. No NGOs have consultative status. This lack of
representation is the reason a group of women from nine European countries
created the European Women’s Lobby in 1990. Since then it has been
recognized by the European parliament
as a valid interlocutor on women’s right issues. Today, the European Women’s
Lobby, with 2,700 federated NGOs throughout Europe, has an official, global
anti-prostitution stand. But in each country of Europe, the national branch of
the Lobby does not always have the same position. See Swedish study supra
note 10.
Coalition Against
Trafficking in Women Testimony
Submitted to the Hearings on Trafficking, Sub-Committee on International
Operations and Human Rights, September 14, 1999, Dr. Janice G. Raymond; See also Position Paper for The
Coalition Against Trafficking in Women, Special Seminiar on Trafficking,
Prostitution and the Sex Industry, Geneva, June 1999 ; Donna M. Hughes and
Claire M. Roche , Making the Harm Visible-Global Sexual Exploitation of Women
and Girls-Speaking Out and Providing
Services; Donna M. Hughes, Pimps and Predators on the Internet: Globalizing the
Sexual Exploitation of Women and Children; Janice G. Raymond, Legitimating Prostitution
as Sex Work: UN Labor Organization (ILO) Calls for Recognition of the Sex Industry; Dorchen Leidholdt, Prostitution: A Contemporary Form of
Slavery; See also Donna M. Hughes ,Resolution - Misuse of the Internet for
the Purpose of Sexual Exploitation; Janice G. Raymond, Sex: From Intimacy to "Sexual
Labor," or Is it a Human Right to Prostitute; Janice G. Raymond, Prostitution as Violence Against Women: NGO
Stonewalling in Beijing and Elsewhere;
Donna M. Highes, Sex Tours via the Internet; Donna M. Hughes, Trafficking and Sexual Exploitation on the
Internet; Janice G. Raymond, Proposed United Nations Convention Against Sexual
Exploitation; Report to the Special
Rapporteur on Violence Against Women, all available at
http://www.uri.edu/artsci/wms/hughes/catw.
L. Amede Obiora,
Feminism, Globalism and Culture 4 Ind. J. Global Legal Stud. 2 (1999) at
http://www.law.indiana.edu/glsj/vol4/no.2
noted that
at the First World Conference on Women, held in Mexico City in 1975, the agenda
was marked by conflict regarding who should define its focus and parameters.
The second conference in Copenhagen in 1980 and the conference in Nairobi in
1985 were equally controversial. The objectives of women from Third World
countries, concerned with economic marginalization, debt crises, restrictive
monetary policies, and militarization, had different perspectives and
priorities than women from the more privileged nations. The responses of many
women from Third World countries to Western feminists' demands for reproductive
rights were dismissive. Criticizing the Western domination of earlier
conferences, Asma Jahangir, chair of Pakistan's Human Rights Commission,
remarked, "I am beginning to think that Western women lack a deep
understanding and global perspective of women's issues." The Beijing
meetings mirrored the traditional pattern of disagreements, gridlocks,
dialogues and eventual reconciliations, resolutions, and agreements. Delegates
arrived in Beijing for the Conference with merely a draft document still subject
to negotiation and consensual approval. After sustained deliberations, the
Conference adopted the landmark resolution.
Legal remedies that
address the demand side of trafficking have been passed at the international
level at the United Nations and the national level in Sweden. See infra note 84.The older 1949 United
Nations Convention for the Suppression of the
Traffic in Persons and the Exploitation of the Prostitution of Others has not been widely ratified and
lacks a monitoring body, so it has had limited impact against the transnational
trafficking of women. The newly defined type of violence against women and
crime in Sweden "the purchase of
sexual services" has only been in place for one year and its effectiveness is yet to be evaluated. Trafficking
in women for the purpose of sexual exploitation has become such a large and
severe crisis for the well being of
women and the security and stability of some states that interventions are
needed at all levels and points in the
trafficking process.
Fact sheet has been
produced by the Ministry of Labour in cooperation with the Swedish Ministry of
Justice and the Swedish Ministry of Health and Social Affairs. More fact sheets
can be ordered from the Secretariat for Information and Communication at the
Ministry of Labour, Tel +46-8-405 11 55,
Fax
+46-8-405 12 98. Artiklnr. A98.004
Dorchen Leitholdt,
Public Policy, Administrative, and Legal Measures in Proposed United Nations
Convention Against Sexual Exploitation, (January 1995) at
http://www.uri.edu/artsci/wms/hughes/catw/legalmea.htm.(makes many legal
recommendations to close the gap).
Granted, the opposing interest
to internet regulation is not simply the interest in seeing that individuals
have access to obscene material, it is the interest of citizens in preserving
the global free flow of information. This is the Net equivalent of the First
Amendment, a principle already recognized in the form of the international
human rights doctrine protecting the right to communicate. See Jonathan
Graubert, What's News: A Progressive Framework for Evaluating the International
Debate Over the News, 77 Cal. L. Rev 629, 633 (1989) ("The guiding
principle in international communications since World War II has been the U.S.
inspired goal of a ëfree flow of information.' According to this principle,
ë[f]reedom of information implies the right to gather, transmit and publish
news anywhere and everywhere without fetters.'") (citing G.A. Res. 59 (I),
1(2), U.N. GAOR Resolutions at
95,
U.N. Doc. A/64/Add. 1 (1947). The free flow of information principle has been
defined as a necessary part of freedom of opinion and expression. See Article
19 of the Universal Declaration of Human Rights, G.A. Res. 217(III)A, 3(1) U.N.
GAOR Resolutions at 71, 74_75, U.N. Doc. A/810 (1948) (stating that freedom of
expression includes "freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and regardless
of frontiers"). There are compelling arguments on the importance of Free
Speech to liberty. See generally
Amarya Sen Development as Freedom,
(Oxford University Press 1999).
Software
engineer Lin Hai was arrested on March 25, 1998 for providing 30,000 e-mail
addresses to a pro-democracy Internet newsletter. On January 20, 1999, he was
sentenced to two years in prison. Physicist and dissident Wang Youcai was
sentenced on December 21, 1998 to 11 years in prison; the charges against Wang
included trying to organize a peaceful opposition party and sending e-mail
messages to dissidents in the U.S. For more detailed background information,
see http://www.dfn.org/Alerts/freesci/freesci.html
Digital
Freedom Network (DFN) and the Electronic Frontier Foundation reported that in
addition there was a dissident who was arrested for printing out copies of VIP
Reference, the e-mail pro-democracy magazine that Lin Hai sent e-mail addresses
to. See more information about Qi Yanchen at the DFN site. From North Korea to Cuba to Syria, officials are
struggling to contain the tide of unwanted information that the Internet threatens to unleash upon their
countries' citizens. Burma: The authorities in Rangoon introduced Internet regulations this
month very similar to the restrictions
that China has tried to impose. These
include requiring internet users to register with the police and banning unauthorized websites and the transmission of material deemed harmful to the state. Burma is likely to be more successful than China in
enforcing these regulations because private internet usage is still virtually
unheard of, and even the ownership of an
unauthorized modem can result in a
lengthy jail term. Vietnam: Slightly ahead of Burma in the easing of restrictions on the private use
of the internet. Users must still
seek permission from the government,
and as in China, websites deemed
politically or morally harmful are
blocked. But internet cafes are beginning to open and if China's experience is anything to go by these
will provide citizens with a way of
accessing material with little risk of
their browsing habits being monitored
by the authorities. North Korea:
Private use of the internet is
banned. Malaysia: Opposition forces
have made extensive use of the internet.
Malaysia ruled in December 1998
that internet cafes must record the
names of people who use their
computers. But the government says it will not attempt to censor the internet
and some Malaysian journalists publish
political news on the web that would be
banned from the country's broadcast or print media. Cuba: Internet use in Cuba
is only just beginning to extend to
the general public. It is believed that
e-mail messages are often monitored by
the police. Central Asia and the
Caucasus: The watchdog group Reporters Without
Frontiers issued a report last August
describing the countries of this region as among the "enemies of the internet", with only very limited access provided. Middle East: There is no direct access
to the internet in Baghdad, while in
Iran the authorities block sites deemed
harmful to the state or the Muslim
faith. Saudi Arabia also blocks access
to sites that provide information
considered contrary to Islamic values.
In Syria, individuals are generally not allowed access to the internet. See generally Reporters without
Frontiers http://www.rsf.fr/indexuk.html.
See Proposal Coalition Against Trafficking in Women Proposed UN
Convention Statement of Need Network January, 1995 supra note
91.
The Clinton
administration has taken commendable steps to address trafficking in women, but
more needs to be done to protect the victims, prosecute the traffickers,
enforce U.S. labor laws, and broaden asylum concepts. In many cases, the U.S.
and other governments have failed to document instances of trafficking and to
ensure victims' safety, and instead have summarily deported them without
investigation into abusive situations.
Public awareness rising but it is not enough to stop trafficking. In
March 1998, in recognition of International Women's Day, President Clinton
issued an Executive Memorandum on Steps
to Combat Trafficking that pledges to combat trafficking in women and girls with a focus on the areas of
prevention, victim assistance and protection, and enforcement." This order outlines the roles that different
governmental agencies should play to reduce trafficking. The President's
Interagency Council on Women coordinates these various efforts in consultation with
nongovernmental organizations (NGOs). The State Department and United States
Information Agency have funded public-awareness campaigns and conferences
abroad to warn high-risk groups and the general public of the methods used by
traffickers, and to strategize for solutions. State Department efforts include
a public awareness campaign in the Ukraine and production in Russian, Polish,
and Ukrainian of a brochure on trafficking that U.S. Consulates abroad
distribute to visa seekers. The U.S. strategy also calls for protection, legal
counseling, and other services for victims, but none of these programs have
been institutionalized. Frequently, victims of trafficking who are caught in
raids by the Immigration and Naturalization Service (INS) or police are quickly deported, which makes it difficult to
prosecute their employers or traffickers. Some trafficking victims are
inappropriately held in INS detention centers or local jails. As noted in a September 1998 Human Rights Watch
report, "INS detainees are being held in jails entirely inappropriate to their noncriminal status
where they are mixed with accused and convicted inmates, and where they are sometimes subjected to physical
mistreatment and grossly inadequate conditions of confinement." Similarly,
there is no effective monitoring of domestic workers who are brought into the
U.S. legally under the G-5 and A-3 visa programs to work for diplomats and
officials of international agencies. Former domestic workers and their lawyers
describe situations akin to slavery or bonded servitude. They report that
employers confiscate workers' passports and other documents, require dawn to
dusk labor for little or sometimes no pay, and forbid them from leaving the
house or making contact with other domestic workers. If a domestic worker runs
away, she is likely to be caught and deported by the INS because, by breaking
her work contract, she loses her legal status. Experts and social workers
believe that some of these domestics escape into underground criminal networks,
finding work in sex clubs or sweatshops. The lack of government monitoring of
both illegal workers and legal domestic worker programs allows the rampant
abuse of workers to continue. And although the creation of brochures,
documentaries, posters, and other public-awareness materials is very important
in the campaign to stop human trafficking, information is not enough to slow
the flow of migrant workers who have no viable economic alternatives in their
home countries. The U.S. has failed to address the root of the trafficking problem.
It needs to fund and support gender-sensitive economic development and
education projects overseas. Lack of support has severely hampered the efforts
of local NGOs to create and coordinate such
projects. See "Key
Points" Jyothi Kanics, Global Survival Network Editors: Tom Barry (IRC)
and Martha Honey (IPS) (1999);
Interview by the author March 31, 2000 with American Bar Association Central
and Eastern Europe Law Initiative (ABA-CEELI) representative for Russia,
Michael Maya, in Washington D.C.
Suggestions include The U.S. should ratify the following international treaties
and conventions pertaining to trafficking: Convention on the Rights of the
Child, Convention on the Elimination of Discrimination Against Women (CEDAW), and Convention on the Rights
of Migrant Workers and the Members of Their
Families. Ratification of these international agreements is essential to
the coordination of an effective international human rights based response to
trafficking. Additionally, the U.S. needs to develop domestic legislation to
more appropriately and effectively prosecute crimes associated with
trafficking. However, legislation and migration policies created to combat
trafficking should not further limit or prohibit the free movement of people.
Specifically, the G-5 and A-3 visa categories should not be eliminated because
they are among the few ways poor women from developing countries can legally enter the United States. Rather, the
government agencies involved (including INS, State,and Labor), as well as
institutions (including the World Bank, UN, and foreign embassies) must create a monitoring system to ensure that
these workers' are fairly treated according to U.S. laws regulating wages,
working conditions, and worker rights. Congress should approve the Resolution
on Trafficking (Sen. Con. Res. 82) and follow it with legislation that will
effectively implement the Resolution's proposal for a coordinated,
comprehensive, governmental response. This response must include greater
communication and coordination between and within government agencies at the
international, federal, and local levels. Federal resources and skills need to
be shared with local authorities, especially when carrying out investigations,
prosecuting cases of international trafficking, and providing services to
victims. Care should be taken so that the laws passed do not further stigmatize
trafficking victims, but rather prosecute traffickers with punishments
proportional to the seriousness of the crime. The U.S. is reviewing its
standards for gender-based asylum decisions, and it should incorporate granting
asylum to trafficked women under this category. See Key Points Jyothi Kanics et al. supra note 12. Internet based discussion groups and online
consultations such as those found on the World Bank World Development Report
site could be used as well, e.g.,
http://www.worldbank.org/poverty/wdrpoverty.
In Mauritania, for instance, women are trafficked internally
from one ethnic group to another. In other cases, forced labor migration is
from rural areas to urban centers, and people are trafficked within their
country or to neighboring countries.
For example, poor rural girls from Burma are trafficked and forced to work in
Thailand's sex industry. Furthermore, since the collapse of the Soviet Union,
the economic transition in Central and Eastern Europe and the Newly Independent
States of the former Soviet Union has caused
many women to migrate for work to Western Europe, Japan, the U.S., and
elsewhere. Many countries-regardless of whether they are places of origin,
transit or destination-have weak ,unenforced laws or no laws against
trafficking in human beings. Individuals can be sold and resold many times and
forced to prostitute themselves and work under slavery-like conditions.
Penalties for trafficking and selling humans are often relatively minor
compared with those for other criminal
activities. Therefore experts believe that trafficking in people is
often more profitable and less risky to criminals than trafficking in drugs or
guns.
Society in the
three Baltic States largely views prostitution as immoral and the women engaged
in prostitution as "bad
women". Women in prostitution are often given the blame for the rapid
increase of STDs instead of realizing that these women are among the first to
become victims of STDs. In the Estonian debate on criminalising/legalization of
prostitution women of all ages and older
men with traditional values mostly hold
the former position, whereas young men
mostly hold the latter. According to Dr. Chaplinskas the debate around
legalization about prostitution is heated in the media in Lithuania where media conveys a legalization message. Prostitution being a hot topic,
politicians are fearful of dealing with the issue, according to Dr Chaplinskas. In Latvia, 5 law proposals addressing prostitution have been turned
town by the government according to Dr.
Kuruva. Having a medical approach may currently be the only way to legitimize
government as well as NGO activities among women in prostitution. Dr. Kalikova expresses concern about the
harsh resistance to her center's activities among politicians and the public.
The center's giving of free medical examination to prostitutes and IV drug users raises contempt among its
critics, saying tax money should not be
used on "people with a bad
morale." Swedish study supra note 10.
There are several problems
with "mainstream" Western dominated international organizations'
agenda on mainstreaming. One problem is that it presumes white, middle class,
organization women to be the quintessence of mainstream women. This creates a
tendency to deny difference where it is experienced and submerges conflictive
philosophies and factualizes an illusory mainstream. Another problem is that
gender itself may be a transitional concept, perpetuating mainstream feminists
to dominate the debate even if they are ultimately queen bee misogynists, women
who skillfully build their careers at the expense of, or indifference to real
life (as opposed to theoretically oppressed) women, using the same tactics they
protest and attribute to patriarchal men. On this tendency of female
identification with their oppressors, see
generally, Louise Kaplan, Female
Perversions (New York 1997).
12
October 1999 Press Release GA/SHC/3523
THIRD COMMITTEE HEARS REPORTS OF TRAFFICKING IN WOMEN AND CHILDREN,
EFFECTS OF VIOLENCE AGAINST WOMEN (1999)
Trafficking in women and children was a multiform phenomenon that
involved migration, social issues, crime, corruption, health, gender and human
rights. See also Cecilia Valdivieso,
Principal Economist, Gender and Development, Poverty Reduction and Economic
Network, The World Bank "Mainstreaming of gender had been found important
to lending sectors such as health, education and rural development, where
actions to address gender disparities were now common practice. It had,
however, also made an important difference in non- traditional sectors such as
infrastructure and finance. To strengthen the Bank’s impact on poverty
reduction, gender was being made an integral part of the Comprehensive
Development Framework." The Comprehensive Development Framework took into
account the economic, structural, social and institutional aspects of
development. The participation of women in strategic consultations had already
been found to strengthen the agenda, build national ownership and overcome
gender disparities. New ways would be found to integrate gender into work with
partners and clients in developing structures and mechanisms based on specific
realities, constraints and development priorities. Gender was also being
integrated into country assistance strategies. The World Development Report on
Poverty and Development will integrate gender throughout its central analysis
of empowerment, security and opportunity for the poor in its 2000 World
Development Report. The Bank was also proposing to devote the World Development
Report 2004 to an in-depth analysis of gender for the international development
agenda. GASHC3523.P2; See also Mainstreaming a
gender-sensitive agenda in health research: perspective of international
organizations Carol Vlassoff Canadian International Development Agency (CIDA)
200 Promenade du Portage, Hull, Quebec, Canada K1A 0G4R ; United Nations,
General Assembly. 1997. Report of the Economic and Social Council for 1997 New
York.(A/52/3); See, e.g., United
Nations. 1995. Report of the Fourth World Conference on Women, Beijing, 4-15
September 1995. New York.(96.IV.13);
United Nations, WHO and UNFPA. 1999. Women and Health. Mainstreaming the Gender
Perspective into the Health Sector. Report of the Expert Group Meeting 28
September-2 October, 1998,Tunis (Tunisia). New York. (99.IV.4).
The Activities and
Programme of the United Nations High Commissioner for Refugees on Behalf of
Refugee Women, Report of the Secretary-General,
Provisional Agenda Item 7, U.N. Doc. A/CONF.116/11 (1985). .Kathleen Barry,
Female Sexual Slavery: Understanding the International Dimensions of Women's
Oppression, 3 Hum. Rts. Q. 44, 47
(1981). Ruth L. Sivard, Women: A World Survey 32 (1985);.Margaret E. Galey,
International Enforcement of Women's Rights, 6 Hum. Rts. Q. 463 (1984).
"The primary enforcement mechanism [sic], national governments, often lack
the political will or resources to promote compliance with the standards that they have obligated
themselves to support.";The U.N.'s primary role is to formulate standards
of conduct, encourage compliance with standards, and condemn egregious examples of non-compliance. Note,
however, that the U.N. has little punitive power. This impotence often leads to
situations of identified and condemned, but ongoing, human rights abuses.
Universal Declaration of Human Rights, G.A. Res. 217(III), Dec. 10, 1948.
Convention Relating to the Status of Refugees, opened for signature July 28,
1951, 19 U.S.T. 6259, 189 U.N.T.S. 137
[hereinafter UNCR]. Protocol Relating to the Status of Refugees, opened
for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter
UNPR]. The UNHCR is an "intergovernmental organization established by the
[United Nations] General Assembly to be responsible for supervising the
implementation of the Convention and Protocol." Arthur C. Helton, What is
Refugee Protection?, 2 Int'l J. Refugee L. 119, 121 (1990).
The current U.N. definition
of "refugee," which serves as a model for the domestic asylum laws of
most western nations, establishes that "persecution" or a
"well-founded fear of persecution" on the basis of race, religion,
nationality, political opinion, or membership of a particular social group
constitutes valid grounds for seeking asylum. The U.N. definition of
"refugee" does not recognize persecution or well-founded fear of
persecution on the basis of gender as grounds for asylum. Schenk supra
note 115. "Some examples of State-sanctioned physical violence against
women have occurred in the countries of Somalia, Mozambique, Guatemala, and
Eritrea. There, women between the ages of eighteen and forty are frequently
taken to camps to be raped by those countries' soldiers If a victim's husband
learns of the occurrence, he may and often does kill his wife to avoid the
shame and cultural stigma associated with rape. Likewise, in Liberia there are
documented reports of local soldiers committing gang rapes, kidnapping young
girls to serve as concubines, and attacking pregnant women and extricating and
mutilating the fetuses Iraq even had an official office in the civil service
for the rape and torture of women. As stated above, victims frequently
encounter difficulty when seeking protection from State-sanctioned crimes. For
example, although Amnesty International reports that sexual assault by military
personnel is frequent and widespread in Peru, there are no published government
reports or documented convictions regarding this practice Indeed, Peruvian
government officials have said that these crimes are to be expected and are
"natural" when troops are stationed in rural areas." Schenk supra note 116 nn. 10 -15.
Courts have also taken
notice of the Congressional intent to make U.S. asylum law consistent with the
U.S. tradition of aiding those fleeing persecution. "Consistent with this
country's
long-standing policy of providing refuge to aliens fleeing their homelands
because of persecution, Congress, in 208(a) of the Refugee Act of 1980, 8
U.S.C. 1158(a) (1982), directed the Attorney General to promulgate regulations
under which an alien may apply for asylum." Ramos v. Thornburgh, 732
F. Supp. 696, 697 n.1 (E.D. Tex. 1989),
citing Diaz v. INS, 648 F. Supp. 638,
646 (E.D. Cal. 1986). Additionally, when passing the 1980 amendments, Congress
wanted to "insure a fair and workable asylum policy which [was] consistent with this country's
tradition of welcoming the oppressed of other nations." H.R. Rep. No. 608,
96th Cong., 1st Sess. 17 (1979). The
use of the well-founded fear category applies only to fears of persecution and
not to fears of ongoing general conditions of unrest. Limsico v. INS, 951 F.2d
210, 212 (9th Cir. 1991). The Ninth
Circuit held that a one in ten chance of being killed because of political
opinion meets the statutory test of
eligibility for asylum due to a well-founded fear of persecution due to
political opinion. Montecino v. INS.,
915 F.2d 518, 520 (9th Cir. 1990) (fear of ex-soldier that he would be
killed by guerrillas that the government could not control). See,
e.g., Karen Bower, Recognizing Violence Against Women As Persecution on the
Basis of Membership in a Particular
Social Group, 7 Geo. Immig. L.J. 173 (1993) (accepting women as a particular
social group subject to gender persecution would remedy gender discrimination
in asylum law); see also David C.
Neal, Women as a Social Group: Recognizing Sex-Based Persecution as Grounds for
Asylum, 20 Colum. Hum. Rts. L. Rev. 203, 204 (1988).Jacqueline R. Castel, Rape,
Sexual Assault and the Meaning of Persecution, 4 Int'l J. Refugee L. 39, 51
(1992). International Instruments and National Standards Relating to the Status
of Women: Study of Provisions in Existing Conventions That Relate to the Status
of Women, U.N. Commission of the Status of Women, Agenda Item 3(d), at 24, U.N.
Doc. E/CN.6/552 (1972); DEDAW, supra
note 31; CEDAW, supra note 31.
This state of affairs is
why rule of law aid is so important. The term
"rule of law" embodies the basic principles of equal treatment of all
people before the law, fairness, and both constitutional and actual guarantees
of basic human rights. A predictable legal system with fair, transparent, and effective
judicial institutions is essential to the protection of citizens against the
arbitrary use of state authority and lawless acts of both organizations and
individuals. In many states with weak or nascent democratic traditions,
existing laws are not equitable or equitably applied; judicial independence is compromised; individual and minority rights are
not truly guaranteed; and institutions have not yet developed the capacity to
administer existing laws. Weak legal institutions endanger democratic reform
and sustainable development in developing countries.
Without the rule of law, a state lacks (a) the legal framework necessary for
civil society to flourish; (b) adequate checks on the executive and legislative
branches of government; and (c) necessary legal foundations for free and fair
electoral and political processes. From
USAIDhttp://www.info.usaid.gov/democracy/rol.html; see also http://www.abanet.org/ceeli/home.html;
The Central and East European Law Initiative (CEELI), a public service project
of the American Bar Association (ABA), is designed to advance the rule of law
in the world by supporting the law reform process underway in Central and
Eastern Europe and the New Independent States of the former Soviet Union.
Mafia Rules Russia:
CIA, Moscow Trib., Sept. 28, 1994, at 4 (quoting statement of James Woolsey,
Director of the Central Intelligence Agency. Among the services provided by
organized crime in Russia are: S]ecurity in the form of protection for
individuals and property, arbitration in the form of settling disputes, or
seeing that business contracts are
honored, financial assistance in the form of loans, often at lower rates than
banks, and even some social services
such as assistance to the needy through criminally owned philanthropic
organizations. See Scott P. Boylan ORGANIZED CRIME AND CORRUPTION IN RUSSIA:
IMPLICATIONS FOR U.S. AND INTERNATIONAL LAW 19
Fordham International Law Journal 1996 (1999); See also Peter Daniel DiPaola, The Criminal Time Bomb: An
Examination of the Effect of the Russian Mafiya
on the Newly Independent States of the Former Soviet Union, 4 Ind. J.
Global Studies 145 (1996).
Without these laws,
basic transactions cannot take place. The transition governments did not enact
the necessary legislation, and the mafiya
stepped in. The second way the mafiya
influences politics is through direct participation in the political process.
By October 1995 over 100 suspected mafiya criminals had already declared their
candidacy for the Duma elections in December of that year. One of the primary
motivations for criminals joining the Duma is immunity. According to current
Russian law, "Russian legislators cannot be searched, detained,
questioned, charged, arrested, tried or convicted, even for crimes they have
committed before taking office, without the consent of a parliamentary
majority." This immunity even covers murder, see DiPaola, supra note
135.
Mafiya influences
politics through violence. By threat or
the use of force, organized crime groups can influence politicians or remove opponents. Since the
collapse of communism, the mafiya has
murdered and intimidated members of the parliament. The mafiya also gains political
power through control of the press. By controlling the press, organized crime
influences public opinion and prevents discovery or scrutiny of the mafiya's offenses. Finally, organized
crime influences politics is through the economy. Even though the economic
endeavors of the mafiya are often
illegal, they do generate a great deal of capital. Consequently, local
governments are reluctant to pass legislation attacking organized crime for
fear they will lose the economic benefits associated with the mafiya.
The legislation passed and not passed today in
Eastern Europe will govern these countries in the future; and, according to Professor
Louise Shelley, "once the basic framework is enacted, vested bureaucratic
and financial interests combined with inertia will make it difficult to
implement fundamental change." Threat
from Russian Organized Crime: Before the House Comm. on International
Relations, Cong. Testimony (FDCH), Apr. 30, 1996, available in LEXIS, News Library, CNGTST File (statement of Louise
I. Shelley, Professor, American University, Department of Justice, Law and
Society, and School of International Service).
Lee Hockstader, Moscow
Insists Criminals Can't Get at Nuclear Weapons, Int'l Herald Trib., July 1,
1994, at 2. See Seymour Hersh, The
Wild East, Atlantic Monthly, June 1994, at 61. reporting that "organized
crime has strangled business in Russia, and is now reaching for the nation's
nuclear stockpile." Id.; See Stephen Handelman, The Russian
Mafiya, For. Aff., Nov./Dec. 1994, at 2.; Allan Friedman, The Organizatsiya:
Brooklyn's Booming Russian Mob is Slicker, Smarter, and Much Meaner than
La Cosa Nostra, N.Y. Mag., Nov. 7,
1994, at 50. Ulrich Schmid, The Russian Mafia and the Rule of Law, Swiss Rev.
of World Aff., Oct. 3, 1994, at 1.
Janine R Wedel, "The Harvard Boys Do Russia." The
Nation, June 1, 1998, pp.11-16; (exposing how corrupt Harvard Institute for
International Development advisors created a system of tycoon capitalism run
for the benefit of a corrupt political oligarchy that has appropriated hundreds
of millions of dollars of Western aid
and plundered Russia's wealth). The architect of privatization was
former First Deputy Prime Minister Anatoly Chubais, now extremely unpopular.
Essential to the implementation of Chubais's policies was the enthusiastic
support of the Clinton Administration and its key representative for economic
assistance in Moscow, the Harvard Institute for International Development
(HIID). Using the prestige of Harvard's
name and connections in the Administration, H.I.I.D. officials took over the
U.S. economic aid program to Russia, with minimal oversight by the government
agencies involved. With this access,
they allegedly profited on the side. Yet few
Americans are aware of H.I.I.D.'s role in Russian privatization, and its
suspected misuse of taxpayers' funds. Kryshtanovskaya, Olga. "The Real
Masters of Russia." Argumenty i Fakty, no. 21, May 1997, Reprinted in
Johnson's Russia List (davidjohnson@erols.com May 1997); See also Nelson, Lynn D. and Irina Y. Kuzes. Property to the
People: The Struggle for Radical Economic Reform in Russia. Armonk, NY: M.E.
Sharpe, 1994; Nelson, Lynn D. and Irina Y. Kuzes. Radical Reform in Yeltsin's
Russia: Political Economic and Social Dimensions. Armonk, NY: M.E. Sharpe,
1995; Shelley, Louise I. "Privatization and Crime: The Post-Soviet
Experience." Journal of Contemporary Criminal Justice vol. 11, no. 4,
1995, pp.244-56; U.S. General Accounting Office. Foreign Assistance: Harvard
Institute for International Development's Work in Russia and Ukraine.
Washington, DC: General Accounting Office, November 1996; Wedel, Janine R.
"Clique-Run Organizations and U.S. Economic Aid: An Institutional
Analysis." Demokratizatsiya: The Journal of Post-Soviet Democratization,
vol. 4, no.4, Fall 1996, pp.571-602; Wedel, Janine R. "Cliques and Clans and
Aid to Russia." Transitions, Changes in Post-Communist Societies, vol.4,
no.2, July 1997, pp.66-71; Williamson, Anne. How America Built the New Russian
Oligarchy. Unpublished manuscript; Williamson, Anne. "Russia's Fiscal
Whistleblower: Chief Auditor Venyamin Sokolov says Western Loans Are Hijacked
by the Corrupt Yeltsin Government." MoJo Wire, 16-22 June, 1998. The
General Accounting Office did investigate H.I.I.D.'s Russian and Ukrainian
projects in 1996, but the findings were largely suppressed by the agency's
timid management. The audit team concluded, for example, that the U.S.
government exercised "favoritism" toward Harvard, but this conclusion
and the supporting documentation were removed from the final report. Many questions need to be answered, but any
serious inquiry must go beyond individual corruption and examine how U.S.
policy, using tens of millions in taxpayer dollars, helped deform democracy and
economic reform in Russia and helped create a fat-cat insider clique of
"elite" consultants. U.S. AID TO RUSSIA: WHERE IT ALL WENT
WRONG:Testimony before the Committee on
International Relations U.S. House of Representatives by Janine R. Wedel, Associate Research Professor, Department of Anthropology; and Research
Fellow, Institute for European,
Russian, and Eurasian Studies; The George Washington University, 2110 G Street, N.W., Washington, D.C.
20052 Phone: 202-994-6346 Fax:
202-994-6097 E-mail: jwedel@gwu.edu
September 17, 1998; The Wanderer, National Catholic Weekly, U.S.
Taxpayers' Backed IMF Loans Go Into
Pockets Of Clinton Cronies (9/30/99) http://www.thewandererpress.com/; See also PAUL LIKOUDIS The Wanderer
Interviews Anne Williamson; The
Wanderer, National Catholic Weekly (10/14/99). See also HIID Dismantled, HARVARD MAGAZINE at 77 (March April
2000).
Charles Hecker &
Pyotr Yudin, Deputies' Murder Shakes Duma, Moscow Trib., Nov. 9, 1994, at
1.
Ingra Saffron, Run for
Legislature in Russia and Beat the Rap: Murder? Fraud? Lawmakers Have Immunity
from Nearly Every Prosecution, Phil.
Inquirer, Oct. 21, 1995, at A1; Law on Status of Deputies, FBIS-SOV-94-072,
Apr. 14, 1994. Members of the Duma receive nearly complete immunity from
prosecution. Id. Cited in Boylan supra
note 135 n. 64. Important ant corruption
steps are ebing taken UN Global Programme against Corruption In early 1999, the
Centre for International Crime Prevention (CICP/ODCCP) together with the United
Nations Interregional Crime and Justice Research Institute (UNICRI) introduced
the Global Programme against Corruption. The purpose of the Programme is to
assist Member States in their efforts to build integrity to curb corruption.
The Global Programme is composed of 2 main parts, the action learning component
and the technical cooperation component. Through its research component, the
Programme will provide information on trends and policy strategies in
corruption. In order to provide appropriate and up-to-date background
information and support and to sustain
the technical cooperation measures, a global study
of the phenomenon of corruption and of the types of anti-corruption measures
and their efficacy will be carried out by UNICRI. It will result in the
administration of the Corruption Assessment, which balances the following: -
needs to provide for local ownership over production and use - needs to provide
for monitoring trends, levels and types of corruption as well as the efficiency
and effectiveness of anti-corruption measures - needs to provide for standard
monitoring instrument to become a part of the implementation mechanism for an
International Convention against Corruption, and related regional/sub-regional
anti-corruption agreements The activities under the technical cooperation
component are intended to assist developing countries and countries in
transition to build and/or strengthen their institutional capacity to prevent,
detect and fight corruption. Since corruption has economic, political, social,
legal, administrative and cultural dimensions, the most appropriate and
effective approach to deal with it is necessarily a multi-disciplinary one. An
effective approach must also be multi-dimensional, because corruption needs to
be tackled at the national, regional and international levels. Paper by Dr.
Ugljesa Zvekic, Senior Crime Prevention & Criminal Justice Expert United
Nations Office for Drug Control and Crime Prevention (Regional Office for
Southern Africa) reproduced on utstein@lists.worldbank.org on April 12, 2000.
Transparency International http://www.transparency.de/ is also important. A
USAID-sponsored "Citizens Advocacy Office" program in Ukraine which
has been very successful, according to Bert Spector, an international security
consultant. "The Citizens Advocacy
Office (CAO) was established in Donetsk under the leadership of the
USAID-sponsored “Partnership for Integrity” anti-corruption group. It serves as
an active source of legal support for citizens and businesses with grievances
about corrupt officials – operating entirely independently of government. It
provides legal advice free-of-charge to citizens on their rights, represents
them in court, and helps them gather and submit evidence on cases of alleged
corruption. Two offices have been established and a 24-hour telephone hotline
is in operation since July 1999. Among their accomplishments to date are the
following:
1.
Government Whistleblower Successfully Defended and Vindicated. In 1995, the
captain of a Ukrainian cargo ship in the Azov Fleet blew the whistle on several
Fleet administration officials who allegedly were embezzling funds to their
private bank accounts outside of Ukraine. These officials turned these
allegations around and accused the captain of wrongdoing. He was brought to
court, sentenced to 5 years in prison, his assets were confiscated, and he was
fined. Although he appealed the court decision, he was able only to reduce the
sentence. Finally, he contacted the USAID-sponsored Citizens Advocacy Office
(CAO). The CAO's lawyers reviewed the case and brought it back to court again
in October 1999. As a result, the allegations against the captain were
dismissed entirely and all previous sentences against him were cancelled. The
CAO is working now to build a case against the Fleet officials.
2.
Successful Defense Against Government Harassment of a Business Person. The
Director and founder of a company in Donetsk was summarily fired from her
position and excluded from the Board of Founders without justification. The
company was then re-registered under a new name with a new Board of Founders
and Director. These changes were initiated by two government officials, one of
whom was a People's Deputy of the Ukrainian Parliament who is legally
prohibited from participating in such private sector activities. The CAO
brought the case to court, which canceled the company’s illegal re-registration
and restored the original Director’s rights. The district prosecutor has now
opened a criminal case against the government officials.
3.
Successful Defense Against Government Favoritism toward an Illegal Business. A group
of flower sellers, who had paid the required fee and taxes to the district
government were refused permit renewal in 1998. They were told that permits
could now be bought only from a private company. The CAO conducted a
preliminary investigation of this case and found that this company was not
properly registered and did not pay any formal taxes to the district
government. Moreover, this company encouraged the flower sellers to conduct
businesses in the shadow economy -- without providing receipts or recording
cash income. The case has been passed to the proper authorities for formal
investigation. As a result, the district government has been accused of
wrongdoing and the flower sellers have been restored their rights to conduct
business.
4.
Successful Defense of Police Officer from Criminally-Influenced Official.
Officials ordered a police team from Donetsk to arrest a criminal group in
Kharkiv. Soon after that was accomplished, a criminal case was brought against
the officer-in-charge from the Donetsk police force. The case was brought by
the formal deputy head of the investigation unit of the prosecutor's office of
Kharkiv oblast, Mr. Gotva. It appeared later that Mr. Gotva personally
patronized the criminal group. The CAO appealed to the President of Ukraine and
the Prosecutor General and the case against Donetsk officer was dismissed.
5.
Allegations of Nepotism in Privatization Process. A village in the Donetsk
oblast, Andreyivka, called upon the CAO to help investigate and support its
claim of corruption against former government officials there. The allegations
relate to abuses of the privatization process and nepotism. The grievances,
along with documentation, were presented to appropriate oblast officials."
Comments of Bert Spector, Management
Systems International in Washington D.C. , at http://www.nobribes.org
discussion group 3/20/00 at http://199.100.132.61/dgroups/default.htm
Id. Moreover, trafficking in
women has been found to be part of broader transnational criminal schemes. In
August 1999, a money-laundering scheme was uncovered in the Bank of New York,
USA. From early 1998 until mid-1999, US$10
billion dollars had been laundered through the bank. The account
belonged to known Ukrainian-born crime boss
Semyon Mogilevich, who the FBI and Israeli intelligence reported was
involved in prostitution, weapons and drug
trafficking and investment scams. Mogilevich’s crime network, called the
Red Mafia, operated in Ukraine,
Hungary, the Czech Republic and the United States. Cases such as these
demonstrate that most of the money made
from illegal operations, such as trafficking in women, does not make its way
back to the community. The money goes
to the top where crime bosses make enormous profits. The "dirty
money" is laundered into clean money after which it can be used to buy legitimate businesses and
properties. According to Michèle
Hirsch, a barrister in Brussels in her report to the Council of Europe: Poverty does not automatically and in every
case lead to traffic in human beings and in fact only creates the necessary
conditions. …Trafficking will appear
only when criminal elements take
advantage of this desire to emigrate to
entice people, particularly women,
to the West under false pretences. More than 120 million people in Eastern
Europe earn less that US$4 per day. Id.
As a result of a
federal investigation the bank suspended two Russian employees, Natasha
Gurfinkel Kagalovsky and Lucy Edwards, whose names had surfaced in the
investigation. Both of these employees are senior officers in the Banks
European division and are both married to Russian businessmen. One of these
individuals is believed to have controlled one of the accounts. As one
government official stated, " We have a penetration of a major U.S.
organization by Russian organized crime, and we are concerned about the
possibility the organized crime syndicates from Russia and other countries
could infiltrate financial markets and institutions in Europe and United
States." These bank accounts have been linked to a major ROC figure
identified as Semyon Yukovich Mogilevich. He is involved in a wide range of
criminal activities from arms trafficking and extortion to prostitution.
British law enforcement authorities report in one classified report that
Mogilevich is "one of the world's top criminals, who has a personal wealth
of$100 million." He is part of a new trend of Russian mobsters
masquerading as crack capitalists. There is no doubt that he controls much of
the Russian economy, government and police. The law enforcement community
around the world, in its fight against organized crime, is hampered in its efforts
by the corruption of police in Russia and Ukraine. ROC has for decades been
successful in controlling and being able to corrupt police officers and
government officials. Zalisko supra
note 72 .
According to Walter
Zalisko, there have been modest steps taken to combat trafficking, more needs
to be done to protect the victims, prosecute the traffickers, and enforce U.S.
labor laws. Any U.S. policy should emphasize the following components: increase
public awareness; increase economic opportunities for women at risk; emphasize
national civil rights laws and international human rights treaties in
anti-trafficking enforcement activities. If arrested or detained these women
should be interviewed by local authorities and given viable alternatives to
deportation in exchange for evidence against the traffickers. At present they
are often just fed back into the system by being returned to their country of
origin. What needs to be done is to remove the women from the sphere of
influence of the crime group, which will ultimately create a severe financial
loss to the group, and continue to do so until you make trafficking
unprofitable and increase the risk of prosecution. What types of programs are
needed to combat trafficking? We need programs from non-government
organizations (NGO's) and governmental organizations around the world. Not just
the target countries. The role of NGO's and government in combating trafficking
is diverse and should include programs that: educate the public about the risks
of trafficking, use media and public outreach campaigns to lobby for
legislative reform to ensure human rights, provide psychological, medical and
legal assistance to female victims of violence, teach law enforcement how to
deal with and recognize the problem, and work to improve the economic and
social status of women living in transitional economies. Another effective
response to trafficking would be to provide a victim with a stay of deportation
for at least the period during which the investigation and subsequent trial
against the trafficker takes place. These trafficked victims, when caught in an
INS or police raid, are held in INS detention centers or local jails. What
police and prosecutors should remember is that they are victims and not
criminals. Mixing them with accused and convicted criminals is highly
inappropriate and only causes them to be further subjected to physical
mistreatment and inadequate conditions of confinement. Rather than being jailed
they should be placed in a temporary shelter, similar to the ones we use for
victims of domestic violence. Government's role should be to implement
effective anti-trafficking laws, dedicate law enforcement resources to combat
trafficking and organized crime, and prosecute traffickers and individuals who
abuse and or detain women and children. It remains apparent that the
investigation of Russian Organized Crime and Trafficking in Women be a critical
component of a law enforcement strategy. Any law enforcement response must
include civil sanctions, which allows prosecutors to seize and forfeit illegal
proceeds generated or assets used by an enterprise in their criminal activity,
and criminal punishment. Zalisko supra
note 72.
Beijing Declaration and
Platform for Action, Report of the Fourth World Conference on Women, UN Doc. A/CONF.177/20, para. 145(d).
Jost Delbrück , The Role of the United Nations in Dealing With Global
Problems, 4 Indiania Journal of Global Legal Studies 277 (1997).
The jus cogens and erga omnes
nature of crimes against humanity
Jus cogens.
Crimes
against humanity and the norms which regulate them form part of jus cogens (fundamental
norms). As such, they are peremptory norms of general international law which,
as recognized in Article 53 of the Vienna Convention of the Law of Treaties
(1969), cannot be modified or revoked by treaty or national law. That article
provides that “a peremptory norm of general international law is a norm
accepted and recognized by the international community of states as a whole as
a norm from which no derogation is permitted and which can be modified only by
a subsequent norm of general international law having the same character”.
Similarly, the prohibition of torture “is itself a norm of jus cogens or a ‘peremptory norm of general international law’”
(Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights
Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Clarendon
Press 1997), p. 110; see also Theodor
Meron, “International Criminalization of Internal Atrocities”, 89 Am. J. Int’l
L. (1995), pp. 554, 558; Restatement (Third) of Foreign Relations Law, §702,
comment n.; Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-718
(9th Cir. 1992), cert. denied, 507
U.S. 1017 (1993)). See Submissions to
be made by the Republic of Chile if leave to intervene is given, R. v.
Metropolitan Stipendiary Magistrate, ex parte Pinochet, House of Lords, 13
January 1999, In the Matter of an
Application for a Writ of Habeas Corpus ad Subjicendum (Re: Augusto Pinochet
Ugarte) and In the Matter of an Application for Leave to Move for Judicial
Review between: The Queen v. Nicholas Evans et al. (Ex Parte Augusto Pinochet
Ugarte;
House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and
Other (Appellants), Ex Parte Pinochet (Respondent)(On Appeal from a Divisional
Court of the Queen's Bench Division); Regina v. Evans and Another and the
Commissioner of Police for the Metropolis and Others (Appellants), Ex Parte
Pinochet (Respondent) (On Appeal from a Divisional Court of the Queen's Bench
Division) (No. 3), Judgment of 24 March 1999 (retrieved from the Internet
on 25 March 1999 at the following site:
<http://www.parliament.the-stationery-office.co.uk>)[hereinafter Ex Parte Pinochet (HL 2)].
Erga omnes.
As
an eminent authority has explained, “Jus cogens refers to the legal status that
certain international crimes reach, and obligation erga omnes pertains to the
legal implications arising out of a certain crime’s characterization as jus
cogens . . . . Sufficient legal basis exists to reach the conclusion that all
of these crimes [including torture, genocide and crimes against humanity] are
parts of the jus cogens” M. Cherif Bassiouni, “International Crimes: Jus Cogens
and Obligatio Erga Omnes”, Law & Contemp. Prob., 25 (1996), pp. 63, 68.
Indeed, as the International Court of Justice recognized in Barcelona Traction,
Light and Power Company Ltd., Judgment (ICJ, 1972 Report, p. 32, paras. 33-34)
the prohibition in international law of acts, such as those alleged in this
case, is an obligation erga omnes, which is duty all states have a legal
interest in ensuring is fulfilled:
“[A]n essential distinction should be drawn
between the obligations of a State toward the international community as a
whole, and those arising vis-à-vis another State . . . By their very nature the
former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have an interest of a legal nature in their
protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international law, from
the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the corresponding
rights of protection have entered into the body of general international law;
others are conferred by international instruments of a universal or
quasi-universal character.” See
Amnesty International http://www.amnesty.it/ailib/aipub/1998/EUR/44502198.htm
Jost Delbrück , The Role of the United Nations in Dealing With
Global Problems, 4 Indiania Journal of Global Legal Studies 277 (1997). See
also Jost Delbrück, Globalization of Law, Politics, and
Markets--Implications for Domestic Law: A European Perspective, 1 Ind. J. of
Global Legal Stud. 9, 10-11 (1993). See
also Jost Delbrück, "Das Völkerrecht muß auf einem Bund freier Staaten
gegründet sein"--Kant und die Entwicklung internationaler Organisation
["The Law of Nations Must Rest on a Federation of Free States"--Kant
and the Development of International Organization], in Republik und
Weltbürgerrecht--Kantische Anregungen zur Theorie politischer Ordnung nach dem
Ende des Ost-West-Konflikts [The Republic and World Citizenship] (Klaus Dicke
& Klaus-Michael Kodalle eds., forthcoming 1997). See, e.g., art. 34 of
Protocol No. 11 to the Convention for the Protection of Human Rights and
Fundamental Freedoms, restructuring the control machinery established thereby
of May 11, 1994, opened for signature May 11, 1994 (providing for complaints to
be addressed to the Court of Human Rights by non-governmental organizations).
For text, see 33 I.L.M. 960,962
(1994). See also Sabine von Schorlemer,
Liberation Movements, in 2 United Nations Law, at ch. 89.
Andrea Bianchi,
Immunity versus Human Rights: The Pinochet Case, 10 Eur. Jnl. Int' Law 237
(1999). In the Pinochet case a former
head of state of a foreign country has been held accountable for the first time before a municipal court for acts of
torture committed while he was in office. The unprecedented character of the
case causes one to ask whether municipal courts may properly complement
international tribunals in the enforcement of international criminal law, and,
if so, to what extent a plea of
immunity or non-justiciability may be available. The divide within he House of
Lords on the interpretation of the
scope of application of jurisdictional immunities to foreign heads of state
as regards crimes of international law
betrays a profound conflict based on the different weight of values and
interests accorded priority in contemporary international law.
Theodor Meron, Is International Law Moving towards Criminalization? 9 European Journal of International Law, 18 (1998) ; See also Meron, `International Criminalization of Internal
Atrocities', 89 AJIL (1995) 554, at 557. See, S. R. Ratner and J. S. Abrams, Accountability for Human Rights Atrocities
in International Law (1997); L. S. Sunga, The Emerging System of International Criminal Law (1997); J. J.
Paust et al., International Criminal Law
(1996); M. C. Bassiouni, Crimes against
Humanity in International Criminal Law (1992); L. S. Sunga, Individual Responsibility in International
Law for Serious Human Rights Violations (1991).