1 1As a Legal Advisor within the Human Rights Policy Bureau of the United Nations Interim Administration Mission in Kosovo (UNMIK/OSCE), the author was a member of the Working Group that drafted UNMIK Regulation 2001/4. He is presently serving as Executive Director of the War Crimes Research Office at the Washington College of Law (American University). The views expressed in this article are solely those of the author.
I Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the "Trafficking Protocol"), supplementing the United Nations Con- vention against Transnational Organized Crime, adopted 15 November 2000, UN Doc. A/RES/55/25 (2000). 2 A quick glance at the differences in approach between the 1949 Convention for the Suppression of the Traffic in Persons and the text of the Protocol illustrates the ex- tent of this evolution. From a human rights perspective, the Protocol is a significant advance over the 1949 Convention. While the latter required states to punish offend- ers and to implement specific enforcement measures, it failed to employ a rights- based approach, focusing almost exclusively on the criminalization of trafficking and providing minimal protections to victims. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others ("1949 Con- vention"), Dec. 2, 1949, opened for signature Mar. 21, 1950, 96 U.N.T.S. 272, 282 (entered into force July 25, 1951). Further, the 1949 Convention provides a defini- tion that makes the consent of the 'victim' irrelevant and that accounts for only one form of trafficking - the case of trafficking for the purpose of prostitution. As stated by the Special Rapporteur on violence against women: "Due to its ill-defined and
broad terminology, a weak enforcement mechanism and its uniquely abolitionist perspective, the 1949 Convention has failed to attract widespread support." Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47. 3 Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, on trafficking in women, women's migra- tion and violence against women, E/CN.4/2000/68, 29 February 2000. 4 Yelasquez-Rodriguez case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 ( 1988). 5 Much of the debate over the text of the Protocol concerned the defmition of traffick- ing in persons.
6 See J. Cerone, 'Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo' (2001) EJIL 469, 471. 7 Security Council Resolution 1244 (1999) ("Resolution 1244"), para. 11(j). 8 'UN Swoops on Kosovo Sex Trade', BBC News, 17 November 2000 (http://news.bbc.co.uk/hi/english/world/europe/newsid_1028000/1028249.stm)
("[T]he operation has highlighted the co-operation between Serbs and Albanians in- volved in the sex trade"). 9 Situation Report, Counter-Trafficking Unit, Pristina Office, International Organiza- tion for Migration (February 2001) ("IOM Report"). The IOM Pristina office based its report on 130 documented cases arising between February 2000 and February 2001. The report is largely based on victim testimonies and UNMIK Police reports. While the number of cases may seem low, the actual number of trafficked persons in Kosovo is believed to be much higher. Id. There are several reasons for this. First, IOM documents only those cases where it assists the victim with repatriation. Thus, it only documents the cases of victims who: are identified as victims of trafficking according to IOM criteria; have not been ordered expelled by a court (see below); and choose to be repatriated. Second, Kosovo has been very slow in developing sig- nificant law enforcement capacity. Coupled with the impenetrability of the local communities rooted in a historical distrust of public officials and the undeniable grip of organized crime in Kosovo (see "NATO soldiers raid Kosovo brothels", CNN. com, November 17, 2000, 5:48 AM EST), the capacity of UNMIK Police to carry out trafficking investigations is seriously limited. Third, there is a serious lack of appropriate police personnel to conduct trafficking operations in terms of both the specialized training required and gender balance. (Even as of the time of writing, out of over 4,000 UNMIK Police officers, there are only 138 women). Fourth, in an area of utter lawlessness, trafficking cases have not been made a priority by UNMIK law enforcement. Fifth, victims, facing at best the prospect of prosecution and expulsion and at worst retaliation against themselves and their families, are reluctant to contact the police for assistance. This is compounded by the fact that few of the victims speak English or Albanian. 10 Others types of exploitation included forced domestic work and dancing. Ibid. 11 The travel documents of victims are commonly seized by the traffickers, and then turned over to subsequent purchasers. Ibid. 12 According to the IOM Report, medical care was given to victims in emergency situations, particularly when the symptoms could affect their 'performance'. Ibid.
13 See "Kosovo: two UN police officers repatriated due to 'professional misconduct'" UNMIK Press Briefing, 13 August 2001 ("The United Nations Interim Administra- tion Mission in Kosovo (UNMIK) today said two of its police officers had been re- patriated to their home countries because of professional misconduct. The repatria- tion occurred following an UNMIK investigation into charges that four of its police officers were involved in the movement of women for the purposes of prostitution... While the four policemen committed professional misconduct 'to varying degrees,' evidence was not found to support criminal charges, the spokesman said"); "UN- MIK expels two police for prostitution links," Kosovo Live News Report, 13 August 2001 ("One US policeman was alleged to have used an UNMIK vehicle to transport prostitutes from the Serbian border in exchange for money and sex. Another US of ficer and a Romanian were said to have warned a brothel owner that police were planning a raid on his premises"). See also "Kosovo: A Review of the Criminal Jus- tice System, 1 September 2000 - 28 February 2001," Report of the OSCE Mission in Kosovo (March 2001) (trafficking victims stating that "they were brought by [the defendant] from Mitrovica/Mitrovice to Kosovo Polje/Fushe Kosova in a white UN vehicle driven by a Russian UN staff member..."). 14 "Kosovo: A Review of the Criminal Justice System, 1 September 2000-28 February 2001", Report of the OSCE Mission in Kosovo (March 2001) ("As trafficking- related offences usually involve forced prostitution, there are concerns that judicial personnel may harbour some prejudice. The large number of prosecutions of foreign women in Kosovo for prostitution appears to support these concerns ... During the investigation hearings, despite the degrading and brutal circumstances of the victim's experiences, which involved descriptions of multiple beatings, rape and forced pros- titution, the investigating judge ordered that the two victims separately confront the defendant, Nikqi with their testimony. The confrontation between Nikqi and one of the victims dissolved into a shouting match which the investigating judge did not in- tervene to stop and he appeared to fmd the interaction entertaining"). The majority of judges in Kosovo today are Kosovo Albanians, most of whom had not practiced law in the ten years since Kosovo's autonomy was revoked by the Belgrade authori- ties in 1989. In addition, several layers of discrimination (discrimination against women, foreign women, and foreign women perceived to have engaged in prostitu- tion) seem to underlie the court's hostility toward victims. Ibid 15 Few of the victims speak Albanian, the language in which Kosovo court proceedings are usually conducted.
'6 The victims in such cases are not assisted by IOM irrespective of the wish of the vic- tim to return to her country of origin. IOM's policy is to deny assistance to anyone who has been ordered expelled by a court as the organization does not want to be- come a mechanism for deportation. To date, UNMIK has not enforced any of the expulsion orders. 17 While some victims had been abducted from their countries of origin, the majority had been trafficked by deception. 18 IOM Report. 19 Resolution 1244, supra note 7, at para. 10. See also Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo ("Report of the Secretary-General"), para. 35, S/1999/779, 12 July 1999 ("35. The Security Council, in its resolution 1244 (1999), has vested in the interim civil administration authority over the territory and people of Kosovo. All legislative and executive powers, in- cluding the administration of the judiciary, will, therefore, be vested in UNMIK.")
20 See supra note 7. See also "Statement on the Right of KFOR to Apprehend and De- tain", Office of the Acting SRSG, UNMIK, 4 July 1999 (noting that KFOR would be bound by international human rights standards in the performance of its duties in Kosovo). 21 UNMIK Regulation 1999/24, § 1.1. The regulation continues: "If a court of compe- tent jurisdiction or a body or person required to implement a provision of the law, determines that a subject matter or situation is not covered by the laws set out in sec- tion 1 of the present regulation but is covered by another law in force in Kosovo af ter 22 March 1989 which is not discriminatory and which complies with section 3 of the present regulation, the court, body or person shall, as an exception, apply that law". Ibid at § 1.2. 22 Ibid at § 1.3. The SRSG has confirmed that members of the Kosovo judiciary are bound by this provision. See "Six Month Review", Legal System Monitoring Sec- tion, OSCE Mission in Kosovo (August 2000). ("In a letter to the President of the Belgrade Bar Association, dated 14 June 2000, the SRSG confirmed that Section 3 of Regulation 1999/24 applies to judges and that this means they must not apply any provisions of the domestic law that are inconsistent with international human rights standards"). z3 This list includes: Universal Declaration on Human Rights of 10 December 1948 ("UDHR"); European Convention for the Protection of Human Rights and Funda- mental Freedoms of 4 November 1950 and the Protocols thereto; International Covenant on Civil and Political Rights of 16 December 1966 and the Protocols thereto; International Covenant on Economic, Social and Cultural Rights of 16 De- cember 1966 ("ICESCR"); International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 ("CERD"); Convention on the Elimination of All Forms of Discrimination Against Women of 17 December 1979 ("CEDAW"'); Convention Against Torture and Other Cruel, Inhumane or De- grading Treatment or Punishment of 17 December 1984 ("CAT"); and International Convention on the Rights of the Child of 20 December 1989 ("CRC").
24 Article 18, Law on Public Peace and Order ("By an imprisonment of up to two months shall be punished for minor offence ... [t]he one who forces another into prostitution, hires premises for this purpose or in some other way mediates in prosti- tution"). Article 251, Criminal Code of the Socialist Federal Republic of Yugoslavia (1977) ("SFRY Code") ("Whoever recruits, induces, incites or lures female persons into prostitution, or whoever takes part in any way in turning a female over to an- other for the exercise of prostitution, shall be punished by imprisonment for a term exceeding three months but not exceeding five years. If the offence described ... has been committed against a female under age or by force, threat or ruse, the offender shall be punished by imprisonment for a term exceeding one year, but not exceeding 10 years"). Note that the most relevant provision, article 251 of the SFRY Code, is gender-specific, thereby excluding the possibility of a male victim. 2S The maximum sentence for a conviction under article 18 of the Law on Public Peace and Order is two months' imprisonment. 26 While many of the cases cited in this section do not arise directly under human rights law, they all address the general law of state responsibility for internationally wrongful acts. This section deals essentially with the so-called "secondary rules" of state responsibility. See First Report on State Responsibility, Special Rapporteur of the International Law Commission on State Responsibility, 24 April 1998, A/CN.4/ 490, at para. 12. The link between these rules and substantive human rights law can be seen in the context of the accelerating convergence between the law of state re- sponsibility for injury to aliens and human rights law. See Restatement (Third) of the Foreign Relations Law of the United States ("Restatement"), Introductory Note to Part VII, vol. 2, at 1058 (1987); D. Shelton, 'Private Violence, Public Wrongs and the Responsibilities of States' (1989) 13 Fordham Intl. L. J. 1, 23.
27 Given the increasing role played by opinio juris in the formation of international law, such reports may provide evidence of the existence of rules of customary law, especially when endorsed by the Human Rights Commission or another intergov- ernmental body. For the proposition that opinio juris now dominates the formation of customary law, see North Sea Continental Shelf Cases (F.R.G. v. Denmark; F. R. G. v. Netherlands) 1969 I.C.J. 4; Case Concerning Military and Paramilitary Activi- ties In and Against Nicaragua 1986 I.C.J. 14 (holding that if states explain their be- haviour by invoking exceptions to rules, then this shows that they adhere to those rules). 28 See the Vienna Convention on the Law of Treaties, art. 26, April 24, 1970, 8 LL.M. 679, Jul 69. 29 Corfu Channel (U.K. v. Albania), 1949 I.C.J. 4,23 (Judgment of Apr. 9). See also Restatement, supra note 26 at § 207; United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3 (Judgment of May 24) (court found that in addi- tion to its direct responsibility for approving the acts, Iran's failure "to take appro- priate steps ... by itself constituted a clear and serious violation" of international law); Velasquez-Rodriguez case, supra note 4, at para. 170 ("[U]nder international law a State is responsible for the acts of its agents undertaken in their official capac- ity and for their omissions"). 3o The Legal Consequences for State of the Continued Presence of South Africa in Na- mibia (South West Africa) Notwithstanding Security Council 271 (1970)  ICJ rep. P. 31, para. 53. See also Vienna Convention, supra note 28, at art. 31(1). 31 Velasquez-Rodriguez case, supra note 4, at para. 134.
3z International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, en- tered into force Mar. 23, 1976. Note that a state is responsible not just for those in its territory, but also for those subject to its jurisdiction. 33 The Human Rights Committee is the body charged with monitoring the implementa- tion of the 1CCPR. Its General Comments are authoritative interpretations of states' obligations under the Covenant (U.N. doc. CCPR/C/SR 371, para. 1; F. Newman/D. Weissbrodt, International Human Rights: Law, Policy, and Process (2nd Ed. 1996) 94). 3a The practice of the Human Rights Committee demonstrates the existence of a legal duty on the part of states to protect rights against non-state interference. See, e.g., its General Comments 6, 10, 16, 17, 18, 20, 21, 27, and 28. In General Comment 27, the Human Rights Committee stated, "The State party must ensure that the rights guaranteed in article 12 are protected not only from public, but also from private in- terference". General Comment 27, at para. 6 (1999). 3s Convention on the Elimination of All Forms of Discrimination against Women, art. 2, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, en- tered into force Sept. 3, 1981. 36 International Convention on the Protection of the Rights of All Migrant Workers and Their Families, art. 7, U.N.GAOR 3rd Comm., 45th Sess., Annex, Agenda Item 12, at 1519, U.N. Doc. A/RES/45/ 158 (1991). The Migrant Workers Convention has not entered into force. 37 See American Convention on Human Rights ("American Convention"), art. 1(1), O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/IL82 doc.6 rev.l at 25 (1992); [European] Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention"), art. 1, 213 U.N.T.S. 222, entered into force Sept. 3, 1953. 38 In addition to the Velasquez-Rodriguez case, supra note 4, see Applic. 15599/94, A v. U.K., report of 18 Sep. 1997 (European Commission on Human Rights stating,
"[E]ven in the absence of any direct responsibility for the acts of a private individual under Article 3 of the Convention, State responsibility may nevertheless be engaged through the obligation imposed by Article 1 of the Convention 'to secure ... the rights and freedoms defmed in Section 1 of this Convention"'). 39 Velasquez-Rodriguez case, supra note 4, at para. 182. 40 ibis at para. 173. 41 The court also speaks of the government's "duty to respect and guarantee [the Con- vention] rights". Velasquez-Rodriguez case, supra note 4, at para. 173. As states are not strictly liable for the acts of non-state actors, the word 'guarantee' may be strong. As the Velksquez-Rodriguez court itself noted, "of course, while the State is obligated to prevent human rights abuses, the existence of a particular violation does not, in itself, prove the failure to take preventive measures". Ibid at para. 175. 42 As stated in the Report of the Representative of the Secretary-General on Mass Exo- duses And Displaced Persons, "Abuses committed by non-State actors generally do not entail the responsibility of the States under human rights treaties, unless they are instigated, encouraged or at least acquiesced to by the Government concerned; oth- erwise they are typically labelled as infractions of a country's domestic laws. In such cases, the State is expected to take measures, to the best of its ability, to prevent fur- ther displacement, to alleviate the plight of the displaced and to bring those respon- sible to justice". Mass Exoduses And Displaced Persons, Report of the Representa- tive of the Secretary-General, Mr. Francis Deng, Addendum, E/CN.4/1998/53/Add.
43 While a state may not be bound by a particular obligation under eustomary law if it has been a persistent objector to that obligation, a state may not be a persistent ob- jector to rules of jus cogens. Judge Weeramantry of the International Court of Jus- tice, in his dissenting opinion in the Legality of the Threat or Use of Nuclear Weap- ons case, provided a catalog of rules of jus cogens: "the rules of jus cogens include: 'the fundamental rules concerning the safeguarding of peace, and notably those which forbid recourse to force or threat of force; fundamental rules of a humanitar- ian nature (prohibition of genocide, slavery and racial discrimination, protection of essential rights of the human person in time of peace and war)..." Legality of the Threat or Use of Nuclear Weapons (dissenting opinion of Judge Weeramantry) 1996 I.C.J. 226 (citing Recueil des cours de 1'Academie de droit international de La Haye, Vol. 134 (1971), p. 324, footnote 37). See also Restatement, supra note 26 at § 702. 44 Velasquez-Rodriguez, supra note 4, at paras. 169-170.
as The Draft Articles on State Responsibility were fmally adopted by the Commission in August 2001 and have been referred to the General Assembly. While the Draft Articles are not binding law, they are largely in accord with decisions of the Interna- tional Court of Justice and are highly persuasive evidence of the state of customary law. Article 7 provides: "The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions". Draft Articles on Responsibility of States for Internationally Wrongful Acts ("Draft Articles"), art. 7, A/CN.4/L.602/Rev.l, 26 July 2001. 46 See Youman's claim 4 UNRIAA 110, 3 ILR 223 (1926) (unlawful acts by militia imputed to the state of Mexico); see also the Mosse case, 13 UNRIAA 516, 5 ILR 146 (1929). An example of a state actor acting ultra vires is provided by the Special Rapporteur on Torture. In a 1999 report the rapporteur wrote: "By letter dated 23 September 1998, the Special Rapporteur advised the Government that he had re- ceived information indicating that the detention of women in so-called 'safe- custody' is a practice employed by the Bangladesh law enforcement system even though there is no basis in Bangladesh law for this form of detention. Women are reportedly placed in 'safe-custody' on a judge's approval of a police application. A judge can grant an application for 'safe-custody' solely on his own discretion. Fre- quently, this form of custody is used for women victims of rape, sexual assault, traf ficking in women, and kidnapping. This practice is cause for concern as it allegedly denies women their liberty, facilitates ill-treatment and serves more as a form of punishment than as a safety provision. Women in 'safe-custody' are said to be held with and treated like convicted criminals. Since there is no budget allocation to pro- vide for women in 'safe-custody', they usually have to do other prisoners' laundry in order to obtain a share of their rations". Civil and Political Rights, Including Ques- tions Of Torture And Detention, Report of the Special Rapporteur, Sir Nigel S, Rod- ley, E/CN.4/1999/6I, para. 79. The fact that there these actions on the part of law enforcement personnel are not authorized by Bangladesh law does not preclude di- rect state responsibility for the acts. 47 See U.S. v. Iran, supra note 29. See also 1992 Declaration on the Protection of All Persons from Enforced Disappearance, G.A. res. 47/133, 18 December 1992 (hold- ing states responsible where private individuals act "on behalf of' the government); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987, Article 1(1) (holding states
responsible for torture where it is inflicted "at the instigation of ... a public official or other person acting in an official capacity"). 48 Draft Articles, art. 8, supra note 44. In the absence of specific instructions, a fairly high degree of control has been required to attribute the conduct to the state. Accord- ing to the Commentary on the Draft Articles, "Such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct com- plained of was an integral part of that operation. The principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State's direction or control". Commentary to Draft Arti- cles, Report of the International Law Commission, 53`d Session, A/56/10. It should also be noted that different strands of jurisprudence have emerged as to the level of control required over organized, hierarchical groups. While the International Court of Justice has held that the proper standard for attribution is "effective control" over the group (Military and Paramilitary Activities in and against Nicaragua (Nicara- gua v. United States of America), Merits, I.C.J. Reports 1986, p. 14), including di- rection and participation in the particular act, the International Criminal Tribunal for the former Yugoslavia has found "overall control" to be sufficient and has not re- quired direction or participation by the state in the specific conduct (Case IT-94-1, Prosecutor v. Tadic, (1999) LL.M., vol. 38, p. 1518). In finding further that the state could be held responsible even for acts contrary to specific instructions, the ICTY Appeals Chamber noted that, generally speaking, "the whole body of international law on State responsibility is based on a realistic concept of accountability, which disregards legal formalities and aims at ensuring that States entrusting some func- tions to individuals or groups of individuals must answer for their actions, even when they act contrary to their directives". Ibid at para. 121.
49 Report on the mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime, E/CN.4/ 1996/ 53/Add.l, Addendum. The special rapporteur considers the case of women forced to render sexual services in wartime by and/or for the use of armed forces a practice of military sexual slavery. Ibid at para. 6. so laid at para. 26. 51 Ibid at para. 20, 95. 52 See U.S. v. Iran, supra note 29, at paras. 56, 61, 63, 67, 73, 74, 76, 79.
s3 Draft Articles, supra note 44, at art. 11. S4 Draft Articles, supra note 44, at art. 5. ss Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, GAOR - Fifty-first Session, Supplement No. 10 (A/51/10), at para. 375.
56 Draft Articles, supra note 44, at art. 9. 57 Black's Law Dictionary 17 (6th ed. 1990). 58 See Draft Articles, supra note 44, at art. 16. s9 Black's Law Dictionary 24 (6th ed. 1990).
60 See, e.g., 1992 Declaration on the Protection of All Persons from Enforced Disap- pearance, G.A. res. 47/133, 18 December 1992 (holding states responsible where private individuals act "with the support, direct or indirect, consent or acquiescence of the Government"); Torture Convention, supra note 46, at art. 1(1) (holding states responsible for torture where it is inflicted "with the consent or acquiescence of a public official or other person acting in an official capacity"). See also Mass Exo- duses And Displaced Persons, Report of the Representative of the Secretary- General, Mr. Francis Deng, Addendum, E/CN.4/1998/53/Add. ("Abuses committed by non-State actors generally do not entail the responsibility of the States under hu- man rights treaties, unless they are instigated, encouraged or at least acquiesced to by the Government concerned") (emphasis added); Restatement, supra note 26, at § 702 ("A state violates international law if, as a matter of state policy, it practices, encourages or condones" human rights violations, including genocide and others capable of being committed by non-state actors). 61 American Convention, supra note 36. 62 Although Colombia has been found responsible for creating and supporting such pa- ramilitary groups as part of its counterinsurgency efforts, the subsequent withdrawal of lawful support from and even criminalisation of such groups rendered untenable the argument that they were de jure state agents or otherwise authorized to exercise elements of governmental authority.
63 Riofrio Massacre, Inter-American Commission on Human Rights, REPORT N° 62/ 01, CASE 11.654, COLOMBIA, April 6, 2001, para. 48 (citing Int. Amer. Ct. H.R. Pan-iagua Morales et al Case, Sentence of March 8, 1998, paragraph 91) (emphasis added). 6' Ibid at para. 52. 6SIbid at para. 57.
66 Preliminary report submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1995/42, para. 213. 67 Report of the Special Rapporteur, Mr. Nigel S. Rodley, E/CN.4/1995/34, para. 550 (emphasis added).
68 Yelasquez-Rodriguez case, supra note 4, at para. 172. See also Kili� v. Turkey, European Court of Human Rights, Application N° 22492/93, 28 March 2000. 69 Ibid at para. 166. See also Final report on the situation of human rights in Afghani- stan submitted by the Special Rapporteur, Mr. Felix Ermacora, in accordance with Commission on Human Rights resolution 1994/84, E/CN.4/1995/64, para. 20 ("[Ar- ticle 2 of the Covenant] means that the State must not only refrain from committing human rights violations but that it should also prevent the violation of human rights and provide remedies for alleged human rights violations. Therefore, the structure and organization of the State must correspond to the cited requirements"). 70 Ibid at para. 167. 71 Preliminary report submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1995/42, para. 103 (citing Moore, Int. Arb. 495 (1872)). Note also a parallel development in refu- gee law. A well-founded fear of persecution is now deemed to include the failure of a state to protect individuals from conduct of non-state actors. See Islam v. Secretary Of State For The Home Department; Regina v. Immigration Appeal Tribunal And Another Ex Parte Shah (Conjoined Appeals), 25 March 1999, House of Lords, Lord Steyn ("Notwithstanding a constitutional guarantee against discrimination on the grounds of sex a woman's place in society in Pakistan is low. Domestic abuse of women and violence towards women is prevalent in Pakistan. That is also true of many other countries and by itself it does not give rise to a claim to refugee status.
The distinctive feature of this case is that in Pakistan women are unprotected by the state: discrimination against women in Pakistan is partly tolerated by the state and partly sanctioned by the state"). 72 Ibid Report on the question of the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, sub- mitted by Mr. Enrique Bernales Ballesteros, Special Rapporteur, E/CN.4/1995/29 (noting obligation of states to prevent, prosecute, and punish mercenary activities, whether "organized by public bodies or private persons"); Joint report of the Special Rapporteur on the question of torture, Mr. Nigel S. Rodley, and the Special Rappor- teur on extra judicial, summary or arbitrary executions, Mr. Bacre Waly Ndiaye, Visit by the Special Rapporteurs to the Republic of Colombia from 17 to 26 October 1994, E/CN.4/1995/111, para. 115. '3 Mass Exoduses And Displaced Persons, Report of the Representative of the Secre- tary-General, Mr. Francis Deng, Addendum, E/CN.4/1998/53/Add. ("[In the event of abuses committed by non-State actors], the State is expected to take measures, to the best of its ability, to prevent further displacement, to alleviate the ptight of the displaced and to bring those responsible to justice"). 74 Report of the Secretary-General on Violence against women migrant workers, A/51/325, para. 53 ("States should be held accountable, in accordance with the 'due diligence principle', for their inaction on issues of violence against women migrant workers"). 75 CEDAW, General Recommendation 19, A/47/38, para. 9 (1992) ("Under general international law and specific human rights covenants, States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing com- 76 ��dmmunication No. 4/1991, L.K. v. The Netherlands (finding that state vio- lated Article 4(a) of CERD in failing "to investigate with due diligence and expedi- tion" in response to racist remarks and threats made to complainant by private per- sons). 77 Concluding observations of the Committee on the Elimination of All Forms of Ra- cial Discrimination: United Arab Emirates, A/50/18 ("The Committee recommends that the State party show the utmost diligence in preventing acts of ill-treatment be- ing committed against foreign workers, especially foreign women domestic servants, and take all appropriate measures to ensure that they are not subjected to any racial discrimination"). 78 Expert group meeting on children and juveniles in detention: application of human rights standards (Vienna, 30 October - 4 November 1994), Report of the Secretary- General, E/CN.4/1995/100, para. 44 ("[We] urge States to apply due diligence to prevent and investigate such acts of exploitation against children and to ensure that appropriate sanctions are applied against the adults who exploit the children, rather than against the children who are victims of such crimes").
79 The elimination of violence against women, Commission on Human Rights resolu- tion 1996/49, para. 4 (emphasizing "the duty of Governments to refrain from engag- ing in violence against women and to exercise due diligence to prevent, investigate and, in accordance with national legislation, to punish acts of violence against women and to take appropriate and effective action concerning acts of violence against women, whether those acts are perpetrated by the State or by private persons and to provide access to just and effective remedies and specialized assistance to victims"). eo ESC, Res. 1996/12, Elimination of violence against women (endorsing the UN Dec- laration on the Elimination of Violence against Women and Commission on Human Rights resolutions 1995/85 and 1996/49). 81 Declaration on the Elimination of Violence against Women, G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993), art. 4(c) (declaring that states are under a duty to exercise due diligence to prevent, investigate, and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the state or by private persons). 82 D. Sullivan, The PubliclPrivate Distinction in International Human Rights Law 130; S. Farrior, 'The International Law on Trafficking in Women and Children for Prosti- tution : Making it Live Up to its Potential' (1997) 10 Harv. Hum. Rts. J. 213, 225 ("By virtue of Article 2 of the Covenant, states violate their obligations under the Covenant if they fail to exercise due diligence to end slavery and the slave trade by private actors within their jurisdiction"); R.J. Cook, 'State Responsibility For Viola- tions of Women's Human Rights' (1994) 7 Harv. Hum. Rts. J. 125; D. Shelton, 'Pri- vate Violence, Public Wrongs and the Responsibilities of States' (1989) 13 Fordham Intl. L. J. 1, 23. a3 Over-reliance on criminal justice responses raises additional concerns. See Sullivan, supra note 82, at 133 ("[A]ny analysis of the use of criminal penalties as a response to domestic violence must consider whether effective restraints on the exercise of police power are in place"). a° Yelksquez-Rodriguez case, supra note 4, at para. 167; Human Rights Committee, General Comment 16; ESCR Committee, General Comment 5, para. 11 (1994); Artico v. Italy, series A, 37 ECtHR 16 ("The [European] Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective"); A v. U.K., supra note 37, at para. 48 (European Commission stating that "[i]n order that a State may be held responsible it must in the view of the Commis-
sion be shown that the domestic legal system ... fails to provide practical and effec- tive protection of the rights guaranteed..."). 85 Velksquez-Rodriguez case, supra note 4, at para. 175. See also Human Rights Com- mittee, General Comment 17, (each state has a duty to take "every possible eco- nomic and social measure ... to reduce infant mortality and to eradicate malnutrition among children and to prevent them from being subjected to acts of violence and cruel and inhuman treatment or from being exploited by means of forced labour or prostitution, or by their use in the illicit trafficking of narcotic drugs, or by any other means") (emphasis added). sb Ibid. 87 D. Shelton, 'Private Violence, Public Wrongs and the Responsibilities of States' (1989) 13 Fordham Intl. L. J. 1, 23 (asserting that due diligence requires "reasonable measures of prevention that a well administered government could be expected to exercise under similar circumstances"). 88 Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, E/CN.4/1999/68, para. 25(vii); Report by Mr. M. G1616-Ahanhanzo, Special Rapporteur on contemporary forms of racism, ra- cial discrimination, xenophobia and related intolerance, E/CN.4/1996/72/Add.l; Re- port on the situation of human rights in Rwanda submitted by Mr. R. Degni-Segui, Special Rapporteur of the Commission on Human Rights, E/CN.4/1995/, para. 140; ESCR Committee, General Comment 5 (1994); Concluding observations of the Committee on the Rights of the Child: Sudan, CRC/C/15/Add.lO, para. 22. 89 Follow-up to the Fourth World Conference on Women: Implementation of Strategic Objectives and Action in the Critical Areas of Concern, Thematic issues before the Commission on the Status of Women, Report of the Secretary-General, E/CN.6/ 1998/5, para. 12; Principles on the Effective Prevention and Investigation of Extra- legal, Arbitrary and Summary Executions, Principle 8, endorsed in ESC Resolution 1989/ 65.
90 Joint report of the Special Rapporteur on the question of torture, Mr. N. S. Rodley, and the Special Rapporteur on extra judicial, summary or arbitrary executions, Mr. Bacre Waly Ndiaye, Visit by the Special Rapporteurs to the Republic of Colombia from 17 to 26 October 1994, E/CN.4/1995/111, para. 121 (recommending effective reparation to the victims or their dependants, including adequate compensation and measures for their rehabilitation); Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/ 1999/68, para. 25(vi). 91 Situation of human rights in Cambodia, Report of the Special Representative of the Secretary-General for Human Rights in Cambodia, Mr. M. Kirby, E/CN.4/1996/93, para. 61; Declaration on the Elimination of Violence against Women, supra note 80, at art. 4(i). 92 Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, E/CN.4/1999/68, para. 25(i); Report by Mr. M. Glele-Ahanhanzo, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, E/CN.4/1996/72/Add.l. 93 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Principle 8, endorsed in ESC Resolution 1989/65; Expert group meeting on children and juveniles in detention: application of human rights standards, Report of the Secretary-General, E/CN.4/1995/100; Situation of human rights in Cambodia, Report of the Special Representative of the Secretary-General for Human Rights in Cambodia, Mr. M. Kirby, E/CN.4/ 1996/93, para. 61. 94 General Assembly resolution 53/116, Traffic in Women and Girls, A/RES/53/116, para. 3 (1999). 95 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Principle 15, endorsed in ESC Resolution 1989/65. 96 Declaration on the Elimination of Violence against Women, supra note 80, at art. 4(k). 97 Declaration on the Elimination of Violence against Women, supra note 80, at art. 4(g); Principles on the Effective Prevention and Investigation of Extra-legal, Arbi- trary and Summary Executions, Principle 17, endorsed in ESC Resolution 1989/65.
98 Report by Mr. M. G1616-Ahanhanzo, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, E/CN.4/1995/78/ Add.1. 99 Expert group meeting on children and juveniles in detention: application of human rights standards, Report of the Secretary-General, E/CN.4/1995/100; Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47, para. 15. loo A report of the Special Representative on Cambodia states: "The lack of integrity of some of the courts also undermines justice. In November 1998, the Special Repre- sentative sent a letter to the General Prosecutor about the beating to death of a young woman by a brothel owner in Banteay Meanchey. A charge of voluntary manslaugh- ter against the brothel owner had been dismissed by the investigating judge of the Banteay Meanchey Provincial Court, who cited 'lack of evidence' as grounds for dismissal despite the testimonies of 11 eyewitnesses to the beating. Also in Novem- ber, the General Prosecutor sent a letter to the Banteay Meanchey prosecutor, noting the existence of procedural errors and recommending that charges of involuntary manslaughter, battery with injury, and violation of the law against trafficking in women be filed against the brothel owner. In December 1998, a representative of the Ministry of Justice went to Poipet to investigate the case. His investigation was hin- dered by veiled threats and intimidation by the local authorities. That same month, the President of the Banteay Meanchey Court stated that the evidence in the case (the 11 testimonies) had been lost; he seemed reluctant to file additional cases against the brothel owner, stating that the latter was being supported by powerful people in the military". Situation of human rights in Cambodia, Report of the Spe- cial Representative of the Secretary-General for Human Rights in Cambodia, Mr. T. Hammarberg, E/CN.4/ 1999/ 101, para. 58.
101 Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, E/CN.4/1996/53, paras. 37, 141. 102 See Velasquez-Rodriguez case, supra note 4, at para. 177 ("Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the in- ternational plane"). l03 Under Article 2(3)(a) of the ICCPR, each state party undertakes "[t]o ensure that any person whose rights or freedoms as herein recognized are violated shall have an ef fective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity". ICCPR, supra note 32, at art. 2(3)(a). Similarly, Ar- ticle 13 of the European Convention provides, "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity". European Convention, supra note 36, at art. 13. In a case where a physical injury was inflicted by a private school headmaster, the Euro- pean Commission found that the U.K. had breached its obligation under Article 13 because the "English legal system ... provided no effective redress". Applic. 14229/ 88, Y v. U.K, report of 8 Oct. 1991, Res. DH (92)63, para. 45. Note that this case was settled before reaching the European Court. Although in a similar case that did reach the court it found that there was no violation of Article 13, the court did not base its decision on the fact that the injury was inflicted by a non-state actor. But the efficacy of this provision has been limited by statements of the court to the effect that Article 13 "does not go so far as to guarantee a remedy allowing a Contracting State's laws as such to be challenged before a national authority on the ground of be- ing contrary to the Convention or to equivalent domestic legal norms". Costello- Roberts v. U.K., Series A no. 247-C, p. 62, para. 40.
1°4 Riofrio case, supra note 62. 105 See e.g., Vienna Declaration and Programme of Action A/CONF 157/23, World Conference on Human Rights, Vienna, 14-16 June 1993, Part I, § 18 ("Gender-based violence and all forms of exploitation, including those resulting from cultural preju- dice and international trafficking, are incompatible with the dignity and worth of the human person and must be eliminated"); Beijing Declaration and Platform for Ac- tion of the Fourth World Conference on Women, China, 4-15 September 1995 (Stra- tegic objective D3. Eliminate trafficking in women and assist victims of violence due to prostitution and trafficking). lob A/RES/55/67, 31 January 2001. 107 This body of law is highly developed and should be employed for the protection of females under the age of majority, with full regard for the key principle of non- discrimination, the evolving capacities of the child, and the child's right to healthy survival and participation. See, e.g., Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, adopted and opened for signature, ratification and accession by General Assembly
resolution A/RES/54/263 of 25 May 2000. See also, ILO Convention 182 on the Worst Forms of Child Labour, 1999. 108 Such as the right to health, the right to an adequate standard of living, and the right to adequate housing. 109 See, e.g., Concluding observations of the Human Rights Committee: Nepal, 10/11/ 94, CCPR/C/79/ Add.42., para. 7 ("The persistence of practices of debt bondage, trafficking in women, child labour, and imprisonment on the ground of inability to fulfil a contractual liability constitute clear violations of several provisions of the Covenant"). The above enumeration of rights implicated is not intended to be ex- haustive. llo Council of Europe, Parliamentary Assembly, Recommendation 1325, para. 3 (1997) ("Considering traffic in women and forced prostitution thus defined to be a form of inhuman and degrading treatment and a flagrant violation of human rights, the As- sembly feels the need for urgent and concerted action on the part of the Council of Europe, its individual member states and other international organisations" (empha- sis added)). 111 Note the application of this right to violations of physical and moral integrity. See, e.g., Airey v. Ireland, 32 Eur. Ct. H.R. (ser. A) (1979) (finding that Ireland failed to ensure applicant's right to respect for private and family life because it had not pro- vided an accessible legal procedure for her to obtain a legal separation from a hus- band who had been threatening her with violence).
112 See J. Chuang, 'Redirecting the Debate over Trafficking in Women: Definitions, Paradigms, and Contexts' (1998) 11 Harv. Hum. Rts. J. 65, 69 ("[R]acial factors can drive international trafficking across borders for the purpose of recruiting foreign women to meet the racial preferences of certain brothel clientele" (citing Human Rights Watch, Global Report on Women's Human Rights 232-33 (1995)); Commu- nication From the European Commission to the Council and the European Parlia- ment on Trafficking in Women for the Purpose of Sexual Exploitation 5 ("It also appears that demand for 'exotic' prostitutes is growing..."); Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47 ("Today, women are primarily trafficked from the South to the North ... [T]rafficking in women is fuelled by poverty, racism and sex- ism"). 113 "Other status" in this context includes discrimination on the basis of social and eco- nomic status. 114 ICCPR, art. 19(2). See also UDHR, art. 19; CEDAW, art. 10(h). lIS Report on the mission of the Special Rapporteur to Poland on the issue of trafficking and forced prostitution of women (24 May to 1 June 1996), E/CN.4/1997/47/Add.l., ., para. 60, 62 ("Methods of recruitment are varied, but all of them intend to deceive the victim about the true nature of her employment abroad, lure her into a confi- dence relationship with the trafficker and eventually create an inescapable depend- ency on the eventual 'employer' ... These women are sometimes aware of what is expected of them abroad and often agree to leave their country in expectation of a substantial increase in income. What they are not aware of, however, are the condi- tions of virtual slavery and debt bondage they might fmd themselves in abroad"). 116 In addition, states must be careful to avoid direct violation of this right in the formu- lation of protective measures. For example, many of the proposals to 'end traffick-
ing' include shutting down mail order bride businesses as facilitating trafficking, and a whole host of Internet regulations, all of which impinge upon the freedom of ex- pression. Report of the Special Rapporteur on violence against women, February 2000, supra note 3. See also Volume I: Annual General Assembly Report of the Human Rights Committee, 21/09/94, A/49/40, para. 252 ("The Committee regrets that [Togo] has not yet embarked on all the necessary reforms to cope with the factors and difficul- ties impeding equality of men and women in order to fully implement article 3 of the Covenant. The reported cases of traffic of women, the effect of certain customs and traditions, as well as the lack of effective government measures aiming at promoting equality of the sexes constitute matters of grave concern"); Communication From the European Commission to the Council and the European Parliament on Traffick- ing in Women for the Purpose of Sexual Exploitation 5 ("IOM studies indicate that the causes of migration related to trafficking in women can be found, inter alia, in the ... marginalisation of women in the source countries. Poor or non-existent education is also of critical importance, and in areas where unemployment is high, women tend to be more severely affected than men"); Rights of the Child: Sale of Children, Child Prostitution and Child Pornography, Report submitted by Mr. Vitit Muntarbhorn, Special Rapporteur, UN ESCOR, Commission for Human Rights, 50th Sess., Agenda Item 22, at 3, UN Doc. E/CN.4/1994/84/Add.l (1994). 118 CEDAW, art. 6 (emphasis added). Note that the Optional Protocol to the Women's Convention could prove a powerful vehicle for addressing trafficking violations. The Protocol allows complaints to be brought by women alleging violations of their rights under the Convention. In addition, the Committee could conduct an inquiry where it receives reliable information regarding grave or systematic violations of the Convention. Trafficking could be addressed under either mechanism.
"9 CEDAW, art. 11(1)(f) ("The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction") and art. 12(1) ("States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care"). See also UDHR, art. 25(1) ("Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services"); 1CESCR, art. 12(1) ("The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health"). 120 Beijing Declaration and Platform for Action of the Fourth World Conference on Women, China, 4-15 September 1995, Objective D, § 122. The increased risk of con- tracting a fatal illness, such as AIDS, would also constitute a threat to the right to life. 121 See Preliminary report submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1995/ 42, paras. 205-213. 122 Declaration on the Elimination of Violence Against Women, supra note 80, pream- ble.
123 Report on the mission of the Special Rapporteur to Poland on the issue of trafficking and forced prostitution of women (24 May to 1 June 1996), E/CN.4/1997/47/Add.l., para. 23. 124 Slavery Convention, 60 L.N.T.S. 253, entered into force March 9, 1927; Protocol amending the Slavery Convention, 182 U.N.T.S. 51, entered into force December 7, 1953; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, entered into force April 30, 1957; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 96 U.N.T.S. 271, entered into force July 25, 1951. Note that the 1957 Supplementary Slavery Convention also prohibits insti- tutions and practices similar to slavery, including debt bondage, serfdom, the sale or inheritance of a woman, and child exploitation. Supplementary Slavery Convention at art. 1. 125 Note that subjecting women to slavery-like conditions would also constitute a viola- tion of the right to work under Article 23 of the UDHR ("Everyone has the right to work, to free choice of employment, to just and favourable conditions of work"; "Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human digmty"); Article 6( 1 ) of the ICESCR ("The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right"); and Article 11 of CEDAW ("States Parties shall take all appropriate meas- ures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women ... [t]he right to work ...; [t]he right to the same employment opportunities ...; [t]he right to free choice of profes- sion and employment ...; [t]he right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction").
126 Slavery Convention, 60 L.N.T.S. 253, entered into force March 9, 1927. In addition, debt bondage, a practice specifically prohibited by the 1957 Supplementary Slavery Convention, is often used by traffickers in order to control trafficked women. See supra note 123. Article 3 of the Supplementary Convention requires states to take steps to suppress the slave trade. 127 See, e.g., Report on the mission of the Special Rapporteur to Poland on the issue of trafficking and forced prostitution of women (24 May to 1 June 1996), E/CN.4/ 1997/47/Add.l, para. 66 ("Once the woman reaches her destination, her passport is usually taken away and given to the brothel owner, who thereby acquires control over her. She is beaten into submission and forced to consent to her new life as a prostitute"). 128 Council of Europe, Opinion of the Steering Committee for Equality between Women and Men (CDEG) on Parliamentary Assembly Recommendation 1325 (1997), CM/Del/ Dec(97) 592/3.1, para. 8; see also Report of the Human Rights Committee: 15/09/98. A/53/40, (1998) ("333. It is noted with appreciation that the [Italian] judiciary has begun to treat offences concerning trafficking of women and others for the purpose of prostitution as acts which can be assimilated to slavery and contrary to international and national law"). 129 Preliminary report submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1995/42, para. 212 ("[Many of these women] may also be illegally confined to the brothels, through the practice of withholding passports or through more physically abusive means. In one known incident, five girl prostitutes in Thailand were burned to death in a brothel because they had been chained to their beds and could not get away"). '3o Ibid
13' Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47. i3z The Committee stated, "Having regard to their obligations under article 8, States parties should inform the Committee of measures taken to eliminate trafficking of women and children, within the country or across borders, and forced prostitution. They must also provide information on measures taken to protect women and chil- dren, including foreign women and children, from slavery, disguised inter alia as domestic or other kinds of personal service. States parties where women and chil- dren are recruited, and from which they are taken, and States parties where they are received should provide information on measures, national or international, which have been taken in order to prevent the violation of women's and children's rights". General Comment 28, at para. 12. i33 See Preliminary Report, supra note 128. 134 Report of the Special Rapporteur on violence against women, its causes and conse- quences, E/CN.4/1999/68/Add.4, paras. 26 & 27.
I3S Report of the Special Rapporteur on violence against women, its causes and conse- quences, E/CN.4/1999/68/Add.4, para. 26 ("Moreover, subjected, in effect, to multi- ple rapes, these women suffer serious psychological consequences from their re- peated victimization"). 136 Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47. 137 Report of the Special Rapporteur on violence against women, its causes and conse- quences, E/CN.4/1999/68/Add.4, para. 25 ("Using a combination of threats, physical force, illegal confmement and debt bondage, brothel owners prevent escape or nego- tiation by these women"). 138 Preliminary report submitted by the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1995/42, para. 212.
i39 See J. Chuang, 'Redirecting the Debate over Trafficking in Women: Definitions, Paradigms, and Contexts' (1998) 11 Harv. Hum. Rts. J. 65, 81. 140 See Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47 ("Reportedly, offi- cials of both Myanmar and Thailand are involved in trafficking women from Myanmar to Thailand. 'In many instances, the girls could document instances of be- ing transported into Thailand with policemen in uniform, armed and often in police vehicles"). 141 Civil and Political Rights, Including Questions Of Torture And Detention, Report of the Special Rapporteur, Sir N.S. Rodley, E/CN.4/1999/61, para. 79. 142 Report on the mission to the Democratic People's Republic of Korea, the Republic of Korea and Japan on the issue of military sexual slavery in wartime, E/CN.4/1996/ 53/Add.l, Addendum. �a3 Ibid: ("In the quest for more women, private operators working for the military, as well as members of the Korean police force who worked in collaboration with the Japanese, would come to the villages and deceive girls with the promise of well-paid work. Alternatively, in the years preceding 1942, Korean police would arrive in a village recruiting for the 'Women's Voluntary Service Corps'. This made the proc- ess official, sanctioned by the Japanese authorities, and it also implied a certain level of compulsion"). These actions would also constitute violations of international hu- manitarian law. See Ibid.
Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47 ("Additionally, bribes are often required to facilitate border crossing.... Police officers are also notorious for corruption and for abuse of power over trafficked women. According to a Nepalese non-governmental organization, the only way to see a case of trafficking prosecuted is to bribe the local police. Local government officials in Nepal undermined a vil- lage awareness program when they accused women who were teaching villagers about migration and trafficking of lying, arguing that trafficking did not exist"). ). 14S Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47 ("Yai's customers included high-ranking Taiwanese policemen who received free sexual services in return for protection"); Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47 ("Once in Thailand the brothels are under protection and had the patronage of the police. One of the girls tells that she saw the police in all the brothels where she worked. They seemed to know the owner very well and were often around with their uniforms, guns and walkie-talkies. They also often took the girls to the rooms or out for the whole night. In Klong Yai the police had special arrangements with the owner and could take the girls for free"). 146 The special rapporteur has noted some reasons why countries may be inclined to al- low trafficking to continue unabated. Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/ 1997/47 ("Countries of origin, many with a vested economic interest in and some with an official policy of promoting international migration, have little incentive to curb activities that may increase the generation of external revenue. It is estimated that the Government of the Philippines earns US$ 2 billion from remittances by overseas contract workers. Conversely, countries of destination associate high costs with the retention within their borders of individuals residing illegally in their terri- tory and have no incentive to do more than deport trafficked women back to their home countries").
147 Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47. 148 Concluding observations of the Committee on the Elimination of Discrimination against Women: Bulgaria ("Bulgaria Report"), 14/05/98, A/53/38, para. 256 ("The Committee suggests that in order to tackle the problem of trafficking in women, it is essential to address women's economic vulnerability, which is the root cause of the problem"). See also Concluding observations of the Committee on the Elimination of Discrimination against Women: Dominican Republic, 14/05/98, A/53/38, para. 33 ("The Committee expresses deep concern about the economic consequences of women's poverty. Women's migration to urban areas and to foreign countries render them susceptible to sexual exploitation, including trafficking and sex tourism, and prostitution.... The Committee is concerned that notwithstanding the high level of poverty among women, and especially of women-headed households, no affirmative action measures are being taken to support women's efforts to break the cycle of poverty"). 149 These measures have been drawn from: General Assembly resolution 55/67, Traffic in Women and Girls, A/RES/55/67 (2001); General Assembly resolution 53/116, Traffic in Women and Girls, A/RES/53/116 (1999); Commission on Human Rights resolution 2001/48, 1997/44, and 1995/85; Follow-up to the Fourth World Confer- ence on Women: Implementation of Strategic Objectives and Action in the Critical Areas of Concern, Report of the Secretary-General, E/CN.6/1998/5, para. 12; Con- cluding observations of the Committee on the Elimination of Discrimination against Women: Bulgaria ("Bulgaria Report"), 14/05/98, A/53/38, para. 256; Joint Action of 24 February 1997 adopted by the European Council on the basis of Article K.3 of the Treaty on European Union concerning action to combat trafficking in human be-
ings and sexual exploitation of children, 97/154/JHA, Doc. No. 497X0154, Official Journal L 063, 04/03/1997 p. 0002-0006, at I.B.(a); Council of Europe, Parliamen- tary Assembly, Recommendation 1325 (1997) on traffic in women and forced prostitution in Council of Europe member states; Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1999/68, para. 25(i); Declaration on the Elimination of Violence against Wo- men, supra note 80; CEDAW, General Recommendation 19, A/47/38 (1992); Concluding observations of the Human Rights Committee: Nepa1,10/11/94, CCPR/C/79/ Add.42., paras. 13-14; Global Programme against Trafficking in Human Beings, An outline for action, Centre for International Crime Prevention 7 (1999); Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Kyrgyzstan ("Kyrgyzstan Report"), 27/01/99, CEDAW/C/I999/I/L.1/ Add.3., para. 37; Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47, para. 15; Report of the Human Rights Committee: 15/09/98, A/53/40, para. 312; Vienna Declaration and Programme of Action, 12/07/93, A/CONF.157/23; Report of the Secretary- General, E/CN.4/1995/100.
150 See, e.g., Report on the mission of the Special Rapporteur to Poland on the issue of trafficking and forced prostitution of women (24 May to 1 June 1996), E/CN.4/ 1997/47/Add.l., para. 99 ("The Special Rapporteur was able to observe that, as al- ready mentioned, judges give very light, suspended sentences to perpetrators of traf ficking, even though the law stipulates a minimum of three years' imprisonment"). 151 See Report of the Human Rights Committee: 15/09/98, A/53/40, para. 312 ("The Com- mittee regrets that women brought to Israel for purposes of prostitution, many under false pretences or through coercion, are not protected as victims of trafficking but are likely to be penalized for their illegal presence in Israel by deportation. Such an approach to this problem effectively prevents these women from pursuing a rem- edy for the violation of their rights under article 8 of the Covenant. The Committee recommends that serious efforts be made to seek out and punish the traffickers, to institute rehabilitation programs for the victims and to ensure that they are able to pursue legal remedies against the perpetrators"). 152 See Report on the mission of the Special Rapporteur to Poland on the issue of traf ficking and forced prostitution of women (24 May to 1 June 1996), E/CN.4/1997/ 47/Add.l, paras. 101, 104 ("[In Western European countries other than] the Nether- lands and Belgium, a woman from a Central or Eastern European country caught without a valid visa, involved in trafficking, will be immediately deported.... De- ported women return to their countries of origin, including Poland, with very little support. In some host countries, non-governmental organizations provide assistance, including vocational training, to women victims until their deportation, but once in their home countries they are completely on their own. Women who have returned are afraid that they will not be accepted by their families or local communities, they
fear revenge and blackmail from their traffickers - all of which the women have to face mostly alone. In Poland, the Special Rapporteur found that there exist no pro- grammes whatsoever for returning women: no police programmes, no shelters and only very few non-governmental organizations dealing with this problem, except for the recently established organization La Strada. The women victims receive no assistance in re-socialisation and in rebuilding their lives"). 153 Communication No 692/1996: A. R. J. v. Australia, 11/08/97, CCPR/C/60/D/692/ 1996, para. 6.9. Another option would be to argue that the entitlement under Article 5 of the Trafficking Convention to take part in the proceedings against the trafficker on the same terms as nationals requires at least postponing deportation from states where nationals do have the right to participate in such proceedings. However, any use of the 1949 Convention may be seen as endorsing it and should therefore be avoided. is4 Report of the Special Rapporteur on violence against women, its causes and conse- quences, Ms. Radhika Coomaraswamy, E/CN.4/1997/47.
us UNMIK Regulation No. 2001/4 ON THE PROHIBITION OF TRAFFICKING IN PERSONS IN KOSOVO ("Regulation No. 4" or "the Regulation"), U1VMIK/REG/ 2001/4, 12 January 2001. The Regulation is not intended to deal with the crime of prostitution, which is prohibited under the applicable law of Kosovo. IS6 The draft Regulation was subject to further modification by the Office of the L1N- MIK Legal Advisor and by LTN Headquarters. As with all legislation, some provi- sions resulted from a process of political negotiation and compromise.
'S' Indeed, the breadth of the definition was a cause of concern for some Working Group members who considered that the defmition as a whole may not be suffi- ciently precise to put potential offenders on notice of the contours of the proscribed conduct. They noted that the defmition was taken from a treaty and that it is not un- common for governments to make modifications to criminal definitions set forth in international legal instruments in order to tailor those definitions to the circum- stances prevailing within their territories.
158 Note, however, that in the case of minors, the 'means' element is not required. See infra. IS9 While the Trafficking Protocol is limited by the parameters of the parent convention, the Regulation is not so limited. Thus, international movement is not required for an act to qualify as trafficking under the Regulation. 160 under Article 1 of the 1949 Convention, states parties "agree to punish any person who, to gratify the passions of another: (1) Procures, entices or leads away, for pur- poses of prostitution, another person, even with the consent of that person; (2) Ex- ploits the prostitution of another person, even with the consent of that person". Con- vention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, Dec. 2, 1949, opened for signature Mar. 21, 1950, 96 U.N. T.S. 272, 282 (entered into force July 25, 1951). This definition is flawed for its un- der- and over-inclusiveness. It is under-inclusive in that it defines trafficking as ap- plicable only to movement for the purposes of prostitution. It therefore excludes traf ficking for non-sexual economic exploitation, such as forced factory or domestic work. It is over-inclusive in that it makes the consent of the victim irrelevant. The fact that consent is deemed irrelevant makes the convention itself rights violative by denying women's agency and demonstrates the criminal nature of the instruments The convention's focus on criminalization is also seen in the fact that the definition turns on the intent of the trafficker, rather than on the circumstances of the person being moved.
161 General Assembly Resolution 49/166 of 23 December 1994. 162 See Joint Action of 24 February 1997 adopted by the Council on the basis of Article K.3 of the Treaty on European Union concerning action to combat trafficking in human beings and sexual exploitation of children, 97/154/JHA, Doc. No. 497X0154, Official Journal L 063 , 04/03/1997 p. 0002-0006, at l.B.(a) (employing a definition of trafficking that requires that ruse is made of coercion, in particular violence or threats, or deceit is used, or there is abuse of authority or other pressure, which is such that the person has no real and acceptable choice but to submit to the pressure or abuse involved"). i63 See Council of Europe, Parliamentary Assembly, Recommendation 1325 (1997) on traffic in women and forced prostitution in Council of Europe member states ("The Assembly defines traffic in women and forced prostitution as any legal or illegal transporting of women and/or trade in them, with or without their initial consent, for economic gain, with the purpose of subsequent forced prostitution, forced marriage, or other forms of forced sexual exploitation. The use of force may be physical, sex- ual and/or psychological, and includes intimidation, rape, abuse of authority or a situation of dependence") (emphasis added). 164 See also Global Alliance Against Traffic in Women ("GAATW"), Human Rights Standards for the Treatment of Trafficked Persons, January 1999, which defines traf ficking as "All acts and attempted acts involved in the recruitment, transportation within or across borders, purchase, sale, transfer, receipt or harbouring of a person involving the use of deception, coercion (including the use or threat of force or the abuse of authority) or debt bondage for the purpose of placing or holding such per- son, whether for pay or not, in involuntary servitude (domestic, sexual or reproduc- tive), in forced or bonded labour, or in slavery-like conditions, in a community other than the one in which such person lived at the time of the original deception, coer- cion or debt bondage" (emphasis added).
165 Thus, such consent is relevant only where the victim has consented: to be moved; to the conditions of movement (transit conditions); to the purpose of the movement (e.g. type of job in destination country, invitation, simply to travel, etc.); to the end conditions (including location). Having all of this in mind, it is clear that someone can have consented to working as a prostitute, but still have been trafficked. 166 Accompanied by a broad interpretation of 'the exploitation of the prostitution of others or other forms of sexual exploitation', a likely occurrence in the present juris- prudential environment, this would mean that someone who consents to facilitation of their illegal migration, such facilitation involving fraud or coercion or deception perpetrated against anyone in the process (e.g. visa issuer), and where such person intends to work as a sex worker in the destination country, irrespective of whether such sex work is legal in the destination country, it is entirely possible that the facili- tator could be found guilty of trafficking in persons (an international crime) and that the illegal migrant would be considered a 'victim' of trafficking. 167 See FRY Code, art. 22 ("If several persons jointly commit a criminal act by partici- pating in the act of commission or in some other way, each of them shall be pun- ished as prescribed for the act") and art. 24 ("Anybody who intentionally aids an- other in the commission of a criminal act shall be punished as if he himself had committed it, but his punishment may also be reduced").
'68 FRY Code. 169 This is without prejudice to any questions of state responsibility. UNMIK, for ex- ample, is required to conduct training for its border police, sensitising them to the is- sue and establishing special procedures for suspected traffickers and trafficking vic- tims.
170 As stated by the Legal System Monitoring Section of the OSCE Mission in Kosovo, "In particularly sensitive cases and those involving organised criminal activity, more substantial mechanisms for the protection of victims and witnesses are essential, such as the provision of immunity and longer-term protection of key witnesses (in- cluding, for example, a relocation programme). At this time, UNMIK has not yet formulated any guidelines for the protection of victims and witnesses in the court- rooms, nor established any mechanisms or programs for substantial witness protec- tion. Working-groups led by UNMIK police have been established to address these issues". Report of the OSCE Mission in Kosovo, Kosovo: A Review of the Criminal Justice System, I September 2000-28 February 2001 (March 2001).
171 While the FRY Code provides for confiscation of property, it may be "imposed only for the criminal acts for which it is expressly prescribed, and when a punishment of imprisonment for a term of at least three years has been imposed on the offender" FRY Code, art. 40. 172 The Special Rapporteur had recommended an absolute bar on the introduction of character or personal history evidence. See Report of the Special Rapporteur on vio- lence against women, February 2000, supra note 3, at para. 117 ("The personal his- tory, the alleged 'character' or the current or previous occupation of the victim must not be used against the victim, nor serve as a reason to disqualify the victim's com- plaint or to decide not to prosecute the offenders. For example, the offenders must be prohibited from using as a defence the fact that the person is, or was at any time, a sex worker or a domestic worker"). Presumably, the absolute prohibition recom- mended by the Special Rapporteur is aimed at eliminating the evil of drawing un- warranted (and morally loaded) inferences rooted in sex discrimination. Initially, the draft Regulation prohibited introduction of character and personal history evidence, but many members of the group thought this was so broad as to impinge upon the defendant's right to a fair trial. The Working Group determined that evidence of employment history may in some cases be relevant as it may tend to negate one of
the elements of the crime (i.e., the means requirement). An alternative proposal pro- hibited the introduction of character evidence, and allowed evidence of personal his- tory (e.g. employment history) only in exceptional cases with the approval of the court after in camera review, this latter provision being modelled after rape shield laws. The fmal text provides for the possible use of either type of evidence, but sub- jects both to the same review process. 173 The European Court of Human Rights has recognized that in certain cases it is nec- essary for the authorities to take steps to protect victims and witnesses, even where such steps may infringe on the right of the defendant to confront witnesses. See Dorson v. Netherlands (1996) 22 ECHR 330.
174 An administrative direction should expressly provide for the right to appeal from an adverse determination by the Coordinator.
17S 1951 Convention Relating to the Status of Refugees, entry into force 22 April 1954. 176 There are several cases in which trafficking victims may also be refugees. First, given the vulnerability of their situation, refugees are more likely to become victims of trafficking to a further destination. Second, the mechanism of flight of a refugee may constitute trafficking. Finally, in cases of trafficking for the purpose of forced prostitution, a victim may become a refugee sur place if she or he would face perse- cution if returned home due to having worked as prostitute (whether voluntarily or not).
177 UNMIK Regulation 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo ("Regulation 2000/47"), Sections 2.1 and 3.1,LTNMIK/REG/2000/47, 18 August 2000. 178 "UNMIK personnel, including locally recruited personnel, shall be immune from le- gal process in respect of words spoken and all acts performed by them in their offi- cial capacity.... UNMIK personnel shall be immune from any form of arrest or de- tention." Regulation 2000/47, Sections 3.3 and 3.4. 179 Regulation 2000/47, Section 2.4. 180 While the immunity of UNMIK personnel may be waived by the LTN Secretary Gen- eral, "[r]equests to waive jurisdiction over KFOR personnel shall be referred to the respective commander of the national element of such personnel for consideration". Regulation 2000/47, Section 6. 181 Alternatively, states may themselves prosecute their nationals. However, as states are unlikely to prosecute in these cases and may not even have legislation providing
a jurisdictional basis to do so, the best course of action would be to waive the im- munity of the perpetrators.