June 13, 2021

Women and Transnational Crime

Criminal law

Introduction

Transnational crime refers to a type of crime that is committed across state borders. Such crimes could be committed in one State; however, the effects of this crime could be felt in numerous other nations. Transnational crimes are complex in nature as it is complicated to understand how persons with distinct nationalities and origin would strategize to carry out a crime.[1] These crimes present great challenges to the rule of law, economic and social development, and therefore theprotection of human rights and security. Also, these transnational crimes pose serious threat to the state as they hamper their sovereignty and security. The UN has acknowledged various forms of transnational crimes including money laundering, drug trafficking, human trafficking, firearms smuggling and illegal migration. Many academics and researchers of international relations have agreed that not much is known about transnational crime and that there is no clear definition to this term.

The United Nations (UN) has defined Transnational crimes as offences “whose inception, perpetration and/or direct or indirect effects involve more than one country”[2] in the year 1995. These crimes can be distinguished from domestic crime, that occurs within one nation’s jurisdiction. Transnational crimes can be distinguished from international crime as it involves offences that cross international borders and affects more than one nation while international crime is recognized under international law and is an offence considered against the world community.

Transnational crime is being identified as a major threat to human security and not just a threat to national security. No state is safe as it affects almost all of them in the international system. The problem of drug trafficking has been prevailing in the system since years however its distribution is always shifting. Human trafficking and trading in illegal firearms are another such issues that are troubling many nations due to their effects on society. Several conflicts have been experienced in Africa owning to illegal distribution of firearms.

International criminal offences that are subject to prosecution are those that threaten world order and security like genocide, war crimes, crimes against fundamental human rights and humanity. For example, an incident in 1992 where women and girls in eastern Bosnia and Herzegovina were the victims of rape and sexual enslavement.  In 2001 the International Criminal Tribunal for the former Yugoslavia reached a verdict and constituted such crimes against humanity.

Globalization has also implicated in a particular form of transnational crime — human trafficking. Though it has made transport of goods and capital across international borders much easier, labor markets and immigration have remained highly regulated. Which is why the demand for illegal human migration has increased making this human trafficking business much more profitable.

Increasingly, transnational crime is being recognized as not only a threat to national security, but as a major threat to human security. Transnational crime is often committed through indirect means extensively.  Illegal trafficking of drugs, people, goods, and resources involves huge amounts of money and in any case if a person gets caught the penalties imposed are very high. Therefore, transnational crime is a high stakes game carried out by those who without hesitation use systematic violence against those that become caught up in such activities.

The practice of human trafficking involves recruiting, transferring, transporting, harboring or receiving an individual forcefully, or with the use of coercion and other means for their exploitation. Illegal migration involves illegal entry of a person into a nation, he/she is not a resident or national of, for monetary gains. Human trafficking remains challenging to address because there is an overlap between trafficking and illegal immigration. For example, an individual who has entered into a nation illegally through the act of illegal immigration may be forced into bonded labor, forced labor or prostitution through threats, violence or by having their passports held by their employers. Sexual exploitation accounts for about 79% of human trafficking, while forced labor accounts for almost one in five victims.

Trafficking Protocol sees the voluntary consent of a victim of trafficking in persons as digressive to their exploitation in most circumstances. These involves the exploitation of the prostitution of others or other sorts of sexual exploitation, forced labor or services, slavery or practices just like slavery, servitude, or the removal of organs.

International Perspective

Individual nations cannot address transnational crimes by acting all alone. To combat these crimes, the coordinated transnational response is required, as the criminal network has become globalized too. For example, the effort made by Britain, Russia, Austria, France, and Prussia in the 19th century, where a Quintuple Treaty (1841) was signed as a Multilateral effort to repress the slave trade. Afterwards, in 1904, the International Agreement on the Suppression of the White Slave Traffic was signed by Italy, Portugal, Belgium, Denmark, Great Britain, Netherlands, Sweden, Switzerland, France and Germany. Subsequently, this agreement developed into a convention in the year 1910 and permanent governmental bodies were established to regulate and suppress slave trafficking. Additional extensions to the Conventions followed in the year 1933 providing for the prosecution of persons who employed adult women for prostitution in a foreign country, even if such employment is consensual.

The UN General Assembly adopted the powers and functions of these Conventions in the year 1949. Recently, UN has adopted the United Nations Convention against Transnational Organized Crime in 2000 also called, the Palermo Convention. This convention came into force in 2003 and provides that the member states that ratifies this treaty have committed to take serious measures:

  • The passing of legislation facilitating the prosecution of some domestic criminal offences (participation in an organized criminal group, money laundering, corruption and obstruction of justice)
  • The member states must adopt new and comprehensive agendas for extradition, combined legal assistance and cooperation in administration of law,
  • The promotion of training and technical assistance for building or upgrading the necessary capacity of national authorities.

This instrument is accompanied with 3 Protocols, that targets specific areas and indicators of organized crimes:

  • the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (also known as Trafficking Protocol) was adopted in 2000 and enacted in 2003,
  • the Protocol against the Smuggling of Migrants by Land, Sea and Air was adopted in 2000 and came into force in 2004,
  • the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition was adopted in 2001 and came into force in 2005.

“The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, was adopted by General Assembly resolution 55/25. It entered into force on 25 December 2003. The intention behind this definition is to enable mergers in national approaches with regard to the formation of domestic criminal offences that would support competent international cooperation in investigating and prosecuting trafficking in persons cases. Another objective is to protect and assist the victims of human trafficking with full respect for their human rights.”[3]

Although UN and multilateral conventions are important instruments for preventing transnational crime and ensuring human security, yet there are certain limitations to these international forces. The regional forces and structures for administration such as the European Union Europol offers a better approach. This might be because the local governments are more likely to deal with relatable crime problems which is why they are more willing to share info, be more able to correspond anti-transnational crime laws, and be more willing to cooperate in implementing such laws. For example, the Europe Convention on Action Against Trafficking in Human Beings in 2005 developed a moral based approach to human trafficking based on protection of victims, prosecution of offenders and prevention of such an offence. In 2011, Europol carried out an operation where 670 suspects were identified, 184 persons were arrested, and 230 children were rescued. Later in 2019, all of the 47 members of Council of Europe ratified the convention.

Women in Transnational Crime

Women and minors who are the victims of trafficking often end up in positions of forced prostitution also leading to situations like being vulnerable to Sexually Transmitted diseases like HIV/AIDS and communicable diseases like tuberculosis and also sometimes forcibly addicted to drugs. They also suffer traumatic psychological effects linked with human trafficking.

Most of the victims of human trafficking originate from developing countries. In a study of sex trafficking in Europe, the majority of the victims were from developing countries which were newly created out of the breakup of the Soviet Union. Other such source nations are Morocco, Indonesia, Thailand, Colombia, Myanmar, Nigeria, Vietnam, the Balkans, Brazil, Mexico, the Philippines and Eastern Europe.

The employers classically use deception to exploit individuals, such as deceiving or misrepresenting the nature of work. Women and girls are often subjected to sex trafficking, being fraudulently hired to work as cooks in illegal mining and logging camps but then coerced or forced into prostitution or sexual slavery. Another common method used throughout the world is debt bondage—using loans, cash advances, extreme interest rates, and/or excessive fees to trap victims into continued servitude. These debts are inherited, and it is common for more than one generation of a family to be engaged in forced or bonded labor. Their labor goes towards paying off the initial debt, so victims are generally not able to afford basic expenses like food, water, shelter, and medicine; their “employers” or the traffickers provide these at exorbitant prices, tacking on the cost and continually growing the debt. The individuals and businesses that engage in debt bondage receive financial benefits far greater than the initial amount that they loan.

Sex trafficking is common everywhere, but urban areas, popular tourist destinations, and large events generally experience higher rates. The Organized Crime Groups are directly and indirectly involved in sex trafficking: for instance, owning brothels produces direct income and taxing prostitutes/pimps operating in their territory produces indirect profits. Both direct and indirect involvement of criminals in trafficking provides them with high rate of profits and low rate of risk. It becomes problematic for the law administration identify traffickers and victims due to the underground nature of the crime; some individuals who are trafficked may not understand that they are victims, or are isolated and controlled by traffickers, reducing the likelihood of them seeking help.

Trafficking in persons is often linked with Organized Crime Groups, but terrorist and insurgent groups also play a significant role. These groups use labor and sexual exploitation as a tactic to acquire fighters and funding as well as to suppress opponents. The spread of the internet has offered traffickers with additional, far-reaching means to influence both potential victims and victimizers. The Islamic State of Iraq and the Levant has been implicated in the trafficking of women and children, predominantly from minority groups, to provide as sex slaves for its troops. This trafficking is probably serving a greater role in rewarding and boosting the morale of their fighters as well as enemy suppression than as a major source of financing for the group. Groups including ISIL, the Lord’s Resistance Army (LRA), and the Revolutionary United Front (RUF) also have used human trafficking to acquire child soldiers, frequently by forcible recruitment. Boko Haram has forced kidnapped girls and women to become wives for their fighters.

Indian Perspective

The Indian Penal Code (IPC), 1860 prevents and protects the people from Human Trafficking. The Immoral Traffic Prevention Act (ITPA), 1956 was enacted to protect the people from any kind of the Human Trafficking, but this Act was proposed in the Parliament in 2006 to make some required amendments but that proposal was dropped by the parliament in 2006. Human Trafficking violates the Human Rights of the people like ‘Right to Life’, ‘The Right to Freedom’, ‘Right against Exploitation’. The definition of traffickingis defined in the various sections of Immoral Traffic Prevention Act (ITPA), 1956.

The Suppression of Immoral Traffic in Women and Children Act, 1956

The Suppression of Immoral Traffic in Women and Children Act of 1956 was enacted by the Indian Parliament and was passed by the parliament in 1956. The Act was enforced in the year 1958 after India has signed the convention on trafficking.

Immoral Traffic Prevention Act, 1956

The Immoral Traffic Prevention Act, 1956 was passed in the parliament as a result of signing by the India of the United Nation’s declaration in New York for suppressing trafficking. The Indian Parliament has amended the Act in 1978 and 1986. ITPA protects the rights of women and children.

Immoral Traffic Prevention Amendment Bill, 2006

Immoral Traffic (Prevention) Amendment Bill amended Immoral Traffic (Prevention) Act, 1956 to curb trafficking and sexual exploitation for commercial purpose. The Bill deletes provisions that penalized prostitutes for seeking clients. The Act penalizes persons who visits a brothel with the intent of sexual exploitation of trafficked victims. 

Indian Penal Code, 1860

The Indian Penal Code lays down the numbers of provisions related to the trafficking. The provisions are:

  1. Section 366 – Kidnapping, abducting or inducing women to compel her for marriage
  2. Section 372 – Selling minors for purposes of prostitution 
  3. Section 373 – Buying minors for purposes of prostitution
  4. Section 339 – Wrongful restraint
  5. Section 340 – Wrongful confinement
  6. Section 351 – Mental tortured/harassed/assaulted
  7. Section 354 – Outraged of her modesty
  8. Section 375 – Raped/Gang Raped/Repeatedly raped

[1] Kristof Van-Impe, “People for Sale: The Need for a Multidisciplinary Approach to Human Trafficking,” International Migration 38.3 (2000), 126.

[2] Antonio Maria Costa (2002). UNODC – Speech – International Conference on Trafficking: Transnat. [online] United Nations: Office on Drugs and Crime. Available at: https://www.unodc.org/unodc/en/about-unodc/speeches/speech_2002-12-06_1.html

[3] United Nations (2018). United Nations Convention against Transnational Organized Crime. [online] Unodc.org. Available at: https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html [Accessed 7 May 2021].

Author Details: Pragati Gupta (Alliance University)

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