Int’l J Children‘s Rights
(1998), 55.
26
UN Doc E/CN4/2000/73 (14 January 2000).
27
Application No 7906/77, Decision (5 July 1979) (1982) 4 EHRR 443.
International Criminal Law
114
two social classes were established: the dominant class
(domini, nobiles)
and the
vassals. The vassals gradually became animate objects tied to the land
(servi terrae)
.
The same medieval elements are present in cases of contemporary serfdom taking
place in developing countries, whose eradication can only be premised on courageous
land reform and industrial development. Since, in most cases, the vassal will have
consented to his or her status, the institution of serfdom is illegal no matter how it
has come about.
Traffic in persons, especially for purposes of sexual exploitation, is a specific form
of slavery related institution. One treaty has, in the past, penalised ‘trafficking’ in
persons without defining the term. Article 1 of the 1949 Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of
Others (1949 Convention), which supersedes several previous instruments relating
to the traffic of women and children (‘white slavery’), penalises any person who, in
order to gratify the passions of another:
(1) procures, entices or leads away, for purposes of prostitution, another person,
even with the consent of that person;
(2) exploits the prostitution of another person, even with the consent of that person.
This provision aims at eradicating both the initial enticement into prostitution, which
usually commences as a result of socio-financial hardships, as well as the eventual
procuring of prostitution in urban or other centres. The relevant discussions in the
various human rights bodies of the UN have revealed two schools of thought on this
issue; one maintains that controlled and lawfully registered prostitution should be
allowed and that only the initial trafficking should be punished, while the other argues
for a total ban and penalisation of prostitution. This division among States, further
reinforced with the penalisation of the financing or maintenance of brothels or places
facilitating prostitution in Art 2 of the 1949 Convention, is manifested by the limited
ratifications this instrument has received.
28
This number should not lead one to believe
that prostitution in all its manifestations is lawful, except where it is prohibited by
States parties to the 1949 Convention. Rather, although exploitation of the prostitution
of others not culminating to a condition of ownership over a person and performed
with the prostitute’s consent does not draw consensus to warrant its characterisation
as an international offence, the procurement or enticement of a person for the purposes
of prostitution does constitute an international or transnational offence.
29
This
conclusion is derived, first, from the fact that the latter facet of prostitution is a criminal
offence, if not in all States, then at least in the vast majority, and, secondly, by the
declarations of non-parties to the 1949 Convention to the effect that ratification of this
28
Seventy-four parties, as of February 2003.
29
See also 1979 Convwition on the Elimination of All Forms of Discrimination Against Women, Art 6
19 ILM (1980), 33 which requires States to suppress all forms of traffic in women and exploitation of
the prostitution of others; ECOSOC Res 1999/40 (26 April 1999) urged States to criminalise traffic in
women and girls, whether the offence was committed in their own or hird countries; para 24 of the
Organisation for Security and Co-operation in Europe Charter for European Security prescribes an
undertaking by this organisation to eliminate all forms of trafficking and sexual exploitation of
human beings, 39 ILM (2000) 255: strategic objective D3 of the Beijing Platform for Action of the
Fourth World Conference on Women (Report of 15 September 1995), UN Sales No E96.IV.13, aiming
to eliminate trafficking in women.
Chapter 5: Offences Against the Person
115
instrument is problematic only because their national laws permit organised, State
controlled prostitution.
30
The ineffectiveness of the 1949 Convention necessitated the adoption of a specific
instrument in November 2000, the UN Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children.
31
The Protocol applies with
regard to cases of trafficking involving duress and a transnational aspect (movement
of people across borders or exploitation within a country by a transnational organised
crime group) and is intended to prevent and combat trafficking, facilitate
international co-operation, as well as provide certain measures of protection and
assistance to victims. Article 3(a) defines ‘trafficking in persons’ as:
The recruitment, transportation, transfer, harbouring or receipt of persons, by means
of the threat or use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve the consent of a person having control
over another person, for the purpose of exploitation.
The term ‘exploitation’ is further elaborated as exploitation of prostitution and other
forms of sexual exploitation, forced labour, slavery and related practices, as well as
the removal of organs. There is great expectation that the Protocol, as well as the
2000 UN Convention Against Transnational Organized Crime, will be effective in
its preventive and punitive aspects and succeed where its predecessors failed.
There does exist one final form of slavery related practice, which is an offence
only when committed by State entities: forced or compulsory labour. Article 2(1) of
the 1930 ILO Forced Labour Convention (No 29) (1930 ILO Convention) defines
forced labour as:
All work or service which is exacted from any person under the menace of any penalty
and for which the said person has not offered himself voluntarily
This definition of forced labour excludes military service, civic duties, work arising
from lawful conviction properly supervised, labour as a result of natural calamities
or other emergencies and other cases of minor communal services.
32
All forms of
forced labour constitute penal offences under the 1930 ILO Convention,
33
and wide
ratification of this instrument has rendered the offence a rule of customary
international law. In June 1999, the ILO decided to boycott commercial or other
activities in Myanmar (Burma) for its ‘grave and persistent’ violation of the 1930
ILO Convention,
34
while in 1998 this country was barred from the Organisation.
35
It
is estimated that more than 800,000 civilians, particularly from ethnic minorities,
have been forcibly recruited by the Myanmar Government to work on public projects,
30
Possible ratification of the 1949 Convention by retentionist States with the inclusion of relevant
reservations would run counter to the purpose and object of the treaty and would be null, in
accordance with the 1969 Vienna Convention on the Law of Treaties, Art 19(c), 1155 UNTS 331.
31
UN Doc A/55/383 (2 November 2000).
32
1930 ILO Convention, Art 2(2).
33
Ibid,
Art 25.
34
ILO Resolution, The Widespread Use of Forced Labour in Myanmar of 14 June 1999, 38 ILM (1999),
1215.
35
Report of the Commission of Inquiry Regarding the Observance by Myanmar of the 1930 Forced Labour
Convention
(2 July 1998).
International Criminal Law
116
resulting, moreover, in the displacement of between 5 and 10% of the Burmese
population.
36
The UN Working Group on Contemporary Forms of Slavery stated in its latest
reports that slavery, in all its forms and manifestations, is a crime against humanity.
37
It is difficult to uphold this statement in every case of slavery, unless there is proof of
widespread or systematic action in this regard, whether it originates from agents or
organs of a State or from non-State entities. It is evident, however, that most cases of
slavery and related institutions are the result of well organised criminal elements
with international connections, who exploit vulnerable elements of society and rely
heavily in their evil schemes on the corruption of State officials.
Do'stlaringiz bilan baham: |