NEW ENGLAND INTERNATIONAL AND COMPARATIVE LAW ANNUAL
Kasia T., a 25 year-old mother from Warsaw had no interest in working abroad.(1) The young woman was having marital difficulties and, as a result, became easy prey for “recruitment” by the neighborhood pimps.(2)When Kasia turned down their offer for a high paying club job in Germany, they kidnapped her, took her to a cottage in a remote area and tried to gang rape her into submission.(3) For three days, three men raped Kasia repeatedly.(4) They spoke of selling her to a German brothel owner, as they had other women.(5) It was not until the kidnappers heard that police were investigating the kidnapping that they put Kasia into a car and dumped her on the outskirts of Warsaw.(6)
Kasia’s situation is, unfortunately, not unique. Everyday, around the world, women and girls are enticed with the promise of good paying jobs; bought from their families; or abducted outright and taken to a foreign country for the purpose of sexual exploitation.
These women are held in conditions that are equivalent to slavery. They are forced to endure sexual encounters–rape–with countless “customers” everyday. They have no power to negotiate the terms of these encounters and may suffer serious beatings if they refuse. The risk of drug addiction, infertility, and sexually transmitted disease, especially AIDS, is omnipresent.
Escape is nearly impossible. The women are often not allowed to leave the brothel, making communication with the outside world difficult. If the woman is able to physically free herself, return to her home country may be impossible as pimps frequently keep the women’s only means of return–her passport, airline ticket and money. The risk of arrest and immediate deportation is always present.
Where the women come from is telling. Most prostitutes in Western Europe come from Asia, Africa, the Caribbean and, most recently, Eastern and Central Europe and the former Soviet Union. They often come from cultures where girls are not considered as desirable as boys; are not afforded equal opportunity for education or work; and where the selling of a young virgin girl can bring the family, to them, a huge amount of money.
For the women who are returned home, prostitution often carries with it a social stigma, thus making them a pariah. In cultures where virginity is required of brides, these women have become unmarriagable. Lacking opportunities for education or “honest” work, and with no husband or family to support them, the women are often forced back into prostitution as the sole means of supporting themselves, thus continuing the cycle of degradation, humiliation and victimization.
Aside from the obvious and gross human rights violations that occur when women are forced into sexual servitude, trafficking in women for the purpose of forced prostitution implicates many different issues. As it concerns the European Union [hereinafter EU] and its Member States [hereinafter MS], trafficking in women involves the EU’s policy on third country nationals, law enforcement, international human rights law, economics and budgetary concerns, politics, public health and social welfare. It also draws into debate who is competent to address these issues–the EU, the MS, both, or neither?
This article will examine situations where a woman is trafficked into an EU MS from a third world country. Trafficking of women from one MS to another brings into play other issues, especially the right to freedom of movement of workers. While this is a serious concern, especially with the possibility of Eastern European countries entering the Union in the near future, currently accepted definitions of trafficking in women require a foreign border crossing. Restrained by this definitional requirement, this article is limited to a discussion of third country nationals [hereinafter TCNs] brought into the EU for the purpose of sexual exploitation.
Within these confines, Part I of this article will briefly explore the practice of trafficking in women–the problem of defining who is trafficked and the conditions these women are made to suffer before looking at the issue in context of the EU. Part II will examine what steps the EU and MS have taken to address this practice. Finally, Part III will attempt to suggest a comprehensive plan to combat the practice of forcing women to suffer for the economic and sexual gratification of others.
II. Defining the Problem
Forced prostitution and sexual slavery are not recent inventions.(7) Going back to the African slaves who were raped by their masters, to the Japanese “comfort women” to the more recent mass and systematic rapes of Muslim and Tutsi women, sexual exploitation has long been a fact of life for countless numbers of women throughout history.(8)
The practice of sexual exploitation of women continues today. When this exploitation involves the moving of women, the practice is usually termed “trafficking in women.” This term was used as early as the end of the 1800’s.(9) There has been, however, much confusion as to exactly what is meant by it. This confusion can be seen in the various, often contradictory, definitions and concepts used in domestic law and international conventions, as well as in the on-going international debates.(10) Ultimately, however, trafficking in women “is a complex phenomenon, which touches various, often extremely sensitive issues, such as sex and money.”(11)
Many different definitions of “trafficking in women” have been suggested by scholars,(12) domestic law and international agreements.(13) Relevant to this discussion, however, is the definition contained in the January 18, 1996 European Parliament resolution condemning the practice.(14) This Resolution goes beyond earlier resolutions(15) which limited the definition of trafficking to include only women, and takes the term trafficking in human beings to mean:
The illegal action of someone who, directly or indirectly, encourages a citizen from a third country to enter or stay in another country in order to exploit that person by using deceit or any other form of coercion or by abusing that person’s vulnerable situation or administrative status.(16)
Although there are problems with this and other popular definitions,(17) the above definition will be used as the reference point for this discussion.
A. The Scope of the Problem
Having defined the concept of trafficking in women, it becomes necessary to determine the scope of the problem. This involves examination of not only the number of women and girls trafficked each year, but also their characteristics, what makes them vulnerable to being manipulated where they are coming from and what conditions they suffer once in this situation.
1. The Numbers
“In any given year, many thousands of young women and girls around the world are lured, abducted or sold into forced prostitution and involuntary marriage. They are bartered at prices that vary depending on their age, beauty and virginity.”(18) Victims of trafficking are brought to Western Europe and are either forced into prostitution or trapped by traffickers who take away their passports. These victims are threatened, abused, and deprived them of most, if not all, of their earnings.(19)
The full scale of the practice remains unknown, because few women are prepared to report what has happened to them to police.(20) It would appear, however, that the number of women and girls involved in the European sex trade is enormous.(21) For example, it was reported in 1991 that approximately 60% of the 20,000 prostitutes in the Netherlands were foreigners.(22) In Amsterdam, it is estimated that 7,000 women and girls from the Dominican Republic alone are exploited every year.(23) “Conservative estimates show that 12,000 Philippine women were living illegally in Germany in 1988, the vast majority in prostitution. This is an increase of 30% since 1984.”(24) Looking at this data with corresponding information from other Western European countries, “it becomes evident that as many as 100,000 women in Europe are existing in conditions of sexual exploitation, most trafficked from non-European countries.”(25)
Additionally, catastrophic social change in both the former Soviet Union and East Germany have also precipitated a significant increase in the numbers of women trafficked into Western Europe.(26) By 1994, the former Soviet Union and its satellites had become the major suppliers of prostitutes for Germany, Belgium, the Netherlands and Switzerland, among others.(27) Moreover, it is believed that “half of Germany’s 20,000 prostitutes are from Eastern Europe. In the Netherlands . . . nearly 70 percent of the foreign prostitutes come from Eastern Europe . . ..”(28)
2. The Money
Little has changed since a mid-1920’s League of Nations study concluded that “profit . . . is at the root of the whole business [of forced prostitution].”(29) World Watch Institute reports that trafficking of women is a multi-billion dollar industry.(30) Global Survival Network estimates that trafficking brings criminal syndicates worldwide billions of dollars–an amount rivaling their incomes from drugs and guns.(31)
By some estimates, trafficking in women has become more lucrative in Europe than similar commerce in weapons or narcotics. The consumer appetite appears limitless; profit margins are high(32) and risks are low–traffickers hardly ever get prosecuted, and when they do, they rarely see the inside of a jail.(33)
B. The Individuals Involved and the Conditions in Which They Live
Why women and girls are susceptible to sex traffickers is hardly a mystery.(34) While each woman’s situation is unique, there are recurrent trends in the trafficking business. First, the vast majority of women are very poor.(35) They come from places where women and girls have fewer educational and economic opportunities than males.(36) Often the girls have been socialized into an ethos of female servitude and self-sacrifice.(37) These conditions, coupled with the preference for sons in many parts of the world, often lead families to sell their daughters for the promise of immediate payment.(38)
Because of the clandestine nature of the trade, obtaining specific demographics about women trafficked into Western Europe is difficult.(39) There are, however, commonalties in how these women are “recruited” and in the conditions they are forced to endure. “Recruitment” often occurs with the promise of a good job in another country or province.(40) Recruitment also occurs through false marriage offers, with the “bride” later sold off to a brothel.(41) Outright abduction is also not uncommon.(42)
Another almost universal theme in trafficking is that most women are held under debt bondage, and everything that goes along with this form of control. Debt bondage requires a woman to pay her transportation costs to the “host” country at several times the actual price.(43) Once in the new country, the woman has no place to stay, no money for housing and her means of return to her homeland, passport and tickets, are usually confiscated from her by her trafficker.(44) Because she is often in the country illegally, the woman feels she is not able to go to the authorities for help.(45) Escape without paying this debt is impossible as this places the woman at risk for punishment by the brothel owner, his employees or the police.(46) Risk of retribution against the woman’s family for “defaulting” on the debt, as well as arrest for being an illegal immigrant is also a very real possibility.(47)
Other omnipresent risks to these women are the numerous physical consequences of prostitution.(48) Besides “rape and battery at the hands of customers and pimps,”(49) women are exposed to health risks, especially sexually transmitted disease,(50) including hepatitis B and AIDS.(51) Beyond the risk of infection through sexual intercourse with many men, the growing popularity of contraceptive injections in brothels also contribute to the spread of disease, since brothel owners often use the same, and possibly contaminated, needle several times.(52)
Infertility is also a serious risk of forced prostitution that can bring about devastating consequences. Women who come from cultures where the primary purpose of marriage is procreation find themselves unmarriagable.(53) “Shunned by their own families and communities, many of these women must return to prostitution in order to support themselves.”(54) Beyond the physical or cultural commonalities, one of the defining characteristics of sexual trafficking is that it removes girls and women from a world in which they have at least a semblance of a support system into a situation where they have none.(55) Finally, women and girls who are trafficked are often put into environments in which people of their racial or ethnic group are considered inferior and are thus subjected to additional discrimination.(56) “In other words, sexual trafficking puts already extremely vulnerable girls and women into the most powerless and dependent situation imaginable.”(57)
III. European Union And Member States Response
Although the EU was founded on an economic basis,(58) steps have been taken to address the issue of trafficking in women, as well as to assist those caught up in the trade. Some of these measures are directly targeted at addressing this problem, while others are more general, but still impact the issue. The most significant of these measures are discussed below.
A. Community Level Action
1. Protection of Fundamental Human Rights
While it is easy to see the problem of trafficking in women as an economic or social one, ultimately it is a human rights issue. Women who are forced into situations where they are sexually exploited for the profit of a third person are having their basic human rights, as guaranteed by numerous international instruments,(59) violated. As drafted, the Treaty of the European Union addresses the issue of human rights. Article F(2) of the Treaty provides that the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms.(60) As of 1996, however, the European Court of Justice (E.C.J.) opined that “as Community law stands now, the Community has no competence to accede to the . . . Convention.”(61)
This issue is seemingly addressed in the Draft Treaty of Amsterdam. While the Draft has not yet been adopted, the Treaty amends Article F by declaring that “the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms.”(62) In addition to this declaration, the Treaty provides for enforcement mechanisms to be used in cases of “serious and persistent breach” of these basic principles by a MS.(63)
While it is unclear as to how this article will be interpreted or utilized,(64) it is conceivable, if unlikely, that the article could be used to address long-standing and on-going human rights violations in MS, including the practice of sexual exploitation of women.
2. Immigration of Third Country Nationals
As noted previously, the European Parliament’s definition of “trafficking in women” requires a foreign border crossing.(65) Because the EU is without internal borders, by definition then, women trafficked into the EU are not going to be EU citizens, they will all be third country nationals [TCNs]. The rights and responsibilities of TCNs figure very little in the founding text of the European Community.(66) With the exception of Article 100 c of the European Community Treaty, which deals with the issue of visas for non-EU citizens,(67) the Treaty establishing the European Community is silent as to non-EU nationals.(68)
Recognizing the need for a “comprehensive approach for dealing with immigration policy, the European Commission, in 1997, presented a proposal for a Council Act Establishing the Convention on Rules for the Admission of Third Country Nationals to the Member States.”(69) The Convention lays out the rules for the “initial admission of a third-country national to the territory of a Member State for the purposes of employment, self-employed activity, study and training, non-gainful activity and family reunification.”(70)
As drafted, this Convention deals with “entry and a stay of more than three months . . . .”(71)The Convention does not specifically address the issue of women brought into the EU, legally, nor illegally, for the purpose of prostitution. However, the Convention does provide for an exception to its otherwise strict entry and residency requirement in Article 2(1)(c).(72) Conceivably, in situations where return to her homeland is not possible, this humanitarian exception could be used by MS to grant victims of trafficking the right to remain in the host country.
With the exception of Article 2(1)(c)’s humanitarian allowance, the proposed immigration convention would seemingly do little to aid women who find themselves in an EU MS. Even assuming her initial entry was legal, her activities once in the MS would nullify any appearance of legality. These activities may further subject her to deportation, as she no longer satisfies the requirements for remaining within the MS as set out by this Convention. Perhaps more relevant to this discussion is the Schengen Agreement and the Convention Applying the Agreement.(73) While the Schengen Agreement is outside EU law, the majority of MS have signed on to it, thus making it law that cannot be ignored. Like the proposed immigration convention, the Schengen Agreement does not specifically refer to woman trafficked into the EU. It does, however, deal with the issue of entry visas, both long and short term.(74)
Especially relevant to this discussion are Articles 23 and 27 of the Convention Applying the Agreement.(75)Article 23’s allowance for remaining in a MS for humanitarian reasons gives MS leeway for allowing a victim of trafficking to remain in the country if return to her home land is not viable. This is especially important in situations where the women comes from a culture where her history of prostitution would render her an outcast, subject to social scorn, or worse. Without family or husbands to support them, such women are extremely vulnerable to returning to prostitution in order to survive. Additionally, while trafficking in women is not specifically mentioned by name, Article 27’s imposition of penalties on anyone who, for gain, brings or assists an alien into a MS illegally, gives the MS a tool in the prosecution of traffickers.While neither the proposed immigration convention nor the Schengen Agreement alone provides extensive protection for victims of trafficking, both could be used as components of a wide-based and comprehensive plan to aggressively attack the problem.
3. Law Enforcement
The architects of the EU recognized the need for a mechanism to fight crime within the EU and assist MS with their law enforcement efforts. Toward that end, Article K.1 of the Treaty of Maastricht provides for the creation of Europol.(76)The Europol Convention was signed by all MS in July 1995.(77)
Significant to the discussion at hand, Europol’s original mandate(78) was expanded in 1996 to include “the exchange and analysis of information and intelligence, as soon as they affect two or more Member States, in relation to . . . trafficking in human beings.”(79) Finally, the Treaty of Amsterdam, as one of the steps to “provide citizens with a high level of safety,”(80) also includes the prevention and combating of “trafficking in persons”(81) as one of its goals.
While the Europol Convention will not come into force until jurisdictional issues are solved by the ECJ and until all MS have ratified it,(82) the convention is a potentially powerful tool in the fight against trafficking of women for the purpose of prostitution. Because of the connection between organized crime and trafficking in women, Europol would be particularly suited to addressing this issue. It has at its disposal computerized networks of information as well as the ability to share that information with MS in order to pursue and prosecute traffickers.
4. Social Programs
Outside of treaty provisions and law enforcement, the European Commission has taken some steps in providing for programs that directly impact victims of trafficking. One of the largest of these programs is known as the DAPHNE Initiative.
The DAPHNE Initiative was created to assist non-governmental organizations [NGO’s] in combating violence against “women, young persons and children from all kinds of violence and commercial sexual exploitation, trafficking and other abuses.”(83) DAPHNE was inaugurated in 1997 and, while the Commission claims combating sexual violence “to be an important priority,”(84) it also noted that future programs under the DAPHNE Initiative will be conducted only “[s]ubject to budgetary availability.”(85)
The European Parliament [EP], despite being the weakest organ of the EU, has been at the forefront in addressing the issue of trafficking in women. Despite the fact that its recommendations are not binding, the EP has called on the Commission to more aggressively address the issue of trafficking, as well as provided reports and proposed community wide action.
As recently as December 1997, the EP was called on by the Commission to “create a taskforce on the trafficking of women for purposes of sexual exploitation.”(86) Unlike many previous EU measures, this communication urged that trafficking be addressed from the stand point of the victim and that the practice be viewed “in terms of violations of the fundamental rights of women (and not solely from the view of fighting organized crime and illegal immigration).”(87) Also, and in step with current reality, the communication called for more funds to be allocated to programs for Eastern and Central Europe, as well as the former Soviet Union which would go directly to the fight against trafficking of women in these regions.(88)
In 1997, the EP released a report concerning, among other things, trafficking in women.(89) This extensive report noted that the “sex trade is one of the world’s most lucrative industries,”(90) and put forth extensive and far reaching recommendations regarding how, and why, the EU should address this issue.
B. Member State Response
Laws, policy and programming at the MS level, in response to the problem of trafficking in women, range from non-existent to fairly comprehensive.(91) Two MS, the Netherlands and Belgium, have fairly wide ranging and comprehensive laws and programs geared toward prostitution in general, and trafficking specifically.
1. The Netherlands
Registration of prostitutes is not compulsory in the Netherlands but it is estimated that approximately 25,000 to 30,000 women work in the field in any given year.(92) Of this number, approximately 40-60% are of foreign origin.(93) Additionally, it is believed that approximately 2,000 to 3,000 women arrive as a result of trafficking or work under conditions of forced labor.(94) As of 1996, prostitution was not, in and of itself, illegal in the Netherlands.(95) Exploitation of a prostitute, as well as “living on the immoral earnings of another,” however, is criminalized.(96) In reality, the government takes a hands-off approach to prostitution and pimping and pursues charges only in “cases of exploitation with the use of violence, deceit or abuse of authority.”(97) The Dutch criminal code does criminalize the “bringing [of a person] to prostitution by means of violence, deceit or abuse of authority” under the heading of ‘trafficking in human beings.”
The Dutch program addressing prostitution in general consists of three components: prevention, prosecution and support. Each will be discussed briefly.
The Dutch government has taken three formal steps in its attempts to prevent prostitution and trafficking. First, embassy personnel in origin countries warn women vulnerable to trafficking of the dangers.(98) Second, the government supports various NGO prevention programs.(99) Finally, the government has supported peer projects that provide prostitutes, or women vulnerable to becoming prostitutes with information about their rights, along with medical information.(100)
If prevention fails to keep women from being trafficked, the Dutch government has an aggressive and comprehensive program for prosecution of traffickers. The main aspect of this program is the granting of a temporary residency permit to women who are willing to cooperate with the government in the prosecution of the trafficker.(101)
In addition to these laws, the Dutch Attorney General, in 1989, introduced several directives in order to achieve a national policy on the issue of trafficking in women.(102) These directives included the development of specialized police units and adequate “care and support of the victim.”(103) A follow up study in 1992-93 showed that actual implementation of these directives was not uniform. This has lead to additional changes being implemented;(104) follow up continues.(105)
In addition to prosecuting the traffickers, the Dutch government has developed a fairly comprehensive support network for victims of trafficking. These measures include specialized social worker teams in selected cities,(106) as well as subsidization of the Dutch Foundation Against Traffic in Women (STV).(107) In addition to offering social support, legal and medical assistance, shelters and psychological counseling, the NGO’s (including STV) make recommendations to the government on policies and programs that impact victims of trafficking.(108)
The IOM has reported that there are at a minimum 28,000 prostitutes working in Belgium, half of whom are foreign born.(109) Of this number, approximately 10-15% are known to be victims of trafficking.(110)
Belgium does not expressly criminalize the act of prostitution, but procurement/pimping, soliciting and loitering are illegal acts.(111) Belgium does, however, have a specific law on trafficking in human beings.(112)
Additionally, Belgian law distinguishes between trafficking and forced labor and slavery like practices in prostitution.(113) NGO’s active in the country report that while implementation of these laws “should be better,” the laws are enforced.(114)
Like the Netherlands, Belgium has attempted to address the issue of trafficking in three ways: prevention, prosecution and support of the victim.
Fearing abuse of the system, Belgian authorities’ main weapon in preventing women from being trafficked into the country is an extremely strict set of regulations covering the issuing of work permits for certain occupations, especially “artists.”(115) Additionally, the government has taken steps to address the issuing of phony marriage licenses, which it believes helps to curtail trafficking.(116)
Like the Dutch government, the Belgian government relies primarily on the incentive of a temporary residence permit to encourage victims of trafficking to press charges and testify at trial.(117) Unique to Belgium, however, is the possibility of an indefinite residence permit as a “reward” for evidence used in a successful prosecution.(118)
In addition to the support system provided to women willing to testify, Belgian authorities have set up a limited number of safe shelters for women to go where they can receive psychological, legal and medical assistance.(119) Unfortunately, this system is under-funded and future activity is seriously endangered by this lack of financial support.(120)
IV. A Plan Of Action For The European Union And Member States
From the previous discussion it is apparent that trafficking of women is a serious issue that impacts the EU at both the MS and Community levels. It is just as apparent that any effective solution will require coordinated and dedicated efforts at the Community and MS levels.
A. Competency of the European Union and Member States To Act
In deference to the concept of subsidiarity (the desire to conduct programming at the most local level possible), whenever community wide action is proposed, it is necessary to determine who is competent to act–the EU, the MS, both, or neither.(121)
Trafficking in women interfaces with three major fields: immigration, law enforcement and social welfare policy. While the right of MS to act within the fields of law enforcement and social policy provides little room to ponder, a right of MS to act without restraint within the field of immigration is not, however, unlimited.
Corollary to the MS’ limitation on developing and implementing its own immigration policy, is the right of the EU to function in the area. Article K.1 of the Treaty of the European Union provides for nine matters of common interest between the MS and the EU.(122) One of these interests is “conditions of movement and residency by third-country nationals on the territory of the Member State.”(123) In its 1997 proposed Convention, the European Commission noted the need for a “mandatory legal instrument clearly establishing the conditions of admission and the rights of third country nationals admitted to the territory of Member States.”(124) It went on to note that “[i]n the areas covered by Title VI the Commission has a right of initiative shared with the Member States (first indent of Article K.3(2))”(125) Finally, in its decision of July 9, 1987(126) the ECJ held that immigration policy, vis-Ã -vis non-member countries comes in its entirety, within the meaning of Article 118.(127) It is, therefore, clear that immigration, as it pertains to TCNs, is primarily within the hands of the EU.
2. Law Enforcement
Law enforcement at the EU level is addressed by the Europol Convention. This Convention, signed by all MS(128) has as one if its mandates the combating of trafficking in human beings.(129) Action in this area is, naturally, in coordination with the MS’s law enforcement activities and should be considered a joint action.
3. Social Welfare Policy
Finally, there is the issue of the EU or MS’ responsibility to act in the field of social welfare policy. Like law enforcement, the competency of the MS to take action within its borders is not questioned. The EU, however, also has rights and responsibilities in this area under Article 118 of the EC Treaty.(130) Under this Article, the Commission “has the task of promoting close cooperation between Member States in the social field.”(131)
So, while the EU has primary responsibility in the area of immigration, and the Schengen Agreement binds each MS to the other in reference to issuance of visas, the responsibility of addressing the problem of women being trafficked for the purpose of sexual exploitation is a shared one between the MS and the EU. Any plan to combat this problem, therefore, must be a coordinated effort at all levels.
B. Recommendations for a European Union Campaign Against Trafficking in Women
When discussing how to go about combating trafficking in women it is easier to speak in terms of MS and EU initiatives. While this is, to some extent, a false dichotomy, for the purposes of ease of reading, recommendations will be made here under the heading of MS Action and EU Action.
Despite the convenience of separating these recommendations, there are over-riding themes that are applicable to both levels. The most over-riding of these themes is the need for the political will to address this issue as a human rights violation. “Trafficking implicates civil and political rights, equality rights and the right to be free from slavery and slavery-like practices.”(132) The members of the EU and each MS should strive to fully implement the ICCPR.(133) Doing so would assure that the issue of trafficking would not be viewed “just as a women’s issue” and thus subject to marginalization. Women must be seen and talked about as being worthy of protection and afforded that protection.
Another over-riding theme is that the funding for these programs and prosecution must be adequate and consistent. It must be a dedicated budget line, not subject to “availability.” Fighting fundamental human rights violations cannot be based on “left-over” money.
Next, the definition of trafficking in women must be consistent throughout the Community. While it is not possible to completely harmonize MS legislation in this area, the issue of a basic definition must be consistent throughout. Failure to do this would lead to inconsistent prosecution and services. Women would “fall through the cracks” in some MS, while the same woman would be entitled to protection in others.
Finally, all services provided in this area, from legal, to medical and police, should be conducted by specially trained personnel who are sensitive to the special needs of victims of trafficking. This will encourage women to avail themselves of services available to them if the word gets out that the “system” will not victimize them. Additionally, all services should be available in linguistically and culturally appropriate contexts.
1. Member State Action
When considering what actions should be taken regarding this issue, it simplifies things to look at the actions as falling into one of three categories: prevention, prosecution and support. For this reason, recommendations will be discussed under each specific heading.
Because every woman who attempts to enter MS legally must apply for a visa, the first line of prevention should be in the embassies located in originating countries. These personnel should be trained in the issue and knowledgeable as to who are particularly vulnerable to being trafficked. These personnel should take necessary steps to counsel women on the dangers of trafficking and should be able to provide necessary referrals to services available to the women in their home country.
The regulations surrounding the issuing of visas for suspect occupations, particularly “artist,” “dancer,” “hostess” and “au pair,” should be extremely strict and require verification of actual legitimate employment in the MS, as far as possible. Article 5 of the Schengen Agreement lays out the requirements for entry visas into the MS and personnel should be diligent in using them to their fullest potential.
MS should also undertake the systematic and regular collection of data concerning the instances of trafficking within their country. This information should be used to develop new and better programs that directly target the origins of trafficking in the first place.
Finally, MS should pass specific laws expressly criminalizing the act of trafficking. These laws should provide for effective enforcement mechanisms and carry extremely lengthy sentences. Additionally, while it should protect the identity and dignity of any victim, the MS should aggressively publicize the prosecution and conviction of all traffickers. The message must be sent that trafficking will not be tolerated.
Once MS pass effective laws, these laws must be aggressively enforced. The prosecution of traffickers must be considered a priority and adequate resources, along with properly trained personnel, must be assigned.
In conjunction with the criminal penalties for trafficking, MS should pass legislation that would allow for the confiscation of earnings from traffickers. This is regularly imposed on drug traffickers and should be imposed on individuals trafficking in people. The connection between organized crime and trafficking provides an even stronger incentive for this type of action.
Finally, each MS should maintain a coordinated effort with Europol and utilize the computerized data banks and intelligence available to Europol to fight traffickers and go after their routes and other sources of income. Trafficking in the EU is an extremely transient crime and information gathered by MS should be shared with the rest, as it is just a matter of time before that trafficker impacts every other MS.
First and foremost, women who are victims of trafficking should not be victimized by the system that is designed to assist them. All services should be available in linguistically and culturally appropriate context. This may include specially trained female social workers, prosecutors and police available to work with women from cultures that would prevent her from speaking to a man. Social support must be comprehensive and a coordinated effort between government and NGO groups working in the area. Duplication of services should be avoided as well as serious gaps in services.
A victim’s basic needs must be addressed initially. These include medical, psychological, legal and welfare assistance. The woman must be made aware of her rights and the services that are available to her. She must be provided with safe shelter, away from the possibility of retaliation by her trafficker or pimp. The MS government should recognize the fact that private NGO’s or other groups are sometimes more able to provide necessary services and the government should support these efforts by grants or other financial support.
The use of residency permits should be continued. Currently several MS use this temporary permit as an incentive to a woman to bring charges and testify against her trafficker. While the policy of encouraging victims to bring charges and testify should be encouraged, the practice of providing residency permits to only those women who testify at successful prosecutions must be stopped. This practice re-enforces the idea that the only victim in cases of trafficking is the state. By doing this, the woman victim is again being manipulated, this time for the benefit of the state. The better policy is to issue residency permits to any woman who desires one. This is especially important in cases where returning to the home country would subject the woman to social ridicule, or worse, and would leave the woman unable to provide for herself, either through a family, or on her own.
Additionally, the practice of automatic deportation on the grounds of prostitution or illegal stay within the MS must also stop. While MS have a legitimate concern for internal security, each victim of trafficking should be provided with a “respite” period in which she receives basic services as listed above. The government could use this time to assess whether or not there are other grounds that would warrant deportation. If, however, these other grounds do not exist, the woman should be offered a residency permit to stay in the country.
2. European Union Action
The main focus of the EU in this area should be in the fields of immigration, law enforcement and budgetary assistance to MS and NGO’s working to combat trafficking.
Within the area of prevention, the EU should provide specialized training to all immigration officials, as noted above. Additionally, the EU should start including in all bi-lateral or multi-lateral agreements with known origin countries clauses that deal with the active prevention of trafficking from the third country.
In the area of law enforcement, Europol should actively pursue its mandate to combat the trafficking of human beings. It should develop a specially trained unit dedicated to the program. This unit should, in turn, develop strong connections with the law enforcement unit within each MS also dedicated to combating trafficking. Sharing of information and intelligence should be automatic and continuous.
Also, within the area of prosecution, the Ministers of Justice for Home Affairs should adopt regulations specifically concerning immigration and deportation. Deportation should be avoided, as noted above, and the EU should mandate the policy of accepting women in risk of persecution based on sex into the MS.
Finally, within the area of support of female victims of trafficking, the EU should provide necessary funding for community-wide campaigns that publicize trafficking, the laws against it, and services available to victims. The EU should also strongly encourage each MS to fulfil its responsibilities under relevant international human rights instruments. It should also look to utilize the wording within its own Treaties to require MS to support and protect basic and fundamental human rights for all persons within their jurisdictions.
Trafficking in women is a gross violation of basic and fundamental human rights. It also implicates issues of immigration policy, crime fighting and the responsibility of states to provide social support to women victims. As it concerns the EU, the issue is one that is pervasive, strongly entrenched in politics, economics, cultural relativism and the belief that women are second class citizens.
Any effort to effectively combat trafficking of women into the EU must be one that involves both the MS and the EU at the Community level. While concrete programs that provide for aggressive prosecution of traffickers and support of the victim are necessary, the one over-riding theme must be that trafficking violates human rights and that women are no longer going to be allowed to be used and manipulated for the economic and sexual gratification of others. Until this belief is as strongly entrenched as the practice of trafficking, trafficking will continue and women will continue to be used, abused and left as human garbage in the brothels of EU cities.
1. Diane Johnson is currently an LL.M. candidate in International Legal Studies at American University, Washington D.C. She received her J.D. from the New England School of Law in 1998 and is a member of the Massachusetts Bar.
See Tom Hundley, Eastern European Women Exploited in Sex Business, Chicago Tribune, May 7, 1996, at 1, available in 1996 WL 2669226.
2. See id.
3. See id.
4. See id.
5. See id.
6. See id.
7. See Penny Venetis, International Sexual Slavery, 18 Women’S Rts. L.R. 263, 268 (1997).
8. See id.
9. See Trijntje Kootstra, Background Study on Basic Principles for a Code of Conduct Within the Member States of the European Union to Prevent and Combat Traffic in Women, Dutch Foundation Against Trafficking in Women, Nov. 22 1996, at 6.
10. See id.
12. For example, Penny Venetis defines sexual slavery as to include “girls and women [who] are not free to leave their brothels . . . and women who are kidnapped and sold to men as wives [‘mail order brides’].” Venetis, supra note 7, at 267. Aurora Javate de Dios proposes that:
Sexual trafficking in women is the movement of girls and women for purposes of sexual exploitation, usually from developing countries in Asia, Latin American, and Africa[,] into the sex industry of developed countries. Sexual trafficking in women encompasses the movement of girls and women from Eastern Europe and the former Soviet Union into Western Europe’s brothels and sex business, as well as the movement of girls and women from Europe’s rural areas into its industrialized centers.
Global Trafficking in Asian Women, Women Empowering Women: Proceedings of the Human Rights Conference on the Trafficking of Asian Women, 2-4, held in Manila, Philippines, Apr. 3-10, 1992.
13. International conferences and agreements addressing the issue go back to the 19th century with the first international conference on the prevention of trafficking in women being held in Paris in 1896. See Kootstra, supra note 9, at 6. The International Convention for the Suppression of the White Slave Trade, signed in Paris May 4, 1910, was the first of its kind. Id. This Convention defined trafficking in women as “any person who, to gratify the passions of others has by fraud or by the use of violence, threats, abuse or authority or any other means of constraint, hired, abducted or enticed a woman of full age for immoral purposes.” Id.
One of the most recent attempts at defining the concept is that of the United Nations General Assembly. The 1994 Resolution condemns the:
Illicit and clandestine movement of persons across national and international border, largely from developing countries and some countries with economies in transition, with the end goal of forcing women and girl children into sexually or economically oppressive and exploitative situations for the profit of recruiters, traffickers and crime syndicates, as well as other illegal activities related to trafficking, such as forced domestic labour, false marriages, clandestine employment and false adoption.
G.A. Res. 49/166 U.N GAOR. (1994), quoted in Further promotion and encouragement of human rights and fundamental freedoms, including the question of the programmes and methods of works of the commission alternative approaches and ways and means within the united nation system for improving the effective enjoyment of human rights and fundamental freedoms, report of the special rapporteur on violence against women, its causes and consequences, U.N. Comm. On Hum. Rts., 53rd Sess., Agenda Item 9(a) of the Provisional Agenda,
14. See Resolution on Trafficking in Human Beings, A4-0326/95 [hereinafter EP Resolution].
15. See Resolution on Trafficking in Women, 1993 O.J. (C 268), at 141.
16. EP Resolution, supra note 14.
17. In many recent definitions, the term “trafficking in women” has been equated with the smuggling of aliens, also called “aliens trafficking” or “trafficking in migrants.” See Kootstra, supra note 9, at 15. For example, Mr. M. Gramegna, in his preparatory meeting on “Trafficking in Women” before the International Organization for Migration noted that “[s]ince the adoption of the [1949 U.N.] convention, migrant trafficking has not only grown in scale, but has also taken on a greater variety of forms, such as forced marriage and labour.” International Organization for Migration, Statement of Mr. M. Gramegna, Preparatory Meeting on “Trafficking in Women”, held at Brussels, 1-2 Dec. 1995, quoted in Kootstra, supra note 9, at 13.
In many definitions, including the European Parliament’s, an illegal border crossing is required. While it is true that “in a substantive number of cases of international trafficking, women are brought into the country illegally or lack a valid residence permit, just as many cases are known in which women enter the country in a completely legal way, e.g. as tourists, brides, maids or artists.” Id. at 15. These women’s stays in the country may also be completely legal, “that is to say as long as they do not back out of the power of their husbands or employers, as in many countries the staying permit of a migrant woman is dependent of the husband or employer.” Id.
The use of definitions encompassing the concept of “trafficking in aliens” or “aliens smuggling” when talking about women trafficked for the purposes of forced prostitution presents two additional problems. First, the modern trend of equalizing “alien smuggling” and “trafficking in aliens” with “trafficking in women” shifts the focus from violence against women to illegality. In this process, both the element of violence and abuse and the gender specific character of traffic in women is lost. See id. The “victim” in cases of alien smuggling is the state. See id. In cases of trafficking, however, it is the woman who is the victim. See id. “The core of the problem is not that people migrate, legally or illegally, but that women are forced, abused or deceived.” Supra note 9, at 15.
The second problem in this area is the issue of consent. It is true that many women choose within the options available to them, to migrate to another country or province. See id. However, if trafficking in women is equated with illegal migration, it could be said then that a woman is trafficked with her consent. Although she may consent to migrate for work or marriage, this does not mean that she consents to violence and abuse. Id.
18. Human Rights Watch, Human Rights Global Report on Women’s Human Rights: Trafficking in Women and Girls into Forced Prostitution and Coerced Marriage, 196 (1995) [hereinafter Human Rights Watch].
19. International Organization for Migration, Trafficking and Prostitution: The Growing Exploitation of Migrant Women From Central and Eastern Europe, at 4, ISBN 92-9068-04802, May, 1995,
20. See id.
21. See Sven-Axel Mansson, Brothel “Europe”: International Prostitution and Traffic in Women, unpublished manuscript, Dep’t. Of Social Work, Univ. Of Gothenburg, Sweden, 2-3, quoted in Dorchen Leidholdt, Sexual Trafficking of Women in Europe: A Human Rights Crisis for the European Union, in Sexual Politics and the European Union: The New Feminist Challenge, (R. Amy Elman, ed.) (1996) 83, at 86 [hereinafter Leidholdt].
22. See id.
23. 23See Howard W. French, For the World’s Brothels, Caribbean Daughters, N.Y. Times, Apr. 20 1992 at A4.
24. Susanne Lipka and Elvira Niesner, Ueber die Arbeit der Agistra Gegen, Sextourismus und Frauenhandel. Beigtrage zur feministischen Theory unde Praxis 23: 123-27, quoted in Leidholdt, supra note 21, at 86.
25. Leidholdt, supra note 21, at 86.
26. See Hundley, supra note 1.
27. See id.
28. Id. For a detailed study of the increase in trafficking of Eastern European women, see generally, IOM, supra note 19.
29. H. Wilson Harris, Human Merchandise: A Study of the International Trafficking in Women, 49 (1928), quoted in Nora V. Demleitner, Forced Prostitution: Naming an International Offense, 18 Fordham Int’l L.J. 163, 171 (1994).
30. Venetis, supra note 7, at 270.
31. Vladimer Isochenkov, Trafficking in Women Flourishing in Former Soviet Bloc, Associated Press, Nov. 7, 1997.
32. Traffickers are able to maximize their profits because their outlay for “inventory” is so cheap. In 1996, the New York Times reported that in China it cost $250 to $500 to buy a person. See Venetis, supra note 7, at 269. The San Diego Tribune reported that in Nepal girls cost $120 to $1200, depending on a number of variables including whether or not the girl was a virgin. See id. Finally, according to The Nation, a nine year old prostitute can be had for as little as two dollars. See id. “The older the child gets the cheaper her price. But, for a nine year old, prime virgin, just plucked from her family’s arms, the price is a whopping $2,000.” Id.
33. See Hundley, supra note 1.
34. See Leidholdt, supra note 21, at 85.
35. See id. at 85-86.
36. See Human Rights Watch, supra note 18, at 196.
37. See Leidholdt, supra note 21, at 85-86.
38. See Report of South Asia Regional Workshop on Protecting the Rights of Women and Children with Special Reference to International Trafficking and Labour Migration, held at Dhaka, Bangladesh, 2-4 June, 1992, at 3.
39. See id.
40. See Human Rights Watch, supra note 18, at 197.
41. See id.
42. See id.
43. See ICPO-INTERPOL, Exploitation of Women and Children: Its Causes and Effects, Report of Asian Regional Conference, International Abolitionist Federation, held in New Delhi, India, 17-19, 1997 [hereinafter INTERPOL].
44. See id.
45. See id.
46. See Human Rights Watch, supra note 18, at 197.
47. See id.
48. See Mechtilde Maurer, Tourism, Prostitution and AIDS, paper presented to Seminar on Action Against Trafficking in Women, held at Strasbourg, 25-27 Sept., 1991, Council of Europe, EC/PROST (1991).
50. See Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, Its Cause and Consequences, U.N. Doc. E/CN.4/199E/42 (1994), at 50 [hereinafter Special Rapporteur].
51. See Maurer, supra note 48.
52. See Special Rapporteur, supra note 50, at 50.
53. See id.
55. See Leidholdt, supra note 21, at 83-83.
56. See id.
58. The Union shall set itself the following objective:
–to promote economic and social progress which is balanced and sustainable, in particular through the creation of an area without internal frontiers, though the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty;
Treaty of the European Union, reprinted in European Union, Selected Instruments Taken From the Treaties, Book I, Vol. 1 (1995), at 23.
59. See European Convention for the Protection of Human Rights and Fundamental Freedoms, 312 U.N.T.S., 221 E.T.S. 5, Nov. 4, 1950 [hereinafter European Convention], reprinted in Basic Documents of Human Rights (3d) (Ian Brownlie, ed. 1994), at 326 [hereinafter Brownlie], as amended by Protocol No. 3, E.T.S. 45, reprinted in Brownlie, at 345, Protocol No. 5, E.T.S. 55, reprinted in Brownlie, at 348, and Protocol No. 8, reprinted in Brownlie, at 355. Article 4(1) of the Convention provides that “[n]o one shall be held in slavery or servitude” while 4(2) provides that “[n]o one shall be required to perform forced or compulsory labour.” See also International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Dec. 16, 1966, reprinted in Brownlie, at 125 [hereinafter ICCPR]. Article 1 of the ICCPR provides that “[a]ll peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.”
60. See European Convention, supra note 59.
61. Protection of Fundamental Human Rights in the Union, available in Europa Library, http://europa.eu.int/com, visited Feb. 22, 1998 [hereinafter Europa Library].
63. The Treaty provides for the right of the Council to suspend certain rights deriving from the application of the Treat to the MS in question, including the voting rights of the representative of the government of that MS in the Council. See id. It is unclear how grave the breach of this article would have to be before this step is taken, but one can imagine it would require an extreme and long standing breach by the offending MS.
64. The Treaty was signed on Oct. 2, 1997.
65. See EP Resolution, supra note 14.
66. Marie-Claire S. F. G. Foblets, Europe and Its Aliens After Maastricht. The Painful Move to Substantive Harmonization of Member States’ Policies Towards Third Country Nationals. 42 Am. J. Comp. L. 783, 783 (1994) [hereinafter Foblets].
67. See Treaty Establishing the European Community, Feb. 7, 1992, art. 100 c  1 C.M.L.R. 573, 634, incorporating changes made by Treaty of European Union, Feb. 7, 1992, O.J.C. 224/1 (1992),  1 C.M.L.R. 719, 31 I.L.M. 247, cited in Melchior Wathelet, The Case Law of the European Court of Justice and Nationals of Non-European Community Member States, 20 Fordham Int’l L.J. 603, 604, n. 1(1997).
68. See Wathelet, supra note 67, at 603-04.
69. Proposal For a Council Act Establishing the Convention on Rules For the Admission of Third-Country Nationals To the Member States, presented by the Commission pursuant to Article K.3(2)(c) of the Treaty on European Union, Brussels, 30.07.1997 COM(97) 387 final, 97/0227 (CNS), at 4 [hereinafter Convention].
70. Id. at 4. In its Explanatory Memorandum, the Commission discussed the reasoning for the proposal. It noted the “need for a mandatory legal instrument clearly establishing the conditions of admission and the rights of third country nationals admitted to the territory of a Member State and thus contributing firmly to certainty in the law applicable to them.” Id. at 7.
Additionally, the Convention would make it possible to satisfy two fundamental imperatives:
–legal certainty: a Convention has unambiguously binding legal form, like a directive;
–democratic transparency: a proposal of this kind is clearly a matter concerning one of the ‘principle aspects of activity’ in the field of cooperation on justice and home affairs, as it involves the adoption of a vital measure for controlling migratory flows . . .
Id. at 7-9.
71. Article 1 of the Convention provides:
For the purpose of this Convention:
(a) ‘admission’ means permission for a third-country national to enter the territory of a Member State in order to reside there for longer than three months;
(b) ‘residence authorization’ means decision taken by a Member State in whatever form is provided by its own legislation to permit a person to reside in its territory for a period of more than three months; this does not include temporary authorizations which may be issued by Member States in certain cases.
Convention, supra note 69, at 27.
72. Article 2 provides in full:
1. The provisions of this Convention shall apply to nationals of third countries, except where more Favorable provisions apply under:
(a) bilateral or multilateral agreements concluded between the Community, or the Community and its Member States, of the one part, and third States of the other part, which entered into force before this
(b) agreements concluded between one of more Member States and third countries which enteredinto force before this Convention was signed.
It shall not apply to :
(a) persons who have applied in a Member State for recognition of refugee status under the terms of the 1951 Geneva Convention;
(b) displaced persons granted admission to stay for temporary protection in a Member State:
(c) persons granted exceptional authorization to stay in the territory of a Member State, particularly on humanitarian grounds.
Convention, supra note 69, at 27.
73. Belgium-France-Federal Republic of Germany-Luxembourg-Netherlands: Schengen Agreement on the Gradual Abolition of Checks at Their Common Borders, June 14, 1985, and the Convention Applying the Agreement, June 19, 1990, reprinted in 30 I.L.M. 68 (1991) [hereinafter Schengen Agreement].
74. For short term visas, Article 5 provides:
(1) For visits not exceeding three months entry into the territories of the Contracting Parties may be granted to an alien who fulfils the following conditions:
(a) in possession of a valid document or documents permitting them to cross the border as determined by the Executive Committee;
(b) in possession of a valid visa if required;
(c) if applicable, submits documents substantiating and has sufficient means of support, both for the period of the planned visit and to return to their country of origin or to travel in transit in a Third State, into which their admission is guaranteed, or is in a position to acquire such means legally;
(d) has not been reported as a person not to be a threat to public policy, national security or the international relations of an of the Contracting Parties.
(2) Entry to the territories of the Contracting Parties must be refused to any alien who does not fulfil all the above conditions unless a Contracting Party considers it necessary to derogate from that principle on humanitarian grounds or in the national interest or because of international obligations. In such cases permission to enter will be restricted to the territory of the Contracting Parties accordingly. These rules shall not preclude the application of special provisions concerning the right of asylum or of the provisions of Article 18.
Schengen Agreement, supra note 73, at 87.
Article 18, dealing with visas for long visits provides that:
Visas for visits of more than three months shall be national visas issued by one of the Contracting Parties in accordance with its own legislation. Such a visa shall enable its holder to transit through the territories of the other Contracting Parties in order to proceed to the territory of the Contracting Parties which issued the visa, unless he fails to fulfil the conditions of entry referred to in Article 5(1)(a), (d) and (e) or he is on the national reporting list of the Contracting Party through the territory of which he seeks to transit.
Schengen Agreement, supra note 73, at 91.
75. Article 23 provides in pertinent part:
An alien who does not fulfil or who no longer fulfils the short visit conditions applicable within the territory of the Contracting Party must in principle leave the territories of the contracting Parties without delay. . . .
4. Expulsion may be effected from the territory of that State to the alien’s country of origin or to another State to which he may be permitted entry. In particular under the relevant provisions of the re-entry agreements concluded by the Contracting Parties.
5. Paragraph 4 shall not preclude the application of national provisions on the right of asylum, of the Geneva Convention of 28 July 1951 Relating to the Status of Refugees as amended by the New York Protocol of 31 January 1976, or of paragraph 2 of this Article or Article 33(1) of this Convention.
Convention, supra note 69, at 93.
76. Article K.1 provides:
For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the power of the European Community, Member States shall regard the following areas as matters of common interest:. . .
(a) police cooperation for the purposes of preventing and combating terrorism, unlawful drug-trafficking and other serious forms of international crime, including if necessary, certain aspects of customs cooperation, in connection with the organization of Union-wide system for exchanging information within a European Police Office (Europol)
Treaty of Maastricht.
77. See Kootstra, supra note 9, at 22.
78. The Europol Convention provides that:
3. Europol has the following principal tasks:
a. to facilitate the exchange of information between Member States;
b. to obtain, collate and analyze information and
c. to notify the competent authorities of the Member
State without delay of information concerning them
and of any connections identified between criminal
d. to aid investigation in the Member States;
e. to maintain a computerized system of collected
Europol Convention, Council Act 97/C 221, 19.07/1997
79. The Fight Against Crime: Europol, located in Europa Library, supra note 61.
80. Treaty of Amsterdam, Title VI, Provisions on Police and Judicial Cooperation in Criminal Matters, Art. K.1.
82. See Kootstra, supra note 9, at 22.
83. The DAPHNE Initiative, found in Europa Library, supra note 69.
86. Parliament Hopes Fight Against Trafficking of Women Will Be Stepped Up, Agence Europe, Brussels, 23, Dec. 1997.
87. Id. As noted by Commissioner Anita Gradin, as she stressed the need to place emphasis on the fundamental rights of victims, “[f]or drug trafficking, sentences range from ten to twelve years in prison, while for the traffic of women there is usually one two years in detention. This is unacceptable!” Id.
88. Id. The communication noted the “fact that countries in Central and Eastern Europe are now not only transit and destination countries or origin.” Id.
89. Report on the Need to Establish a European Wide Campaign for Zero Tolerance of Violence Against Women, Committee on Women’s Rights, A 4-0250/97, 16 July 1997. The Motion for a Resolution noted that:
Whereas violence against young and adult women carried out by men taking place within the family, at the workplace, or in society includes, inter alia ill-treatment, battery, genital and sexual mutilation, incest, sexual harassment, sexual abuse, trafficking in women and rape.
Id. at 2.
90. Id. at 7. The report also noted that the results of a recent Dutch study put the cost of violence against women in the Netherlands alone at over ECU 145 million. Id. at 3. The report does not, however, specify how much of that total is attributed to trafficking.
91. For an excellent report on