REPORT FROM THE SEMINAR ON TRAFFICKING AND HUMAN RIGHTS

OSLO 02.05.05

The seminar was chaired by: Patricia Kaatee, Amnesty International Norway and Liv Jessen, Pro Sentret Rapporteurs: Laila Belle and Arne Randers-Pehrson

- 2 - CONTENTS

About the Speakers 4

Liv Jessen: Welcome 6

Jon Peder Egenæs: Trafficking and Human Rights 7 Barbara Limanowska: Anti-Trafficking Action in South-Eastern Europa: The Trafficking Cycle and its Impact on Human Rights 11

Questions and Comments 27

Panel Discussion

Turid Misje: Towards a Right based Approach to Protect Victims of Trafficking; Protection of Rights of Trafficked Women in Norway 28 Petra Burcikova: Protection of Rights of Trafficked Persons – The Czech Experience 34 Iana Matei: Profile of the Victims 42 Maria Grazia Giammarinaro: Protection of Victims – The Italian Model 45 Beate Gangås: Trafficking and Human Rights - Towards a Right Based Approach to Protect Victims of Trafficking 51

Questions and Comments 65

Helga Konrad: New Challenges in Policy Development in the Fight against Human Trafficking 67

Panel Discussion

Trond Prytz: New Challenges in Policy Development – Norway as a Country of Destination 71 Karin Yrvin: Violence against the Society 75 Karin Andersen: New Challenges in Policy Development – Norway as a Country of Destination 80 Rune Berglund Steen: Victims of Trafficking in the Norwegian Asylum Procedure – Experiences and Challenges 85 Cecilia M. Bailliet: New Challenges in Policy Development – Norway as a Destination Country 91

Questions and Comments 99

Lise Bjerkan: Closing Remarks 100

- 3 - ABOUT THE SPEAKERS

Jon Peder Egenæs Acting Secretary General, Amnesty International Norway.

Barbara Limanowska works as a consultant on the issue of trafficking in human beings for various international agencies. In the framework of the SEE RIGHTs project, which was a joint initiative of OHCHR, UNICEF and OSCE-ODIHR she has written three reports about trafficking in human beings in the Balkan region: Trafficking in Human Beings in South Eastern Europe. Current situation and responses to trafficking in human beings in Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the Federal Republic of Yugoslavia, the Former Yugoslav Republic of Macedonia, Moldova and Romania (UNICEF, UNOHCHR, OSCE/ODIHR, 2002), Trafficking in Human beings in South Eastern Europe. 2003 Update on situation and responses to trafficking in human (UNICEF, UNOHCHR, OSCE/ODIHR, 2003) and Trafficking in Human Beings in South Eastern Europe, 2004 – Focus on Prevention (UNICEF, UNOHCHR, OSCE/ODIHR, 2005).

Turid Misje is a trained social worker and a master student in social anthropology. She has worked at the Pro Sentret since 1999. Currently she is coordinating Pro Sentrets work aimed at foreign women in prostitution.

Petra Burčíková has a degree in law from Comenius University, Bratislava, Slovakia. She has three years experience as a lawyer for the Czech Republic Government Council for Human Rights. Currently she is the director and national coordinator of La Strada Czech republic, and a member of the international La Strada Association focusing on prevention of trafficking in human beings and defending the rights of victims.

Iana Matei is the president of Reaching Out, Romania. Reaching Out provides assistance in rehabilitation and re/integration to women and children victims of trafficking and sexual exploitation. Priority is given to protecting the rights of the victim and their wellbeing is considered above the interest of all other persons, organisations and governmental agencies.

Beate Gangås is Chief of Police at the National Police Directorate of Norway. In 2003 she was appointed leader of the Interpol Working Group on Trafficking in Women and Children for Sexual Exploitation.

Maria Grazia Giammarinaro graduated in law at the Department of Civil Law of the University of Palermo in 1986. From 1996 to 2001 she was the head of the Legislative Office of The Minister of Equal Opportunities and drafted Italian legislation concerning women, children, immigration and trafficking in human beings. Currently she is a judge at the criminal court in Rome. She participates in the meetings of the Ad Hoc committee on Action against Trafficking in Humane beings as the scientific expert of the Secretariat of the Council of Europe – Directorate general of Human Rights.

- 4 - Dr. Helga Konrad was appointed OSCE Special Representative on Combating Trafficking in Human Beings in May 2004. From 200 to October 2004 she chaired the Stability Pact Task Force on Trafficking in Human Beings for South Eastern Europe, established under the auspices of the OSCE. Dr. Helga Konrad is a former parliamentarian and Federal Minister for Women’s Issues in the Austrian Government

Trond Prytz is State Secretary, Ministry of Justice and the Police. He represents the Liberal Party of Norway.

Karin Yrvin is the general secretary of Labour Women, an integrated part of the Labour Party. The purpose of the labour women is to put women issues on the party’s agenda, to provide training for women in politics and to encourage the recruitment of women to the party.

Karin Andersen is Vice Chairman for the Socialist Left Party in the Parliament and has been a Member of Parliament since 1997. As a parliamentarian she is a member of the enlarged foreign affairs committee and the standing committee in local government.

Rune Berglund Steen is the head of NOAS, Norwegian Association of Asylum Seekers. NOAS’s aim is to ensure that every application for asylum receives a thorough, decent and a fair treatment in the Norwegian judicial system.

Cecilia M. Bailliet has a combined J.D./M.A. degree from The George Washington University Law School and Elliot School of International Affairs. She is a senior research fellow at the Department of Public and International Law, University of Oslo, where she teaches refugee and asylum law. Her areas of research are refugee law, human rights, international public law and dispute resolution.

Lise Bjerkan is Dr. Polit., social anthropologist, and a researcher at Fafo Institute of Applied International Studies. Her key working areas are trafficking, child labour, Roma minorities, gender and peace building.

- 5 - WELCOME By Liv Jessen, Director of the Pro Centre

Welcome to a conference on trafficking and human rights initiated by Amnesty International Norway and Pro Sentret. My friend Patricia Kaatee from Amnesty and myself Liv Jessen, director of Pro Sentret, will be your moderators for the day.

Trafficking in human being for the purpose of prostitution or sex work is a gross violation of people’s human rights. It is our task today to explore what challenges we are up against in this perspective. In the audience will be people who are concerned with questions of trafficking but will never be in contact with a victim of trafficking and you will find other bodies which daily work is right amongst the same. But not one single country, GOs or NGOs can say they have found the answer to the problems concerning trafficking. That’s why I think we shall all have a humble approach, definitely learn from each other’s experience and in a friendly atmosphere debate what paths to follow. Amnesty International Norway and the Pro Centre will emphasize the necessity to put the human rights perspective in the forefront of the struggle against trafficking.

We have divided today’s conference into two major sequences with two keynote speakers Barbara Limanowska and Helga Konrad whom we will introduce properly later. Following these speakers will be a panel discussion of 5 different presentations. But let me start by giving the word to Jon Peder Egenæs, Acting Secretary General of Amnesty International Norway who will open the conference.

Liv Jessen

- 6 - TRAFFICKING AND HUMAN RIGHTS By John Peder Egenæs, Acting Secretary General of Amnesty International Norway

First of all I would like to take the opportunity, on behalf of Pro Sentret and Amnesty International Norway, to welcome you all to this seminar on trafficking and human rights.

Our stated aim is to influence the growing debate around trafficking and move it from the realm of criminal justice only, and into the realm of human rights. We believe this is important, not only to protect the rights of women and children who are the victims of trafficking and further exploitation, but also to make progress in battling this crime. It seems clear from the experiences from Norway and other countries, that the treatment of trafficked persons as criminals and illegal aliens is counter productive in the work to fight the crime that trafficking is.

Towards this dual aim Amnesty International considers the trafficking of women for the purposes of prostitution as one of the most widespread and pervasive forms of violence against women. We identify trafficking as a series of abuses and violations of the human rights of trafficked women and girls, both at the hand s of traffickers and subsequently within the criminal justice system. Amnesty International wishes to add to the growing understanding of trafficking as an abuse of human rights, not least the rights of women and girls to physical and mental integrity, to liberty and security of person, and even their right to life. Trafficking exposes women and girls to a series of human rights abuses at the hands of traffickers, and of those who buy their services. It also renders women and girls vulnerable to violations by governments that fail to protect the human rights of trafficked women.

Amnesty International advocates that respect for, and protection of, the rights of trafficked women must be central to the action of all authorities in their responses to trafficking.

Trafficking in International Law Trafficking already has its specific place in international law. It is defined in the so called Palermo Protocol and it is recognized as violence against women in The UN declaration on Elimination of Discrimination Against Women, and the obligation of states to prevent trafficking is set out in Article 6 of the UN Convention on the Elimination of All Forms of Discrimination Against Women (the Women’s Convention) as well as in the Convention of the Rights of the Child (Children’s Convention.). Article 6 of the Women’s Convention obliges states parties to make all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women?

The supplementary Trafficking Protocol to the UN Convention against Transnational Organized Crime, also known as the Palermo Protocol, which entered into force on 26 December 2003, defines trafficking in its Article 3.

Article 3 provides that:

(a) “Trafficking in persons” shall mean 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.

- 7 - Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs?

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “Trafficking in persons” even if this does not involve any of the means set forth in subparagraph (a) of this article.

(d)”Child” shall mean any person under eighteen years of age.

Trafficking is recognized as a form of discriminatory gender-based violence against women according to Article 2 (b) of the UN Declaration on Elimination of Discrimination Against Women that states: “ Violence against women shall be understood to encompass, but not be limited to, the following:… (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution.”

Rights Denied – to Education and Employment But the cycle of human rights abuse and violations often starts long before women and girls enter the trafficking process. By then many have suffered violations of their rights in their home countries, guaranteed under the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights and the Women’s Convention.

Many will have been denied access to education, access to employment or to social welfare or have suffered discrimination on the basis of their gender in gaining access to these rights. Many of them have been subject to abuses of their right to physical and mental integrity, through domestic violence and other forms of physical and sexual abuse at the hands of their parents or their partners.

Rights Denied – During the Trafficking Cycle Although some women are abducted or coerced, many start their journeys from their home countries voluntarily, believing that the work they are offered (usually in Western Europe) will enable them to break out of poverty or escape violence or abuse. But as soon as their journey begins, so does the systematic abuse of their rights, in a strategy that reduces them to dependency on their trafficker, and later their “owner”.

Women abducted are unlawfully deprived of their liberty, in violation of their rights to liberty and security of their person, enshrined in Article 9 of the ICCPR and Article 5 of the ECHR. Their rights to freedom of movement, guaranteed under article 12 of the ICCPR, are curtailed or denied. Their rights to privacy and to family life, under Article 8 of the ECHR and Article 17 of the ICCPR, are further denied.

- 8 - Many women are often exposed to violence during the trafficking process: by clients, by owners, and by other staff. They are subjected to torture, including rape, and other forms of cruel, inhuman or degrading treatment, such as the repeated use of psychological threats, physical beatings and degrading sexual acts. These acts violate the rights of women and girls under Article 7 of the ICCPR and Article 3 of the ECHR, and Article 37 of the Children’s Convention.

Some find that their wages, the reason they were willing to leave their homes, are never paid, but are withheld to pay off their debt, to pay arbitrary fines, or to pay for food and accommodation.

Trafficked women may also be denied access to health-care guaranteed under Article 12 of the ICESCR and Article 12 of the Women’s Convention. If they are sick, they may be denied access to health care. They have no legal status and are denied their basic rights.

Rights Denied – to Protection, Reparation, Redress In addition to the abuses perpetrated by traffickers, trafficked women often find their rights violated within the criminal justice system. As detainees, they are not informed of their rights or how to access them. Their rights to the presumption of innocence, to a lawyer and to an interpreter are denied in violation of their rights under Articles 9 and 14 of the ICCPR, Articles 5 and 6 of the ECHR and Articles 37 and 40 of the Children’s Convention.

As victims of human rights abuses, they do not routinely receive information about their rights to reparation, including compensation, or how to access them through administrative bodies or the courts in accordance with Article 2 of the ICCPR, Article 14 of the Convention against Torture. The majority of women will not see those responsible for the abuses of their rights brought to justice.

Those recognized as victims of trafficking are denied rights to reparation and redress, and few receive appropriate protection, support and services. Some find that they have little or no protection from their traffickers if they testify in court. Throughout the process, women face discrimination on the basis of their gender, ethnic origin and/or their perceived occupation.

Some trafficked women have not been protected from forcible return to a country where they would face grave human rights abuses, in violation of Articles 3 of the ECHR and of the Convention against Torture, Article 33 of the 1951 Convention relating to the Status of Refugees, and principles of customary international law.

Respect for the rights of women and girls who have been subjected to trafficking not only requires the authorities to investigate the abuses highlighted above, to bring to justice those responsible for those abuses, and to ensure the victims of such abuses effective redress, including reparation. It also requires the authorities in the countries of destination, as well as in countries of their origin and other countries to which they may be resettled to ensure respect for the full range of their rights including their rights to dignity, security, privacy, the highest attainable standard of health, an adequate standard of living, safe and secure housing, work, education and social security.

Rights Denied – During Conflict and War The gravity of the crime of trafficking is reflected in the fact that, in some circumstances, it may constitute a crime against humanity or a war crime.

- 9 - Trafficking in persons, in particular women and children, that amounts to enslavement has been included among the most serious crimes of international concern in the Rome Statute of the International Criminal Court (ICC). It is defined in the Rome Statute as a crime against humanity when committed as part of a widespread or systematic attack against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit the attack (Article 7 (1) (c) and (2) (c)); the related crime of sexual slavery is defined as a war crime when committed during an international or internal armed conflict (Article 8 (2) (b) (xxii) and (c) (vi) of the Rome Statute).

Another important tool to ensure the protection of women’s human rights, in particular in the context of armed conflict and post-conflict situations, is Resolution 1325 on women, peace and security, adopted by the UN Security Council on 31 October 2000. This landmark resolution calls on a range of actors, the UN Secretary-General, the UN Security Council, UN Member States, all parties to armed conflict, and those involved in negotiating and implementing peace agreements, to ensure increased representation of women at all levels of decision-making concerning the prevention, management and resolution of conflict; to include more women in peace-keeping and other field operations and to provide training for field staff on the protection of women’s human rights; to adopt a gender perspective when negotiating and implementing peace agreements; and to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse.

State Obligation – Due Diligence State authorities are required to act with due diligence to prevent, investigate and prosecute all human rights abuses, including trafficking, and the other human rights abuses to which trafficked women and girls are subjected including acts of torture, such as rape. They also require the authorities to ensure effective redress and adequate reparation to those who have been subjected to such crimes. These international treaties include the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto (ECHR); the International Covenant on Civil and Political Rights and the Protocols thereto (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Racial Discrimination (the Convention against Racial Discrimination); The Convention on the Elimination of All Forms of Discrimination Against Women (the Women’s Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture); and the International Convention on the Rights of the Child (the Children’s Convention).

State Responsibility Where abuses have been perpetrated by organized criminals or private individuals and where a state has failed to take effective action or bring those responsible to justice, the authorities may be held responsible for those abuses of human rights. With respect to violence against women, the UN Committee on the Elimination of Discrimination against Women (CEDAW) notes that states should 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. Application of this standard in practice may therefore require states to, for example, introduce measures to criminalize trafficking effectively enforce this prohibition, provide legal assistance and remedies for victims, and take preventative action to address the underlying causes of trafficking.

- 10 - ANTI-TRAFFICKING ACTION IN SOUTH - EASTERN EUROPE: THE TRAFFICKING CYCLE AND ITS IMPACT ON HUMAN RIGHTS By Barbara Limanowska, Independent Consultant on the Issue of Trafficking in Human Beings for OHCHR, UNICEF, OSCE-ODIHR and other International Agencies

Barbara Limanowska

1. Policy Approaches to Anti-Trafficking Responses Collective rights protect a group of people, while individual rights protect the individual. It is especially important to take into account both collective and individual rights when looking at certain "violations" of human rights and responses to those violations. The case of trafficking in human beings to some extend demonstrates the problems of combining or choosing between the two concepts.

In South-Eastern Europe, all 11 countries of the region have ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) protecting rights of women, the Convention on the Rights of the Child (CRC), protecting rights of children, the International Labour Organisation (ILO) Convention No. 182 on the Worst Forms of Child Labour. It should be added that the ILO Forced Labour Convention requires the suppression of forced or compulsory labour in all its forms. Forced labour is “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 him/herself voluntarily2.” According to the ILO working definition of forced labour, “the extraction of work or services under menace of any penalty” does not need to be a form of penal sanction, but might take the form of a loss of rights or privileges3. Additionally, state parties to CEDAW4 are obliged to “take all appropriate measures, including legislation, to suppress all forms of traffic in women”.5

- 11 - The Convention on the Rights of the Child (CRC), ratified by all the Stability Pact countries, requires state parties to combat trafficking in children.6 The recently adopted optional protocol to CRC requires state parties to combat the sale of children.7 The International Labour Organisation (ILO) Convention No. 182 on the Worst Forms of Child Labour requires the elimination of “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced and compulsory labour, including forced and compulsory recruitment of children for use in armed conflict”.8

Generally, the states of the SEE region have committed themselves to protect collective rights of women, children and workers, as well as individual rights of victims of trafficking. However, in practice not always collective and individual rights are protected and the states are using different approaches to combat trafficking, which not always place rights protection as its core.

While all the institutions working on the issue of trafficking base their actions on the same international law and in theory use the same definition of trafficking, in practice their approach differs depending on the broader context of their work and the mandate of the organisation/institution.

These differences can be divided into three different categories: migration; law enforcement; and human rights. Approaching the issue of trafficking from one of these perspectives often results in different legal and administrative tools being used to solve the problems and in different actions being undertaken by the participating actors.

The migration approach to the problem of trafficking is primarily used by the International Organisation for Migration (IOM). IOM’s counter-trafficking programmes have grown out of pre-existing programmes for assisting “stranded migrants” – economic migrants whose illegal status and/or inability to support themselves in a new country placed them in need of humanitarian assistance. From the IOM perspective the status of the “victim of trafficking” is similar to that of the “victimised migrant” – a person desperate enough to give up the “migration dream” to return home. As victims of trafficking began to be identified in the late 1990s, the IOM missions in the Balkan countries developed special voluntary return assistance programmes for them, based on humanitarian grounds, including special temporary shelters. This approach deals with the problems that victims have with their illegal stay in the country of destination (by offering a shelter and returning them to their country of origin) but is not able to answer other problems – wish and need to seek employment in the country of destination, need for long term medical, psychological and legal assistance, need for financial support and labour placement (either in the country of destination or origin). While IOM staff clearly recognises the unique status of trafficking victims as particularly vulnerable and exploited, their model for assisting these victims is premised upon an understanding of the problem of trafficking as principally one of unregulated economic migration.

The law enforcement approach to trafficking is represented by the Ministries of the Interior of particular governments, police, border police and regional initiatives/organisations to combat organised crime, including the South Eastern European Co-operative Initiative (SECI). Trafficking in human beings is seen as a crime very similar to trafficking in arms and drugs, often committed by the same international organised crime groups.

- 12 - While the main goal of the law enforcement agencies is to prevent/combat crime and protect innocent victims, in the case of trafficking in human beings there is a visible tension and lack of understanding of the human rights violations involved and an inability to identify the victims of the crime. On the one hand, the police treat prostitution as breaking public order9 and therefore accord prostitutes special attention, so that the victims of trafficking appear, from a law enforcement perspective, similar/identical to women working illegally, but more or less voluntarily, as prostitutes.

On the other hand, the pressure on the police to combat illegal migration, and to prove the efficacy of the anti-migration measures, makes them treat all women without legal documents as illegal migrants. As a result, they tend to use an “everybody or nobody” strategy when identifying victims. In an everyday situation the women and children are treated as criminals (illegal migrants or prostitutes), but during the special anti-trafficking actions the police, when clearly instructed or trained, treat all women as victims of trafficking. This approach also means that young women, nationals of certain countries, experience problems while crossing borders or are refused entry, and raises questions about the negative consequences of anti- trafficking measures and status of travelling and migrating women.

The police may also have problems recognising traffickers, when they are not members of organised crime groups but rather pimps or former victims of trafficking. The mandate for the police to apprehend criminals in contexts in which prostitution is illegal, and to control national borders against illegal migration, produces a tendency for the police to treat trafficking as synonymous with anti-prostitution and/or anti-migration police work.

The human rights approach, which underlines the need and obligations of states to protect the human rights of trafficked persons, should in theory underpin all anti-trafficking approaches, since the “human rights framework” is derived from the human rights standards and principles contained in international treaties, covenants and protocols. In other words states are obliged to adopt the human rights approach under international law. Significantly, both the UN Secretary General and the UN High Commissioner for Human Rights have identified trafficking in human beings as one of the grossest violations and challenges of human rights.10

The UNOHCHR Recommended Principles and Guidelines on Human Rights and Human Trafficking11 establish the primacy of the human rights, stating that:

1. “The human rights of trafficked persons shall be at the centre of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims; 2. States have a responsibility under international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons; 3. Anti-trafficking measures shall not adversely affect the human rights and dignity of persons, in particular the rights of those who have been trafficked, and of migrants, internally displaced persons, refugees and asylum-seekers.”12

The language of the UNOHCHR Recommended Principles and Guidelines is based on the language of international human rights documents protecting collective rights of women, children, migrants, internally displaced persons, refugees and asylum-seekers. Looking at trafficking from a broader, human rights perspective it allows for a broader understanding of anti-trafficking measures.

- 13 - The OHCHR Guidelines include not only interventions addressing the factors that increase vulnerability to trafficking, such as inequality, poverty and all forms of discrimination, but also advocate for the adoption of activities that address demand as a root cause of trafficking and public-sector involvement or complicity in trafficking13. Among the strategies proposed in the UNOHCHR document are:

• Analysing the factors that generate demand for exploitative commercial sexual services and exploitative labour and taking strong legislative, policy and other measures to address these issues; • Developing programmes that offer livelihood options, including basic education, skills training and literacy, especially for women and other traditionally disadvantaged groups; • Improving children’s access to educational opportunities and increasing the level of school attendance, in particular by girl children; • Ensuring that potential migrants, especially women, are properly informed about the risks of migration (e.g. exploitation, debt bondage, and health and security issues, including exposure to HIV), as well as the avenues available for legal, non- exploitative migration; • Developing information campaigns for the general public to promote awareness of the dangers associated with trafficking. Such campaigns should be informed by an understanding of the complexities surrounding trafficking and of the reasons why individuals may make potentially dangerous migration decisions.

The human rights approach to anti-trafficking action has been adopted by intergovernmental, international and local human rights organisations, as well as by some governmental structures. The role of the international organisations is to support governments in fulfilling their human rights obligations. According to the Stability Pact Trafficking Task Force: “Overall responsibility (to combat trafficking) lies with individual states, which must ensure that they comply with their international obligations under human rights norms to respect and protect the rights of individuals through legal, administrative and other facility”14.

The tools that the international organisations are using are those of introducing human rights norms though active participation in the governmental and inter-agency bodies established to combat trafficking, as well as through monitoring the existing anti-trafficking initiatives.

Lack of information about and involvement in the actions “on the ground” – in identifying and assisting trafficked persons - makes the influence of the international organisations problematic. Standards for the treatment of victims of trafficking and for the work of assisting agencies (for example the UNOHCHR Guidelines and Recommendations on Human Rights and Trafficking and UNICEF Guidelines for the Protection of the Rights of Children Victims of Trafficking in SEE) have been developed and international organisations advocate their use, but do not have direct influence on the implementation of the human rights norms since this is the responsibility of government.

All these three approaches, law enforcement, migration and human rights, have an impact on the anti-trafficking responses and actions in SEE, as well as their practical consequences for the functioning and results of the anti-trafficking structures. The results of the initiatives in the area of identification of victims of trafficking, assistance to the trafficked persons and their re- integration, depend very much on the chosen approach.

- 14 - 2. Current Criteria for the Assessment of Anti-Trafficking Responses Three basic questions are usually asked to assess the impact of anti-trafficking action in SEE to date. Has trafficking decreased overall? Has there been an increase in the number of victims identified and assisted? And finally, has the number of prosecutions and convictions increased?

However, from a human rights perspective, anti-trafficking actions should not only contribute to the short-term results, as measured by the number of assisted/returned victims and the number of arrested and prosecuted traffickers, but should also support the creation of sustainable local democratic structures that promote the protection of human rights. An additional question can therefore be added to the assessment criteria: have anti-trafficking responses supported the development of local sustainable structures to protect the rights of victims of trafficking?

2.1 New Trends in SEE The information gathered from various institutions and organisations in the year 2004 indicates that there has been no major change in the situation of trafficking in the region compared to the situation described in the report of June 2002:15

• Approximately 90 percent of foreign women working in sex industry in the Balkan countries are victims of trafficking according to the Palermo Trafficking Protocol definition; • 10-15 percent of them are children under 18. The estimated proportion of children is higher in Albania – up to 30 percent.

New trends have been observed in the region:

• Trafficking has increased between the countries of the region, which means that the Balkan States are increasingly becoming countries of origin. Distinctions between different countries of origin, transit and destination are becoming blurred and are less relevant. • Trafficking in men to Western Europe, Russia and Former Soviet Republics for forced labour. • Trafficking in children, not only from Albania to Greece and Italy, but also from Moldova and Romania, for begging and child prostitution in the Russian Federation, the former Soviet Republics, Poland, the Czech Republic and the European Union. • Negative impact of trafficking on children. In the region, there is a large group of children of female migrants or victims of trafficking who are being raised without parents or by their extended families or placed in institutions while their mothers work abroad. • Internal trafficking of women and girls for sexual exploitation (especially in Moldova, Romania and Bulgaria, but also in other countries, including BiH and Serbia and Montenegro). Trafficked women and girls are often initially internally trafficked. Information from the police and NGOs in many countries on internal prostitution markets leads to the conclusion that the chain of trafficking for sex workers very often starts at home. Pimps, who “own” women locally and control internal prostitution markets, often sell women or move them from place to place within a country. After some time, these women are often sold abroad.

- 15 - 2.2 The Number of Identified and Assisted Victims of Trafficking has Decreased There is no confirmed information about overall decrease in the scope of trafficking in human beings in the region. Almost all agencies working on combating trafficking claim that it is not decreasing. However, there has been a decrease in the estimated number of victims identified and assisted.

The 2004 SEE RIGHTs report highlights the changing nature of trafficking, with girls and women increasingly trafficked within countries and men increasingly trafficked for labour. It finds that an increasing number of repatriated victims in South Eastern Europe are returning from EU countries, rather than from other parts of South Eastern Europe. What is more, those judged to be trafficking victims often refuse the assistance that is available, as they do not want to return to their countries of origin.

Therefore we have to examine two seemingly contradictory scenarios. On the one hand, trafficking in the region is decreasing, as there has been a significant reduction in the number of victims assisted. On the other, trafficking is not declining at all, but has simply become less visible, with victims unwilling to seek assistance for fear of repatriation, deportation and stigmatisation. It is simply not clear whether anti-trafficking efforts are succeeding or not.

It finds:

• Few foreign victims in shelters in the “transit” countries. Yet governments, international agencies and donors continue to set up new shelters. In 2002, women seeking assistance had no safe place to go. Today, either the victims are not being identified or those who are identified refuse to go to the shelters. There is a “victim hunt”, with service providers trying to find women to put in shelters with high running costs and few users; • More interest in “borderline cases”. The debate on trafficking in the region is broader than two years ago, with cases of domestic prostitution, under-age prostitution, street children, exploitation and abuse of women, children in Roma communities and children in institutions described and treated as cases of trafficking. Service providers accept women and children into their programmes even if their situation meets only the broadest definition of trafficking.

3. Identification of Victims by Law Enforcement: Victim or Criminal? Various sources in the SEE countries claim that the reason for the lower numbers of assisted victims and lack of prosecutions in the region is not only a decrease in trafficking but rather the ineffectiveness of both police activity and the migration approach to victim assistance in the face of new trafficking patterns.

3.1 Change in the Modus Operandi of Traffickers Traffickers seemed to have changed their modus operandi, but this has not been followed by changes in police strategy or action, whose effectiveness has decreased as a result:

• Trafficked women are increasingly kept in rented apartments and hotels, to which the police find access more difficult – hence bar raids are becoming increasingly ineffective; • More women have valid documents - hence documents checks are also less effective;

- 16 - • Women are being paid more than before and are therefore hesitant to accept the very limited help that is offered to them, because this means the loss of their only source of income as well as an immediate return home.

Moreover, as trafficking has become less visible, it has also become less socially and politically disturbing. This situation also has had some positive consequences for trafficked women: the bar owners pay them more; treat them better; and there has been a decrease in reports of extreme abuse and violence against trafficked women. As a result, the women usually do not consider themselves as victims of trafficking, especially when the police can offer them no real alternative. However, the negative impact of these changes is that trafficked women and girls have less contact with the outside world and are even more dependent on their traffickers.

3.2 Lack of Criteria for Victim Identification Although the police are mainly responsible for the identification of victims of trafficking, it is still unclear what criteria they use for this purpose. Or rather, it becomes more and more clear that the police, despite countless trainings and reassurances, still have no reliable methodology or criteria on the basis of which to identify victims of trafficking.

In this context, the interplay between the law enforcement and migration approaches comes to light. Criteria commonly used by the police to identify potential victims of trafficking includes:

• Working in bars/brothels; • Lack of proper documents; • Willingness to enter a “return and reintegration” programme.

For the border police, the criteria for identifying victims of trafficking include:

• Trying to cross the border illegally; • Being stopped at collecting points for persons awaiting to be smuggled cross a border; • Being a young female; • Returning after an illegal stay in an EU country or deported/expelled from an EU country.

While these criteria are a good start to identifying victims in certain cases, they also exclude a large number of other victims of trafficking, including victims who have legal documents, victims working in places other than bars/night clubs, and those victims unwilling or not able to accept immediate return to their country of origin.

3.3 Identification Conditional on Co-Operation with the Police It seems that the police often give women and children the impression that their status as trafficking victims and the provision of assistance depend on their willingness or ability to provide the police with information and to testify. The women are unaware that they can receive help without giving information to the police, perhaps because they come into contact with the police first.

- 17 - Another condition for support, generally imposed by the police, is being included in a database, which is described, depending on the country, as the database of illegal migrants, or foreign women working illegally in the country, foreign prostitutes, prostitutes in general, potential victims of trafficking, or victims of trafficking. No matter what the name, victims of trafficking are registered and entered in such a database if they come in contact with law enforcement agencies in any of the countries of the region.

Victims of trafficking are interviewed by the police and IOM several times in the process of identification and assistance.16 Women and children, persons under extreme stress have to repeatedly give answers to the questions, which on the one hand might put them in danger, and on the other might traumatise them even more. The reliability of information so obtained has also to be questioned.

3.4 Victims do not Trust the Police Generally, women and children stopped by the police, with or without legal documents, do not want to co-operate with the police and are usually cautious about providing them with any information that might identify them as victims of trafficking. They tend to repeat well- rehearsed stories and omit the real facts. Women and children are aware that their status (illegal stay, illegal work, illegal prostitution, involvement/connections with members of organised crime groups/criminals) makes them vulnerable and are trying primarily to protect themselves. Persons working with the victims in shelters confirm that they share the real stories and facts after a while, but would rather share them with social workers or psychologists than the police, if at all.

Therefore, we should ask several questions when thinking seriously about new, more reliable and effective ways to identify victims. Firstly, is it possible to change the attitude of the police towards trafficked women and children? Secondly, would it be possible to change the attitude of trafficked women and children towards the police? Thirdly, is it possible to establish a relationship built on trust and understanding, so that the victims start to trust police officers and come forward? The challenges are well known:

• The attitude of the police and society at large towards sex workers in general; quite often when confronted with prostitutes, policemen behave more like clients or pimps (women and girls are pushed around, bullied into giving testimonies, treated in a patronising way) than protectors; • Corruption of the police, including co-operation with organised crime or direct involvement in trafficking as well as co-operation with pimps and general acceptance of the local prostitution scene with broadly spread violence against prostitutes by pimps, clients and police; • Illegal status of trafficked women: being illegal migrants, having contacts with organised crime or working as prostitutes in countries where prostitution is illegal.

3.5 Pros and Cons of the Law Enforcement Approach While not very effective in combating trafficking the traditional law enforcement anti- trafficking approach has had a positive impact on other areas of law enforcement and state policies:

- 18 - • Strengthening the co-operation between law enforcement agencies at national and regional level; • Giving impetus to strengthening border control systems and registration systems for migrants and foreigners; • Collaborative efforts to fight organised crime and the smuggling of migrants.

However, police actions to combat trafficking in human beings should not be undertaken in parallel with actions against illegal migration, as this has proved to be counter-productive:

• Anti-trafficking programmes have discouraged, often unlawfully, young women’s decisions to migrate or even to travel. Very often, information about women stopped or questioned at border crossings is presented as information about the prevention of trafficking. Refusal to issue a visa or to allow a young woman to enter the country is sometimes presented as a valid anti-trafficking measure; • Trafficked women and children are treated like criminals, detained and deported instead of being recognised as victims and referred to assisting agencies.

So far, the protection of victims has not been considered a priority for law enforcement anti- trafficking action since most often victims are not identified as such. Rather than being identified and assisted, victims of trafficking are more often treated as offenders and deported as illegal migrants.

4. Victims’ Access to Assistance: the Only Option is to Return Home 4.1 Identification and Referral: Law Enforcement and Migration Approaches in Action Once identified, most victims are only offered the option of returning to their home countries. This is largely a result of the situation in SEE where the only operational and well-organised assistance system available for victims of trafficking is the one developed and operated by IOM. The operational identification, referral and assistance system that has developed in SEE is based on the almost exclusive co-operation between the police and IOM. Women without valid documents are interviewed by the police in a bar or at a police station. Those who decide to ask for help and agree to take part in IOM programme are sent to a shelter. The transfer to the shelter is immediate - often women are not even able to collect their belongings or demand that the owner of the bar/trafficker pays them the money owed to them. The knowledge that agreement to enter the return/assistance programme is connected with the loss of the few belongings that they possess and the money that they have earned is one of the key factors in the victim’s decision making process; some women decide to stay in the bar rather than part with their possessions.

4.2 Assistance Equates to Repatriation Women who take part in the IOM programme of voluntary return for victims of trafficking have agreed to be repatriated. However, it is difficult to talk about free choice and voluntary participation in the programme when this choice is limited to: a) being deported by the police; or b) being repatriated by the IOM. This choice does not say much about the real wish of a woman to return to her home country, it only says that she prefers to return with IOM rather than as a deportee.17

From the point of view of the victims, the part of the offered support that is most often unacceptable is the requirement of the helping agency (IOM) that the women agree to go back to their home countries.

- 19 - In the situation where a woman is the only financial provider for her family and for her children left at home, this requirement is often too difficult and too unrealistic. Given the limited choice between staying in an abusive situation and sacrificing themselves for the well being of their families or going back and feeling responsible for the family’s poverty, women often decide to refuse help. This is especially the case if they know that they are going back to a situation, which does not promise them much more freedom from abuse and discrimination.

Some NGOs even expressed the opinion that some women are manipulated into agreeing to return, and that the return is no more their free choice than deportation but only conducted in a more humane way. This needs to be taken into consideration while seeking alternative ways of assisting victims of trafficking and developing new social integration strategies.

4.3 Re-Victimisation in the Process of Assistance Despite the prevailing opinion that victims of trafficking should be grateful for any kind of help that would allow them to leave abusive conditions, and that anything assisting agencies can offer is better than the exploitation to which they are subjected, victims often have a quite different opinion. When approached by police, many women refuse to be recognised/identified as victims of trafficking. Police officers and service providers interviewed for this report clearly stated that the identification itself is not such a problem and that they have had no difficulties recognising victims of trafficking. The challenging part in their opinion was convincing the victims of trafficking that they should accept the assistance offered and that they would be better off in the hands of law enforcement agencies and IOM than in the hands of traffickers. Victims often express the opinion that they do not receive adequate assistance. They associate the existing provision of support with:

• Stigmatisation – participating in an IOM programme means that they are in danger of being recognised as a prostitute. Returning with such a programme means that people in their country, family and friends might also find out about their past; • Criminalisation – women are included in databases and are registered with the police. In some cases, they have stamps put in their passport preventing them from re-entering the country from which they were repatriated. They can also be accused of crimes related to trafficking; • Re-victimisation – alleged victims have to undergo a medical examination (so called “Fit to travel” examination), they have to answer many questions, including some very personal and embarrassing ones, posed by the police, border police and IOM in the countries of destination and upon return to the country of origin. Their freedom of movement is restricted; they may be locked in the shelters and their activities controlled. • Lack of protection – while in the custody of law enforcement agencies and with IOM in the country of destination, as well as during the journey to the country of origin, the women are protected by the police. This protection stops when they arrive in their home country and leave the shelter there. The return and possible encounters with their traffickers can be traumatic and dangerous experiences, especially for the women who have divulged information to the police. Quite commonly victims of trafficking try to protect themselves and their families by changing their testimonies after their return so as not to accuse the traffickers.

- 20 - • Lack of long-term support – after repatriation victims of trafficking are usually sent back to the places from which they were trafficked. They have to face the same problems of unemployment, lack of means to survive, lack of perspectives, abuse, discrimination, all of which are often exacerbated by the new stigma. Some women decide to co-operate with traffickers and become one of them, while others are re- trafficked. • Lack of real options – as it has already been pointed out, many women decide to stay in an abusive situation and not to accept assistance, because they perceive sex work as the only available way to support themselves and their families. Assistance programmes, from the victims’ perspective, do not offer any viable long-term options.

To sum up, victims of trafficking are stigmatised and victimised in the process of assistance. ”Do no harm” in the process of assistance should be the condition sine qua non for all involved agencies. Even though this condition is rarely met, the voluntary character of the victim’s actions and choices needs also to be incorporated in all assistance programmes.

5. Inadequate Victim/Witness Protection Results in the Lack of Prosecutions Priorities for the police are investigation and the prosecution of traffickers. The law enforcement approach to date has relied on the testimonies of witnesses/victims of trafficking identified during bar raids, often regardless of the consequences for the witnesses. Victims are not informed by the law enforcement agencies or the organisations providing victim assistance about the consequences and the dangers associated with testifying. They do not receive proper legal advice and often have no legal representation.

Also protection for the victims of trafficking who decide to testify does not exist, nor does special protection for child witnesses. The system of assistance created by IOM focuses primarily on the efficient repatriation of the victims, within the existing legal framework. Very rarely are the needs of the prosecution met, because in the majority of SEE countries there is still no legal basis for allowing women who are willing to testify to stay longer.

Women are protected against traffickers while in the shelters by being locked inside. But once inside the shelters they do not have professional legal assistance, nor are they properly informed about the possible consequences of the testifying, or giving information to the police. Victims usually have to leave the country after giving their written testimonies. They do not know if or how their testimonies will be used in court. As women do not appear in court, their testimonies are usually only read out, with very limited if any impact on the jury.

Protection of witnesses is presently the weakest point of anti-trafficking programmes in all countries of the region. Even in countries that have developed legal provisions to ensure witness protection in criminal cases, such laws are most often not implemented due to missing implementation legislation, political will, etc. Shelters are not prepared to take care of the victims of trafficking requiring high security. The police in the countries of origin are also not able to provide sufficient protection. Ad hoc remedies, such as resettlement in a third country, are scarce although in some recent high profile cases in the region, women have received this sort of assistance. Moreover, third-country resettlement and asylum do not necessarily ensure protection of the victim/witness.

- 21 - 5.1 Lack of Data Protection The police are collecting enormous amount of information, including information so explicit that, while not really relevant to prosecution, reads as pornographic material, for example about numbers of clients, or performed services. Although they are creating enormous databases of victims/alleged victims of trafficking, the results are not translating into the successful prosecution of traffickers, and in the process they are victimising and criminalizing victims of trafficking as well as possibly putting them in danger. There are also no international standards for data protection used in the process of developing and maintaining these databases.

At the same time, police intelligence gathering is still extremely weak across the region. Evidence of criminal activity that would stand up in court without victims’ testimonies is almost never gathered. Hence, the traffickers are rarely arrested. When they are arrested and prosecuted the process usually ends in the charges being dismissed, while the victims are re- traumatised and re-victimised. There is a need for a long term, structural solution to this problem to secure the safety and the rights of the witnesses and the successful prosecution of traffickers.

5.2 Victims’ Human Rights are not Protected In the last three years, many positive changes have taken place in the general area of anti- trafficking work in SEE:

• Better understanding of the definition of trafficking. The definition has expanded to include groups not usually mentioned in the context of trafficking in 2001: internally trafficked persons, trafficked men, trafficked children and children of trafficked women; • Improved legislation. In almost all countries the legislation now criminalizes trafficking, and in many countries efforts have been made to create a legal framework for witness protection and to assist the victims of trafficking; • Better organisation of governmental structures, including the appointment of a National Co-ordinator and the preparation of a National Plan of Action; • Development of police structures to combat trafficking/organised crime; • Better regional and bi-lateral co-operation in the region; and • Better inter-agency co-operation.

Despite many positive changes in general anti-trafficking work, in relation to identification, referral and assistance for the victims of trafficking, the most important statements and recommendations from the first SEE RIGHTs Report from 2002:18

• Not all victims of trafficking are identified as such; many are treated as illegal migrants, detained and then deported; • There is no assistance available to trafficked women, except for those victims who take part in IOM’s return programmes; • There are no standard operating procedures for the agencies working with victims of trafficking and no minimum standards for the treatment of the victims of trafficking used by the assisting agencies; • There are almost no HIV/AIDS prevention programmes or treatment for the victims; • Child victims are not identified as such, nor provided with the special protection to which they are entitled.

- 22 - Four years later, the situation for victims of trafficking has not improved. Victims are still not identified; assistance is limited; there are no standard operating procedures for the agencies working with victims of trafficking; and no minimum standards exist for the treatment of the victims of trafficking, especially children. Very little has changed in the area of HIV/AIDS prevention either. The only positive change has been the recognition of and assistance to trafficked children and, to some extent, to internally trafficked women.

It is a paradoxical situation where, on the one hand, we can note great progress in the creation and development of anti-trafficking measures in the region, but on the other hand, little progress in implementing these measures to support the victims of trafficking.

The challenges that remain are related not to the direction of the changes, which have to be valued very highly, but rather to the way in which the policies have been implemented. While the structure for action is much better developed than three years ago it does not always work in the way envisaged and suffers from:

• Lack of a human rights framework; • Improper interpretation of what trafficking is; mixing up trafficking with illegal migration and smuggling, and victims of trafficking with illegal/smuggled migrants and prostitutes; • Lack of a holistic approach to trafficking; not addressing the issues of protection, prevention and prosecution as interrelated; • Very strong emphasis on law enforcement and policing migration; • Insufficient co-operation between organisations working on anti-trafficking within the different approaches (human rights, law enforcement, migration); • Lack of protection mechanisms for victims and witnesses; especially the lack of proper identification procedures for the victims and the lack of appropriate assistance/protection; • Lack of comprehensive long-term goals for the anti-trafficking strategies, and the frequently unclear role of the international organisations.

While all organisations and institutions claim that they operate within the human rights framework and are acting in the best interest of the victims, this best interest is not clearly defined and not always even well assessed. For many agencies, the main focus is on acting within the mandate of their agency, achieving their goals and co-operating efficiently with others without engaging in analytical and policy development work.

Given that the number of women identified as trafficked and assisted is decreasing, and the system of assistance clearly does not offer adequate support to the victims, there is a need for new and more effective strategies to combat trafficking. In order to find an alternative to shelters where the few women and children that agree to go there remain locked up, there should be a change in the way that the system of identification and assistance operates. Comprehensive national referral mechanisms should be created based on human rights and the best interests of the victims.

This is especially pertinent if combating trafficking is not to be turned into combating migration and strengthening state security, without really addressing the crime of trafficking in human beings as such. It is necessary to look for new, alternative solutions and methods to approach the issue of the referral of trafficked persons, i.e. identification, assistance and re/integration, based on human rights principles that prioritise the victims’ rights.

- 23 - We have to acknowledge that there is no other way to fight trafficking but through the protection of the victims of trafficking. All victims have to be identified as such and all have to be protected and assisted, offered real options to choose from and then integrated back into society in the country of destination, in their home country or in a third country. If properly protected, provided with assistance, legal advice and security, some of the victims of trafficking will then become reliable witnesses in prosecution cases against traffickers.

Prevention Should Become the Core of Anti-Trafficking Strategies. Without stronger emphasis on prevention a successful attack on trafficking is not possible. There is a need to change the approach to combating trafficking in the SEE region, to recognise the new situation and to use the lessons learned from previous years to:

• Acknowledge the changing modalities of trafficking and the need to adopt a flexible approach, as well as regional co-ordination and co-operation; • Acknowledge that current assessments are based on limited information and that there is need to improve information gathering, research and dissemination systems; and, • Acknowledge the need to set up standards and procedures for anti-trafficking work, including the monitoring and evaluation of implemented programmes and accountability of the institutions involved.

A comprehensive prevention approach should also look outside the region to: • Address the demand for cheap, unprotected labour in the countries of destination, including the EU; • Address the labour and migration policies of the countries of origin and destination (including the EU) and research/assess how these policies influence trafficking; • Evaluate existing anti-trafficking programmes throughout Europe and assess their long-term results, especially in relation to the effectiveness of the return and re- integration model; • Explore options other than return for the assisted victims of trafficking when re- integration in the country of origin is not possible; • Develop joint prevention and re-integration programmes, between SEE and EU countries, addressing the root causes of trafficking; and, • Establish contacts and co-operation between institutions and organisations in the countries of destination and origin in SEE and the EU.

The changing situation in the region requires not only a deeper assessment and evaluation of the actions to date, but also a new approach that will enable an improved response to new challenges. The effectiveness of existing responses has to be critically examined and a system developed which will be more appropriate to the new situation. A revised system should:

• Recognise trafficking as a socio-economic issue that cannot be treated outside this context; • Be truly based on human rights principles (including protection of collective rights of women and children, labour rights and migrant rights) and the empowerment of the potential victims and victims of trafficking; • Include trafficking prevention in development and gender programmes; • Support the concept of “decent work for all workers” and inclusion of labour market institutions in anti-trafficking work; • Support safe labour migration systems;

- 24 - • Have a long-term perspective and be comprehensive; • Be cost effective, sustainable and rely on local capacity; • Build on the cooperation of different players and include the civil society; • Include an early warning system for changes in trafficking modalities, as well as monitoring and evaluation mechanisms.

We have to remember that the best prevention of trafficking is through protection of collective rights of women, children and migrants. Without a comprehensive human rights approach and focus on needs and rights of vulnerable groups, effective, long term anti- trafficking programs are not possible.

1 This presentation is based on the report by Barbara Limanowska, Trafficking in Human beings in South Eastern Europe. 2003 update on situation and responses to trafficking in human beings in Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the Former Yugoslav Republic of Macedonia, Moldova, Serbia and Montenegro, including the UN Administered Province of Kosovo and Romania. UNICEF, UNOHCHR, OSCE/ODIHR. Sarajevo, 2003. 2 ILO Forced Labour Convention, No. 29, 1930. 3 ILO Committee of Experts and the publication Human Trafficking and Labour Exploitation. ILO Guidelines for Legislators and Law Enforcement (draft), September 2004. p.30. 4 CEDAW , UN GA Res 34/180, 18 December 1979 (Art. 6). The optional protocol to CEDAW has been ratified by Croatia and signed by BiH, Bulgaria, FYR Macedonia and Romania. 5 CEDAW , UN GA Res 34/180, 18 December 1979 (Art. 6). The optional protocol to CEDAW has been ratified by Croatia and signed by BiH, Bulgaria, FYR Macedonia and Romania. 6 CRC, UN GA Res 44/25, 20 November 1989 (Art. 34 and 35). 7 2000 Optional Protocol to the CRC on the sale of children, child prostitution, and child pornography, UN GA Res 54/263, 25 May 2000 (not yet in force) 8 ILO Convention No. 182 (Art.3a), ratified by Bulgaria, Croatia and Romania. ILO Convention No. 29 concerning forced labour (Art 1 and 4) ratified by all Stability Pact countries. ILO Convention No. 105 concerning the abolition of forced labour (Art. 1 and 2) ratified by all Stability Pact countries except FYR Macedonia and Serbia and Montenegro. 9 In Bulgaria, FYR Macedonia and Moldova engaging in prostitution is not illegal, whereas it is illegal in the other SEE countries. However, the police attitude towards and treatment of prostitutes in these three countries is not dissimilar to that in the SEE countries where soliciting is illegal. 10 See: Trafficking in women and girls. Report of the UN Secretary-General, A/55/General Essambly/22 August 2000, see site: http://www.un.org/womenwatch/daw/followup/trafficking.html Also: the Secretary-General’s statement to the High Level Conference in Palermo, Italy, to mark the opening for signature of the UN Convention against Trans-national Crime, 12 December 2000, see site: http://www.odccp.org/palermo.convmain.html. Also: Traffic in women and girls. Report of the Secretary-General, E/CN.4/2003/74. See site: http://www.unhchr.ch/Huridocda/Huridoca.nsf 11 Recommended Principles and Guidelines on Human Rights and Human Trafficking. Addendum to the Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council, see site: http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.2002.68.Add.1.En?Opendocument 12 Ibid, p. 2. 13 Recommended Principles and Guidelines on Human Rights and Human Tra. cking, Addendum to the report of the United Nations High Commissioner for Human Rights to the Economic and Social Council, p.2. E.2002.68. Add.1.en. See site: www.unhchr.ch/huridoca.nsf/(Symbol)/E.2002.68.Add.1.En?Opendocument 14 Multi-year Anti-trafficking Action Plan for South Eastern Europe. Stability Pact for South Eastern Europe Task Force on Trafficking in Human Beings. Vienna, 16 March 2001, p.11. See site: http://www.stabilitypact.org/trafficking/atap-2001.doc 15 Barbara Limanowska, Trafficking in Human beings in South Eastern Europe. Current situation and responses to trafficking in human beings in Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the Federal Republic of Yugoslavia, the Former Yugoslav Republic of Macedonia, Moldova and Romania. UNICEF, UNOHCHR, OSCE/ODIHR. Belgrade, 2002. Report can be found at www.unicef.org/sexual-exploitation/trafficking-see.pdf 16 They are interviewed up to four times in Macedonia, and Romania, three times in Serbia, two, three times in other countries. One person can be interviewed up to eight times during the process of assistance. 17 There are cases of women choosing to be deported as an illegal migrant rather than to be repatriated and stigmatised as a "prostitute”.

- 25 - 18 Barbara Limanowska, Trafficking in Human beings in South Eastern Europe. Current situation and responses to trafficking in human beings in Albania, Bosnia and Herzegovina, Bulgaria, Croatia, the Federal Republic of Yugoslavia, the Former Yugoslav Republic of Macedonia, Moldova and Romania. UNICEF, UNOHCHR, OSCE/ODIHR. Belgrade, 2002. p. 142 Report can be found at www.seerights.org

- 26 - QUESTIONS AND COMMENTS (The rapporteurs will point out that this is not a complete version of the debate. Due to the circumstances we may have missed or mis-comprehended some points, for which we truly apologise. Thus the following sections from debate/comments are just our apprehension, and should be regarded as such.)

Turid Heiberg, Save the Children, Norway There is a need to define the best interests of victims of trafficking. I will draw your attention to an example from Nepal, where children were rescued from a brothel. Their experiences made them form a NGO of their own to protect their interests. We should learn from this experience, and recognise the need to look at Children’s Rights in addition to Human Rights. Children are a large group of victims of trafficked around the world and have often different and specific needs. Don’t forget Children’s Rights.

Trine Lund Jensen, Stop Kvindehandel, Denmark I would like to comment on the lack of programs of support for women being returned to their home countries. We learn that there is a need for integration of confiders, not further stigmatisation. Do we have evaluations of programs in the Balkans, and especially long-term follow up support?

Helga Konrad, OSCE A human rights approach is important. Governments and politicians do not know what this means. We have to appeal to these people and organizations to be involved and recognise the trafficking and human rights issues in the measures they take. When socio- economic growth is encouraged it is easy to miss trafficking/human rights issues. Sometimes for example the World Bank demands cut in existing social support in a country, which may lead to increased poverty for vulnerable groups and more trafficking.

Barbara Limanowska I did not speak of re-integration in my speech. There will be new reports and programs of re-integration. You will find them on www.seerights.org We need long-term programs. Most NGO have short-term programs. They have not been able to integrate trafficked women in labour market or socially. Re- integration will not take place if women are not in a position to support for themselves. In preventive work we must have special focus on vulnerable groups. Also in development support we must recognise the needs of these groups.

John Peder Egenæs The organizations gathered here all agree on the strong need to help. Joint lobbying towards the rich and the powerful will be the task of the different organizations gathered here today.

- 27 - Panel discussion

TOWARDS A RIGHTS BASED APPROACH TO PROTECT THE VICTIMS OF TRAFFICKING; PROTECTION OF RIGHTS OF TRAFFICKED WOMEN IN NORWAY By Turid Misje, Consultant, Pro Sentret

Introduction First, just briefly about Pro Sentret for those of you who do not know us. Pro Sentret is a national centre for documentation, information and advice on prostitution issues. Pro Sentret is also a social- and health service centre for men and women in prostitution. We have a drop- in centre, we do outreach work and we offer counselling. Our main aims are to provide help, support and advice to men and women who sell sexual services and to collect and give information on all matters related to prostitution. In 2004 we met a total of 1403 men and women selling sex.

Before I address the key issue; What challenges do we see related to how the human rights of trafficked women are protected in Norway, I will present a overview of the development and current situation, seen from our point of view, when it comes to women trafficked to Norway for the sake of prostitution. I will speak mainly of Oslo, but colleagues from our other big cities, Bergen, Trondheim and Stavanger, have confirmed that they see the same trends, although on a smaller scale.

Developments in and the Present Situation of the Prostitution Scene in Norway When I started to work at Pro Sentret, in 1999, trafficking of women to Norway was not an issue. We heard about trafficking in other countries, but the foreign women we met through our work had mainly come to Norway through marriage and family reunification. Although some of them might have fallen prey to various degrees of exploitation, it would be wrong to say that they were trafficked in the sense we now speak of trafficking.

The last years we have seen a marked increase in the number of foreign women selling sex in Oslo, and this is in particular visible in the streets. Before the year 2000 there were hardly any foreign women to be seen in street prostitution, the foreign women we met mostly worked in apartments or massage parlours. Until 2001 “migrants” was not even a category in our statistics. To give you some numbers: In 2001 we met a total of 846 persons through our work, 19%, were of foreign origin. Last year, in 2004, 63% of the 1403 persons we had contact with were of foreign origin. By mid April this year we had met 748 persons. The percentage of foreign persons is the same as in 2004, 63. The vast majority of the foreign persons we meet are women.

- 28 -

1600 70 1400 60 1200 50 1000 40 800 30 600 400 20 200 10 0 0 2001 2002 2003 2004 Total number 846 1300 1336 1403 Foreigners 161 400 644 885 i% of the total 19 31 48 63

Where are the Women of Foreign Origin From? The largest group of women we meet are women from Eastern and South-eastern Europe. In 2004 40% of all the foreign women we met were from this area. The second largest group is women from Africa. This group accounted for 22% of the foreign women we met in 2004. The great majority of the African women we are in contact with are from Nigeria, and the increase in the number of Nigerian women coming to Norway was without doubt the most striking development on the prostitution scene in Norway in 2004. We met a total of 128 Nigerian women in 2004; in comparison the number in 2003 was 2. By mid April this year we had been in contact with 172 Nigerian women, 113 of these were new to us. The other large groups of migrant women we work with are women from Asia, mainly Thailand, and women from Latin America, mostly The Dominican Republic.

- 29 - Migrant women in touch with Pro Sentret 2004, by country of origin:

Asia Africa South Eastern Europe- America Europe others Thailand 148 Nigeria 128 The Dominican 71 Estonia 75 Spain 9 Vietnam 2 Ghana 24 Republic Bulgaria 61 Finland 9 Syria 1 Cameroon 9 Brazil 19 Poland 55 Sweden 8 Cambodia 1 Sierra 5 Cuba 9 Albania 43 Italy 6 Kina 1 Leone Jamaica 8 Lithuania 41 Denmark 4 Laos 1 Liberia 3 Colombia 6 Russia 33 Holland 4 Uganda 2 Mexico 1 Romania 25 Greece 2 Congo 2 Panama 1 The 9 Austria 1 Tanzania 2 Unknown 1 Czech Unknown 2 Guinea 2 Republic 7 Kenya 2 Moldova 3 Angola 1 Latvia 3 Somalia 1 Slovakia 2 Ethiopia 1 Hungary 1 Namibia 1 Unknown Gambia 1 South 1 Africa Guinea 1 Bissau Unknown 5 Total 154 Total 191 Total 116 Total 358 Total 45 In addition: 21 persons where both nationality and continent is unknown.

Then, to narrow it down: Are the foreign women we meet victims of trafficking? The anthropologist Ellen Kristvik states, in a report from 2005 concerning Thai women on the prostitution scene in Oslo, that there are no signs of trafficking among these women. Although we are aware of elements of organisation among Thai women, our impression of this group concurs with Kristsvik’s findings. To our knowledge the same goes for the Dominican women in Norway.

The situation for the Eastern and South- eastern European and also the Nigerian women is different. We know that trafficking of women to Western Europe happens both from Eastern and South-Eastern Europe and from Nigeria, on quite a large scale. And that prostitution all in all is organised by a third party in these countries. Based on this knowledge, and adding the number of women from Eastern and South-eastern Europe to the number of women from Nigeria, we know that there in 2004 were close to 500 women selling sex in Oslo, who came from areas where trafficking is widespread and where prostitution is organised by a third party.

So, we know that there were close to 500 possible victims of trafficking in Oslo in 2004. What we do not know is how many of these women who actually were victims of trafficking.

Challenges Identification This brings me to the most important challenge we have regarding how to ensure that the human rights of victims of trafficking are protected in Norway. Pro Sentret’s stand is that trafficking is a gross violation of the victim’s human rights.

- 30 - And that it is the responsibility of the Norwegian authorities to ensure that the women who are victims of trafficking are protected against further abuse. To make certain that these women’s rights are protected, the first and most basic issue we need to agree on is: Who is a victim of trafficking? Until now I have spoken of trafficking as if the content of the term is commonly agreed upon. As we all know, this is not so. While I will not go much into the debate on what and what is not trafficking, I want to strongly emphasize the importance of having a common understanding of whom we are talking when we discuss how to protect and assist victims of trafficking. In general, it is only persons identified as victims of trafficking who are entitled to protection and help from the Norwegian authorities. So far in Norway, although the matter is under discussion, we have not agreed upon common criteria for identification of trafficked persons. This is the first issue I want to discuss.

We are of course aware of that to establish such criteria are a very difficult task. The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, the so-called Palermo Protocol together with paragraph 224 in our own penal code must naturally form the basis for the identification of victims of trafficking. But they are both open to interpretation. In April this year Norway got its first sentence in a trafficking case, that is, it was the first time someone were charged for committing an offence under our new trafficking paragraph. To make a long story short, the accused men were acquitted of the trafficking charge but found guilty of pimping. The point of issue was whether or not the women had been in a vulnerable position that the accused had abused for the purpose of exploitation. Again in short, the court did not find evidence of abuse of a vulnerable position, nor exploitation in a sense covered by paragraph 224, because the women in question had entered into and continued in prostitution voluntarily. To my understanding this contrasts with the Palermo Protocol, which explicitly states that the consent of a victim to being exploited is irrelevant when deciding whether or not trafficking, has taken place. Another very problematic issue in this sentence is that even though one of the persons who had sold sex were under 18, which according to both the Palermo protocol and our own laws means that if someone else profits from her prostitution trafficking has taken place, the men were acquitted of this charge but as mentioned found guilty of pimping. The reason was that they claimed to have been unaware of her age.

The sentence from Trondheim Tingrett, which fortunately has been appealed, has thus made me even more confused than before as regards to what can be defined as trafficking and who should be identified as a victim of trafficking. My impression is that this confusion is present also among others who work in this field in Norway. I have an increasing fear that only stereotypical, “ worthy” victims; that is women who have been locked up, beaten, deceived as regards to what they were going to do in Norway etcetera and who want to quit prostitution immediately and help the police prosecute the traffickers- a typical “Lilia”, for those of you who have seen the film “Lilia 4-ever”- that only these women will be recognised as proper victims of trafficking, and thereby have the right to get help and protection from the Norwegian authorities. There are some conditions or criteria that should be present for a woman to be identified as a victim of trafficking, which based on the Palermo Protocol in short are: exploitation, the use of coercion or threats – or the abuse of a vulnerable position, and the transfer of persons. BUT: Of equal importance is to define what is not relevant with regards to who is a victim and who is not, and we believe that this is in line with the Palermo Protocol: The level of coercion, threats and exploitation should have no bearing on whether or not a woman should be identified as a victim of trafficking. Neither should the level of voluntariness, nor her willingness to cooperate with the police or other authorities.

- 31 - To focus on whether or not a woman has consented to being exploited, or on whether or not she is willing to cooperate with the authorities, moves the attention away from the fact that she has been exposed to serious violations of her human rights - and has a tendency to become a discussion of her moral. We are worried that the debate on who is and who is not a victim of trafficking might turn into a discussion of who is “worthy” and who is “not worthy” of our help and protection. Such a discussion, together with the stereotypical picture of a victim of trafficking that exists in Norway today, might have as a consequence that the police and immigration authorities together with others who get in contact with possible victims of trafficking do not recognise them as such. Importantly, neither do the women themselves! The great majority of the women we meet do not identify themselves with the image of a locked up, deceived and mistreated woman. But they might still be exploited, and in a situation characterized by coercion. If neither the people who meets these women nor the women themselves recognize them as possible victims of trafficking, the end result may be that very few women will actually get access to the help and protection they are entitled to. Or, if the measures introduced by the government are actually meant to be only for the “Lilias”, we risk creating a system for the very few.

The next important issue to discuss regarding identification of victims of trafficking is who should be responsible for the identification process. For the time being it is the police who carry out this task, and they rely heavily on a woman’s self-identification as a victim of trafficking. Up to now this has given few results. Why is this so?

Pro Sentret’s experience is that very few women will admit to be in a situation where coercion is involved, before they know that they can trust the person who asks. To create trust takes time. We are not surprised that women who are from countries where the general view is that the authorities cannot be trusted, are sceptical of confiding in a police - or immigration officer they have never seen before, especially if the same officer at the same time controls their travel documents. We know that this is a method used by the police today. An unfortunate result of this approach is that a woman without proper documents or who has in some way violated our alien’s law, will be treated as an illegal immigrant and sent out of the country, or even imprisoned. That is, if she does not immediately identify herself as a victim of trafficking when asked. We have seen examples of this in both Oslo and our other cities. It is of course very important to listen to what the women say about their own situation. But, we think that the Norwegian authorities should have a responsibility to investigate whether or not a person has been trafficked, if there is reason to believe so, without relying solely on the women’s statements. This is in line with among others the United Nations guidelines on human rights and human trafficking. To our knowledge it does not happen much today. A challenge for the Norwegian authorities, and especially the police and immigration authorities, is therefore to see the women from areas where we know that trafficking is widespread, as first and foremost possible victims of human right violations with a right to get help and protection. They should not be regarded primarily as potential illegal immigrants or criminals. The police and immigration authorities should from a political level be instructed to give primacy to the possibility that trafficking is part of the picture for these women, and not to violations of the alien’s law. Furthermore, we suggest that organisations with knowledge of the women’s situation somehow should be involved in the identification process. This should not solely be the responsibility of the police or the immigration authorities.

- 32 - There are other reasons for why identification of victims based on self-identification so far has proven fruitless. One problem is that the women have no assurance of that to admit to being in a situation characterized by coercion, will actually make their situation better, or at least not worse. Since there for the time being does not exist any criterions for identification, we – or other organisations that meet the women- cannot guarantee those who tell us their stories that they will be identified as victims of trafficking by the authorities, and therefore be entitled to any help and protection from the same authorities. Furthermore the help and protection measures the government has introduced so far are in general discretional, they are not right based. This makes it difficult for the women – and also for us who try to advice them on what to do – to foresee the consequences of breaking out of the trafficking cycle. The women we meet are often in a situation characterized by uncertainty and unpredictability, and they need to know what kind of assistance they can get if they choose to break with their perpetrators, before they take this step. If they have no guarantee of what will happen, our experience is that unless they are in an extremely difficult situation, they will choose to remain unknown to the authorities.

Help and Protection Later speakers, in the next section, will address questions related to the actual measures the government has taken to assist and help victims of trafficking; the 45 days reflection period, as well as residence permits and asylum procedures. To conclude my presentation, I will therefore just emphasize that help and protection to victims of trafficking should be right based, and not discretional and conditional as they are today. Specifically, any assistance offered should not be conditional on the woman’s will to cooperate with the law enforcement agencies, but on whether or not the woman is identified as a victim of trafficking. And, such identification and further help should not be based on whether or not the police are able to prosecute the traffickers. A woman who has been trafficked to Norway should be seen as a person with rights in her own, and not just a means to get to the traffickers.

There are of course women who have their reasons for not wanting to or being able to break with the traffickers. This must be respected, and we must offer also these women help that can make their situations better. Access to free health care and legal advice is in particular important for this group.

But, a right based approach will be much more predictable for the women. We believe that if she has guarantees for what kind of assistance she can get, it will be easier for her to break out of the trafficking cycle, and I look forward to hearing about especially the Italian experience in this regard. Finally, a right based approach will ensure that the needs and rights of trafficked women are not subordinated to other political goals, such as Norway’s strict immigration policy and the already mentioned wish to catch the bad guys – but are kept at the centre of all efforts to fight trafficking in women.

- 33 - PROTECTION OF RIGHTS OF TRAFFICKED PERSONS – THE CZECH EXPERIENCE By Petra Burcikova, Director of La Strada, Czech Republic

I have been asked to share with you challenges we have met regarding protection of human rights of the women we provide assistance to in the Czech Republic. As I only have 20 minutes for the presentation and there are a large number of challenges I could talk about, I decided to focus on 2 that I find disturbing and general in a sense that they could sound familiar to many of you. And since I believe conferences should be predominantly about exchange and discussing different opinions that move us forward I will be most happy to hear your experience and reactions.

Focus

I. Reflection period and its application in the Czech Republic

II. Cooperation with the law enforcement as a principal requirement of the State Protection Programme

The 2 subjects I decided to focus on today are:

1. Reflection period and its application in the Czech Republic 2. Cooperation with the law enforcement as a principal requirement of the State Protection Program (part of the National Strategy to Combat Trafficking in Human Beings for the Purpose of Sexual Exploitation in the Czech Republic, approved by the Government Resolution No. 849 of 3 September 2003).

- 34 - I. Reflection period

• Source - The State Protection Programme (further “the Programme”) • Duration – 30 days • Purpose – to decide upon cooperation

Reflection Period and its Application in the Czech Republic Under the State Protection Program approved by a resolution of the Czech Government in September 2003, all identified trafficked person should be entitled to a 1 month reflection period to decide upon cooperation with the law enforcement.

Entry in the Programme

through

Police Helping organisation

In practice, trafficked persons enter the Program either through:

• The police • A helping organization

In both cases there are various problems arising in connection with application of the reflection period.

- 35 - Through the Police

•No reflection period in practice

•Use of the Programme

Benefiting police rather than trafficked persons

Through the Police If a person enters the Program through the Police no reflection period is applied in practice, because referral of the person takes place after being in contact with the Police, which means that at least a preliminary information gathering, if not a full-scale interrogation, has already been conducted by the relevant police department. Therefore, the question of cooperation with the law enforcement becomes irrelevant, as cooperation (more or less institutionalized) has already been established.

In some cases it appears that the Program is used by the Police if they need the person in question for longer-term cooperation and it serves their interests if he/she is provided adequate services and subsistence to be able to remain in the CR. In those cases it may happen that the Police applies surprisingly large margin of appreciation when identifying the trafficked person, usually much less strict than in other comparable cases. The reasoning would typically revolve around the extent to which the information provided by the trafficked person is useful for the criminal investigation. In the end, it appears that the Program is in place not to benefit trafficked persons in the first place, but the Police.

- 36 - Through helping organisation

1 month reflection period = Exit visa for 30 days

• Cooperation – tolerance visa for duration of criminal proceedings • No cooperation – voluntary return through IOM

Through a Helping Organization According to the Program, 1-month reflection period means that exit visa for 30 days is issued to a trafficked person. During this time the person in question should decide on whether she/he wants to cooperate with the law enforcement. If he/she does not want to cooperate, a “voluntary” return through IOM is arranged. If she/he decides to cooperate, a tolerance visa is issued and it can be prolonged regularly for as long as the criminal proceedings last.

HOWEVER In order for a trafficked person to be granted reflection period and, subsequently perhaps the tolerance visa, she has to be registered in the Program by signing a declaration to be submitted to the Ministry of Interior that decides upon registration. First of all, it is very unfortunate to start a relationship with a trafficked person who is often subjected to total control over her life exercised by the traffickers, by signing a declaration to be submitted to authorities. It may appear to her that there is little chance that she is going to regain control over her life and that only subject exercising control is going to change from traffickers to the authorities. Further, this practice undermines the person’s trust in the helping organization because that is usually the body that informs her about declaration proceedings.

- 37 - Reflection period

Measure to Control facilitate mechanism informed decision and stabilisation

Registration

affected by:

opinion of the Police

affected by:

value of information

Anyway, on top of these there are 2 other major problems for trafficked persons resulting from having to enter the Program in this way:

1st Problem Under these circumstances, reflection period changes from a measure to facilitate informed decision and stabilization of life situation of a trafficked person to a tool to allow for control over residence status of trafficked persons who apply for registration in the Program. This may require a bit of further explanation: If an undocumented trafficked person applies for registration, her declaration form is submitted to the Ministry of Interior for decision upon application.

- 38 - If it is approved, exit visa is issued and in this way Border and Alien Police are informed about that person’s existence and residence status and would make sure to pursue her deportation if she does not decide to cooperate. If the reflection period did not start with registration at the Ministry of Interior, it would allow:

• Helping organization a month to work with the person without pressure, explaining, informing, winning trust, letting her to think things over and finally, resulting in truly informed consent to cooperate and potentially, reducing instances of withdrawing deposition or changing testimony. All in all, the result would be more reliable witnesses. • Trafficked person to have enough time to think about her situation, prospects, weigh risks of cooperation with the law enforcement carefully and she would not be pressured into a “clear” deal with authorities – “we will provide services, but only if you provide the information”.

2nd Problem Currently, a theoretical option of a reflection period is basically invalidated by the practice that requires that every application for registration in the Program is accompanied by written opinion issued by the Police. In this way, the Police enjoys disproportionate influence over registration of a person in the Program and, in practice, nullifies reflection period as in most cases it would issue a favorable opinion preferably to persons who are willing to cooperate.

Another aspect of this problem is that in some cases it appears that it is not the willingness of a person to cooperate that is decisive factor for eligibility in the Program, but the value of the information such person is willing to provide for the criminal investigation. So in the end, it may happen that a person is willing to cooperate, but the information is not substantial enough for the Police and therefore, registration in the Program may be denied. This situation is even more paradoxical in the light of a well recognized phenomenon of initial trauma that many trafficked persons suffer from (Zimmerman, C., Yun, K., Shvab, I., Watts, C., Trappolin, L., Treppete, M., Bimbi, F., Adams, B., Jiraporn, S., Beci, L., Albrecht, M., Bindel, J., and Regan, L. (2003). The health risks and consequences of trafficking in women and adolescents. Findings from a European study. London: London School of Hygiene and Tropical Medicine (LSHTM).

- 39 - II. Cooperation with law enforcement

Services Services under the outside the Programme Programme

Double standard

Cooperation with the Law Enforcement as a Principal Requirement of the State Protection Program Some of the difficulties arising from this requirement are apparent from and closely connected to the above discussion on reflection period and its application under the Program. Existence of the Program, participation in which is dependent on this requirement, basically creates 2 standards for trafficked persons:

1. Services available in the Program 2. Services available outside the Program

1) Since the Program has been approved by the Government and is supervised by the Ministry of Interior as a state authority, it may provide higher standard of services in a sense that only through this Program it is possible, for example, to legalize residence of an undocumented trafficked person, to secure that a trafficked person detained in a center fro foreigners is released and referred to a helping organization or to try to discontinue criminal proceedings against a trafficked person for offences directly connected with her being trafficked.

2) Therefore, support provided by helping organizations outside the Program that may include different types of social assistance, health care or legal services stands a significantly smaller chance to succeed in the above mentioned areas (legalization of residence, release from detention or discontinuation of criminal proceedings) that are made possible thanks to direct involvement of state authorities.

Thus, having a Program that does not, in practice, include a reflection period and in later stages makes assistance dependent on cooperation with the law enforcement created a double standard of services for trafficked persons. In this situation the highest standard of support and protection is not afforded to those who need it the most, but only to those who decide to cooperate. Clearly, having a reflection period and assistance guaranteed to trafficked persons even though made conditional upon cooperation with law enforcement is a step forward compared

- 40 - to a situation when the mere existence of human trafficking had not been recognized. However, I believe it is important not to stop at the formal achievements and inquire continually into practical aspects of their application. Only that way we can make sure that the human rights standards will be lived, rather than just read about.

PROFILE OF THE VICTIMS By Iana Matei, President of Reaching Out, Romania

- 41 -

Most of the victims of trafficking come from dysfunctional families, where they have been emotionally, physically, and/or sexually abused. Consequences: low self esteem, no self worth, and a lot of anger. They have learned:

Abuser

Victim Absent guardian

Environment Dictates Behaviour

Home (desire to succeed)

Recruitment Repatriation

Trafficking period Negative reinforcement

In the 1980s The American Psychiatric Association introduced “post traumatic stress disorder” (PTSD) to the Diagnostic and Statistical Manual of Mental Disorders. The significant change brought by PTSD concept, was the fact that etiological agent was outside the individual: trauma.

Trauma basically means that something happens to a person and the person is unable to process the information, because the most basic and unquestionable concepts with regard to “self” and “others”, and to the environment is inconsistent with the event.

Dissociation: 1. There is no memory of this event available to the victim 2. Depersonalization: victim feels as she/he is another person (which severe trauma and affects the body). Rela tional Violence

- 42 - In contrast with incidental violence, relational violence gives time to the victim to adapt, in order to reduce the risk of further violence = survival strategies:

Avoidance: The victim will do everything to avoid the violence, but nothing will reduce the underlying conditions of inferiority and powerlessness, or the overwhelming power of the abuser.

Identification the offender: (Stockholm Syndrome) element of coping strategies. When the victim feels that:

• She/he might not survive the violence • She/he is isolated from the outside world • Escape is not possible or too dangerous • Despite all threats, there is something responsive inside the abuser • Therefore the victim will try to put herself/himself in the abuser’s shores, to take over his view, to feel and think as he is. Identification process is particularly strong, when the abuser occasionally pretends to care for the victim

Numbing: The victim is so involved with the abuser that she/he becomes alienated from her/his own emotions and thoughts. The victim loses herself/himself.

States of Recovery “Hostile victim”: In order to prevent any intrusion that could jeopardize the dominance of the abuser (leading to violence against the victim) the victim will avoid any cooperation with the law enforcement.

Loss of orientation: The victim has not found “her new coordinates” within the new framework.

Reconstruction and remembering: Victims long for everything to be as it was before. Crucial in this stage of recovery is for the victim to fully accept the reality of what has happened.

Social reintegration: Victims have to reconstruct social relations in order to overcome social fragmentation caused by violence.

The Need of Long Term Assistance • When living under the permanent threat of violence victims start to identify with the offenders (taking over their view). • By experiencing violence over a long period of time, victims lose self esteem and stop valuing their own needs. • By experiencing violence over a long period of time, victims tend to forget who they are. • For a very long time after leaving the situation of abuse, fear remains the strongest emotion in the life of the victim.

“Conspiracy of Silence”

- 43 - To listen to stories of violence, and to share traumatic experiences leaves us with a feeling of powerlessness, therefore the first reaction is disbelief or blaming the victim for being so “naïve” ⇒Victims will not speak.

Secondary Victimization From the police officer interviewing the victim and forcing her “to remember”, to the social worker disbelieving her story, to the doctor blaming the victim. We can all place the victim in a spot where she is a victim one more time.

- 44 - PROTECTION OF VICTIMS – THE ITALIAN MODEL By Maria Grazia Giammarinaro, Judge at the Criminal Court in Rome, Italy

General Remarks Concerning the protection of the rights of victims of trafficking, I want to point out with the greatest concern that there is still a great distance between efforts and concrete results.

Most of the victims of trafficking are still not identified as such. They are treated as illegal aliens and/or prostitutes, sometimes as criminals, and immediately deported. When thy return to the country of origin, often they are re-targeted and re-victimized. This happens normally, day by day, almost everywhere.

The truth is that the large majority of victims of trafficking do not receive any support or help.

In order to make assistance and protection more effective, some pre-conditions are needed.

First of all: Political will. Trafficking must be considered a high priority, and not be treated just as a case of illegal migration. Policies aimed at protecting borders should take second place compared to policies aimed at protecting victims of serious crime. This prioritisation requires the adoption of specific procedures aimed at identifying victims of trafficking. When an illegal migrant is found, instead of deporting her/him immediately, the competent authorities should immediately assess whether there are any indications of trafficking (e.g. the person is terrorised; she/he shows injuries or other signs of violence; their documents are in the possession of another person etc). If these indicators are found, a moratorium should be applied to the deportation process, with a view to identifying a possible trafficking situation.

Secondly: The role of NGOs should be formally recognised, as an essential role both concerning assistance and support, and in the identification process. Co-operation between public institution and NGOs that are responsible for support activities must be institutionally established and favoured.

These elements of an effective policy against trafficking require a strong human rights centred approach.

I’ve been asked to talk about the Italian experience because the Italian model gives strong evidence that a human rights centred approach not only is consistent with the relevant international legal documents, but it is also the most effective, both in terms of assistance and protection of trafficked persons, and in terms of the fight against traffickers.

The Italian Model – Art. 18 of the Law on Immigration In the Italian model victims’ rights are protected unconditionally, at least at an early stage of the procedure.

This is an aspect that I would like to stress. In Italy we have had very good results in the struggle against trafficking through a set of social provisions, concerning residence status and support for victims, and not through criminal provisions. In fact, the new criminal law was passed only in 2003.

- 45 - In Italy we have provisions aimed at favouring the collaboration of mafia crimes offenders. But these provisions did not work for victims of trafficking. Therefore, when we drafted the new legislation (art. 18 of the Law on Immigration) we decided, simply, to overturn the traditional approach to the provisions concerning the so-called “pentiti” of the mafia.

In the case of the mafia offenders, the approach is: the State gives you something (in terms of attenuating circumstances, lower penalties, police protection) on condition that you collaborate with the judicial authorities.

In the case of trafficking the approach is exactly the opposite: firstly, the State protects you, and allows you to stay in its territory because you are a victim of a serious crime, which infringes fundamental rights and the human dignity of the person. Then, the State asks you to co-operate in the prosecution of the perpetrators.

The enforcement has showed that this approach works. In fact, in the first year of implementation we had ten times more criminal proceedings for trafficking.

The Italian model is based on the idea that, as a priority, public institutions have to take care of the basic needs of trafficked persons. Identifying such basic needs has been possible because at that time, during the government led by Mr. Romano Prodi, there was a permanent exchange of information and opinions between our Ministries of Equal Opportunities and Social Affairs and NGOs working in the field of prostitution and drug addiction, catholic, evangelic, laic, and feminist associations.

There are three elements I would like to emphasise in the Italian Model:

• When a person claims to be a victim of trafficking, she/he has two possible alternatives. The person can report to the police as a first step. In this case, the police provide the person with assistance by accompanying her/him to a shelter run by an officially recognised NGO. Since criminal proceedings start immediately, the Prosecutor asks for a residence permit for the victim, if she/he considers the statements of the victim as a useful source of evidence. This is the so-called “judicial path”. The second alternative is the most innovative mechanism in Italian law, the so- called “social path”. The person can just claim to be a victim of trafficking and ask for help and assistance from a social worker of an NGO, normally of an NGO working with street units to support prostitutes. In this case, the NGO immediately shelters the person, and asks for a residence permit on behalf of the victim. The police authority must check if the person’s claim that she/he is a victim is corroborated, and issue a residence permit of 6 months, which is renewable. Until the issuing of the residence permit, the person is allowed to stay in the national territory. • The “social path” can be considered an identification process where NGOs play a major role. In fact, the social workers of the NGO are the first who assess the situation, and evaluate if the factual circumstances meet the legal standard for issuing a residence permit. The legal requirements are related to a situation of violence or serious exploitation, and to the danger deriving from the attempt of the trafficked person to escape from the influence of the criminal group that exploited her/him. The danger may exist as a consequence of the mere fact that the person is trying to leave, even though she/he has not made a statement in criminal proceedings.

- 46 - • The residence permit is issued on “social protection grounds”, not on judicial grounds. In fact, following the “social path”, the trafficked person must be assisted and protected, not necessarily on condition that she/he reports the exploiters. • In spite of some difficulties concerning the enforcement of the law, I would like to point out that the system works as a whole. This is due to an element of the Italian model that I would like to emphasize here: the recognition of the role played by NGOs. The law provides for the formal registration of a list of NGOs qualified to carry on support activities for victims of trafficking, and funded by the government and city councils. By establishing an institutional mechanism for cooperation among NGOs, police, prosecution and city council services, a process of confidence building has been going on since the law has been put into effect. This process has not been easy. In some cities or regions it was the first time that this sort of cooperation had started. However, the mechanism of cooperation has strengthened the position of NGOs, has required highly professional skills from them, and has made them completely reliable for the police and the prosecution, without affecting their autonomy. • The last element that I would like to stress consists of the opportunity for regularisation given to the victim of trafficking. The person is allowed to follow a regular course of study, or to work during the validity of the permit. Before the expiry of the permit issued on social protection grounds, it can be converted into a residence permit for work or education. This means that the trafficked person can stay in the territory under the same conditions as the person that legally migrated to Italy. • In addition, the possibility of renewal or conversion of the residence permit is totally independent of the result of criminal proceedings. This means that the person can obtain the renewal or the conversion of the residence permit even though the defendant has been acquitted in criminal proceedings, for example as a result of insufficient or contradictory evidence.

The Implementation

• According to the most recent figures of the Ministry for Equal Opportunities, from May 2003 to May 2004, 9,045 victims have received help, in terms of information, healthcare, psychological counselling, legal counselling, or other forms of support. • They have got in touch with the social integration programmes through NGOs street units (5,313), the police (1,502), by themselves (394), through clients or friends (391), social services of the City Councils (261), the hotline (192), or through other means (429). It is clear that the role of NGOs is essential, and that the “social path” is still preferred by trafficked persons. • Just in the last year of implementation of art. 18, 1,971 victims have been sheltered and accepted in the social integration programmes, of which 118 are minors. • Regarding the nationality of trafficked persons, the figures show a decrease of Albanians, an increase of Romanians and of people coming from Eastern European countries. The number of persons coming from Nigeria remains almost unchanged. • Since 1998 to June 2004, in the whole period of implementation of art. 18, 3,870 residence permits have been issued, and 150 people have been voluntarily returned, and assisted through special programs of repatriation. • Just in the last year of implementation (May 2003 – May 2004) 1,081 residence permits have been requested, and 927 have been issued.

- 47 - • Among people that have received help through the programmes, 944 have found a gainful job, 389 have received “borse-lavoro”, that is a form of stage, 431 have been trained, and 442 have been registered at school. • The impact of the implementation of art. 18 on criminal proceedings have been very strong. Before 2000, about 200 cases of trafficking had been prosecuted.

In 2001, according to the figures provided by the National Antimafia Directorate there were 2,930 criminal proceedings for trafficking and 6,074 for smuggling.

In total, the defendants were 7,585, of whom; Italians 32.18%, Albanians 29.83% Chinese 06.69% Romanians 04.52% Nigerians 04.46%

About 16% of the defendants were women.

Victims in trafficking cases were 2,741, of whom; Albanians 23.86% Nigerians 08.39% Ukrainians 05.58% Moldavians 05.25%

In trafficking cases 80,88 % of victim were women. In smuggling cases, just 14,08 % were women. This means that trafficking is still a matter of the exploitation of women, and requires a gender-based approach.

More recent figures show that trafficking is going to be prosecuted as a very serious crime under the new criminal law that was passed in 2003. Unfortunately, the new figures are not comparable with the previous ones, due to the change in the legislation.

However, it is clear that after the new criminal law entered into force, the indictments for slavery, trafficking and sale of slaves have significantly increased.

From 1st January 2000 to 30th September 2004 there were 402 criminal proceedings for slavery, of whom 144 from September 2003 to September 2004 (after the new law).

In the same period there were 76 proceedings for trafficking, of whom 48 (the large majority) after the new law. In addition, 31 proceedings have been started for sale of slaves, of whom 14 after the new law.

Of course, these last figures are relating just to the most serious forms of trafficking, and do not take into account the indictment for exploitation of prostitution and favouring illegal immigration, that remain a very high percentage of criminal proceedings for trafficking.

In conclusion, we can say that the new criminal law is essential to put in place adequate investigation and prosecution, and sentence traffickers a way that is adequate to the gravity of the crime.

- 48 - However, the most important results have been achieved as a consequence of two major elements: a strong social provision, aimed at social integration of trafficked persons, and a good implementation of the law, based on a close co-operation on a regular basis between public institutions and NGOs. It is to be pointed out that 70 projects of social integration programmes have been funded in the last year, of which just two are directly managed by public social services. The large majority of the programmes are managed by NGOs, including a number of local and small NGOs.

The Italian Model and the Reflection Period What is the difference between the Italian system and the reflection period that I would like to call recovery and reflection period?

In principle, there is no opposition between the Italian model and the model based on the reflection period, provided for in Belgium and the Netherlands and now in the EU Directive on residence permits.

The recovery and reflection period implies a fixed period of time. The main problem is that this period must be adequate, at least for the first phase of the recovery process. The experience shows that 30 or 45 days are not enough.

Although the EU Directive does not establish a minimum reflection period, national legislation should provide for adequate period of time, preferably three months, as suggested by the Stability Pact countries.

In the Italian model there is more flexibility.

Once the person is sheltered, even though the residence permit has not yet been issued, the person cannot be deported until the competent authorities do not complete the identification of the person as a victim of trafficking.

Regardless whether the person has already decided to report or make a statement in criminal proceedings, she/he can obtain a residence permit of six months, renewable.

In addition, the time when the victim is really in a position to make a reliable statement or to act as a witness is normally evaluated in co-operation between the police, the prosecutor and the NGO that shelters the person.

Therefore, concerning the comparison between the two systems – reflection period and Italian model – an essential point must be stressed. Both can work just if there is a confidence building process that leads to co-operation, on a regular basis between institutional and social actors.

Of course, the Italian system is far from being and ideal model:

• For example, we need a better identification process for children. • In the future we should focus more on forced labour and domestic servitude. • The identification process, connected with the immediate sheltering of the person, should be started even when the person does not admit that she/he has been trafficked, but the competent authorities have grounds to suspect that a trafficking pattern is behind the situation, as in the case of collective deportation of prostitutes.

- 49 - However, so far the Italian system is the more effective.

I’m convinced that the Italian model is difficult to manage – and so difficult to export - exactly because of it merits. Firstly, it requires permanent and loyal co-operation between institutional and social actors. Secondly, the whole process mostly aims at the recovery and social integration of the trafficked person, not mainly, and not even necessarily at co- operation with the judicial authorities. I increasingly believe that these are exactly the decisive elements of an effective protection of the rights of victims; elements that are not yet adequately dealt with by national legislation and international instruments.

- 50 - TRAFFICKING AND HUMAN RIGHTS – TOWARDS A RIGHTS BASED APPROACH TO PROTECT VICTIMS OF TRAFFICKING By Beate Gangås, Deputy Police Chief, The National Police Directorate of Norway, Leader of The Interpol Working Group on Trafficking in Women and Children for Sexual Exploitation

The Norwegian Police is responsible to the Ministry of Justice and Police. The central levels of the Police are Police Department at the Ministry of Justice and the Police and the National Police Directorate.

The responsibility for operational police work rests with the 27 local police districts. In addition to the police districts there are 7 Special Police institutions responsible for supporting the ordinary police in operative and logistical matters. 6 of the special police institutions report to the National Police Directorate, such as The National Police Academy, The National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økokrim), The National Police Immigration Service and The National Criminal Investigation Service (Nye Kripos). The Police Security Service reports directly to the Ministry of Justice and the Police.

The Director General of Public Prosecutions, who is independent of the Ministry of Justice and the Police, heads the Prosecuting Service. All police districts have police lawyers with prosecuting competence. This “two track system” means that in criminal investigations and prosecution of criminal acts, the police is subordinate to the Prosecution Authority. In purely police functions and all other matters, the police are subordinate to the National Police Directorate.

The Norwegian police force has 14000 employees. 8000 of them are police officers. The remaining 6000 are civilians and prosecutors. Before becoming a police officer they have to pass a three years training program at the National Police Academy. Last year 35% of the police cadets were women.

Principles of the Norwegian Police The Norwegian police shall reflect the ideals of our democratic society. The police force, it’s training and daily work is funded on democratic and humanistic ideals.

The police shall have a civilian profile, connected to the way in which the police behave in the widest sense of the term. The police shall be integrated. All functions of the police are gathered in one and the same organisation. The opposite is a police organisation based on specialised police forces of various kinds. The police is decentralised and functions in interaction with the public. The police shall be present as an integrated part of the local community. The public is the most important resource for the police. The police are unarmed on ordinary duty. The Norwegian police have monopoly on the legal use of physical force.

The police shall be subject to effective control by the society. Control of the police is one of the basic principles of a state founded on law and legality. The best guarantee against abuse of authority and against mismanagement lies in the control exerted by the police within their own organisation based on standards of professional ethics.

- 51 - Steps to Fight Organised Crime Norway is an attractive market for criminal networks because of the demand for cheap labour, high living standards and possibility of high profit. A goal for the police is to make sure that the market is not attractive because of low risk of being caught.

Norway has seen an increased activity of cross border crimes the last years. Examples of such crimes are drug crimes, smuggling of alcohol and tobacco, human smuggling and trafficking in human beings.

Norway has taken several steps to enhance the fight against the criminal networks behind these criminal activities. In 2000 we established a Council to fight organised, transborder crime, “ROK”. ROK is composed of representatives of all major crime fighting bodies in Norway. The police districts send project plans of investigations to ROK. ROK will be able to allocate funding.

In 2001 a project called “Catch” was established. The goal of the project was to fight serious organised crime. The project consisted of an operational unit who investigated cases after receiving its mandate from the Council to fight organised trans border crime (ROK). Catch was also given cases regarding trafficking in women. One example is a case, which these days are running in court here in Oslo. The case is regarding a Norwegian woman who the police charged for trafficking Hungarian women. The district attorney reduced the charge into organised pimping. The project has now become part of a new special unit to combat organised crime, Nye Kripos (National Criminal Investigation Service).

International Police Cooperation The Norwegian police are like other police authorities depending on international cooperation to fight transborder crime.

• Norway has been a member of the ICPO Interpol since 1931. • Nordic Police and Customs Cooperation since 1984 o Pool of Nordic Police and Customs Liaison Officers o Common Nordic intelligence projects • Partner of the Schengen cooperation, operational since 2001 • Cooperation agreement with Europol signed 28th of June 2001, entered into force 24th of December 2001 • Single international contact point at the National Criminal Investigation Service with 24 hour desk service

In addition there are a lot of initiatives and projects at bilateral and multilateral level. Concerning trafficking in women and children the following law enforcement co-operation is in place:

• Interpol Working Group on Trafficking in women (Norwegian chair) • Baltic sea Task Force – expert group on trafficking in women (German chair) • Task force against trafficking in human beings in the Barents Euro-Arctic region (Swedish chair) • Nordic working group on witness protection (Norwegian chair)

- 52 - Norwegian Policy to Combat Trafficking in Women and Children Norway is primarily a country of destination for women and minors being trafficked for the purpose of sexual exploitation.

The women are from various countries of origin, mainly from Eastern Europe, South East Asia and South America. The last year we have seen an increased number of women from Africa.

The National Plan of Action to Combat Trafficking in Women and Children A national plan of action to combat trafficking in women and children was adopted in February 2003. The action plan has been drawn up with the explicit recognition of the need for a comprehensive and multi-disciplinary approach to trafficking in human beings based on inter-agency cooperation.

The action plan contains 23 measures designed 1) to prevent trafficking in human beings, 2) to protect victims of trafficking, 3) to detect and prosecute traffickers, and 4) to enhance knowledge and intensify co-operation to fulfil the intentions of the action plan.

Detect and Prosecute - Law Enforcement Efforts The Norwegian General Penal Code has a separate penal provision on trafficking in human beings, which entered into force on 4 July 2003. The provision (§ 224) is inspired by article 3 of the UN protocol to prevent, suppress and punish trafficking in persons, especially women and children.

The Norwegian police are going through training on how to combat trafficking in women and children. The training involves among other things an investigation manual and standing order for operational personnel. Additionally financial resources have in some extent been earmarked to the organised crime divisions for investigation and prosecution of trafficking.

At present a number of trafficked persons have been assisted, and there are several cases under investigation. However, there is still a lack of systematic knowledge of the extent and methods of trafficking in human beings in the country. Thus, in January 2004, a national police intelligence project was launched to identify the extent of trafficking throughout the country. In addition, three research projects have been initiated to produce a “state of knowledge” on the situation of trafficking in human beings in Norway. These projects will form the basis for further strategic analyses and targeted activities.

The Investigator’s Dilemma In trafficking cases, due to the threats of reprisals to themselves or to their families, the victims/ witnesses are rarely prepared to come forward, to provide detailed statements and live court testimony. This situation creates difficult problems for the investigator who usually needs the co-operation of the victim to be able to solve the crime. Therefore there is a need for the investigator to focus on and have enough time to establish necessary confidence. Our experience is that the victims of trafficking would like to leave Norway for their home countries as soon as they have escaped the trafficking situation.

- 53 - Another dilemma for the investigator is that the victim of trafficking often will be committing offences under relevant immigration legislation in the destination country and may be subject to arrest. It is clearly harsh and against the human rights principles to treat the victim as an offender in these circumstances. The international legal conventions on this topic specifically state that victims should not be prosecuted in such circumstances. Law enforcement officers have a clear duty to respond as soon as possible when a trafficked victim comes to notice or when a victim or third party informant provides intelligence or evidence concerning trafficking in women. The police will provide the immediate safety. Medical and psychological help are fundamental human rights and therefore we also need multi-disciplinary action.

The practical challenge for the police has been to actually have enough information to find out whether the women are victims. I believe that we will improve when we have more experience, and the ongoing aware raising process within the police is very important. At present the police have detected more than 40 cases of suspected trafficking in women, and 10 cases against traffickers are under investigation. In addition several persons have been charged and convicted for trafficking related activities under the pimping section of the penal code.

Protection of Victims of Trafficking The implementation of the action plan involves establishing a national victim identification and protection system which provides assistance and protection to trafficked persons. These measures include:

A 45-day Reflection Period This period includes a safe place to stay, counselling, medical and financial assistance. The purpose of this period is to allow the person to stay in Norway while he or she is considering what to do about his or her situation, a sort of thinking period. In this period the assumed victim should get information about his or her possibilities, for example what will happen to her if she reports the traffickers to the police?

Conditions for Granting a Reflection Period It is not supposed to be difficult for a victim to get a reflection period, but the UDI has have listed a few conditions that should be fulfilled. One reason for listing conditions at all was to secure that the reflection period would not be abused to get a legal stay in Norway as we in fact have seen happening sometimes with the asylum system.

1) The person should be an assumed victim of trafficking. There has to be some indications that the person is a victim of trafficking, but there is not required a great amount of evidence or documentation of this fact. We use the same definition of trafficking as the Palermo Protocol, which is also used in the Criminal Act § 224. Normally the explanation from the person concerned is enough as evidence. Information from for example NGOs is also a valid and practical source of information. The UDI’s guidelines are also valid for men. Neither do we distinguish between for what purpose the person is trafficked – it can for example be for prostitution, work or for organ donation purposes. So far, however, the immigration authorities are only aware of trafficking for prostitution purposes in Norway.

- 54 - 2) The person should be willing to receive information and help offered from the authorities or other, f ex NGOs. As mentioned, the purpose with the reflection period is to give the victim a chance to consider what to do about her situation. It is therefore important that the person is actually willing to receive information about the possibilities she has to get help.

3) The person’s intention should be to break away from the traffickers. To be able to help the person it is essential that her future intention is to break away from the traffickers. But, of course, it is impossible to know about a person’s intentions so this is not a very restrictive condition. But the victim’s willingness to receive information, f ex, might be an indication on her future intentions as well.

In practise, a reflection period will be granted to a person that is likely to be trafficked if he or she asks for it, especially if his or her situation is confirmed by an NGO. In addition, the police or UDI should inform persons about the possibilities to get such a thinking period when we get in contact with the person, for example when we process the expulsion decision.

Temporary Residence and Work Permit This permit is only applicable for those who are willing to cooperate with the police in the investigation of/against the traffickers – or later in the trial. It will, for example, often be essential to get the victim to testify. Further it is a condition that the victim has broken with the traffickers, and this will normally also be important for the Prosecution in the trial (against the traffickers).

It is no time limit for this permit. The permit can be given as long as the investigation or the trial against the traffickers goes on, and can therefore be granted for several years all together. The permit will be given for maximum one year at the time. This permit is temporary and will not qualify for a permanent permission. Normally, it will not give the right for family reunification either, but exceptions can be made depending on the individual case.

After the trial is over, the person can apply for continued residence in Norway based on humanitarian grounds such as her medical situation, the stigma she risk in her home country etc. or her connection to Norway. Our practice will be similar to how we consider applications from other applicants.

Experience with the Reflection Period So far, no one has been granted a reflection period as far as I know, but it has been offered to women who have rejected it, for different reasons. It is therefore fair to say that the measures have not had the presumed effect.

In February this year the National Police Directorate asked the police districts about their experience with the reflection period. Some of the responses where:

• "It is obvious that victims of trafficking and foreign women in prostitution do not trust the Norwegian authorities, and in particular the police. The timeframe of the reflection period does not appear adequate to create the necessary trust between the victim and the police".

- 55 - • “Our experience so far is that the UDI circular 2004-19, has not been adequate in the cases which we have been handling. It clashes with other regulation of interests of the society, such as the question of unknown identities and security matters related to the need to know the identity of the people living in the country. Thus, if the victim first is taken into custody, it gives additional bad conditions for cooperation between the police and the victim.”

Maybe this can explain why the institution of the reflection period is not used. In addition, there is a chance that the possibilities to stay in Norway are not sufficiently known to the victims and to the police officers getting in contact with the victims. Last, but not the least, the conditions for granting permits might be too restrictive or at least they are understood that way. NGOs have stressed that there are difficult for victims to break away from the traffickers without a guarantee for legal residence in Norway.

The government is now working on a renewed plan of action. In connection with this, the measures we have implemented so far will be evaluated

Access to Sheltering and Information In co-operation with public services and NGOs the government has identified different shelters and other suitable accommodation with access to assistance and information for trafficked women. A project coordinator has been hired to facilitate access to sheltering and rehabilitation activities, and a 24-hour information phone line has been opened.

Access to Social and Health Services In Oslo, a social service centre has been designated to ensure that the victims receive financial, medical and psychosocial support.

Access to Witness Protection Schemes: Access to witness protection schemes for trafficked women and children is based on a risk analysis, which consists of a Threat-, evidence- and personal ability assessment. On the basis of the results of this assessment, the police co-operate with other service providers, experts and NGOs in order to meet the witness’s need for safety with a view to helping her return to a life where she does not need organised protection. Currently a couple of victims of trafficking are included in the witness protection scheme of the law enforcement authorities.

Return to the Country of Origin and Rehabilitation Norway supports several IOs and local NGOs providing shelter and rehabilitation for trafficed persons in countries of origin. This support is not linked to whether the trafficked person has returned from Norway. The migration authority, offers assistance upon return to persons returning voluntarily. The government is currently preparing a broader system of return and rehabilitation in cooperation with the police, the immigration authorities and local NGOs in the countries of origin.

A Referral Network A referral network for assistance and protection to trafficked persons has been established to facilitate access to information, assistance and protection. The network consists of designated contact persons within immigration authorities, social and health authorities, the police and NGOs providing social services.

- 56 - National Police Directorate, Norway

Trafficking and human rights – Towards a right based approach to protect victims of trafficking

Oslo 2nd of May 2005

Chief of Police Beate Gangås [email protected]

National Police Directorate, Norway

The National Plan of Action to Combat Trafficking in Women and Children

ƒ The action plan contains 23 measures designed ƒ 1) to prevent trafficking in human beings, ƒ 2) to protect victims of trafficking, ƒ 3) to detect and prosecute traffickers, and ƒ 4) to enhance knowledge and intensify co-operation to fulfil the intentions of the action plan.

- 57 - National Police Directorate, Norway

Combating THB - Two strategies for the police

ƒ To prevent THB

Measures in country of origin, transit and destination

Police, other governmental and non governmental organisations

ƒ Investigation and Criminal proceedings

Legal tools

International co-operation

Changes within the police force

The need for witnesses in criminal proceedings

National Police Directorate, Norway

Investigation and Criminal proceedings

Legal tools: ƒ Convention Against Transnational Organized Crime included the protocol on Trafficking in Human Beings ƒ Strl § 224 – Trafficking in human beings (Menneskehandel) ƒ Strl § 202 – Pimping (Hallikvirksomhet) ƒ Strl § 60a – Organised cirme (Organisert kriminalitet) ƒ Other crimes like violent assault, threats, rape etc.

- 58 - National Police Directorate, Norway

Investigation and Criminal proceedings continues……..

International police co-operation ƒ Interpol

Using the existing concept of co-operation

Working group on TIW

Manual for Investigators THB

ƒ Europol (St.prp nr 8 (2000-2001))

Crime intelligence, analyses, co-ordinate

Strategy for combating THB

Operational co-operation (Europol Liaison Officers)

ƒ PTN (Politi-Tollsamarbeid Norden)

Nordic liaison officers

National Police Directorate, Norway Norwegian Liaison Officers

Murmansk Europol

Moskva London

Islamabad

Madrid Wien

Sofia Malaga Berlin United Arab Emirates

- 59 - National Police Directorate, Norway PTN-liaison officers

London Murmansk St. Haag Petersburg Wiesbaden Moskva

Malaga Tallinn

Madrid Vilnius

Aten Warzawa

Ankara Riga

Amman Wien

Berlin Bangkok Dubai Islamabad Budapest Praha

National Police Directorate, Norway Investigation and Criminal proceedings continues……..

Need for change within the Police force ƒ Education

New legislation

Co-operation, national - international, governmental - NGO

Best practice ƒ Attitude towards prostitution - "important witness" ƒ To give THB priority ƒ Consider change within the local police organisation

- 60 - National Police Directorate, Norway

Investigation and criminal proceedings continues……..

The need for witnesses in criminal proceedings

ƒ Perspective of combating transnational organised crime

ƒ Perspective on the human rights of the victim /witness

National Police Directorate, Norway Witness protection

ƒ Convention Against Transnational Organised Crime

Article 24 - Protection of witnesses

Article 25 - Support and protection of victims

Article 6 - UN Protocol on THB ƒ COE recommendation nr 13 (1997) ƒ Norwegian police law, § 2 - protect and prevent crime ƒ National guidelines - witness protection (2003) ƒ Routines in each police district (2004)

- 61 - National Police Directorate, Norway

The Norwegian Police Service

Royal Ministry of Justice and Police

National Police Directorate Police Security Service

27 Police Districts

Lensman Stations Local Police Stations

National Criminal Investigation Service

National Authority for Investigation and Prosecution of Economic and Environmental Crime

National Police Computing and Material Service

Central Mobile Police Service

National Police Immigration Service

Norwegian Police Academy

National Police Directorate, Norway Witness protection on two levels

ƒ Locally - witness protection in the police districts (27)

Consider the possibility for threats against witnesses at every stage of the criminal proceedings

Assess the threat against the witnesses and their loved one

Implement the necessary counselling and protective measures

ƒ National (Police Directorate)

Witness protection programme under development

Relocation within Norway and abroad

Fictive identity (New legislation)

International co-operation (Nordic, Europol and other countries)

- 62 - National Police Directorate, Norway Witness protection

ƒ Assessing:

the threat towards the witness/victim

the value of the given testimony

the witness/victims need for support and help − medical, psychological, social, legal etc.

ƒ Implement protective measures

To reduce risk and

Reduce threat

Measures dependent on the witness itself

Measures implemented by the police

Legal measures

National Police Directorate, Norway Special Issues for witness protection (THB)

ƒ Risk assessment and protective measures –

Language

Cultural factors

Lack of trust

Psychological status

ƒ Need for support / help from other professions (not police)

Medical, psychological, social, legal, education, safe return home

- 63 - National Police Directorate, Norway The governments plan of action THB

Protection and assistance ƒ Combine traditional witness protection and the victims need for assistance:

A risk assessment will show the need for protective measures

A professional assessment of the needs for assistance

Witnesses / Victims are given protection and assistance according to their individual needs

Co-operation between police, other authorities and NGO's

Safe return for those who want to leave or don't fill the criteria for resident permit

National Police Directorate, Norway

Dilemmas ƒ 45 days of reflection vs. the need for effective investigation

Time is important for the investigation

A witness has to testify in court, not to the police

The police need a co-operative witness

ƒ Resident permit vs. no inducement to testify

Has the witness been promised something that will influence her testimony

Will a reflection period of 45 days motivate the witness to testify

Will an anticipation of further resident permit influence the witness

"Like to like" - principle

ƒ Principle of witness protection (National guidelines)

No promises of economic or other benefits

Protection and assistance is voluntarily

- 64 - QUESTIONS AND COMMENTS

Turid Heiberg, Save the Children, Norway A question for the police: How are police procedures in practice when they meet children (under the age of 18) in trafficking? (Referring to a case in Trondheim where one of the women involved was 15 years old).

Hanada Kharma, Norwegian Association for Asylum Seekers (NOAS) To Iana Matei: Can you describe some strategy to break out of the vicious circle you told us about?

Trine Lund Jensen, Stop Kvindehandelen, Denmark Question for Giammarinaro: An argument in Denmark is that if we allow some victims of trafficking to stay, we will be “over-flooded” by persons claiming rights to stay. How are the Italian experiences concerning the “flooding”?

Legal Advice for Women Can the police elaborate on how they – in practice – work in trafficking-cases?

Lise Bjerkan, FAFO Question for Giammarinaro: Can you tell us more about judgements in trafficking cases in Italy?

Beate Gangås I do not know the details in the Trondheim case. However the police have a duty to follow up on minors. Sometimes the persons in question are unwilling to receive police support and protection. The main problem is identifying victims of trafficking. As for police procedures in practice: Often police meet victims of trafficking in connection with other cases. If they identify themselves as victims of trafficking they will be referred to an officer with experience and knowledge, they will have the offer of 45 days reflection period.

Liv Jessen, Commenting on the Trondheim Case The 15year old girl: It should really not be a problem to follow up. One of the newspapers in Oslo interviewed the girl in Estonia before the trial. As for the willingness to receive 45 days and police support: on a raid on the hostel housing 49 Nigerian women last autumn, not one were willing to identify themselves as victims of trafficking.

Maria Grazia Giammarinaro About the impact of the Italian system on immigration patterns: It is assumed that there are about 20 000 foreign prostitutes in Italy, but this are difficult to assess as there are recent attacks on street-prostitution. There was also a concern in Italy about “flooding” but we do not have any evidence of negative impacts. The police do not worry about people taking advantage of the system or exploit the system. Most women will leave when they get other alternatives. It is very demanding to be in a social integration programme. As for criminal proceedings: there is a high number of convicted, but the sentences are usually low except for cases involving minors. The new legislation on trafficking will increase the level of penalty.

- 65 - Iana Matei I will underline the need to learn from each other’s experience and to establish a good relationship with the police.

Barbara Limanowska Last year n Bosnia the police took a different approach to trafficking. Instead of relying mainly on testimonials of victims they focused on collecting evidence by investigative methods, like surveillance etc.

Helga Konrad Sometimes protection and assistance can be perceived as control. We have to give victims a real package, a life line. Working permit and real options.

Tove Maurtvedt, Child Welfare Services What about minors? Will outreach workers and police involve the Child Welfare Authorities?

Liv Jessen Fortunately there are few cases, but there may be some false identification papers or passports giving a wrong age.

Beate Gangås To the Bosnia approach: we need to have more feet to stand on and cannot rely solely on testimonies from the victims. This is recognised internationally. We are mapping the modus operandi of traffickers, using, among other things, experiences from drug cases. We need to develop the investigative methods, but it is still difficult without cooperation from victims. A package of protection will have to include variety of offers. The women do not have the same needs, so it is important to differentiate between needs and to be flexible.

Iana Matei, Maria Grazia Giammarinaro, Beate Gangås

- 66 - NEW CHALLENGES IN POLICY DEVELOPMENT IN THE FIGHT AGAINST HUMAN TRAFFICKING By Helga Konrad, OSCE Special Representative on Combating Trafficking in Human Beings

How do we put good intentions and theory into practice? How do we implement good expertise? How do the systems work in the different countries, how do the authorities cooperate with the NGOs?

Helga Konrad

My job is to put all this into practice so that the governments can combat human trafficking. Many good things have been and continue to be done in the fight against trafficking in human beings, but in spite of all these activities, there does not seem to be evidence of a substantial reduction of human trafficking.

If we use the unveiling of the UN Protocol against trafficking in persons as the starting point for the modern era of confronting human trafficking, trafficking has now received concerned international attention for at least four years. This was when broad enactment of new anti- trafficking laws started, the funding for anti-trafficking projects and programmes began to flow and more governments, organizations and individuals dedicated increasing attention to this problem.

One has come to realize that effective action against human trafficking is going to require comprehensive and integrated approaches. It is now realized that interventions must address root causes, we must understand demand as well as supply factors, raise awareness of the risks of human trafficking, develop adequate assistance and protection measures for the victims, monitor recruitment and transporting systems, and also monitor conditions in the destination countries.

- 67 - But, we have also come to realize that – in order to be successful in our joint endeavour to diminish or even better: to eradicate human trafficking – the key challenges for countries around the world is to craft and implement sounder and more effective responses that produce meaningful results. We also know that a more sophisticated understanding of human trafficking is needed to improve the operational effectiveness of the implementation of appropriate anti-trafficking laws, polices and practices utilized in the fight against trafficking in human beings around the world.

Against this background it appears to be high time to challenge the assumptions on which we have based our fight so far. Many destination countries in Europe and beyond generally put the emphasis on preventing irregular immigration and on combating asylum abuse. Concentration on border controls, deterrence and immediate repatriation of migrants and very often also of victims of trafficking is frequently the beginning of a vicious circle. Studies confirm that that up to 50% of those immediately deported are re-introduced into the criminal cycle of human trafficking. Although such measures are obviously short-sighted, it is stubbornly held that they are effective means serving the interests of state security.

So the first lesson we have to learn is that human trafficking must not be seen primarily or exclusively from the perspective of national security. We must be aware of the fact that state policies that primarily focus on measures of self-protection as opposed to a more comprehensive approach to the issue are counterproductive and, therefore, part of the problem. And we have to learn that immigration responses to the problem of human trafficking are almost always inadequate. It is from the fact that these people are considered as illegal immigrants (and often as illegal workers) that criminals and criminal organisations draw their profits.

Another problem impeding effective dealing with human trafficking is caused by the fact that people smuggling is constantly confused with human trafficking ad the two are used interchangeably. Smuggling of people – although often undertaken in dangerous or degrading conditions which may even lead to the death of people – ends in general with the arrival of the people smuggled at their destination. Whereas human trafficking involves the ongoing exploitation of victims in order to generate illicit profits for the criminals. Trafficking in human beings is distinctly different from human smuggling and as such requires specialised measures for its investigation, prosecution and prevention. One of the major problems is that victims of trafficking are often not being identified as such. Many of them continue to be deported as illegal immigrants or are categorised as perpetrators of criminal offences, fined for administrative offences or taken into custody.

So what is urgently called for, is the development of specialised measures for the proper identification of victims of trafficking and consequently of trafficking cases. Clarification is also called for as regards migration. As a rule, migrants in general and irregular and undocumented migrants in particular are at the mercy of the traffickers and their accomplices. It is from the fact that these people often work illegally, that criminal organisations – exploiting the demands for low-cost, unprotected labour and commercial sex – derive their immense profits. Most of them are being exploited, have no access to health care, are unaware of their rights, are exposed to physical and mental abuse, are underpaid or have their wages withheld by middlemen. Traffickers ruthlessly exploit the lack of social and legal protection.

- 68 - Unfortunately the trend towards establishing a link between migration and international crime is rising. Due to the fact that migration has been generally set in the framework of combating organized crime and criminality, human rights protection has been subordinated to control and anti-crime measures, which has extremely negative impacts on how human trafficking is approached and on the protection of victims of this crime. The practice of most of the destination countries, even when victims are allowed to stay temporarily – an anti-trafficking measure long recognized as an integral part of an effective fight against human trafficking with strong preventive impact-, support for them depends on whether they are willing to cooperate with law enforcement authorities and even more so whether they are considered useful to the prosecution. Again, State interests take precedence of the right of victims to protection of their physical and mental integrity. The reluctance to grant an extended stay to victims of trafficking is also influenced by the assumption that the offer of a temporary stay would attract more migrants and might be abused. I am of course well aware that this is a sensitive issue in many countries. However, such fears would actually imply – at least indirectly – that migrants would volunteer for being trafficked just to benefit from the protection such victims is granted.

As mentioned above, the tendency to view human trafficking primarily or exclusively as a national security issue has detrimental implications for the rights and needs of trafficking victims. It tends to detract attention from a victim-centred approach and to concentrate exclusively on a law enforcement strategy, which in itself is frequently not tailored to fight trafficking in persons, but to fight criminal activities in general. This is not appropriate – not even from a law enforcement perspective -, since the prosecution depends to a certain extent on the victim’s cooperation in establishing a case.

On the other hand, the legal tools, that are available for law enforcement in the fight against organized crime, such as wire tapping, tracking the financial assets of the criminal enterprise, addressing the crime from beginning to end, long-term undercover investigations and/or surveillance etc., which are generally used by law enforcement against organized crime, are almost never utilized in human trafficking cases.

So, the lesson we have to learn is that fighting human trafficking must not be seen only as a fight against organised crime. It is first and foremost a violation of human rights. It is first and foremost a violation of human rights. It follows that trafficking in human beings is both a law enforcement issue and a human rights concern, and that there is not either or. Both issues must be tackled together, it we wish to be successful.

Widespread training holds a large part of the answer to the continuing need for spreading understanding. What is called for is thorough training of law enforcement officers, both front-line police and special investigators, of prosecutors and judges. Training in terms of having a curriculum and teaching new skill-sets over several days based on a victim-centred approach.

The education of all those who need to be reached is an enormous undertaking, but it is the only measure that will work. This, then, needs to be rigorously organized effort based upon a specific strategy of who will be trained and by whom. Team teaching by law enforcement officers and NGO-representatives as service providers for the victims has proved highly effective and adds a new quality to education and training.

- 69 - Another factor designed to diminish the conceptual confusion over definitions is the process of criminal law reform engaged in by the individual countries. When countries wrestle with the practical distinctions required to distinguish legally between smuggling, illegal immigration, prostitution and human trafficking and various other crimes and offences they find it necessary to refine and clarify these distinctions.

This impacts not only on criminal law provision but also on measures for providing, assistance and victims/witness protection. The differences between human trafficking, smuggling and illegal immigration again reveal themselves when countries must determine which benefits they will provide to human trafficking victims that they will not provide to smuggled persons or illegal immigrants and why.

A particular and problematic issue arises from the interference between various laws, more specifically between the laws on trafficking in human beings and the legislation on immigration. An example: Since in most countries crossing borders illegally is a crime, victims of trafficking are often prosecuted for being illegal aliens. Some have false documents etc. This is a serious obstacle to a successful prosecution, because it impedes and prevents the cooperation between the victim and the authorities. This holds particularly true for children frequently forced to commit petty crimes or are trafficked for stealing, but who must under no circumstances be treated as criminals. States must ensure that victims of trafficking are not subject to criminal or administrative liability and sanctions for acts arising from the trafficking situation.

The is a role for everyone in a concerted approach to this problem, but the ultimate responsibility for responding appropriately and effectively lies with each individual government. Governments and governmental authorities must accept their responsibility and accountability, it progress in the fight against human trafficking is to be made.

Trafficking in persons is a very complex problem, and cannot be captured in a single “snapshot”. It is better characterized as a series of actions unfolding like a ”movie”. This means that it does not happen within a given moment in time and then it is over, not does it happen in one place. It is not perpetrated only in the country of destination, where the victim or the criminal is discovered and of human rights violations, starting in the country of origin and extending over time and across countries of transit into countries of destination. Even internal trafficking involves a series of crimes and human rights violations that extend over time. And the different links/parts of this chain require different responses.

From the above it is evident that in search of an easy answer, repeated attempts have been made to reduce a highly complex and multi-dimensional problem to a simplistic, often one- dimensional issue. All those who work on this problem in practice have come to realise the breathtaking intricacy of this puzzle. There are those who see trafficking in persons solely as a problem if illegal migration, or solely as a problem of organized crime. This is a tunnel- vision that is not designed to lead to a desirable outcome. A truly comprehensive and multi- prolonged approach is called for, if we wish to be successful in combating this scourge – bringing together those who work in poverty reduction, education, human rights protection as well as those who address issues of corruption, organised crime, immigration and legal reform.

- 70 - While it has almost become a cliché that human trafficking is a trans-national crime, the problem is that virtually no one actually addresses it as such. There are hardly any investigations of human trafficking that link up to the criminal activity in the countries of origin with the criminals in the countries of destination. There is hardly any institutionalised and concerted follow-up of victims, once they have been returned to their countries of origin. There is no evidence that governments in the source countries take clear responsibility for the protection of their nationals, upon their return home. On the contrary: In many countries victims are arrested upon repatriation or branded as deviants or criminals. Such actions prevent the successful re-integration of these “survivors of trafficking” into their communities. In addition, once a trafficked person is repatriated, there is no communication at official levels to ensure that those responsible for the trafficking in the country of origin are brought to justice, or to ensure the protection of the victims and their families.

Last but not least, stronger emphasis must be put on prevention, by addressing root causes of trafficking, such as violence against women, discrimination, poverty, unemployment and social exclusion. Governments, including those in destination countries, would be well advised not to simply control migration and prostitution but to adopt different, long term policies and strategies in dealing with unemployment, labour migration, and to develop options other than returning victims of trafficking, such as joint programmes of (re)integration and more socially balanced economic programmes.

And finally, we must find the means to make people internalise the reality of modern manifestations of slavery; we must make them “see” the problem and understand it. So, what we need to do, first and foremost, is to deliver the message that human trafficking is about the plight and suffering of human beings and not simply about criminal transactions in soulless goods. A change in the working assumptions and an improvement in the effectiveness of all programmes and measures will largely depend on making policy-makers, donors and others understand the “why”. Unless they understand the why, they will not be convinced of the how or the what.

In the last analysis, this is what will ensure that we take the right approach, that we make the right choices and that we find the right path to effectively combating this crime.

- 71 - Panel discussion

NEW CHALLENGES IN POLICY DEVELOPMENT – NORWAY AS A COUNTRY OF DESTINATION By State Secretary Trond Prytz, Ministry of Justice and the Police

Distinguished participants,

First of all, I would like to thank Pro Sentret and Amnesty International Norway for organising this important conference. By placing its emphasis on the human firths dimension of trafficking in human beings, this conference will assist all of us in implementing a right based approach to combat trafficking in human beings in Norway.

Trafficking in human beings is a serious crime that constitutes a grave violation of human rights. The state is responsible for protecting all persons within its borders against human rights violations. Protecting the human rights of women and children who already are, or are in danger of becoming victims of human trafficking is a key priority for the government in its efforts to combat trafficking in women and children.

First I will emphasize that we have a responsibility to protect and assist victims of trafficking. Then we have a responsibility to prevent women, children and men from being recruited, and to curtail the demand that makes trafficking in human beings such a profitable trade. We also have responsibility to detect and prosecute the traffickers. Under our international obligations Norway is committed to combat trafficking at all these levels.

Trafficking in human beings is a complex issue that touches upon a variety of policy areas such as organised crime, migration, labour rights, prostitution, human security, democratic institution building, globalisation, just to mention a few. This means that we need to have more than one perspective in mind.

However, I cannot see a contradiction between these different elements e.g. combating organised crime and protecting the rights of trafficked women and children. These tow perspectives are complementary. As a former chief of police, I know for a fact that criminal investigation and victim protection is closely linked. A victim that receives assistance, protection and human respect is more likely to develop trust in the police, give evidence and testify in court proceedings.

The question is not, whether or not we need to alter the focus of Norwegian trafficking policy from combating organised crime to protecting the rights of victims. This policy is already in place, and outlined in our national plan of action to combat trafficking in women and children.

Ladies and gentlemen, preventing trafficking ad re-trafficking, protecting victims and prosecuting traffickers requires strong political will. This political will is reflected in our National plan of action to combat trafficking in women and children (2003 – 2005) Towards the victims of this crime the government is working on developing a systematic, flexible and accessible assistance and protection service that will take into consideration the situation of each individual victim. This service includes victim identification measures, access to sheltering, temporary resident and working permit, legal assistance, medical, financial and psychological support, return and rehabilitation.

- 72 - We have learned that there are no easy solutions. We have also learned that combating trafficking requires more than political will. It also requires other elements like knowledge and engagement from professionals, NGO representatives and the public in general, and of course good coordination between these participants.

It is also important to ensure that our anti-trafficking policy and action plan is implemented. The questions are also what measures are the most efficient, and how we can ensure that victims of trafficking are given information about their rights and possibilities in Norway. How do we ensure that the high number of possible victims that you will find just a couple of quarters from this building receives appropriate information and are referred to the assistance services?

In the implementation work we need to be sure that we all know what we are talking about. We all need to know what trafficking in human beings is about. We need to have updated knowledge and information as the trafficking trend is changing rapidly. Currently there exist a lot of stereotypes and misconceptions in the public debate in Norway. The government has therefore initiated several capacity building measures for police officers, immigration authorities, social and health workers, and NGOs. Similarly we have initiated several research reports and the national criminal Investigation Service (Nye Kripos) is mapping the developments on trafficking in human beings in Norway.

I think that we all have to realize that trafficking in human beings goes beyond the sex industry. There are more and more indication of trafficking in human beings for other exploitative purposes; forced labour in various industries such as in the construction sector, restaurants and hotels, the agricultural sector and domestic labour to mention a few. These forms of trafficking involve not only women and minors, but men as well.

However, we need to ensure that we keep a strong focus on combating trafficking in women and children in the sex industry. In Norway we have seen an increased influx of women of foreign origin at the prostitution arena. We need to meet the challenge of stigmatisation and discrimination of these women, and ensure that those who are trafficked receive appropriate information. If we take the human rights perspective we need to respect the victims own will and their choices, although they might conflict with our own views. In the same way we have to be sure that we have done everything possible to provide victims of trafficking with accurate information, so that they can make informed choices.

In our work we need to ensure that the first line officers in the police, the health and social workers, the immigration authorities and the NGOs know what to do when they meet a possible victim. Through the establishment of multi-disciplinary training programmes we hope that information sharing and co-operation among the police, immigration authorities, social and health authorities and the NGOs will lead to improved assistance and protection of the human rights of the victims of trafficking.

I will also mention the importance of international co-operation. Combating trafficking in human beings cannot be done by national means alone. We need to increase law enforcement co-operation, including mutual legal assistance tin criminal investigation and extradition and w need to improve law enforcement methods so that the victims of trafficking are not re- victimised.

- 73 - Also to prevent trafficking, international cooperation is very important. In Norway we look upon promoting education and a better standard of living – in the country of origin – as very important to prevent the recruitment of women and children from trafficking. 90% of the Norwegian total budget on approx. 10.3 million Euro is canalised to this important work.

Ladies and gentlemen, analysing the situation in Norway, it is clear that much more need to be done to ensure that the human rights principles are included in every anti-trafficking measure. My government is working on further developing the framework and measures for combating trafficking in human beings both in Norway and in countries of origin. We know that we cannot do this alone. This we are very grateful to the 27 organisations and 5 research institutions in Norway that have taken time to share their knowledge and provide input to our new national plan of action to combat trafficking in human beings (2005 – 2008) that will be launched before the summer.

To conclude: The scope and complexity of challenges confronting us in combating trafficking in human beings can hardly be exaggerated. In dealing with this we need strongly to focus on the long distance in front of us. “Human trafficking poses a threat to its victims’ right to freedom from slavery, deciding over their own bodies, to freedom from degrading, humiliating or inhuman treatment and, ultimately, the right to life”. On this background, the government will continue to work systematically to overcome the challenges confronting us. We know that the only effective way we can tackle this issue is by joining efforts with Norway and internationally. The co-operation with the NGO sector is crucial to ensure more successes than setbacks. I invite NGOs to continue the constructive co-operation and to join the government’s effort in securing a human rights based approach in our joint efforts to combat trafficking in human beings.

- 74 - VIOLENCE AGAINST THE SOCIETY By Karin Yrvin, General Secretary of Labour Women, The Norwegian Labour Party

Karin Yrvin

Sometimes, not in this room, but sometimes, we tend to treat violence against women as something that happens to someone else. It happens to other people, to the victims, I would like to say that this is not the case. Violence against women is a problem for the society. Not only for the victim. It affects us as citizens, as country, as family members, as members of the society. One reason for saying this is the following:

Gender-based violence is Sometimes, not in this room, but sometimes, we tend to treat violence against women as something that happens to someone else. It happens to other people, to perhaps the most shameful human rights violation. As long as it continues, we cannot claim to be making real progress towards equality, development and peace. Gender violence is a daily, and often deadly, fact of life for millions of women and girls around the world. Women are attacked on the street, in the workplace, in the home, in war and armed conflict, and while in state custody. Some of the women are sold and abused.

The actual and human costs of this violence are tremendous; violence devastates lives, fractures communities and inhibits development in every nation.

For those who are concerned with the development of societies, this is an inescapable and urgent challenge that must be addressed systematically in all areas of work. As long as gender violence continues to hinder women’s participation in development, the full potential of development will never be realized.

- 75 - Gender-based violence must be addressed as a pervasive human rights violation as well as significant health and development issues, with powerful implications for coming generations. It must be treated as violence against the society, and as a server hinder for democracy, growth and freedom. The other reason for me to state that trafficking is not an issue just for the victims, but also a problem for society, is this knowledge: If you want to be free, there is but one way; it is to guarantee an equally full measure of liberty to all your neighbours, your daughters and your sisters.

Research findings from studies done both in the Northern and the Southern hemispheres, show that the phenomena of violence against women affects women throughout their lives – extending from infancy through to old age; affects women of every nationality, class, race and ethnic group; and is exacerbated by poverty but cannot be solved exclusively through economic remedies.

Trafficking in persons is a grave violation of human rights, especially the rights of women and children.

Trafficking in women and girls – is one of the fastest-growing types of organized crime in the world. Many of them are subjected to violence; all of them are subjected to human rights abuses. Its human rights implications are beyond dispute. Trafficking in persons violate the most basic of all human rights. The right to life, the right to dignity and security, the right to just and favourable conditions of work, the right to health and the right to equality are infringed upon: these are rights, which we all possess - irrespective of our sex, nationality, social status, occupation or other differences. How is it possible to ignore or tolerate such victimization of the vulnerable in from countries, while eagerly protecting the rights of women and children in our own countries?

And when I have stated this, I would like to add: how can we as a society be so blind for gender based violence, both in trafficking and in relationship?

I have sometimes wondered why it is so easy to acknowledge and judge the wrongdoings in the past, and so difficult to analyse and take important steps against the wrongdoings in the present time.

Trafficking in persons is increasingly becoming a serious worldwide phenomenon. While it is difficult to estimate the whole figure of victimization, we all know the actual cases detected are just the tip of the iceberg and many people believe that, at the very least, hundreds of thousands of people, mainly women and children, are victimized worldwide every year. Trafficking in persons has become such a major scourge that it is often referred to as a contemporary form of slavery.

The underlying cause of trafficking in persons is poverty. The growing disparity between the developed and developing countries creates a firm demand and supply of trafficking in persons. Without solving this problem we cannot foresee the eradication of trafficking in persons, but as we all know there is no quick answer to it. In addition, many factors such as rapid urbanization, loss of community, lack of education, spread of consumerist values, political persecution in developing countries and cheap labour in less developed countries have accelerated and complicated the problem.

- 76 - Of course, organized criminal groups have played a major role in the problem making huge profits, which have in turn been used to finance other criminal activities.

Somewhere at the beginning of the chain of events leading to someone being sold and sexually exploited, there is poverty and vulnerability. In the long term, what needed are efforts to achieve an equitable global development. We need a strategy to combat trafficking in human beings through our development cooperation. Initiatives for girls and women's education, their opportunity to work, access to sexual and reproductive health and rights are examples of some preventive measures.

Trafficking in human beings is also about power. The rights of girls and women must be strengthened. In the labour party we train NGOs and politician in 15 our courses “women can do it” to help strengthening the civil society. Our whish is for women in politics to be locomotives in the changing of their countries. Men must also be changed. Long-term gender equality work is vital. Internationally, Norway has an important role in continually advancing women's rights. We shall take up the fight with reactionary forces that try to tear up decisions that have already been made, who try to limit women's rights.

But the impetus for traffickers in human beings is, of course, the demand. There are far too many buyers of sexual services. The Swedish Sexual Purchases Act from 1999 criminalizes the buyer of sex. The Norwegian labour party will not promote this Act into Norwegian legislation because of our concern about the women that are abused, but I ensure you that we are following the results of the Swedish situation with interest.

In the labour party, we would like to se a closer cooperation with other countries on trafficking. We have a Nordic-Baltic conference these days, to improve cooperation in the fight against trafficking in human beings in the Nordic-Baltic sphere. It is very much in our common interest to come to grips with trafficking in human beings.

The nature and magnitude of trafficking in persons require special concerted efforts both domestically and internationally to cope with it. To prevent and prosecute trafficking in persons and to protect its victims close cooperation is needed between government, NGOs and other private sectors. Trafficking in persons, as a trans-national organized crime, also requires more than just the creative response of one or two governments.

It is truly time for women and men in all States to act together to stop all forms of violence and discrimination against women. I welcome the much-needed work and the report from the UN Special Rapporteur on violence against women and I urge all others to include a gender perspective in their work. Including the Norwegian foreign ministry. And I will say this again. Norwegian foreign policy must include women’s perspective. We need to stop the male dominance in foreign policy that blocks women’s issues to reach the agenda.

I would like to give a compliment to the Swedish government, which is in the forefront in the international society to advocate rules and regulations with the aim of stopping trafficking.

The adoption of United Nations Convention against Trans-national Organized Crime is a great step forward at an international level. The efforts currently made by large economies such as the EU-countries as well as international and regional bodies are very encouraging.

- 77 - To tackle the various causes and factors affecting the problem we need to strengthen international cooperation at various levels of society. Trafficking in persons is an evil that can only be defeated by the joint efforts of legislators, law enforcement officers, prosecutors and NGOs working together and with their counterparts internationally.

When it comes to national measures, we have taken some important steps. We have the new paragraph in the law, stating that trafficking is illegal. I believe we should have a broader discussion about the security of women that wants and are willing to witness against their abusers. We need more awareness in the countries of origins about what trafficking really is, to warn women, and we need to protect women from violent persons who try to import them for shirt time abusive relationships. I would like to give a special thank you from the women in the Norwegian labour party to the state secretary, Rita Sletner for her engagement in these issues, because this is not about political differences, but the eager and willingness to change. But I would also like to add a bit more quietly that more could and should be done.

In raising public awareness of the problem or protecting and rehabilitating its victims NGOs play very important roles worldwide and when it comes to the finer details, I think there is much scope for the NGOs to assist and make a difference. In this regard I very much appreciate this opportunity in which we politicians and members of NGOs are able to meet and hold discussions with one other. Your presence here today is a crucial step in forging a national and international collaborative response to the modern day slavery we call trafficking in persons.

We simply must take effective and coordinated measures to fight trafficking. Your work here, and in the immediate future, is crucial. We must continue to push this issue forward in a number of fields:

First: raising awareness: When we first raised the trafficking issue, people didn't realise what trafficking meant in terms of human suffering, and the establishment of trans- national criminal networks. Second: Human Rights: The women and children affected are victims whose human rights are violated, they are not the criminals. We must also strengthen human rights, the rights of the child, and women's rights in order to combat trafficking. We must not let those who are in favour of female genital mutilation in Africa, and those who are against abortion in the US, join forces and create a backlash for human rights in the field of health. We must also continue our fight against poverty, and unemployment. Third: Demand. We must never forget that if there was no demand in Norway, Europe and in other parts of the world, for these women and children, there wouldn't be any trafficking. Fourth: Stiff sentences are needed in all countries, and also cooperation between customs and the police. We must strengthen: • the national and international legal framework • coordination and cooperation between regions and states. • victim protection and assistance • awareness raising

- 78 - I wish sincerely that, with this conference as an impetus, more and more people will gain a greater understanding of the problem of trafficking in persons and will build a society in which the dignity of persons, especially that of women and children, is highly respected.

I would like to express my heartfelt hope that the discussions to be held here will further contribute to reinforcing the prevention of trafficking, the prosecution of offenders, and the protection of victims.

The Norwegian Labour Party Women’s network will not consider our task complete until every woman knows the joy and freedom of living a life free from the threat of violence – until shame and silences are no longer existent, where women and men gain the power and the courage to live their lives to their full potential. I urge all our leaders to understand also, that violence against one woman is, in fact, violence against a democratic and developed society.

- 79 - NEW CHALLENGES IN POLICY DEVELOPMENT – NORWAY AS A COUNTRY OF DESTINATION By Karin Andersen, Vice Chairman for the Socialist Left Party in the Parliament

One of the most serious challenges facing human rights today is the crime of human trafficking and its various dimensions – including organized crimes, prostitution and migration.

According to the International Organization for Migration at least 500 000 women are sold to local prostitution markets in Europe every year. According to the UN an estimated 75 percent of all victims of human trafficking in the world are trafficked for sexual exploitation. In addition significant numbers of human beings are trafficked for labour exploitation and children are also trafficked for the purpose of international adoption. Women are treated as goods on the market and sold to the highest bidder.

The feminisation of poverty, gender discrimination and lack of education and employment opportunities make women particularly vulnerable to traffickers, since they increase women’s likelihood to take risks in order to gain economic security. Gender discrimination can also lead to the sale of women and girls for profit being considered acceptable, while the similar sale of boys is not. Trafficking of women and girls for the purposes of sexual and economic exploitation is thus considered a contemporary form of slavery, and a serious violation of women’s human rights. Victims of trafficking experience severe physical and psychological trauma as a result of the violence, rape, threats, addiction and other means that traffickers use to control their victims.

Women and girls are especially vulnerable during situations of war and armed conflict. Many cases of sexual violence during armed conflict occur under conditions of slavery. Women and girls are enslaved for sexual gratification of state agents, during which time they are denied the rights of autonomy or bodily integrity. Sexual slavery and exploitation by security forces and armed opposition groups has long been documented in all parts of the world. During wartime the safety and economic situation of many women deteriorates so drastically that the offer of refuge and paid employment in another country may seem impossible to refuse, increasing their vulnerability to being trafficked. Frequently aided by government, police and military, traffickers encounter few deterrents. Coercive tactics, including deception, fraud, intimidation, isolation, threat and use of physical force, or debt bondage are used to control trafficked women and girls.

According to the Special Rapporteur on Violence against Women, “rape and other forms of sexual violence are often used to break women physically, mentally and emotionally and to obtain their enforced compliance in situations of forced labour and slavery-like practices. Forms of sexual violence are most persistently used against trafficked women to 'condition' them for forced sex work.

It is a welcomed addition to international focus and reporting done by the UN, through its Commission on Human Rights, when in 2004 a Special Rapporteur on trafficking in persons – especially women and children was appointed. She states in her first report that trafficking represents the denial of virtually all human rights. She also pointed out the fact that trafficking in spite of this continues to be treated mainly as a “law and order” problem.

- 80 - Its of vital importance to highlight the human rights implications of trafficking and formulate international recommendations directed at preventing trafficking through a human rights approach and at upholding the human rights of trafficked persons.

My reason for starting my contribution to this conference this way is because it’s so important to always remember that trafficking has global impacts and that we cannot just talk about challenges in policy development for Norway as a country of destination without always keeping in mind the “big picture”.

There are several dilemmas faced by anti-trafficking activists and politicians working to bring human rights to bear. Although the essence of 'trafficking' is most often framed as about gender, sexual harm, and prosecution of 'traffickers', effective rights interventions in 'trafficking' must be situated in a deeper understanding of the modern reality of globalisation. While I am not arguing that understanding gender or sexual harm are irrelevant in anti- trafficking work, hyper-attention to stories of sex slaves weakens our interventions. It is critical to understand the histories of the frameworks [like 'trafficking'] in which we work. Failing that, we become inadvertent pawns, allowing governments to take up the rhetoric of rights without a real shift in power. Anti-trafficking work is on the edge of this form of complicity.

This move is connected to the astounding recent growth of international criminal law. In 2000, the UN adopted a new constellation of trans-national criminal law treaties, including one specific to trafficking, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Trans-national Organized Crime. While effective and fair prosecution for servitude and violence, whether in providing sex, picking tomatoes or harvesting shrimp, is a key component of rights work, it is notable that other aspects of rights work have languished. The 1990 International Convention on the Rights of All Migrant Workers and Members of their Families took over ten years to come into force, and so far only primarily sending countries have ratified it. At the 2001 World Conference against Racism, receiving states of the North and South fought against recognizing rights for irregular migrants. In the 2001 UN General Assembly on HIV/AIDS, states refused to reference persons in sex work as rights holders. There has been almost no progress made in compelling richer states or the International Financial Institutions (IFI) to revise structural adjustment policies or destructive trade restrictions, even in the face of evidence of their role in rights violations, including exploitation in new and irregular markets.

The hypocritical focus on sexual harm masks the absence of concrete steps to create the conditions for sexual - or economic -rights for women and men. Instead, they are increasingly patrolled while capital moves. All anti-trafficking work is not rights based. As rights activists, we must begin to work with economic justice as well as anti-impunity and prosecution activists. By this, we can re-affirm human rights in the context of globalisation as a tool of struggle, and ensure that the women and men on whose behalf we claim to work are actual beneficiaries.

Since trafficking has traditionally been considered an aspect of migration, there has been a reluctance to consider victims of trafficking as victims of persecution. In many cases, this has meant that trafficked women have not only been denied proper psychosocial health services but have also been treated as criminals, in some cases jailed and in others forcibly repatriated to their countries of origin where they once more become vulnerable to trafficking rings.

- 81 - However, in recognition of this fact jurisprudence is emerging in some countries that grants refugee status to individual victims of trafficking.

A number of international guidelines from the UN, OSCE, Council of Europe, EU and others now exist. This has implications on soft law, but it does still not give any legal justification in international instruments for victims of trafficking to be able to stay in the country where trafficking is taking place. Individual countries have chosen to solve this differently and here in Norway we have made a good start with the Plan of Action for Combating trafficking in Women and Children. Since the plan was launched in 2003 it has become clearer that there are challenges that need to be addressed to further strengthen the rights of the victims of trafficking. When Norway today is granting a 45 day reflection period for possible victims we have also gained knowledge telling us clearly that this is not enough to protect the women and possible children in question. According to information given by the Ministry of Justice given at a seminar in February, none have chosen to use this reflection period. It is very understandable since it does not give a signal of security and protection. Norway has to follow up on this by doing what several other European countries, like Sweden, Netherlands, Belgium and Italy, have done, and that is to grant temporary residence permit. This is a clear signal of taking the victims seriously giving security and signalising a reason for them to be protected when testifying against organizers. The reasoning for offering temporary permits and not immediate permanent permits to persons who have to bear such enormous suffering, who also run the risk of being threatened after giving evidence in legal proceedings, is that an automatic granting of permanent residence permits could become a weapon in the hands of those smuggling and trafficking human beings. This would encourage trafficking rather than fight it. This is why I want us to grant temporary residence permits. But it is important to point out that when the temporary permits expire, the woman can of course then apply for a permanent residence permit.

I also want to point to the Recommended Principles and Guidelines on Human Rights and Human Trafficking presented by the Economic and Social Council of the United Nations in 2002. There is also a clear recommendation here in the section on protection and assistance that legal and other assistance shall be provided to trafficked persons for the duration of any criminal, civil or other action against suspected traffickers. The recommendation says that States shall provide protection and temporary residence permits to victims and witnesses during legal proceedings. Norway needs to be in line with its international obligations. We repeatedly speak out about how good we are when it comes to human rights and the protection of human rights, and if we are to show more than words and window dressing we have to be up to date in implementing recommendations and principles that come from international bodies where we are represented.

Asylum has to be considered as a possibility if persecution is present. The Palermo Protocol in its Article 14 places an obligation on States to provide linkage to the asylum system. UNHCRs Guidelines on Gender-related persecution also include a paragraph on trafficking. When we here in Norway look at grounds for asylum future serious risk for trafficking and persecution also has to be considered. We also have to look at the risk of retribution or re- trafficking. They have been victims in the past and that link can also lead to persecution in the future. In connection to the UN Convention on Refugees Norway should consider these characteristics as tied to the definition “particular social group”.

- 82 - From a human rights angle Norway also has to follow the definition of trafficking set up by the Palermo Protocol. That states that the consent of the victim is irrelevant. There is often a blurry line between coercion and consent. One does not need to be locked up to be exploited, and there are numerous methods that traffickers use. A strong need to make money will make “consent” to exploitation.

For those women and girls who come to Norway and who are potential victims of trafficking it is of special importance for them to have some knowledge about their possibility to get out and have a different life. One of the positive aspects of police control and police patrolling was the foot patrol that the police had in Oslo in the 80s and early 90s walking around in the areas of Oslo where the prostitutes did their business. This patrol created an important aspect of trust between the police and the prostitutes, and at the same time the police had good sources of information about what is going on at all times. The paradox is that the prostitutes themselves have several times requested that these foot patrols be reinstated. It provided an aspect of security for the prostitutes and helped keep potential harmful customers away. Inga Marte Thorkildsen, the Parliamentarian representing the Socialist Left Party in the Committee on Judicial Affairs in Parliament have on several occasions made requests to the Norwegian Minister of Justice to get the foot patrol back. To this date, unfortunately, nothing has happened.

As some of you might know the Socialist Left Party has had a debate on whether or not to criminalize those who buy sexual services in Norway. I have earlier been one of those in favour of this criminalisation. The process within the party culminated in a discussion at the party’s national congress in the beginning of April this year with a vote and a majority not to criminalize buying of sexual services. What our party program for the coming four years now clearly states is that the police and judiciary need to have a closer and more thorough follow- up of the existing legal framework in relation to bordellos and the relevant paragraph in the penal code on pimping. The Socialist Left Party wants to suggest increased aid to all sex workers to assist them in getting out. We also want to work against the liberalization of pornography and work to improve the legislation related to gender-discriminating pornography. Finally we want to strengthen the work related to information and changing of attitudes to discourage people from buying sex.

One of the other challenges for Norway is to commit human and financial resources to prosecuting traffickers. We know that this is a very complicated matter with many aspects that has to be solved. I was recently told about one case under investigation that involved 121 persons in 20 countries. There is no doubt that both investigations and enforcement involving that many persons and countries makes these cases complex and time consuming. This is also an added reason to ensure the victims temporary residence permits, since we know that most likely investigations and trials will take time. It’s also of importance that the Norwegian courts get case law to rely on that sets precedence when new cases are raised before the courts.

On February 15th 2005 eight men were convicted by the Oslo Court for trafficking of two women from Russia and Lithuania. The leader of the organisation behind the trafficking was convicted to 11 years imprisonment, while the others got from five months to five years for participation in the trafficking. The verdicts were appealed. The case is important since it is the first time a Norwegian court has dealt with crimes related to trafficking of human beings. NGOs and legal experts raised concerns, however, that there is still a great need for efficient action by Norwegian police and prosecutors to fight trafficking in Norwegian courts.

- 83 - In addition to policy development and focus inside Norway we have to give extra focus to the trafficking of children, and especially young girls, and one way of doing this is to provide extra financial and personnel resources to Norway’s embassies and foreign service. This will give us the ability to also assist countries where trafficking originates. We must remember that somewhere at the beginning of the chain of events leading to someone being sold and sexually exploited, there is poverty and vulnerability. Again I stress that in the long term what is needed is efforts to achieve an equitable global development. Strategies to combat trafficking in human beings also have to be clearly visible through Norway’s development cooperation. This includes initiatives for girls and women’s education, their opportunity to work, access to sexual and reproductive health and rights are examples of some preventive measures.

Trafficking in human beings is also about power. The rights of girls and women must be strengthened. Men must also be changed. Long-term gender equality work is vital. To have a good policy development we are also very dependent on a strong civil society with NGOs that have funding and capacity to assist, be watch-dogs, bring up new aspects or possible solutions and to assist with strong anti-corruption focus. It’s also clear that Norway needs to continue developing its funding to NGOs in countries where trafficking originates to assist setting up shelters, counselling, provide possible micro credit projects that give other sources for income or women and make them less vulnerable.

The UN Commission on the Status of Women in its meeting in March this year unanimously adopted a resolution on eliminating the demand for trafficked women and girls for all forms of exploitation. Here in Norway we have to look closely at this resolution to see if we can strengthen our measures and resources even further to follow up on the content of the resolution, and by that our international obligations.

Furthermore the information and insight that has been shared with us today regarding the solution Italy has chosen to give temporary residence and social integration, is very important for us to follow up on here in Norway.

I hope that this has given you some insight as to the aspects we in the Socialist Left Party feel are important, and how they should be a part of Norwegian policy development.

- 84 - VICTIMS OF TRAFFICKING IN THE NORWEGAIN ASYLUM PROCEDURE – EXPERIENCES AND CHALLENGES By Rune Berglund Steen, Norwegian Organization for Asylum Seekers

When faced with victims of trafficking, we are often dealing with one of the most atrocious forms of human rights violations taking place in Western countries today. The Norwegian government, in a commendable initiative, has set forth an offensive agenda to combat this problem. The agenda includes a wide range of initiatives, both related to offering assistance and protection to the victims and to exposing and apprehending the perpetrators. It has been a period for moving boundaries, but also for exploring new approaches that have not always given the results one hoped for.

NOAS’ main field of work is legal assistance in individual asylum cases, and my focus will be on this part of what is a larger strategy to assist and protect victims of trafficking. I have also understood that the next speaker will address the questions of the reflection period and temporary residence permits, and I will therefore steer clear of these issues.

As a starting point, one should always recall that trafficking victims usually are young, many around the age of 20 or even younger; they may have lived through terrifying experiences, and often find themselves reduced to powerlessness, fear, shame and confusion. Given their anxiety and psychological vulnerability, a very clear and consistent approach from the authorities is required. They need to be met with respect by the police, and they also need to be met with a reasonably predictable response if they decide to set forth an application for asylum.

In general, asylum seekers must rely on a system which is intended to uphold two easily conflicting objectives: on the one hand, limiting immigration and on the other, granting protection to those who are in need of it and entitled to it. Like others, victims of trafficking face all the flaws and sometimes arbitrariness of this system. I do not intend to paint a simplistic picture of the asylum system or to downplay the fact that many people each year are granted protection through this system. However, I do wish to point out that for those of us concerned with the rights of asylum seekers, serious concerns remain. The threshold for granting asylum or a residence permit for protection or humanitarian reasons remains high. As an example, it is normal that victims of torture are rejected even without receiving a full hearing in the Immigration Appeals Board, Utlendingsnemnda. It is this sophisticated, yet imperfect system that victims of trafficking asking for asylum must rely on as well.

In regard to asylum applications from victims of trafficking, we are talking about a limited number of cases. However, how these cases are handled certainly is important also as signaling the approach taken by the authorities.

On the positive side, the idea that trafficking is a private problem related to money and is not a question of persecution, as the authorities have previously claimed, has been challenged in recent decisions from Utlendingsnemnda. Utlendingsnemnda has granted asylum to at least two victims of trafficking from Albania, and residence permits for protection or humanitarian reasons in a few other cases. This is an important step in the right direction, and it means that a barrier has been at least partly broken down.

- 85 - On the negative side, the Norwegian asylum practice remains unpredictable, and this unpredictability is a major problem. The Norwegian policies towards trafficking victims are still in an embryonic form, and two years after the agenda was established, major issues and dilemmas seem to remain unresolved. This unpredictability also creates difficult conditions for those whose work includes advising victims of trafficking on their choices. To break away from the exploitation and ask for asylum might involve the greatest risk for the victim. When the outcome of the asylum application is highly uncertain, not only for the victim herself, but also for those trying to advise her, applying for asylum remains a volatile solution – or not a solution at all.

Only approximately ten trafficking victims have been granted asylum or a residence permit for protection or humanitarian reasons in Norway. The key question is why, given the actual number of trafficking victims, no more than a handful of women have been granted such protection. It is reasonable to question whether the absence of a higher number of cases where protection is granted indicates that the current laws, regulations, and policies are insufficient to address this very real and pressing social problem.

Indeed, it is our impression that the authorities often remain hesitant about considering the granting of asylum as a solution. The tendency seems to be towards various forms of temporary solutions, while asylum is mostly reserved for the most horrendous cases.

This reluctance has also been expressed by the Minister responsible for the asylum field herself, the Minister for Local Government and Regional Development, Erna Solberg. She has stated that the authorities (before granting even a temporary residence permit) must first be certain that the asylum seeker is indeed a victim of trafficking, and not someone who is prostituting herself of her own free will. In fact, I believe she stated that this must be “documented”. Even if one does not take this as a literal requirement, it does indicate a high level of cautiousness − unusually high, since in asylum cases documentation of persecution in the individual case most often does not exist and is not in principle considered a requirement. This supports the suspicion on our part that the authorities lean towards limiting the granting of asylum to the most extreme cases.

I will not say that all such concerns as voiced by the Minister are irrelevant. It is always necessary to be on the lookout for abuse of mechanisms established to help actual victims. I will however question whether the Minister’s statements raise some concern about the consistency of the government’s priorities. This Minister’s priority seems to have been to send a signal to the administrative organs that they should hold back. She could have sent a signal that, if in doubt, the administrative organs should grant asylum. Clearly this would be reasonable: If the asylum seeker in fact is a genuine victim of trafficking, then putting her in harm’s way would be a horrendous mistake that must be avoided at all cost.

Furthermore, as was pointed out by others when the Minister made these statements, to presuppose that only women subjected to clear, physical force are victims of trafficking reflects a narrow understanding of the issue.

Indeed, trafficking comprises very different situations and very different patterns of exploitation. There is by now clear recognition that victims of trafficking who arguably have been subjected to the direct and repeated use of force and to serious abuse might be entitled to asylum, depending on the other circumstances such as the availability of effective protection from the country of origin, and if there is a risk for similar abuse in the future or for reprisals.

- 86 - Forced prostitution violates several of the most basic human rights − human rights so fundamental that if only one of them is violated, it constitutes persecution under the Refugee Convention: slavery, torture (in the form of successive rapes) or inhuman or degrading treatment, and often a threat to life. As noted, it is mostly in these extreme cases that we have seen some positive tendencies in the asylum system.

However, serious difficulties seem to arise when the cases are not that clear cut, and it is a question whether the asylum assessment is nuanced and empathetic enough to properly take account of the complexity of the situations trafficking victims are in. I wish to comment on a couple of the situations where such complications arise.

Firstly, a complication arises when the trafficking victim has not broken away from the network at the time when she applies for asylum. To my knowledge, the victims who so far have been granted asylum or a residence permit for protection or humanitarian reasons had generally broken away from the exploitation when they applied for asylum. For the women who remain in the network when they present their application, the Norwegian authorities seem to have no established policy. Undoubtedly, this can be a genuine dilemma for the authorities and I do not intend to simplify the issue. What I do intend is to question whether the hesitancy that comes through in these cases should be a serious concern. The authorities might be concerned that when the asylum seeker is still working the streets, the asylum application might not be genuine. The authorities might also be concerned that if the case in fact is genuine, even if she is granted asylum, she might still be unable to break away from the exploitation and abuse, for instance as a result of threats against her family members. In this way, the authorities might fear that granting asylum would actually help the traffickers prolong the exploitation.

The victim’s perspective would of course be very different. When the outcome of the asylum application is as uncertain as within today’s practice, leaving the network might involve too great a risk. If they get a negative decision and are deported back to their country of origin, they might risk being picked up again by the network and facing possible reprisals. Therefore, they apply for asylum, hoping that this will eventually provide them with the possibility of safely breaking away from the exploitation, while at the same time remaining in the network for fear of a negative decision. A lawyer I spoke to recently, expressed his particular frustration, because he truly believed his client would want to break away, if only she knew that she would not risk being deported back into the hands of the traffickers. In such situations, the granting of asylum may be a necessary first step to solve the problem. What is certain is that by not granting asylum, one practically guarantees that the exploitation will continue indefinitely – or rather, as long as the traffickers decide.

For others, they might at first have been trafficked, but have later managed to break away from the traffickers, either by escaping or by buying their way out. Some, especially those who are obliged to support family members in their country of origin, nonetheless remain on the streets. Although they are not in danger in Norway, an actual return to their country of origin might mean that they are sent back into the arms of the traffickers they have escaped from. If one is serious about handling the issue of trafficking, the asylum practice must, in an empathetic way, also understand and be open to such complex circumstances, and the victims must be able to expect such empathy.

- 87 - However, the result of the apparent hesitancy on the part of the authorities is that asylum applications set forth under such circumstances, can remain in the system for a very long time without any decision being reached, even two years. Two lawyers that I spoke to recently both stated that it almost seems like the authorities are waiting for the problem simply to go away. Although one must hope that this only reflects the experience of the lawyers and not actual fact, sometimes the problem does go away. By the time the case is processed, the woman has disappeared, without anyone knowing where to. There is a clear risk that she has been re- trafficked, re-sold, sent to another market. This situation is of course entirely unacceptable.

Secondly, a complication arises when the victims are hesitant about giving all the details of the case. This is a common problem in asylum cases related to intimate forms of abuse, and the asylum authorities have in general developed a greater understanding of such situations. In one case the client could narrate everything that happened to her in detail, but her story ended abruptly at the moment she first entered the apartment where she was kept imprisoned. Certain experiences were so traumatic that she was not able to tell anyone about them until two years after she had applied for asylum. It should be an easy thing to understand that for a young woman who has gone through some of the worst experiences imaginable, often feeling both shame and fear, one can in no way expect that she is able to conform to the demands and expectations of a rigid and formal asylum procedure. Thus, with this basic understanding of her circumstances, the decision maker should be able to extend a large degree of empathy.

A further issue is whether the authorities in the country of origin are able to offer effective protection. The disputed question is what should constitute effective protection. From the perspective of the asylum seeker, the answer is quite simply that they must have a realistic expectation that the authorities will intervene and successfully put an end to the exploitation and abuse – in other words, that they will be safe. For the asylum authorities, sometimes it means something very different. At the moment, the Norwegian authorities operate with hugely varying standards in regard to this question. Some decisions show a more realistic approach, reflecting the victim’s perspective. However, in the worst cases, it is reduced to a question of mere formalities, where a nominal and mostly theoretical possibility of protection is seen as sufficient.

A case in point is the Belik sisters. I must here take the precaution to mention that I only know this case through the media; however, the circumstances seem quite clear. The sisters fled Moldova following violence, harassment, threats that they would be forced into prostitution and a kidnapping attempt. Yet, their asylum applications have been rejected by Utlendingsnemnda. They were not given a full hearing in Utlendingsnemnda, but rejected by a board chairperson alone, because Utlendingsnemnda found that their asylum application did not raise any significant questions of doubt. The sisters recently also lost their appeal to the lower courts. In the court, Utlendingsnemnda argued that the Moldovan authorities would be able to give them effective protection. This argument was accepted by the court, which found that although there are serious shortcomings in the Moldovan legal system, the investigation and prosecution of trafficking networks demonstrate that the country both has the will and the ability to protect its citizens.

Just to cite one source that does not support this conclusion, the U. S. Department of State Human Rights Report for Moldova of February this year stated that “Trafficking in women and girls remained a very serious problem.”

- 88 - It continues: “Widespread corruption and lack of resources prevented adequate border control and monitoring of traffickers […]. Border guard and migration officials' salaries were low and frequently not paid regularly, making them vulnerable to bribery.” It continues: “Observers alleged that corrupt low- and high-level government officials were involved in, or routinely turned a blind eye, to trafficking crimes”. Even the fact that the sisters are both minors does not seem to have elicited a more careful approach from the Norwegian authorities or the lower courts. This is a matter of law, but it is also a matter of choice, and when the authorities choose to apply a strict and formalistic standard, it in general relates to the objective of limiting immigration.

A further issue is that specifically for the granting of asylum it is also a requirement that there is some nexus to one of the five grounds stated in the Refugee Convention. That is, there has to be a connection between the persecution and the person’s “race, religion, nationality, membership of a particular social group or political opinion”. This involves complex legal issues that I will not delve into here, only note that this has proven to be an issue that in many cases can be resolved when one wants to resolve it. Utlendingsnemnda, in an excellent and by now well-known decision, held that “women from Albania who have formerly been forced into prostitution” could constitute a social group. They have also found that “trafficking victims from the Baltic states that break with the network [miljøet]” may constitute another such group. (For a residence permit for protection or humanitarian reasons, this particular requirement does not exist.)

Item no 1 of the Government’s agenda was to clarify the criteria for asylum applications from trafficking victims. Although there has been some progress, as noted, I believe that no one at this point in time feels there is much clarity. Two years after the establishment of the agenda, the approach from the Norwegian authorities remains that an asylum practice for trafficking victims is “under development”.

If there is political will, there are certainly more concrete ways of approaching the situation. One way of establishing greater clarity would be to draft a set of guidelines. As a minimum, guidelines would need to clarify some of the issues mentioned, particularly how to properly consider more complex situations, reflecting a more comprehensive understanding of persecution which addresses a wide set of human rights violations. This would not only include the right to life, freedom from torture and inhuman or degrading treatment and freedom from slavery, and other civil and political rights, but also social and economic rights, thus emphasizing the need for a holistic analysis of complex situations.

A more offensive approach, as in Norway has been suggested by among others Cecilia Bailliet, would be also to identify trafficking victims – in the law or in guidelines – as meriting protection per se. This approach is not as daring as some might think. In each case, the person would still have to substantiate her claim to be a victim of trafficking. The Palermo protocol might be seen as providing the proper criteria for who would constitute a trafficking victim also under such an arrangement. In other words, there would still be a firm control with each case, thereby probably warding off a wave of false claims.

Yet, there seems to be no intention at the moment of drafting guidelines of any sort. One would have to say that if the authorities had a clear idea of where they want to be going and what legal safeguards should be established for trafficking victims, then certainly they would have established the guidelines first.

- 89 - Now the approach seems to be the opposite – the authorities prefer working their way through a number of individual cases, so that a practice will evolve somewhere along the way.

In this context, also the committee that in October 2004 presented the draft alien law could have chosen a more offensive approach. For instance, the draft law could have identified trafficking victims as meriting protection per se, at least in order to raise a debate around this possibility, yet did not. The draft law could also have established the principle that if there is evidence of past persecution, there is a presumption that there is also a risk of future persecution. The draft committee had specifically been advised to do so through the recommendations in the 2003 study of the Norwegian asylum practice, Study of the Grey Zone between Asylum and Humanitarian Protection in Norwegian Law & Practice, by Cecilia Bailliet. Yet, they chose not to establish such a principle. For trafficking victims, who often have evidence of past persecution but might have difficulty proving future risk, the establishment of such a principle would be an important measure to strengthen their access to asylum. Thus, Stortinget should debate whether to insert it into the new law.

Another type of problem, which nonetheless should be mentioned, is that trafficking victims have varying experiences with the Norwegian police, something which has also been pointed out in the 2004 study from Fafo, Crossing Borders. While certainly there are police officers who are genuinely committed to helping, some victims have undoubtedly had negative experiences with rough handling, for instance being brought to the police station in the middle of the night, being given a fine for a minor offence (such as carrying pepper spray) and questioned. This comes in addition to the often very negative experiences some of the women have with the police in their country of origin. Clearly, negative experiences of this kind will reduce their confidence in the Norwegian authorities and increase their hesitation in asking for asylum or for other kinds of assistance, and therefore must be addressed.

In conclusion, the remaining reluctance to granting asylum is a serious hindrance to effectively protecting victims of trafficking and risks being a violation of their rights under both international and Norwegian law. The unpredictability remains an obstacle for those victims who might want to apply for asylum, and for the helpers which – knowing the victims’ situation – would want to advise them to do so.

A deportation of a trafficking victim back to her country of origin will in many cases contribute to upholding the negative circle of exploitation and abuse. Upon deportation, there is often a risk of re-trafficking; the victim will again be trafficked to Norway or to another country. Our objective must be to break this circle, and in some cases the most effective − and possibly only − way of doing this is through the granting of asylum. This objective must be recognized as overriding other concerns or anxieties. That we must be vigilant about preventing abuse of the asylum system, does not mean that we can waver when it comes to protecting those who are in need of our protection.

- 90 - NEW CHALLENGES IN POLICY DEVELOPMENT-NORWAY AS A DESTINATION COUNTRY By Cecilia M. Bailliet, Dr. jur., Institute of Public & International Law, University of Oslo

Cecilia M. Bailliet

Trafficking is a cross-field arena in which refugee law, migration law, human rights law, labour law and criminal law intersect- resulting in confusion as there is often imbalance as pertaining the attention paid by legislators, judges, and police to competing interests and defining the hierarchy of norms. According to the UN High Commissioner for Human Rights' Recommended Principles and Guidelines for Human Rights and Human Trafficking, violations of human rights is the cause and consequence of trafficking (Guideline 1), hence it is human rights that must be at the centre of the measures addressing trafficking. Specifically, the measures taken should not adversely affect the rights and dignity of the victims (guideline 6) and they shall be consistent with international standards (guideline 4).

The limited success of initiatives pursued thus far in Norway as well as in other countries are in part based on the identification of criminal prosecution as the primary end to be achieved, addressing the interest of the State above the human rights protection interest of the victim and the division between protection and prevention mandates among the ministries of government. I will refer to the UN Recommended Principles and Guidelines on Trafficking, as well as the Palermo Protocol and the CEDAW, in order to suggest ways in which the Norwegian State may reassess its strategies in order to provide better protection to victims of trafficking.

Review of Norway’s Plan of Action against Trafficking reveals contradictions, gaps, and problems regarding the design of strategies addressing protection and prevention issues.

- 91 - For example, the Action Plan sets forth that protection of trafficked victims will be assured several measures, the first of which is defining the criteria by which victims may be recognized as refugees. However, the same plan goes on to state that victims of trafficking rarely fill the criteria for refugee status. In part this may explain why, as of this date, no criteria whatsoever have been elaborated by the Ministry of Local Government or the immigration authorities. As commented by Rune Berglund Steen, the asylum recognition rate for this group remains low. Given the severity of the human rights violations involved in trafficking cases, the relevance of the asylum mechanism is undisputed. There remains a clear need for the elaboration of guidelines addressing recognition of past persecution as grounds for presuming a risk of future persecution, the relevance of the protection categories, the issue of mixed motives behind persecution, and the relevance of the exception to the cessation clause, Art. 1 C 5 in the Convention on the Status of Refugees.

We have a remarkable opportunity at the moment because a new immigration law is about to be adopted and it is possible to include a provision addressing trafficking. The drafting committee of the new Aliens Law chose not to address trafficking because they believed that Article 6 of the CEDAW did not require them to do so and that the existing regulations within the soft law was sufficient protection. These presumptions are false and it is essential that proposals be presented to ensure that the legislation contains adequate provisions.

Analysis of the soft law will reveal the protection gaps contained within, specifically with respect to the existence of conditional, temporary, and discretional characteristics resulting in an imbalance between the State’s interests versus that of the victim. The second tactic addressing protection pursued by the Norwegian government is that of the 45 days reflection period and the temporary residence permit for witnesses against traffickers.

It should be noted that the UN High Commissioner for Human Rights’ principles state that trafficked persons shall not be given protection only on condition of their capacity or willingness to cooperate in legal proceedings. At present, Norway's soft law is similar to the standards in the U.S. and in Europe in that it runs counter to this provision. It is almost as if the Norwegian soft law merged the UN guideline 4 section 6 & 7 together instead of treating each issue separately:

Guideline 4: The lack of specific and/or adequate legislation on trafficking at the national level has been identified as one of the major obstacles in the fight against trafficking. There is an urgent need to harmonize legal definitions, procedures and cooperation at the national and regional levels in accordance with international standards. The development of an appropriate legal framework that is consistent with relevant international instruments and standards will also play an important role in the prevention of trafficking and related exploitation.

6. Ensuring that the protection of trafficked persons is built into anti-trafficking legislation, including protection from summary deportation or return where there are reasonable grounds to conclude that such deportation or return would represent a significant security risk to the trafficked person and/or her/his family.

7. Providing legislative protection for trafficked persons who voluntarily agree to cooperate with law enforcement authorities, including protection of their right to remain lawfully within the country of destination for the duration of any legal proceedings.

- 92 - Note that only section seven addresses the right to remain for victims who cooperate with the law enforcement authorities, this is a separate issue from section 6 on non-return.

The UN High Commissioner for Human Rights' Principles suggest the only criteria relevant to return should be the risk facing the victim or her family upon return to the state or origin. Principle 11 sets forth that victims should be offered legal alternatives to repatriation where there would be a significant security risk to their safety or that of their families. This is expansive in that it suggests that we to consider the protection needs of families who may reside abroad.1 The example given by Iana Matei of the trafficking victim whose child was held hostage by a trafficker in order to pressure her not to cooperate with the police demonstrates the purpose behind extending the protection analysis. The family becomes both the object of persecution and the means by which to pressure and torture the trafficking victim.

UDI's rundskriv (circular) 2004-19 provides for a 45-day reflection period to stay deportation of victims of trafficking who entered illegally into the country. In the Action Plan it is presented as if it is intended to give the victim opportunity to accept practical assistance and counselling from the state. However, if you examine the language it is also designed to allow her to consider helping the police assess investigation and prosecution possibilities. Indeed, the limited time period gives the impression that its primary function is to allow the police to reflect upon how useful the victim would be to their investigation, rather than create a real possibility for the victim to fully assess her situation and commence the road of rehabilitation.2 The rundskriv sets criteria for the police’s overview, such as grounds for investigation, risk involved, credibility of the victim and her ability to provide information. The fact that trafficking victims often suffer post-traumatic stress syndrome render the possibility of attaining a positive credibility assessment by police (rather than psychiatric experts trained in this arena) remains limited. The level of detail is thus oriented towards describing the state’s interest, not that of the victim.

It is no surprise that victims of trafficking have been clearly reluctant to participate in the reflection period, in fact as of this date not one person has chosen to accept the reflection period. To require them to first submit to providing testimony on behalf of the State, is effectively asking them to serve another's interest first and thus does not provide much progression in the road towards emancipation. In order to gain the trust of victims, it essential that they are given a sense of control over their own rescue, in the sense that they be empowered by pursuing those programs which match their aspirations and restore their sense of attainment of safety and dignity first.

Further, the Action Plan states that “The principle will be that a person who has been granted a reflection period will be repatriated at the end of the period”, but it goes on to note problems of social exclusion, alienation, lack of assistance, etc. Thus, it appears contradictory. How can a State grant someone an opportunity to reflect on her hardships with the notice that she will be returned to a dysfunctional state unless her life is deemed to be at stake?

In order to attain a work and residence permit, the UDI rundskiv 2004-020 requires that there actually be a prosecution or investigation ongoing against the traffickers. The Norwegian police are to issue an opinion as to whether it is significant for the case that the victim attains the work or residence permit. Once again, this is a clear example of how the victim is treated as a secondary actor- her attainment of a permanent solution is contingent on the police's determination of how beneficial she may be to their case.3

- 93 - The wording of this instrument is disturbing as the permit shall be issued for that period which it is "necessary or desirable" that the victim reside in Norway to be determined by the police. The permit shall be given only one year at a time, nor does it not give rights to permanent residency or family reunification unless there are special circumstances (thereby raising questions about the safety of the families left behind).4 Hence, this policy places victims in an extremely vulnerable position, with little regard to their need for a permanent solution and right to protection. It is the will of the police which determines their fate, and only in a temporary manner.

An additional issue is the fact that this world is unfortunately dominated by Non-State actors which have a global reach and act with almost full impunity (the police in the home country may be unable or unwilling to help victims, and in some cases are corrupt and actually cooperate with the mafia). Victims are afraid of retribution from traffickers against them or their families, and, as noted both by the Justice Department and UDI, quite frankly they simply do not trust the State and thus do not seek its protection. There is a clear need to sensitise the law enforcement officials and staff. The Norwegian authorities must come to terms with the reality that victims of trafficking often perceive police and other state actors to be collaborating with home authorities or ineffective; in their view the State is rarely a beneficent actor. The ability of the Norwegian state to offer actual protection to them and their families is not considered likely (especially when victims are not permitted to bring their families to Norway to guarantee their safety.)5

The Aliens law should be amended to create rules for a grant of an unconditional one year temporary protection and stay of deportation, based solely on identification as a victim of trafficking. During this period, rehabilitation and psychological support, language classes, vocational training or retraining should be provided. This remedy should be provided irrespective of the State's prosecutorial interest, with automatic access to application for regularization of immigration status with entry into the regular labour market or educational system, subject to the relevant criteria.

The final approach which Norway highlights as forming part of the protection strategy is supporting projects addressing return of victims to the countries of origin. There is cooperation with international and local organizations for rehabilitation, access to education, job training and micro-credits. In this sense, the approach is backwards. Primary emphasis is placed on sending women back to dysfunctional states where reintegration is difficult and security not easily guaranteed. As noted by Matei & Limanowska, there is no follow up or monitoring of the shelters working with returnees, and many remain empty- thus victims appear to disappear. Return often results in re-trafficking (estimated in 50% of cases), and this would incur the liability of the State in the victimization process.

The issue which I consider to be of most importance is that of the link between protection and prevention. Given the particular atrociousness of the experience of trafficking, prevention appears to be the best solution.

Victims of trafficking often come from marginalized backgrounds in which they are denied access to educational and employment opportunities, or may be subject to social exclusion due to their gender, ethnic, national, or religious background. When they migrate, they seek non-conditional durable solutions addressing their labour and educational aspirations as well as guarantee of self-respect, equal rights and basic dignity.

- 94 - The Palermo Protocol sets forth that effective action is needed in the form of a comprehensive international approach that addresses prevention and human rights protection issues. When addressing protection issues in article 6, it calls upon states to consider implementing measures to provide employment, education and training opportunities (in addition to counselling as to legal rights, as well as medical, psychological assistance, housing, etc.). The language is horatory, because these are rights that call upon the State to be forthcoming in providing support to victims, rather than only penalizing violators. In other words- Palermo defines the notion of protection as requiring socio-economic measures- this is a holistic human rights orientation. As is the case with most issues involving women's rights, it is precisely these types of guarantees which are the most pressing and have the most potential for restoring equality, freedom and dignity to victims.

We can apply this approach to the CEDAW which states:

Article 6

States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

Taking the aforementioned approach in pursuit of gender equality, fulfilment of article 6 is not only met by criminalizing trafficking, but also behoves actively providing expanded protection to potential and actual victims of trafficking. True protection extends beyond the traditional notion of “justice” towards “social justice”. In short, the Norwegian legal framework and the Action Plan require further development in order to incorporate the perspective of the victim, rather than prosecution of the victimizer This necessitates increased creativity and drive on the part of those working in this area as well as the lawmakers.

The Palermo Protocol, Article 9 is clear in the merger of the categories of prevention and protection- it addresses prevention and it states that States shall protect victims of trafficking from re-victimization. Most importantly, it sets forth that:

"5. States parties shall take or strengthen measures including through bilateral or multilateral cooperation, to alleviate the factors that make persons especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity."

The UN Recommended Guidelines (number 6) also call upon states to address prevention by taking into account the same factors. It calls for cooperation in offering livelihood options, such as education and skills training for women.

Thus, there is an alignment between the strategies of prevention on behalf of potential victims and protection of actual victims. What we are challenged to accomplish is to strengthen the linkages between our policies in each arena so that they are developed harmoniously rather than fractured.

With respect to prevention of recruitment, the Action Plan sets forth that the Government will engage in promoting education, access to property, and a better standard of living within the country of origin. Norway has supported information campaigns and programs to strengthen women's rights in society (Africa and Asia).

- 95 - At the moment it appears that the projects which exist are rather ad hoc in nature, determined more by chance solicitation from an outside actor for support rather than resulting from a predetermined geographic strategy. In addition, the projects also rely on already existing NORAD projects oriented towards long term development of women’s rights in the span of nation building. This type of prevention may be deemed to be most relevant to the women of the future, coming of age in a decade or two when (optimistically) the rule of law is re- established, economic prosperity achieved, and discriminatory social frameworks dissolved. When we think about prevention in the context of present victims of trafficking, we have to work with a shorter time frame. Prevention for this group is immediate and durable protection from re-trafficking as well as integration within a society that will permit each victim to enjoy greater equality and fulfil her potential as an individual within a society and state which functions closer to the democratic ideal. In other words, preventive mechanisms lie in the country of destination, not in the country of origin.

Most disheartening, the Action Plan also promotes better border controls and more stringent immigration and asylum policies as preventive mechanisms which will enable countries of origin and transit to end trafficking.

In practice, protection and prevention converge and hence the approach should mirror this reality. I shall give an example by discussing the issue of improving regular immigration alternatives for both potential and actual victims.

The UN High Commissioner's Guidelines call for addressing repressive immigration and migrant labour laws, modifying them in order to prevent the resort to irregular migration and "increasing the opportunities for legal, gainful and non-exploitative labour migration". Norway has been operating with an illusory perception that immigration will decrease as a result of restrictive measures both with respect to asylum and regular migration channels. The reality differs, the consequences of restrictive policies is that migration is driven underground. In fact, the Ministry of Local Government announced a drop in asylum seekers contemporaneously as Pro Sentret of Oslo announced a two-fold increase of foreign women working as prostitutes.

The FAFO report identifies women trained as nurses in the Ukraine as forming a number of victims of trafficking in Oslo. They stated that their inability to find work in the Ukraine led to their submission to trafficking. As a destination country, we are prompted to think creatively to respond to this finding. KRD has set a quota for 5000 permits per year to be issued to persons trained as nurses who have a job offer and official authorization. In 2004, only 1500 permits were issued, thus the quota is not being filled. In 2005, the level has held steady. Hence, it is possible to argue that the government could utilize this quota as a means to regularize the situation of the persons previously mentioned.

Indeed, the UN Guidelines also call for and the adoption of labour migration agreements. The Government’s Plan of Action against Trafficking specifically states that the Ministry of Foreign Affairs and NGOs will inform potential victims of viable legal immigration alternatives. There has been little discussion of this proposal and it is precisely this that needs to be expanded with respect to persons considered at risk of recruitment, re-trafficking, or retribution where attainment of security and dignity is untenable.

- 96 - Protection approaches for victims of trafficking who have been working within the Norwegian society require a solution that in part begs a human rights-labour law perspective.6 Their lack of choice in employment is a violation of their human rights, because a woman can never be considered to have consented to debt bondage or slavery. Indeed, the Palermo reiterates that consent of the victim is irrelevant, given the situation of exploitation. Hence, in order to restore freedom of choice of employment (as guaranteed by the CEDAW, article 11), the State should offer access to vocational training or retraining programs as well as information as to employment possibilities, as exists for other classes of migrants.

UD, the Ministry of Labour, KRD, could cooperate with SAPH, NGOs and Norwegian hospitals and other employers or businesses to create a program targeting women considered to be at risk of trafficking in their home countries or re-trafficking in the event of return, thereby promoting a preventive mechanism which will enable them to enter the country legally in order to pursue employment possibilities for which they have appropriate training and which this State has an obvious demand.

Financial support may be given to educational institutions abroad in order to enable them to meet accreditation standards, or to educational institutions here willing to take on these women as students as well as institutions providing necessary language training, etc. This necessitates the establishment of a special fund by the Storting to finance these initiatives. In the alternative, Norway does have significant funds earmarked for EU expansion countries, however these countries must solicit these funds themselves and ask that they be dedicated to preventing trafficking, which is a complex contingency.

Of special interest, the Spanish government transferred immigration issues from the Interior Ministry to the Ministry of Labour. It will try to coordinate migration with the labour needs of employers. This provides an important example for Norway.7

One may argue that the failure to effectively prevent trafficking and re-trafficking/retribution (by ceasing deportation on account of illegal migrant status or failure to cooperate with the police in providing evidence and opening regular migration channels) may be considered de facto violation of the CEDAW, as victims of trafficking are denied enjoyment of their human rights and fundamental freedoms. This includes arbitrary detention, sexual slavery, forced labour, debt bondage, rape, physical violence, cruel and inhuman treatment, and forced deportation.

In conclusion, trafficking is violence against women; the goal is to design strategies to re- establish victims' rights to equality, security, liberty, integrity and dignity. This requires immediate amendment to the draft immigration legislation, and existing national guidelines in order to offer real protection and solutions in the form of an extended one year temporary protection with access to application for permanent residency (including labour market and educational integration) in conformance with relevant criteria. It also requires education of those working within the legal system to address trafficking victims' rights and needs as primary concerns rather than secondary interests. Further, it necessitates the creation of a fund by the Storting to strengthen financing of holistic prevention and protection polices. Finally, we should establish a UD-KRD-UDI- Ministry of Labour focus group to address regular immigration alternatives for persons at risk of trafficking.

- 97 - 1 The Palermo Protocol, Article 7 calls upon States to consider adopting legislative or other appropriate measure to permit the victims to remain temporarily or permanently in territory, considering humanitarian and compassionate factors. 2 The police or UDI can extend of the reflection period (45 days at a time)- thus this is discretionary. 3 Should the case be closed upon her filing, the analysis is then based on compassionate grounds or special ties to the country. 4 Should the victim attain a permit after the end of the case, her rights to family reunification, residency, support and housing are considered under the regular rules. 5 This area has potential for further development, I believe UNE has one asylum case addressing protection for the family of a trafficking victim- this should prove to be an interesting precedent. As pertaining the victims themselves, in the worst cases, they have been charged as criminals and deported, thus penalized for their own victimization. 6 David Unger, Spain’s Enlightened Immigration Path, The International Herald Tribune March 23 2005 7 A recent article from the Economist, addressing American immigration cites a study by the CATO institute which notes that when barriers to entry are low, migration becomes a circular process- migrants enter and leave almost at will staying for a short period, but when barriers are high, there is every incentive to come and then stay. Dreaming of the other side of the Wire, the Economist march 12th 2005 p27.

Trond Berglund Steen, Karin Andersen, Trond Prytz

- 98 - QUESTIONS AND COMMENTS

Guri Tyldum, FAFO Comment on the problem of police identification of victims: During the last 2 years we have come a long way in a common understanding of trafficking. I have noticed that several of the speakers today have addressed the need to train police and other actors in a correct understanding of trafficking. However there appears to be a contradiction that leads to problems in identification of victims. When we speak of trafficking in general terms we tend to base our understanding on a broad comprehension of who is a victims (exploitation of a vulnerable position), while we always refer to the cases of trafficking that entails violence, captivity or forced prostitution (the Lilias) when we give practical examples. This cannot be a good guideline for practitioners in the field, least of all the police.

Pattricia Kaatee, Amnesty International Norway Can the Ministry of Justice elaborate on the problem of self-identification as victims of trafficking, bearing in mind the earlier mentioned raid where 49 women were picked up? In the preliminary work on the new Plan of Action 23 organisations forwarded 72 proposals. How will the Government work with including NGO’s views? Will the plan be out on a hearing? Can the politician comment on the possibility to adapt the Italian model of art.18?

Petra Burcikova How many cases of asylum have been granted because of trafficking?

Maria Pia de Paolo, Danish Centre for Research on Social Vulnerability How can we use the UN guidelines in a practical way?

Trond Prytz, supported by Mona Dia, National Coordinator of the Action Plan There is a group working on criteria for identification on victims. The proposals for a new Action Plan will be discussed on a political level 23.May and it may be out on a hearing after that.

Helga Konrad A comment on current legal strategies: Before you copy Sweden, please see how it is working out. To me criminalizing purchase of sexual services does not make sense as a measure towards trafficking. Trafficking is a crime and covers other phenomena than prostitution. Border control does not help to uncover victims of trafficking. Relying on asylum as a measure is not a solution. The OSCE Action plan to Combat Trafficking in Human Beings tasks the OSCE Strategic Police Matters Unit and ODIHR with the development of guidelines for the identification of victims of trafficking. This work is currently being developed. I recommend you to look into the report of the working group with a number of good recommendations. You can download the text on http://www.osce.org/cthb/

Rune Berglund Steen A short comment on asylum: There are a few cases where trafficking was the reason for asylum.

- 99 - CLOSING REMARKS By Lise Bjerkan, Fafo

I would like, first of all, to thank the organisers of this seminar – Pro Sentret and Amnesty International – for drawing our attention to the important link between trafficking and human rights, and for bringing together these very experienced and inspiring individuals that I have had the pleasure of listening to throughout the day.

Today’s seminar is important for several reasons: Primarily because it draws the attention directly to the fact that trafficking is a grave human-rights violation, but also because it brings together organisations and individuals that work on this issue from different angles and in different parts of the world, demonstrating both the necessity of and the strength in joining forces in the fight against trafficking.

With specific regard to the human rights violations caused by trafficking, I found what Jon Peder Egenæs said this morning to be of crucial importance: “Trafficking originates in the denial of women’s basic human rights.” In other words, the cycle of violations of trafficked women’s human rights often started long before they were trafficked.

The speakers today have pointed to important gaps that need to be filled and challenges that remain to be faced – both at a global and a national level – in the fight against trafficking and for the protection of the rights of the victims of trafficking. In accordance with a number of previous speakers, I would argue that the most fundamental of these gaps and challenges relate to the identification of victims of trafficking. I will therefore devote most of my allotted time to this issue.

However, let me first briefly draw your attention to four other aspects that earlier speakers have stressed as important with regard to improving the protection of the rights of victims of trafficking: Information, predictability, continuity and cooperation. In my view, all of these should ideally have a function in enabling victims of trafficking to make informed decisions with regard to their future and, as a consequence, also that of their families.

Returning to the challenges relating to the identification of victims of trafficking: In their presentations, both Barbara Limanowska and Helga Konrad pointed to the paradox recently observed in the entire region of south-eastern Europe, where we see a general decrease in the number of victims identified and assisted, whereas all agencies involved in anti-trafficking work claim there are no indications that the trafficking in human beings as such is decreasing. The obvious question is: Where are the victims?

In collaboration with two Serbian researchers and Linda Dyrlid of Sør-Trøndelag University College, I have just concluded a research project related to the identification, rehabilitation, and reintegration of victims of trafficking for sexual exploitation. A particular aim has been to explore whether and in what ways victims’ expectations and needs are met during these processes. The report (A Life of One’s Own) from this project is based on repeated fieldworks and a series of interviews – with victims of trafficking, rehabilitation professionals, and representatives of various departments, institutions, and organisations involved in the referral, rehabilitation, and reintegration of victims of trafficking. These include representatives of the police and other law enforcement agencies, immigration authorities, local social work offices, and nongovernmental organisations.

- 100 - The majority of the interviews were carried out in Serbia, but some also in Moldova and Italy – the latter known as sending and receiving countries, respectively, for women trafficked through and/or from Serbia.

In Serbia, as elsewhere in the region, major challenges relate to the identification of victims. In the course of our research, we have observed that the recent apparent disappearance of victims has created a climate that at times provokes a “fight” over the victims who surface. This climate has caused situations where the status as “victim” is imposed on some women, whereas others are ignored and left on their own. Consequently, one risk that women who feel no need for rehabilitation, but who for various reasons find it difficult to object to the services offered them, occupy precious room in rehabilitation facilities.

These dilemmas are related to those highlighted by Petra Burcikova based on observations from the Czech Republic indicating that willingness to cooperate with the police and the quality of the information you possess, are more likely to influence your access to protection than your actual needs.

A number of governments have signed the United Nations Convention against Transnational Organized Crime and its supplementing protocol on trafficking in persons - often referred to as the Palermo Protocol. Norway did so in 2000, and in July 2003 the recommendations of the Palermo Protocol were adopted as § 224 in the Norwegian penal code. This implies that Norway, like a number of other countries, is currently in the crucial, initial process of applying this legislation for the first time. This leaves a lot of defining power in the hands of law enforcement officials and, consequently, points to an obvious and urgent need to sensitize and train them in the complexities involved in the trafficking in persons.

Several earlier speakers have referred to the trial in Trondheim. Because of its significance, in particular here in Norway, I will dwell on this case a little longer: On the 1st of April sentence was given in a trial in Trondheim where three men were accused of trafficking of Estonian women to Trondheim for sexual exploitation. This was the first time the trafficking paragraph of our penal code was to be applied and those of us engaged in this field closely monitored the developments of the trial. The men were charged with, “through the abuse of a position of vulnerability”, exploiting the women’s prostitution. Moreover, one of the victims turned out to have been only 16 years old when she was recruited and sexually exploited by the defendants. In other words, she was in a legal sense a child and, according to the Palermo Protocol and Norwegian legislation, although no means of force or coercion have been applied, “the recruitment, transportation, transfer, harbouring, or receipt of a child for the purpose of exploitation, shall be considered trafficking in persons”.

To my, and many others’, great astonishment, the defendants were found not guilty in trafficking in persons, but sentenced for pimping. In passing sentence, the judge argued that although the Estonian women may have been in a vulnerable position at the time they were recruited, this position was not exploited. In other words, the court did not find that the women’s vulnerable positions had been abused. At the time of recruitment into prostitution, the women’s conditions were described by the court as marked by “more or less tolerable poverty, combined with personal conflicts with care-givers”. Moreover, there were indications that the women preferred prostitution in Norway to the conditions they lived under in Estonia.

- 101 - In passing sentence, the judge concluded by saying: “it cannot be considered abuse of the women’s vulnerable position to propose to them to work in prostitution, providing correct information, and in this way giving them the opportunity to benefit financially from their own prostitution.”

It should be added that the women were paid approximately 1/3 of the money they made, and the three men involved were left with a net income of 2,2 million NOK.

Regarding the 16-year-old, the men claimed they did not know that she was below the age of 18. Despite the fact that there were witnesses confirming that the defendants not only knew the age of the girl, but also bragged about having a so young girl working for them, the court placed confidence in the defendants’ explanation.

Not surprisingly, the sentence will be appealed, and some time this fall we will get to know whether another judge will interpret the circumstances and evidence of this case differently.

Maria Grazia Giammarinaro has both today and on previous occasions stressed the essentials in harmonising the interpretation of the formulation included in the definition of trafficking under the Palermo Protocol, concerning “the abuse of a position of vulnerability”. The background document for the Palermo Protocol makes clear that the abuse of a position of vulnerability is understood to refer to “any situation in which the person involved has no real and acceptable alternative but to submit to the abuse”. But, in court, what evidence would you need to put forward to actually prove that the victim had no real and acceptable alternative but to submit to the abuse?

With respect to the gradual development of applied interpretations of these formulations, the final outcome of the trial in Trondheim will be of great importance. Not only will it affect the concerned Estonian women of this specific case, but also women who in the future may want to press charges and testify against their traffickers.

What adds to the complexity in identifying the victims of trafficking is the fact that not all victims of trafficking adopt the role of an easily recognised “victim”. As we have heard today, they may even refuse to consider themselves victims. This leads me to the challenge we face in trying not to think of victims of trafficking as equal to Lilja in the movie “Lilja-4-ever”. For years, actors in this field – in Norway, this has particularly been the task of Liv Jessen and her colleagues at Pro Sentret – have screamed out loudly and in capital letters to make politicians, police and others with license to act, realise that the reality of trafficking is often far more complex than that of Lilja who ends up beaten behind a locked door. As pointed out by Rune Berglund Steen, to believe that only women subject to clear, physical force are victims of trafficking reflects a narrow and one-dimensional understanding of the issue. As was made very clear to us by Iana Matei’s presentation, the forms of force and control applied by traffickers today are very often far more subtle and sophisticated.

We live in a world marked by enormous inequalities. In this context women may, for some time, prefer abusive conditions in a flat in Trondheim to a poor and difficult existence with no likely brighter prospects in an Estonian suburb. The question, as I see it, is simply whether or not we should allow persons to make fortunes out of other people’s misfortune.

- 102 - Norway carries indisputable responsibility to protect the human rights of women who are recruited to meet the demands in the Norwegian sex-market. Particular priority should be given to make clear that to make money on a child’s prostitution will never be accepted to happen in our country, or in any other country.

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