INTERLINKAGES BETWEEN Trafficking in Persons and Marriage ISSUE PAPER This publication has been prepared with the support of HEUNI. UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Interlinkages between Trafficking in Persons and Marriage ISSUE PAPER UNITED NATIONS Vienna, 2020 © United Nations 2020. The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication has not been formally edited. Cover drawing and artwork, © Yasser Rezahi. Publishing production: English, Publishing and Library Section, United Nations Office at Vienna. Acknowledgements The present publication was developed by the Human Trafficking and Migrant Smuggling Section of the United Nations Office on Drugs and Crime (UNODC) under the leadership of Ilias Chatzis and the UNODC Crime Research Section under the leadership of Kristiina Kangaspunta, as well as the substantive guidance of Silke Albert, Tejal Jesrani and Pascale Reinke-Schreiber. The publication was drafted by Minna Viuhko (consultant) and Anniina Jokinen (consultant). Special thanks are extended to Jesper Samson of the Crime Research Section, Natalia Ollus, Director of the European Institute for Crime Prevention and Control, affiliated with the United Nations (HEUNI) and Rahel Gershuni (independent expert) for their input and support. Furthermore, we would like to thank our UNODC colleagues from the Justice Section, Claudia Baroni, Anna Giudice and Sven Pfeiffer, for their invaluable insights into and review of this issue paper. An expert meeting held in Vienna on 19 and 20 November 2018 reviewed a draft of this paper, which brings together the findings and conclusions of expert interviews in the field on interlinkages between trafficking in persons and marriage. During the field missions to nine selected countries, experts from government institutions, ministries and law enforcement authorities, academia, and other international organizations and non-government organizations were interviewed about their experiences, challenges, lessons learned and good practices when responding to cases in which trafficking in persons and components of marriage interlink. Owing to the complexity of the topic under investigation, the multidisciplinary approach and involvement of stakeholders from different areas of expertise were essential for capturing interlinkages effectively. The project has benefited immensely from the different experiences and knowledge of the interviewed experts. Thanks are also due to the Member States who supported the organization of these data collection missions, as well as to the large number of government officials and practitioners who gave generously of their time and expertise in helping with the country case studies. UNODC expresses its appreciation to the many independent, national and regional experts, as well as representatives from international and regional organizations, who attended the expert group meeting and who provided important follow-up input, including the following: Linda M. Al-Kalash, Sebastian Boll, Claudia Bertram, Rahel Gershuni, Hong Thu Khuat, Nathalie Levman, Samantha Lyneham, Deepa Mattoo, Thuy Thi Bich Nguyen, Thandabantu Nhlapo, Ulan Shamshiev, Zhypargul Turmamatova and Livia Valensise. The study was made possible through funding received from the Government of the Federal Republic of Germany. iii Contents ACKNOWLEDGEMENTS iii EXECUTIVE SUMMARY vii 1. INTRODUCTION 1 1.1 Mandate and international context of the issue paper 1 1.2 Purpose of the issue paper 2 1.3 Structure of the issue paper 3 2. METHODOLOGY 5 2.1 Desk review and preparatory research 5 2.2 Country missions and expert interviews 6 2.3 Expert group meeting 8 3. INTERNATIONAL LEGAL AND POLICY FRAMEWORK 9 3.1 Trafficking in persons in international law 9 3.2 2030 Agenda for Sustainable Development 13 3.3 International law relating to marriage 14 3.4 Connections between trafficking in persons and marriage identified by international bodies 18 4. KEY CHARACTERISTICS OF CASES DESCRIBED BY EXPERTS 21 4.1 Gender dimensions 22 4.2 Factors of vulnerability 29 4.3 Involved parties 33 4.4 Control methods 36 4.5 Violence and abusive and exploitative practices 37 4.6 Responses 42 4.7 Conclusions 56 5. ANALYSIS OF THE LINKAGES BETWEEN TRAFFICKING IN PERSONS AND TYPES OF MARRIAGE 59 5.1 The act 61 5.2 The means 64 5.3 The issue of consent 69 5.4 Purpose of exploitation 72 5.5 Question of the intention to exploit 81 5.6 Developing indicators of interlinkages between trafficking in persons and marriage 83 5.7 Conclusions 84 v 6. CONCLUSIONS AND POLICY IMPLICATIONS 87 6.1 Conclusions 87 6.2 Policy implications 89 ANNEX I. INTERVIEW TOOL 95 ANNEX II. LIST OF EXPERTS CONSULTED 99 Executive summary The present issue paper explores the extent and circumstances under which different forms of marriage may fall within the scope of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. It combines research methodology and legal analysis to arrive at policy recommendations for countries to consider. The primary data collection was based on 75 expert interviews, involving almost 150 participants from nine countries.1 The interview tool was constructed in a deliberately broad manner to elicit conversations that would capture the reality of these phenomena, which manifested themselves differently in every country, and not to rush to conclusions about whether the conduct fell within the scope of the Trafficking in Persons Protocol. Out of the almost 150 people who participated in the interviews, the great majority knew about or had direct experience of cases involving certain types of marriage and trafficking in persons. However, others had not made any connections between marriages and trafficking in persons in their line of work or had not encountered any relevant cases. In the cases presented during the interviews, it became apparent that trafficking in persons was most often linked to cases of marriage that showed signs of force, abuse or exploitation. Thus, these characteristics could be recognized as initial indicators for consideration of trafficking in persons. Experts, including from non-governmental organizations, who had interacted with victims noted that there was a low level of reporting of trafficking cases in general, but also of trafficking cases involving elements of marriage. The countries included in the research have differing criminal provisions on trafficking in persons and criminal conduct within marriage. Some of the provisions within their legislation on trafficking in persons acknowledge some forms of marriage, such as child and forced marriage, as purposes of exploitation. Other countries address these forms of marriage as separate offences outside of the trafficking in persons framework. Thus, in the interviews, when experts were specifically asked to describe examples in which marriage and trafficking in persons intersected, some described constellations of forced, abusive and exploitative marriages, without necessarily qualifying them as trafficking in persons. Accordingly, this paper, in chapter 4, provides insight into different constellations of forced, abusive and exploitative marriages in order to capture the cases discussed, without prematurely classifying them as instances of 1 The interviewees were representatives of governmental organizations, law enforcement authorities, academia and various international and non-governmental organizations. The countries covered in the study were Canada, Germany, Jordan, Kyrgyzstan, Malawi, Serbia, South Africa, Thailand and Viet Nam. vii viii THE INTERNATIONAL LEGAL DEFINITION OF TRAFFICKING IN PERSONS trafficking in persons. The discussion is based on the case examples and experiences with such cases as described by the interviewed experts. Chapter 5 then provides a legal analysis of cases that would qualify as instances of trafficking in persons and that could be identified as such, the main points of which are also included in the section below on policy implications. It became apparent quite early in the drafting of this paper that trafficking in persons in the context of marriage is a particularly complex subject, owing to deeply ingrained cultural, religious and economic factors relating to the institution of marriage as practised and understood in certain parts of the world. Expert interviews and consultations during the expert meetings organized by UNODC helped to shed light on the challenges involved and identify some of the key characteristics of examples of forced, abusive and exploitative marriages that may have links to trafficking in persons. Experts mainly described the victimization of women and girls Research presented in this paper shows clearly that women and girls, particularly those who are affected by different forms of gender discrimination and harmful practices, are more vulnerable to being victimized in forced, abusive or exploitative marriages. Factors that contribute to the vulnerability of women and girls include poverty, unemployment, violence and conflicts, circumstances which create situations where marriage is seen as a social obligation or a means for a better life. Experts noted that many of the