TRAFFICKING OF WOMEN INTO THE EUROPEAN UNION
Diane Johnson*
I. Introduction
Kasia T., a 25 year-old mother from Warsaw had no interest in working abroad.(1) The young woman was having marital difficulties and, as a result, became easy prey for "recruitment" by the neighborhood pimps.(2)When Kasia turned down their offer for a high paying club job in Germany, they kidnapped her, took her to a cottage in a remote area and tried to gang rape her into submission.(3) For three days, three men raped Kasia repeatedly.(4) They spoke of selling her to a German brothel owner, as they had other women.(5) It was not until the kidnappers heard that police were investigating the kidnapping that they put Kasia into a car and dumped her on the outskirts of Warsaw.(6)
Kasia's situation is, unfortunately, not unique. Everyday, around the world, women and girls are enticed with the promise of good paying jobs; bought from their families; or abducted outright and taken to a foreign country for the purpose of sexual exploitation.
These women are held in conditions that are equivalent to slavery. They are forced to endure sexual encounters--rape--with countless "customers" everyday. They have no power to negotiate the terms of these encounters and may suffer serious beatings if they refuse. The risk of drug addiction, infertility, and sexually transmitted disease, especially AIDS, is omnipresent.
Escape is nearly impossible. The women are often not allowed to leave the brothel, making communication with the outside world difficult. If the woman is able to physically free herself, return to her home country may be impossible as pimps frequently keep the women's only means of return--her passport, airline ticket and money. The risk of arrest and immediate deportation is always present.
Where the women come from is telling. Most prostitutes in Western Europe come from Asia, Africa, the Caribbean and, most recently, Eastern and Central Europe and the former Soviet Union. They often come from cultures where girls are not considered as desirable as boys; are not afforded equal opportunity for education or work; and where the selling of a young virgin girl can bring the family, to them, a huge amount of money.
For the women who are returned home, prostitution often carries with it a social stigma, thus making them a pariah. In cultures where virginity is required of brides, these women have become unmarriagable. Lacking opportunities for education or "honest" work, and with no husband or family to support them, the women are often forced back into prostitution as the sole means of supporting themselves, thus continuing the cycle of degradation, humiliation and victimization.
Aside from the obvious and gross human rights violations that occur when women are forced into sexual servitude, trafficking in women for the purpose of forced prostitution implicates many different issues. As it concerns the European Union [hereinafter EU] and its Member States [hereinafter MS], trafficking in women involves the EU's policy on third country nationals, law enforcement, international human rights law, economics and budgetary concerns, politics, public health and social welfare. It also draws into debate who is competent to address these issues--the EU, the MS, both, or neither?
This article will examine situations where a woman is trafficked into an EU MS from a third world country. Trafficking of women from one MS to another brings into play other issues, especially the right to freedom of movement of workers. While this is a serious concern, especially with the possibility of Eastern European countries entering the Union in the near future, currently accepted definitions of trafficking in women require a foreign border crossing. Restrained by this definitional requirement, this article is limited to a discussion of third country nationals [hereinafter TCNs] brought into the EU for the purpose of sexual exploitation.
Within these confines, Part I of this article will briefly explore the practice of trafficking in women--the problem of defining who is trafficked and the conditions these women are made to suffer before looking at the issue in context of the EU. Part II will examine what steps the EU and MS have taken to address this practice. Finally, Part III will attempt to suggest a comprehensive plan to combat the practice of forcing women to suffer for the economic and sexual gratification of others.
II. Defining the Problem
Forced prostitution and sexual slavery are not recent inventions.(7) Going back to the African slaves who were raped by their masters, to the Japanese "comfort women" to the more recent mass and systematic rapes of Muslim and Tutsi women, sexual exploitation has long been a fact of life for countless numbers of women throughout history.(8)
The practice of sexual exploitation of women continues today. When this exploitation involves the moving of women, the practice is usually termed "trafficking in women." This term was used as early as the end of the 1800's.(9) There has been, however, much confusion as to exactly what is meant by it. This confusion can be seen in the various, often contradictory, definitions and concepts used in domestic law and international conventions, as well as in the on-going international debates.(10) Ultimately, however, trafficking in women "is a complex phenomenon, which touches various, often extremely sensitive issues, such as sex and money."(11)
Many different definitions of "trafficking in women" have been suggested by scholars,(12) domestic law and international agreements.(13) Relevant to this discussion, however, is the definition contained in the January 18, 1996 European Parliament resolution condemning the practice.(14) This Resolution goes beyond earlier resolutions(15) which limited the definition of trafficking to include only women, and takes the term trafficking in human beings to mean:
The illegal action of someone who, directly or indirectly, encourages a citizen from a third country to enter or stay in another country in order to exploit that person by using deceit or any other form of coercion or by abusing that person's vulnerable situation or administrative status.(16)
Although there are problems with this and other popular definitions,(17) the above definition will be used as the reference point for this discussion.
A. The Scope of the Problem
Having defined the concept of trafficking in women, it becomes necessary to determine the scope of the problem. This involves examination of not only the number of women and girls trafficked each year, but also their characteristics, what makes them vulnerable to being manipulated where they are coming from and what conditions they suffer once in this situation.
1. The Numbers
"In any given year, many thousands of young women and girls around the world are lured, abducted or sold into forced prostitution and involuntary marriage. They are bartered at prices that vary depending on their age, beauty and virginity."(18) Victims of trafficking are brought to Western Europe and are either forced into prostitution or trapped by traffickers who take away their passports. These victims are threatened, abused, and deprived them of most, if not all, of their earnings.(19)
The full scale of the practice remains unknown, because few women are prepared to report what has happened to them to police.(20) It would appear, however, that the number of women and girls involved in the European sex trade is enormous.(21) For example, it was reported in 1991 that approximately 60% of the 20,000 prostitutes in the Netherlands were foreigners.(22) In Amsterdam, it is estimated that 7,000 women and girls from the Dominican Republic alone are exploited every year.(23) "Conservative estimates show that 12,000 Philippine women were living illegally in Germany in 1988, the vast majority in prostitution. This is an increase of 30% since 1984."(24) Looking at this data with corresponding information from other Western European countries, "it becomes evident that as many as 100,000 women in Europe are existing in conditions of sexual exploitation, most trafficked from non-European countries."(25)
Additionally, catastrophic social change in both the former Soviet Union and East Germany have also precipitated a significant increase in the numbers of women trafficked into Western Europe.(26) By 1994, the former Soviet Union and its satellites had become the major suppliers of prostitutes for Germany, Belgium, the Netherlands and Switzerland, among others.(27) Moreover, it is believed that "half of Germany's 20,000 prostitutes are from Eastern Europe. In the Netherlands . . . nearly 70 percent of the foreign prostitutes come from Eastern Europe . . .."(28)
2. The Money
Little has changed since a mid-1920's League of Nations study concluded that "profit . . . is at the root of the whole business [of forced prostitution]."(29) World Watch Institute reports that trafficking of women is a multi-billion dollar industry.(30) Global Survival Network estimates that trafficking brings criminal syndicates worldwide billions of dollars--an amount rivaling their incomes from drugs and guns.(31)
By some estimates, trafficking in women has become more lucrative in Europe than similar commerce in weapons or narcotics. The consumer appetite appears limitless; profit margins are high(32) and risks are low--traffickers hardly ever get prosecuted, and when they do, they rarely see the inside of a jail.(33)
B. The Individuals Involved and the Conditions in Which They Live
Why women and girls are susceptible to sex traffickers is hardly a mystery.(34) While each woman's situation is unique, there are recurrent trends in the trafficking business. First, the vast majority of women are very poor.(35) They come from places where women and girls have fewer educational and economic opportunities than males.(36) Often the girls have been socialized into an ethos of female servitude and self-sacrifice.(37) These conditions, coupled with the preference for sons in many parts of the world, often lead families to sell their daughters for the promise of immediate payment.(38)
Because of the clandestine nature of the trade, obtaining specific demographics about women trafficked into Western Europe is difficult.(39) There are, however, commonalties in how these women are "recruited" and in the conditions they are forced to endure. "Recruitment" often occurs with the promise of a good job in another country or province.(40) Recruitment also occurs through false marriage offers, with the "bride" later sold off to a brothel.(41) Outright abduction is also not uncommon.(42)
Another almost universal theme in trafficking is that most women are held under debt bondage, and everything that goes along with this form of control. Debt bondage requires a woman to pay her transportation costs to the "host" country at several times the actual price.(43) Once in the new country, the woman has no place to stay, no money for housing and her means of return to her homeland, passport and tickets, are usually confiscated from her by her trafficker.(44) Because she is often in the country illegally, the woman feels she is not able to go to the authorities for help.(45) Escape without paying this debt is impossible as this places the woman at risk for punishment by the brothel owner, his employees or the police.(46) Risk of retribution against the woman's family for "defaulting" on the debt, as well as arrest for being an illegal immigrant is also a very real possibility.(47)
Other omnipresent risks to these women are the numerous physical consequences of prostitution.(48) Besides "rape and battery at the hands of customers and pimps,"(49) women are exposed to health risks, especially sexually transmitted disease,(50) including hepatitis B and AIDS.(51) Beyond the risk of infection through sexual intercourse with many men, the growing popularity of contraceptive injections in brothels also contribute to the spread of disease, since brothel owners often use the same, and possibly contaminated, needle several times.(52)
Infertility is also a serious risk of forced prostitution that can bring about devastating consequences. Women who come from cultures where the primary purpose of marriage is procreation find themselves unmarriagable.(53) "Shunned by their own families and communities, many of these women must return to prostitution in order to support themselves."(54) Beyond the physical or cultural commonalities, one of the defining characteristics of sexual trafficking is that it removes girls and women from a world in which they have at least a semblance of a support system into a situation where they have none.(55) Finally, women and girls who are trafficked are often put into environments in which people of their racial or ethnic group are considered inferior and are thus subjected to additional discrimination.(56) "In other words, sexual trafficking puts already extremely vulnerable girls and women into the most powerless and dependent situation imaginable."(57)
III. European Union And Member States Response
Although the EU was founded on an economic basis,(58) steps have been taken to address the issue of trafficking in women, as well as to assist those caught up in the trade. Some of these measures are directly targeted at addressing this problem, while others are more general, but still impact the issue. The most significant of these measures are discussed below.
A. Community Level Action
1. Protection of Fundamental Human Rights
While it is easy to see the problem of trafficking in women as an economic or social one, ultimately it is a human rights issue. Women who are forced into situations where they are sexually exploited for the profit of a third person are having their basic human rights, as guaranteed by numerous international instruments,(59) violated. As drafted, the Treaty of the European Union addresses the issue of human rights. Article F(2) of the Treaty provides that the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms.(60) As of 1996, however, the European Court of Justice (E.C.J.) opined that "as Community law stands now, the Community has no competence to accede to the . . . Convention."(61)
This issue is seemingly addressed in the Draft Treaty of Amsterdam. While the Draft has not yet been adopted, the Treaty amends Article F by declaring that "the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms."(62) In addition to this declaration, the Treaty provides for enforcement mechanisms to be used in cases of "serious and persistent breach" of these basic principles by a MS.(63)
While it is unclear as to how this article will be interpreted or utilized,(64) it is conceivable, if unlikely, that the article could be used to address long-standing and on-going human rights violations in MS, including the practice of sexual exploitation of women.
2. Immigration of Third Country Nationals
As noted previously, the European Parliament's definition of "trafficking in women" requires a foreign border crossing.(65) Because the EU is without internal borders, by definition then, women trafficked into the EU are not going to be EU citizens, they will all be third country nationals [TCNs]. The rights and responsibilities of TCNs figure very little in the founding text of the European Community.(66) With the exception of Article 100 c of the European Community Treaty, which deals with the issue of visas for non-EU citizens,(67) the Treaty establishing the European Community is silent as to non-EU nationals.(68)
Recognizing the need for a "comprehensive approach for dealing with immigration policy, the European Commission, in 1997, presented a proposal for a Council Act Establishing the Convention on Rules for the Admission of Third Country Nationals to the Member States."(69) The Convention lays out the rules for the "initial admission of a third-country national to the territory of a Member State for the purposes of employment, self-employed activity, study and training, non-gainful activity and family reunification."(70)
As drafted, this Convention deals with "entry and a stay of more than three months . . . ."(71)The Convention does not specifically address the issue of women brought into the EU, legally, nor illegally, for the purpose of prostitution. However, the Convention does provide for an exception to its otherwise strict entry and residency requirement in Article 2(1)(c).(72) Conceivably, in situations where return to her homeland is not possible, this humanitarian exception could be used by MS to grant victims of trafficking the right to remain in the host country.
With the exception of
Article 2(1)(c)'s humanitarian allowance, the proposed immigration convention
would seemingly do little to aid women who find themselves in an EU MS. Even
assuming her initial entry was legal, her activities once in the MS would
nullify any appearance of legality. These activities may further subject her to
deportation, as she no longer satisfies the requirements for remaining within
the MS as set out by this Convention. Perhaps more relevant to this discussion is the
Schengen Agreement and the Convention Applying the Agreement.(73) While the Schengen Agreement is
outside EU law, the majority of MS have signed on to it, thus making it law that
cannot be ignored. Like the proposed immigration convention, the Schengen
Agreement does not specifically refer to woman trafficked into the EU. It does,
however, deal with the issue of entry visas, both long and short term.(74)
Especially relevant to this discussion are Articles
23 and 27 of the Convention Applying the Agreement.(75)Article 23's allowance for remaining in
a MS for humanitarian reasons gives MS leeway for allowing a victim of
trafficking to remain in the country if return to her home land is not viable.
This is especially important in situations where the women comes from a culture
where her history of prostitution would render her an outcast, subject to social
scorn, or worse. Without family or husbands to support them, such women are
extremely vulnerable to returning to prostitution in order to
survive. Additionally, while trafficking in women is not
specifically mentioned by name, Article 27's imposition of penalties on anyone
who, for gain, brings or assists an alien into a MS illegally, gives the MS a
tool in the prosecution of traffickers.While neither the proposed immigration convention
nor the Schengen Agreement alone provides extensive protection for victims of
trafficking, both could be used as components of a wide-based and comprehensive
plan to aggressively attack the problem. 3. Law Enforcement The architects of the EU recognized the
need for a mechanism to fight crime within the EU and assist MS with their law
enforcement efforts. Toward that end, Article K.1 of the Treaty of Maastricht
provides for the creation of Europol.(76)The Europol Convention was signed
by all MS in July 1995.(77) Significant to the discussion at
hand, Europol's original mandate(78) was expanded in 1996 to include "the exchange
and analysis of information and intelligence, as soon as they affect two or more
Member States, in relation to . . . trafficking in human beings."(79) Finally, the Treaty of
Amsterdam, as one of the steps to "provide citizens with a high level of
safety,"(80)
also includes the prevention and combating of "trafficking in
persons"(81) as
one of its goals. While the Europol Convention will
not come into force until jurisdictional issues are solved by the ECJ and until
all MS have ratified it,(82) the convention is a potentially powerful tool in the
fight against trafficking of women for the purpose of prostitution. Because of
the connection between organized crime and trafficking in women, Europol would
be particularly suited to addressing this issue. It has at its disposal
computerized networks of information as well as the ability to share that
information with MS in order to pursue and prosecute traffickers. 4. Social
Programs Outside of treaty provisions and
law enforcement, the European Commission has taken some steps in providing for
programs that directly impact victims of trafficking. One of the largest of
these programs is known as the DAPHNE Initiative. The DAPHNE Initiative was created
to assist non-governmental organizations [NGO's] in combating violence against
"women, young persons and children from all kinds of violence and
commercial sexual exploitation, trafficking and other abuses."(83) DAPHNE was inaugurated in
1997 and, while the Commission claims combating sexual violence "to be an
important priority,"(84) it also noted that future programs under the DAPHNE
Initiative will be conducted only "[s]ubject to budgetary
availability."(85) The European Parliament [EP],
despite being the weakest organ of the EU, has been at the forefront in
addressing the issue of trafficking in women. Despite the fact that its
recommendations are not binding, the EP has called on the Commission to more
aggressively address the issue of trafficking, as well as provided reports and
proposed community wide action. As recently as December 1997, the
EP was called on by the Commission to "create a taskforce on the
trafficking of women for purposes of sexual exploitation."(86) Unlike many previous EU measures,
this communication urged that trafficking be addressed from the stand point of
the victim and that the practice be viewed "in terms of violations of the
fundamental rights of women (and not solely from the view of fighting organized
crime and illegal immigration)."(87) Also, and in step with current reality, the
communication called for more funds to be allocated to programs for Eastern and
Central Europe, as well as the former Soviet Union which would go directly to
the fight against trafficking of women in these regions.(88) In 1997, the EP released a report
concerning, among other things, trafficking in women.(89) This extensive report noted that the
"sex trade is one of the world's most lucrative industries,"(90) and put forth extensive
and far reaching recommendations regarding how, and why, the EU should address
this issue. B. Member State Response Laws, policy and programming at the MS level, in response to the
problem of trafficking in women, range from non-existent to fairly
comprehensive.(91) Two
MS, the Netherlands and Belgium, have fairly wide ranging and comprehensive laws
and programs geared toward prostitution in general, and trafficking
specifically. 1. The
Netherlands Registration of prostitutes is not
compulsory in the Netherlands but it is estimated that approximately 25,000 to
30,000 women work in the field in any given year.(92) Of this number, approximately 40-60%
are of foreign origin.(93) Additionally, it is believed that approximately
2,000 to 3,000 women arrive as a result of trafficking or work under conditions
of forced labor.(94) As
of 1996, prostitution was not, in and of itself, illegal in the Netherlands.(95) Exploitation of a
prostitute, as well as "living on the immoral earnings of another,"
however, is criminalized.(96) In reality, the government takes a hands-off
approach to prostitution and pimping and pursues charges only in "cases of
exploitation with the use of violence, deceit or abuse of authority."(97) The Dutch criminal code
does criminalize the "bringing [of a person] to prostitution by means of
violence, deceit or abuse of authority" under the heading of 'trafficking
in human beings.'' The Dutch program addressing
prostitution in general consists of three components: prevention, prosecution
and support. Each will be discussed briefly. a.
Prevention The Dutch
government has taken three formal steps in its attempts to prevent prostitution
and trafficking. First, embassy personnel in origin countries warn women
vulnerable to trafficking of the dangers.(98) Second, the government supports various NGO
prevention programs.(99) Finally, the government has supported peer projects
that provide prostitutes, or women vulnerable to becoming prostitutes with
information about their rights, along with medical information.(100) b.
Prosecution If prevention fails to keep women from
being trafficked, the Dutch government has an aggressive and comprehensive
program for prosecution of traffickers. The main aspect of this program is the
granting of a temporary residency permit to women who are willing to cooperate
with the government in the prosecution of the trafficker.(101) In addition to these laws, the
Dutch Attorney General, in 1989, introduced several directives in order to
achieve a national policy on the issue of trafficking in women.(102) These directives
included the development of specialized police units and adequate "care and
support of the victim."(103) A follow up study in 1992-93 showed that actual
implementation of these directives was not uniform. This has lead to additional
changes being implemented;(104) follow up continues.(105) c. Support In
addition to prosecuting the traffickers, the Dutch government has developed a
fairly comprehensive support network for victims of trafficking. These measures
include specialized social worker teams in selected cities,(106) as well as subsidization of the
Dutch Foundation Against Traffic in Women (STV).(107) In addition to offering social
support, legal and medical assistance, shelters and psychological counseling,
the NGO's (including STV) make recommendations to the government on policies and
programs that impact victims of trafficking.(108) 2. Belgium The IOM has reported that there are at a minimum 28,000
prostitutes working in Belgium, half of whom are foreign born.(109) Of this number,
approximately 10-15% are known to be victims of trafficking.(110) Belgium does not expressly
criminalize the act of prostitution, but procurement/pimping, soliciting and
loitering are illegal acts.(111) Belgium does, however, have a specific law on
trafficking in human beings.(112)
Additionally, Belgian law
distinguishes between trafficking and forced labor and slavery like practices in
prostitution.(113)
NGO's active in the country report that while implementation of these laws
"should be better," the laws are enforced.(114) Like the Netherlands, Belgium has
attempted to address the issue of trafficking in three ways: prevention,
prosecution and support of the victim. a.
Prevention Fearing abuse of the system,
Belgian authorities' main weapon in preventing women from being trafficked into
the country is an extremely strict set of regulations covering the issuing of
work permits for certain occupations, especially "artists."(115) Additionally, the
government has taken steps to address the issuing of phony marriage licenses,
which it believes helps to curtail trafficking.(116) b.
Prosecution Like the
Dutch government, the Belgian government relies primarily on the incentive of a
temporary residence permit to encourage victims of trafficking to press charges
and testify at trial.(117) Unique to Belgium, however, is the possibility of
an indefinite residence permit as a "reward" for evidence used in a
successful prosecution.(118) c. Support In
addition to the support system provided to women willing to testify, Belgian
authorities have set up a limited number of safe shelters for women to go where
they can receive psychological, legal and medical assistance.(119) Unfortunately, this system is
under-funded and future activity is seriously endangered by this lack of
financial support.(120) IV. A Plan Of Action
For The European Union And Member States From the previous discussion it is
apparent that trafficking of women is a serious issue that impacts the EU at
both the MS and Community levels. It is just as apparent that any effective
solution will require coordinated and dedicated efforts at the Community and MS
levels. A. Competency of the European Union and Member States To
Act In deference to the concept of
subsidiarity (the desire to conduct programming at the most local level
possible), whenever community wide action is proposed, it is necessary to
determine who is competent to act--the EU, the MS, both, or neither.(121) 1.
Immigration Trafficking in women interfaces
with three major fields: immigration, law enforcement and social welfare policy.
While the right of MS to act within the fields of law enforcement and social
policy provides little room to ponder, a right of MS to act without restraint
within the field of immigration is not, however, unlimited. Corollary to the MS' limitation on
developing and implementing its own immigration policy, is the right of the EU
to function in the area. Article K.1 of the Treaty of the European Union
provides for nine matters of common interest between the MS and the EU.(122) One of these
interests is "conditions of movement and residency by third-country
nationals on the territory of the Member State."(123) In its 1997 proposed Convention, the
European Commission noted the need for a "mandatory legal instrument
clearly establishing the conditions of admission and the rights of third country
nationals admitted to the territory of Member States."(124) It went on to note that "[i]n
the areas covered by Title VI the Commission has a right of initiative shared
with the Member States (first indent of Article K.3(2))"(125) Finally, in its decision of July 9,
1987(126) the ECJ
held that immigration policy, vis-à-vis
non-member countries comes in its entirety, within the meaning of Article
118.(127) It is,
therefore, clear that immigration, as it pertains to TCNs, is primarily within
the hands of the EU. 2. Law
Enforcement Law enforcement at the EU level is
addressed by the Europol Convention. This Convention, signed by all MS(128) has as one if its
mandates the combating of trafficking in human beings.(129) Action in this area is, naturally,
in coordination with the MS's law enforcement activities and should be
considered a joint action. 3. Social Welfare
Policy Finally,
there is the issue of the EU or MS' responsibility to act in the field of social
welfare policy. Like law enforcement, the competency of the MS to take action
within its borders is not questioned. The EU, however, also has rights and
responsibilities in this area under Article 118 of the EC Treaty.(130) Under this Article,
the Commission "has the task of promoting close cooperation between Member
States in the social field."(131) So, while the EU has primary
responsibility in the area of immigration, and the Schengen Agreement binds each
MS to the other in reference to issuance of visas, the responsibility of
addressing the problem of women being trafficked for the purpose of sexual
exploitation is a shared one between the MS and the EU. Any plan to combat this
problem, therefore, must be a coordinated effort at all levels. B. Recommendations for a European
Union Campaign Against Trafficking in Women When discussing how
to go about combating trafficking in women it is easier to speak in terms of MS
and EU initiatives. While this is, to some extent, a false dichotomy, for the
purposes of ease of reading, recommendations will be made here under the heading
of MS Action and EU Action. Despite the
convenience of separating these recommendations, there are over-riding themes
that are applicable to both levels. The most over-riding of these themes is the
need for the political will to address this issue as a human rights violation.
"Trafficking implicates civil and political rights, equality rights and the
right to be free from slavery and slavery-like practices."(132) The members of the EU and each MS should strive to fully implement the
ICCPR.(133) Doing
so would assure that the issue of trafficking would not be viewed "just as
a women's issue" and thus subject to marginalization. Women must be seen
and talked about as being worthy of protection and afforded that
protection. Another over-riding theme is that
the funding for these programs and prosecution must be adequate and consistent.
It must be a dedicated budget line, not subject to "availability."
Fighting fundamental human rights violations cannot be based on
"left-over" money. Next, the definition of trafficking
in women must be consistent throughout the Community. While it is not possible
to completely harmonize MS legislation in this area, the issue of a basic
definition must be consistent throughout. Failure to do this would lead to
inconsistent prosecution and services. Women would "fall through the
cracks" in some MS, while the same woman would be entitled to protection in
others. Finally, all services provided in
this area, from legal, to medical and police, should be conducted by specially
trained personnel who are sensitive to the special needs of victims of
trafficking. This will encourage women to avail themselves of services available
to them if the word gets out that the "system" will not victimize
them. Additionally, all services should be available in linguistically and
culturally appropriate contexts. 1. Member State
Action When
considering what actions should be taken regarding this issue, it simplifies
things to look at the actions as falling into one of three categories:
prevention, prosecution and support. For this reason, recommendations will be
discussed under each specific heading. a.
Prevention Because
every woman who attempts to enter MS legally must apply for a visa, the first
line of prevention should be in the embassies located in originating countries.
These personnel should be trained in the issue and knowledgeable as to who are
particularly vulnerable to being trafficked. These personnel should take
necessary steps to counsel women on the dangers of trafficking and should be
able to provide necessary referrals to services available to the women in their
home country. The regulations surrounding the
issuing of visas for suspect occupations, particularly "artist,"
"dancer," "hostess" and "au pair," should be
extremely strict and require verification of actual legitimate employment in the
MS, as far as possible. Article 5 of the Schengen Agreement lays out the
requirements for entry visas into the MS and personnel should be diligent in
using them to their fullest potential. MS should also undertake the
systematic and regular collection of data concerning the instances of
trafficking within their country. This information should be used to develop new
and better programs that directly target the origins of trafficking in the first
place. Finally, MS should pass specific
laws expressly criminalizing the act of trafficking. These laws should provide
for effective enforcement mechanisms and carry extremely lengthy sentences.
Additionally, while it should protect the identity and dignity of any victim,
the MS should aggressively publicize the prosecution and conviction of all
traffickers. The message must be sent that trafficking will not be
tolerated. b.
Prosecution Once MS pass effective laws, these
laws must be aggressively enforced. The prosecution of traffickers must be
considered a priority and adequate resources, along with properly trained
personnel, must be assigned. In conjunction with the criminal
penalties for trafficking, MS should pass legislation that would allow for the
confiscation of earnings from traffickers. This is regularly imposed on drug
traffickers and should be imposed on individuals trafficking in people. The
connection between organized crime and trafficking provides an even stronger
incentive for this type of action. Finally, each MS should maintain a
coordinated effort with Europol and utilize the computerized data banks and
intelligence available to Europol to fight traffickers and go after their routes
and other sources of income. Trafficking in the EU is an extremely transient
crime and information gathered by MS should be shared with the rest, as it is
just a matter of time before that trafficker impacts every other MS. c. Support First and
foremost, women who are victims of trafficking should not be victimized by the
system that is designed to assist them. All services should be available in
linguistically and culturally appropriate context. This may include specially
trained female social workers, prosecutors and police available to work with
women from cultures that would prevent her from speaking to a man. Social
support must be comprehensive and a coordinated effort between government and
NGO groups working in the area. Duplication of services should be avoided as
well as serious gaps in services. A victim's basic needs must be
addressed initially. These include medical, psychological, legal and welfare
assistance. The woman must be made aware of her rights and the services that are
available to her. She must be provided with safe shelter, away from the
possibility of retaliation by her trafficker or pimp. The MS government should
recognize the fact that private NGO's or other groups are sometimes more able to
provide necessary services and the government should support these efforts by
grants or other financial support. The use of residency permits should
be continued. Currently several MS use this temporary permit as an incentive to
a woman to bring charges and testify against her trafficker. While the policy of
encouraging victims to bring charges and testify should be encouraged, the
practice of providing residency permits to only those women who testify at
successful prosecutions must be stopped. This practice re-enforces the idea that
the only victim in cases of trafficking is the state. By doing this, the woman
victim is again being manipulated, this time for the benefit of the state. The
better policy is to issue residency permits to any woman who desires one. This
is especially important in cases where returning to the home country would
subject the woman to social ridicule, or worse, and would leave the woman unable
to provide for herself, either through a family, or on her own. Additionally, the practice of
automatic deportation on the grounds of prostitution or illegal stay within the
MS must also stop. While MS have a legitimate concern for internal security,
each victim of trafficking should be provided with a "respite" period
in which she receives basic services as listed above. The government could use
this time to assess whether or not there are other grounds that would warrant
deportation. If, however, these other grounds do not exist, the woman should be
offered a residency permit to stay in the country. 2. European Union
Action The main
focus of the EU in this area should be in the fields of immigration, law
enforcement and budgetary assistance to MS and NGO's working to combat
trafficking. a.
Prevention Within
the area of prevention, the EU should provide specialized training to all
immigration officials, as noted above. Additionally, the EU should start
including in all bi-lateral or multi-lateral agreements with known origin
countries clauses that deal with the active prevention of trafficking from the
third country. b.
Prosecution In the area of law enforcement,
Europol should actively pursue its mandate to combat the trafficking of human
beings. It should develop a specially trained unit dedicated to the program.
This unit should, in turn, develop strong connections with the law enforcement
unit within each MS also dedicated to combating trafficking. Sharing of
information and intelligence should be automatic and continuous. Also, within the area of
prosecution, the Ministers of Justice for Home Affairs should adopt regulations
specifically concerning immigration and deportation. Deportation should be
avoided, as noted above, and the EU should mandate the policy of accepting women
in risk of persecution based on sex into the MS. c. Support Finally, within the area of support of
female victims of trafficking, the EU should provide necessary funding for
community-wide campaigns that publicize trafficking, the laws against it, and
services available to victims. The EU should also strongly encourage each MS to
fulfil its responsibilities under relevant international human rights
instruments. It should also look to utilize the wording within its own Treaties
to require MS to support and protect basic and fundamental human rights for all
persons within their jurisdictions. V.
Conclusion Trafficking in women is a gross
violation of basic and fundamental human rights. It also implicates issues of
immigration policy, crime fighting and the responsibility of states to provide
social support to women victims. As it concerns the EU, the issue is one that is
pervasive, strongly entrenched in politics, economics, cultural relativism and
the belief that women are second class citizens. Any effort to effectively combat
trafficking of women into the EU must be one that involves both the MS and the
EU at the Community level. While concrete programs that provide for aggressive
prosecution of traffickers and support of the victim are necessary, the one
over-riding theme must be that trafficking violates human rights and that women
are no longer going to be allowed to be used and manipulated for the economic
and sexual gratification of others. Until this belief is as strongly entrenched
as the practice of trafficking, trafficking will continue and women will
continue to be used, abused and left as human garbage in the brothels of EU
cities. 1. Diane Johnson is currently an LL.M. candidate in International
Legal Studies at American University, Washington D.C. She received her J.D. from
the New England School of Law in 1998 and is a member of the Massachusetts
Bar. See Tom Hundley, Eastern European Women Exploited in Sex Business, Chicago Tribune,
May 7, 1996, at 1, available in 1996 WL 2669226.
2. See id.
3. See id.
4. See id.
5. See id.
6. See id.
7. See Penny Venetis, International Sexual Slavery, 18 Women'S Rts. L.R. 263, 268 (1997).
8. See id.
9. See Trijntje Kootstra, Background Study on Basic Principles for a Code of Conduct
Within the Member States of the European Union to Prevent and Combat Traffic in
Women, Dutch Foundation Against Trafficking in Women, Nov. 22 1996, at 6.
10. See id.
11. Id.
12. For example, Penny Venetis defines sexual slavery as to
include "girls and women [who] are not free to leave their brothels . . .
and women who are kidnapped and sold to men as wives ['mail order
brides']." Venetis, supra note 7, at 267.
Aurora Javate de Dios proposes that: Sexual trafficking in
women is the movement of girls and women for purposes of sexual exploitation,
usually from developing countries in Asia, Latin American, and Africa[,] into
the sex industry of developed countries. Sexual trafficking in women encompasses
the movement of girls and women from Eastern Europe and the former Soviet Union
into Western Europe's brothels and sex business,
as well as the movement of girls and women from Europe's rural areas into its industrialized centers. Global Trafficking in Asian Women, Women Empowering Women: Proceedings of
the Human Rights Conference on the Trafficking of Asian Women, 2-4, held in Manila, Philippines, Apr. 3-10, 1992.
13. International conferences and agreements addressing the
issue go back to the 19th century with the first
international conference on the prevention of trafficking in women being held in
Paris in 1896. See Kootstra, supra note 9, at 6. The International Convention for the Suppression
of the White Slave Trade, signed in Paris May 4, 1910, was the first of its
kind. Id. This Convention defined trafficking in
women as "any person who, to gratify the passions of others has by fraud or
by the use of violence, threats, abuse or authority or any other means of
constraint, hired, abducted or enticed a woman of full age for immoral
purposes." Id. One of the most
recent attempts at defining the concept is that of the United Nations General
Assembly. The 1994 Resolution condemns the: Illicit and
clandestine movement of persons across national and international border,
largely from developing countries and some countries with economies in
transition, with the end goal of forcing women and girl children into sexually
or economically oppressive and exploitative situations for the profit of
recruiters, traffickers and crime syndicates, as well as other illegal
activities related to trafficking, such as forced domestic labour, false
marriages, clandestine employment and false adoption. G.A. Res. 49/166 U.N
GAOR. (1994), quoted in Further promotion and
encouragement of human rights and fundamental freedoms, including the question
of the programmes and methods of works of the commission alternative approaches
and ways and means within the united nation system for improving the effective
enjoyment of human rights and fundamental freedoms, report of the special
rapporteur on violence against women, its causes and consequences, U.N.
Comm. On Hum. Rts., 53rd Sess., Agenda Item 9(a)
of the Provisional Agenda, <www.unhchr.ch/html/menu4/chrrep/4797.htm>. For
excellent histories of international treaties and conventions dealing with the
issue of exploitation of women and children, see
Stephanie Farrior, The International Law on
Trafficking in Women and Children for Prostitution: Making it Live Up to its
Potential, 10 Harv. Hum. Rts. J. 213 (1997) [hereinafter Farrior], and
Kootstra, supra note 9.
14. See Resolution on Trafficking
in Human Beings, A4-0326/95 [hereinafter EP Resolution].
15. See Resolution on Trafficking
in Women, 1993 O.J. (C 268), at 141.
16. EP Resolution, supra note 14.
17. In many recent definitions, the term "trafficking in
women" has been equated with the smuggling of aliens, also called
"aliens trafficking" or "trafficking in migrants." See Kootstra, supra note
9, at 15. For example, Mr. M. Gramegna, in his preparatory meeting on
"Trafficking in Women" before the International Organization for
Migration noted that "[s]ince the adoption of the [1949 U.N.] convention,
migrant trafficking has not only grown in scale, but has also taken on a greater
variety of forms, such as forced marriage and labour." International
Organization for Migration, Statement of Mr. M. Gramegna, Preparatory Meeting on
"Trafficking in Women", held at
Brussels, 1-2 Dec. 1995, quoted in Kootstra,
supra note 9, at 13. In many definitions,
including the European Parliament's, an illegal
border crossing is required. While it is true that "in a substantive number
of cases of international trafficking, women are brought into the country
illegally or lack a valid residence permit, just as many cases are known in
which women enter the country in a completely legal way, e.g. as tourists,
brides, maids or artists." Id. at 15. These
women's stays in the country may also be completely legal, "that is to say
as long as they do not back out of the power of their husbands or employers, as
in many countries the staying permit of a migrant woman is dependent of the
husband or employer." Id. The use of
definitions encompassing the concept of "trafficking in aliens" or
"aliens smuggling" when talking about women trafficked for the
purposes of forced prostitution presents two additional problems. First, the
modern trend of equalizing "alien smuggling" and "trafficking in
aliens" with "trafficking in women"
shifts the focus from violence against women to illegality. In this
process, both the element of violence and abuse and the gender specific
character of traffic in women is lost. See id. The
"victim" in cases of alien smuggling is the state. See id. In cases of trafficking, however, it is the woman who is the
victim. See id. "The core of the problem is
not that people migrate, legally or illegally, but that women are forced, abused
or deceived." Supra note 9, at 15. The second problem in
this area is the issue of consent. It is true that many women choose within the
options available to them, to migrate to another country or province. See id. However, if trafficking in women is equated
with illegal migration, it could be said then that a woman is trafficked with
her consent. Although she may consent to migrate for work or marriage, this does
not mean that she consents to violence and abuse. Id.
18. Human Rights Watch, Human Rights
Global Report on Women's Human Rights: Trafficking in Women and Girls into
Forced Prostitution and Coerced Marriage, 196 (1995) [hereinafter Human
Rights Watch].
19. International Organization for Migration, Trafficking and Prostitution: The Growing Exploitation of Migrant Women
From Central and Eastern Europe, at 4, ISBN 92-9068-04802, May, 1995,
<www.IOM.int/www/iom/publications/books_studies_surveys/mip_traff_women_eng.htm>
[hereinafter IOM].
20. See id.
21. See Sven-Axel Mansson, Brothel "Europe": International Prostitution and
Traffic in Women, unpublished manuscript, Dep't. Of Social Work, Univ. Of Gothenburg, Sweden, 2-3, quoted in Dorchen Leidholdt,
Sexual Trafficking of Women in Europe: A Human Rights Crisis for the European
Union, in Sexual Politics and the European
Union: The New Feminist Challenge, (R. Amy Elman, ed.) (1996) 83, at 86
[hereinafter Leidholdt].
22. See id.
23. 23See Howard W. French, For the World's Brothels, Caribbean Daughters, N.Y.
Times, Apr. 20 1992 at A4.
24. Susanne Lipka and Elvira Niesner, Ueber die Arbeit der Agistra Gegen, Sextourismus und Frauenhandel.
Beigtrage zur feministischen Theory unde Praxis 23: 123-27, quoted in Leidholdt, supra
note 21, at 86.
25. Leidholdt, supra note 21, at
86.
26. See Hundley, supra note 1.
27. See id.
28. Id. For a detailed study of
the increase in trafficking of Eastern European women, see generally, IOM, supra note 19.
29. H. Wilson Harris, Human
Merchandise: A Study of the International Trafficking in Women, 49 (1928),
quoted in Nora V. Demleitner, Forced Prostitution: Naming an International Offense, 18 Fordham
Int'l L.J. 163, 171 (1994).
30. Venetis, supra note 7, at
270.
31. Vladimer Isochenkov, Trafficking
in Women Flourishing in Former Soviet Bloc, Associated Press, Nov. 7, 1997.
32. Traffickers are able to maximize their profits because
their outlay for "inventory" is so cheap. In 1996, the New York Times
reported that in China it cost $250 to $500 to buy a person. See Venetis, supra note 7, at 269. The
San Diego Tribune reported that in Nepal girls cost $120 to $1200, depending on
a number of variables including whether or not the girl was a virgin. See id. Finally, according to The Nation, a nine year old
prostitute can be had for as little as two dollars. See id. "The older the child gets the cheaper her price. But, for a
nine year old, prime virgin, just plucked from her family's arms, the price is a whopping $2,000." Id.
33. See Hundley, supra note 1.
34. See Leidholdt, supra note 21, at 85.
35. See id. at 85-86.
36. See Human Rights Watch, supra note 18, at 196.
37. See Leidholdt, supra note 21, at 85-86.
38. See Report of South Asia Regional
Workshop on Protecting the Rights of Women and Children with Special Reference
to International Trafficking and Labour Migration, held at Dhaka,
Bangladesh, 2-4 June, 1992, at 3.
39. See id.
40. See Human Rights Watch, supra note 18, at 197.
41. See id.
42. See id.
43. See ICPO-INTERPOL, Exploitation of Women and Children: Its Causes and Effects,
Report of Asian Regional Conference, International Abolitionist Federation,
held in New Delhi, India, 17-19, 1997 [hereinafter
INTERPOL].
44. See id.
45. See id.
46. See Human Rights Watch, supra note 18, at 197.
47. See id.
48. See Mechtilde Maurer, Tourism, Prostitution and AIDS, paper presented to
Seminar on Action Against Trafficking in Women, held at
Strasbourg, 25-27 Sept., 1991, Council of Europe, EC/PROST (1991).
49. Id.
50. See Preliminary Report
Submitted by the Special Rapporteur on Violence Against Women, Its Cause and
Consequences, U.N. Doc. E/CN.4/199E/42 (1994), at 50 [hereinafter Special
Rapporteur].
51. See Maurer, supra note 48.
52. See Special Rapporteur, supra note 50, at 50.
53. See id.
54. Id.
55. See Leidholdt, supra note 21, at 83-83.
56. See id.
57. Id.
58. The Union shall set itself the following
objective: --to promote economic
and social progress which is balanced and sustainable, in particular through the
creation of an area without internal frontiers, though the strengthening of
economic and social cohesion and through the establishment of economic and
monetary union, ultimately including a single currency in accordance with the
provisions of this Treaty; Treaty of the
European Union, reprinted in European Union,
Selected Instruments Taken From the Treaties, Book I, Vol. 1 (1995), at 23.
59. See European Convention for the Protection of Human
Rights and Fundamental Freedoms, 312 U.N.T.S., 221 E.T.S. 5, Nov. 4, 1950
[hereinafter European Convention], reprinted in
Basic Documents of Human Rights (3d) (Ian Brownlie, ed. 1994), at 326
[hereinafter Brownlie], as amended by Protocol No.
3, E.T.S. 45, reprinted in Brownlie, at 345,
Protocol No. 5, E.T.S. 55, reprinted in Brownlie,
at 348, and Protocol No. 8, reprinted in Brownlie,
at 355. Article 4(1) of the Convention provides that "[n]o one shall be
held in slavery or servitude" while 4(2) provides that "[n]o one shall
be required to perform forced or compulsory labour." See also International Covenant on Civil and Political Rights, 999
U.N.T.S. 171, Dec. 16, 1966, reprinted in
Brownlie, at 125 [hereinafter ICCPR]. Article 1 of the ICCPR provides that
"[a]ll peoples have the right of self-determination. By virtue of that
right, they freely determine their political status and freely pursue their
economic, social and cultural development."
60. See European Convention, supra note 59.
61. Protection of Fundamental Human Rights in the Union, available in Europa Library, http://europa.eu.int/com,
visited Feb. 22, 1998 [hereinafter Europa
Library].
62. Id.
63. The Treaty provides for the right of the Council to suspend
certain rights deriving from the application of the Treat to the MS in question,
including the voting rights of the representative of the government of that MS
in the Council. See id. It is unclear how grave
the breach of this article would have to be before this step is taken, but one
can imagine it would require an extreme and long standing breach by the
offending MS.
64. The Treaty was signed on Oct. 2, 1997.
65. See EP Resolution, supra note 14.
66. Marie-Claire S. F. G. Foblets, Europe and Its Aliens After Maastricht. The Painful Move to Substantive
Harmonization of Member States' Policies Towards Third Country Nationals.
42 Am. J. Comp. L. 783, 783 (1994) [hereinafter Foblets].
67. See Treaty Establishing the
European Community, Feb. 7, 1992, art. 100 c [1992] 1 C.M.L.R. 573, 634, incorporating changes made by Treaty of European
Union, Feb. 7, 1992, O.J.C. 224/1 (1992), [1992] 1 C.M.L.R. 719, 31 I.L.M. 247,
cited in Melchior Wathelet, The Case Law of the European Court of Justice and Nationals of
Non-European Community Member States, 20 Fordham Int'l L.J. 603, 604, n. 1(1997).
68. See Wathelet, supra note 67, at 603-04.
69. Proposal For
a Council Act Establishing the Convention on Rules For the Admission of
Third-Country Nationals To the Member States, presented by the Commission
pursuant to Article K.3(2)(c) of the Treaty on European Union, Brussels,
30.07.1997 COM(97) 387 final, 97/0227 (CNS), at 4 [hereinafter Convention].
70. Id.
at 4. In its Explanatory Memorandum, the Commission discussed the reasoning
for the proposal. It noted the "need for a mandatory legal instrument
clearly establishing the conditions of admission and the rights of third country
nationals admitted to the territory of a Member State and thus contributing
firmly to certainty in the law applicable to them." Id. at 7. Additionally, the Convention would make it possible to satisfy two
fundamental imperatives: --legal certainty: a Convention has
unambiguously binding legal form, like a
directive; --democratic transparency: a proposal of this
kind is clearly a matter concerning one of the 'principle aspects of
activity' in the field of cooperation on justice
and home affairs, as it involves the adoption of a vital measure for controlling
migratory flows . . . Id. at 7-9.
71. Article 1 of
the Convention provides: For the purpose of this Convention: (a) 'admission' means permission for a third-country national to enter the
territory of a Member State in order to reside there for longer than three
months; (b) 'residence authorization' means decision taken by a Member State in
whatever form is provided by its own legislation to permit a person to reside in
its territory for a period of more than three months; this does not include
temporary authorizations which may be issued by Member States in certain
cases. Convention, supra note 69, at 27.
72. Article 2 provides in
full: 1. The provisions of this Convention shall apply to nationals of third
countries, except where more Favorable provisions apply under: (a) bilateral or multilateral agreements concluded between the Community,
or the Community and its Member States, of the one part, and third States of the
other part, which entered into force before this (b) agreements concluded between one of more Member States and third
countries which enteredinto force before this Convention was signed. It shall not apply to : (a) persons who have applied in a Member State for recognition of refugee
status under the terms of the 1951 Geneva Convention; (b) displaced persons granted admission to stay for temporary protection
in a Member State: (c) persons granted exceptional authorization to stay in the territory of
a Member State, particularly on humanitarian grounds. Convention, supra note 69, at 27.
73.
Belgium-France-Federal Republic of Germany-Luxembourg-Netherlands: Schengen
Agreement on the Gradual Abolition of Checks at Their Common Borders, June 14,
1985, and the Convention Applying the Agreement, June 19, 1990, reprinted in 30 I.L.M. 68 (1991) [hereinafter Schengen Agreement].
74. For short term visas,
Article 5 provides: (1) For visits not exceeding three months entry into the territories of
the Contracting Parties may be granted to an alien who fulfils the following
conditions: (a) in possession of a valid document or documents permitting them to
cross the border as determined by the Executive Committee; (b) in possession of a valid visa if required; (c) if applicable, submits documents substantiating and has sufficient
means of support, both for the period of the planned visit and to return to
their country of origin or to travel in transit in a Third State, into which
their admission is guaranteed, or is in a position to acquire such means
legally; (d) has not been reported as a person not to be a threat to public policy,
national security or the international relations of an of the Contracting
Parties. (2) Entry to the territories of the Contracting Parties must be refused to
any alien who does not fulfil all the above conditions unless a Contracting
Party considers it necessary to derogate from that principle on humanitarian
grounds or in the national interest or because of international obligations. In
such cases permission to enter will be restricted to the territory of the
Contracting Parties accordingly. These rules shall not preclude the application
of special provisions concerning the right of asylum or of the provisions of
Article 18. Schengen Agreement, supra note 73, at
87. Article 18, dealing with visas for long visits provides that: Visas for visits of more than three months shall be national visas issued
by one of the Contracting Parties in accordance with its own legislation. Such a
visa shall enable its holder to transit through the territories of the other
Contracting Parties in order to proceed to the territory of the Contracting
Parties which issued the visa, unless he fails to fulfil the conditions of entry
referred to in Article 5(1)(a), (d) and (e) or he is on the national reporting
list of the Contracting Party through the territory of which he seeks to
transit. Schengen Agreement, supra note 73, at
91. 75. Article 23
provides in pertinent part: An alien who does not fulfil or who no longer fulfils the short visit
conditions applicable within the territory of the Contracting Party must in
principle leave the territories of the contracting Parties without delay. . .
. 4. Expulsion may be effected from the territory of that State to the
alien's country of origin or to another State to
which he may be permitted entry. In particular under the relevant provisions of
the re-entry agreements concluded by the Contracting Parties. 5. Paragraph 4 shall not preclude the application of national provisions
on the right of asylum, of the Geneva Convention of 28 July 1951 Relating to the
Status of Refugees as amended by the New York Protocol of 31 January 1976, or of
paragraph 2 of this Article or Article 33(1) of this Convention. Convention, supra note 69, at 93.
76. Article K.1
provides: For the purposes of
achieving the objectives of the Union, in particular the free movement of
persons, and without prejudice to the power of the European Community, Member
States shall regard the following areas as matters of common interest:. . .
(a) police
cooperation for the purposes of preventing and combating terrorism, unlawful
drug-trafficking and other serious forms of international crime, including if
necessary, certain aspects of customs cooperation, in connection with the
organization of Union-wide system for exchanging information within a European
Police Office (Europol) Treaty of Maastricht.
77. See Kootstra, supra note 9, at 22.
78. The Europol Convention provides that: 3. Europol has the
following principal tasks: a. to facilitate the
exchange of information between Member States; b. to obtain, collate
and analyze information and intelligence; c. to notify the
competent authorities of the Member State without delay
of information concerning them and of any
connections identified between criminal offenses; d. to aid
investigation in the Member States; e. to maintain a
computerized system of collected information. Europol Convention,
Council Act 97/C 221, 19.07/1997
<www.europa.eu.int/scadplus/leg/en/lvb/114005b.htm>.
79. The Fight Against Crime: Europol, located in Europa Library, supra note
61.
80. Treaty of Amsterdam, Title VI, Provisions on Police and
Judicial Cooperation in Criminal Matters, Art. K.1.
81. Id.
82. See Kootstra, supra note 9, at 22.
83. The DAPHNE Initiative, found
in Europa Library, supra note 69.
84. Id.
85. Id.
86. Parliament Hopes Fight Against
Trafficking of Women Will Be Stepped Up, Agence Europe, Brussels, 23, Dec.
1997.
87. Id. As noted by Commissioner
Anita Gradin, as she stressed the need to place emphasis on the fundamental
rights of victims, "[f]or drug trafficking, sentences range from ten to
twelve years in prison, while for the traffic of women there is usually one two
years in detention. This is unacceptable!" Id.
88. Id. The communication noted
the "fact that countries in Central and Eastern Europe are now not only
transit and destination countries or origin." Id.
89. Report on the Need to Establish a European Wide Campaign
for Zero Tolerance of Violence Against Women, Committee on Women's Rights, A 4-0250/97, 16 July 1997. The Motion for a Resolution
noted that: Whereas violence
against young and adult women carried out by men taking place within the family,
at the workplace, or in society includes, inter
alia ill-treatment, battery, genital and sexual mutilation, incest, sexual
harassment, sexual abuse, trafficking in women and rape. Id. at 2.
90. Id. at 7. The report also
noted that the results of a recent Dutch study put the cost of violence against
women in the Netherlands alone at over ECU 145 million. Id. at 3. The report does not, however, specify how much of that
total is attributed to trafficking.
91. For an excellent report on MS' laws concerning prostitution
and trafficking in women, as well as preventive and support mechanisms, see generally, Kootstra, supra note 9.
92. See id. at 33.
93. See id.
94. See id.
95. See id.
96. Id.
97. Kootstra, supra note 9, at
33.
98. See id. at 33-34.
99. See id. at 34.
100. See id.
101. See id. at 34. In
August 1989, the Dutch Aliens law was amended to provide that "[i]n the
presence of the least suspicion of trafficking, a woman should be allowed time
to consider pressing charges. When she has done so she should be allowed to stay
in the Netherlands until the whole juridical process has been completed."
Kootstra, supra note 9, at 34. The woman is given
a three month "reflection period" in which to decide if she will
cooperate with the police. Id. During this time
she is "entitled to a safe shelter, legal advice, medical check-up and
social security benefits." Id. If the woman
chooses to cooperate, she is entitled to a residency permit for the duration of
the judicial proceedings against the trafficker. Id.
102. See id.
103. The directives specifically provided
that: --There should be
special police units dealing with prostitution and traffic in women. Information
on traffic in women should be transferred by local police to the National
Criminal Intelligence. --Traffic in women
should be regarded as a form of organised crime and therefore should receive
considerable priority. --The care and
support of victims should adequately be taken care of by granting her a
reflection period and a temporary residence permit. Also she should be informed
of the criminal proceedings and be entitled to a confidante at the police
hearings. Id. at 35.
104. See Kootstra, supra note 9, at 35.
105. See id.
106. See id. at 34.
107. See id. at 34-35.
108. See id. at 35-36.
Some of these recommendations include: --The granting of
definite staying permits to those victims of trafficking who cannot return to
their home countries. --To grant victims of
trafficking permission to work during their stay in the Netherlands on a
temporary residence permit. Id.
109. See Kootstra, supra note 9, at 38.
110. See id.
111. See id.
112. Belgium's law
concerning trafficking in women provides: [G]uilty of traffic
in women is he who, in whatever way, either directly or through an intermediary,
contributes to the entry or residence of a foreigner in the Kingdom, when in
doing so he: 1. [D]irectly or
indirectly makes use of cunning tricks, violence, threats or an other kind of
force. 2. [M]isues the
especially vulnerable position in which a foreigner might find himself due to an
illegal or precarious administrative situation or due to pregnancy, illness or
physical or mental disorder or disability. The person perpetrating the illegal
activity will be punished with an imprisonment of one to five years, and with a
fine. If traffic in women is the main activity of the organisation involved, the
maximum punishment will be ten to fifteen years imprisonment. Id. at 38. 113. Belgian law forbids the exploitation of
prostitution, [and provides that] a person who exploits prostitution will be
punished by a maximum imprisonment of ten to fifteen years if he: 1. [D]irectly or
indirectly makes use of cunning tricks, violence, threats or any other kind of
force. 2. [M]isuses the
especially vulnerable position in which a foreigner might find himself due to an
illegal or precarious administrative situation or due to pregnancy, illness or
physical or mental disorder or disability. Id.
114. See id.
115. See Kootstra, supra note 9, at 39.
116. See id.
117. See id.
118. See id. The process
specifically includes: --First, women are granted a
45 day rest period. During this time, they may receive assistance from an NGO.
The woman can use this reflection period to decide whether she wishes to file
charges or not. --If a victim of
trafficking decides to press charges, she is entitled to a new residence permit
for three months. During this time she will receive help from an NGO and she is
permitted to work. If she cannot find work, she is entitled to social security
benefits. --If after these
three months legal proceedings are still continuing, a woman can obtain a new,
renewable 6-month residence permit. --Finally, an
indefinite residence permit can be obtained by the victim either as a reward for
evidence used in the successful operation against a trafficker or on
humanitarian grounds. Id. at 39-40.
119. See id. at 40.
120. Kootstra, supra note
9, at 40.
121. See Treaty of
Maastricht, art. 3(b).
122. See Foblets, supra note 66, at 786.
123. Id.
124. Convention, supra
note 69.
125. Id.
126. Germany v.
Commission, Joined Cases, 281/85, 283-285/85, and 287/85 [1987] E.C.R. 3203
[1988] 1 C.M.L.R. 11.
127. See Wathelet, supra note 67, at 607.
128. See supra note 67.
129. See id.
130. See EC Treaty, Art.
118 [1992] 1 C.M.L.R., at 657-58.
131. Wathelet, supra note
67, at 607.
132. Farrior,
supra note 13, at 214. Trafficking in women and
children is considered a form of slavery. See e.g.
Annotations to the Provisional Agenda, U.N. ESCOR, Commission on Human Rights,
Sub-Commission on Prevention of Discrimination and Protection of Minorities,
Working Group on Contemporary Forms of Slavery, 14th Sess., U.N. Doc. E/CN.4/Sub.2/1989/1/Add.1 (1989).