V. INTERNATIONAL AND DOMESTIC LEGAL PROTECTIONS AGAINST TRAFFICKING
The Trafficking Protocol
The Trafficking Protocol sets forth three goals: to prevent and combat trafficking in persons, especially women and children; to protect and assist victims of such trafficking, with full respect for their human rights; and to promote cooperation among states parties in order to meet those objectives.80 Currently, the Bosnian government is failing to take appreciable steps toward meeting those goals.
Article 5 requires states to adopt legislative and other measures in order to criminalize the conduct set forth in the Protocol's definition of trafficking. Although the Republika Srpska and the Federation have enacted some laws and interpreted others to criminalize trafficking, officials have made no real efforts to implement the laws. Until Bosnian authorities seriously enforce anti-trafficking laws, they are virtually meaningless.
Besides taking steps to prosecute traffickers, states party to the Trafficking Protocol must also protect the victims of trafficking. Article 6 encourages states to implement measures for physical, psychological, and social recovery of victims of trafficking. In particular, the Trafficking Protocol calls on states, "in appropriate cases,"81 to consider providing victims with housing; counseling and information; medical, psychological, and material assistance; as well as employment, educational, and training opportunities. Presently, the Bosnian government has done nothing to support victims of trafficking either physically or psychologically.82
Article 6(6) requires states to ensure that a mechanism exists to permit women to seek redress against their traffickers for harm suffered; no such mechanism currently exists in Bosnia and Herzegovina.83 The protocol calls upon states to permit trafficked persons, in appropriate cases, to be permitted to remain in the country in order to testify or for humanitarian reasons.84 Bosnian authorities have continued to prosecute and deport trafficked women (although intervention by UNMIBH and the STOP units have greatly reduced such cases).
Standards Relevant to the Trafficking of Children: The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography
(a) Recognizing the vulnerability of child victims and adapting procedures to recognize their special needs, including their special needs as witnesses; (b) Informing child victims of their rights, their role and the scope, timing and progress of the proceedings and of the disposition of their cases; (c) Allowing the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected, in a manner consistent with the procedural rules of national law; (d) Providing appropriate support services to child victims throughout the legal process; (e) Protecting, as appropriate, the privacy and identity of child victims and taking measures in accordance with national law to avoid the inappropriate dissemination of information that could lead to the identification of child victims; (f) Providing, in appropriate cases, for the safety of child victims, as well as that of their families and witness on their behalf, from intimidation and retaliation; (g) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting compensation to child victims.86
The Convention requires protective measures for children including, as appropriate, effective procedures for the establishment of social programs to provide necessary support for the child and for those taking care of the child.89 Finally, Article 34 mandates that states parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.90
Other Relevant Standards for Combating Trafficking of Women and Girls
To the extent that the failure to protect the human rights of trafficked women and girls in Bosnia and Herzegovina reflects discrimination on the basis of gender, race, nationality, or immigration status, it also amounts to a violation of the prohibition of discrimination in the protection of human rights, as established under the International Covenant on Civil and Political Rights (ICCPR).94 The Human Rights Committee, the international treaty body responsible for monitoring states' compliance with the ICCPR, has stated that human rights apply regardless of nationality or statelessness, and that states have a responsibility to guarantee basic human rights equally for both citizens and aliens.95
Moreover, under the ICCPR, the Bosnian government has an obligation to take the steps necessary to prevent all forms of debt bondage and forced or compulsory labor, and must provide remedies for the victims when violations occur.96 As described above, after women and girls arrived in Bosnia and Herzegovina, they often had no control over the terms or conditions of their employment and found themselves trapped in debt bondage. The Bosnian government's refusal to make serious attempts to prevent such treatment contravenes commitments under international law to combat forced labor and debt bondage.
Domestic Legal Protections
Each entity, the Federation and Republika Srpska, has a separate body of criminal law. Brcko District also adopted a separate criminal code and criminal procedure code that came into force in January 2001.99 Republika Srpska amended its criminal code in October 2000, becoming the first of the entities to incorporate explicit provisions criminalizing trafficking in human beings.
The Federation: Criminal Law
Human Rights Watch research concluded that the abuses described by victims of trafficking in Bosnia and Herzegovina would support charges of slavery (Article 167), abduction (Article 184), duress (Article 185), unlawful deprivation of freedom (Article 187), rape (Article 221), forced sexual intercourse (Article 222), sexual intercourse with a juvenile (Article 224), sexual intercourse by abuse of position (Article 225), and forging documents (Article 351).101 Prosecutors usually ignore complaints of beatings and mistreatment at the hands of nightclub owners and guards and let pass opportunities to bring physical assault charges against them.102
Traffickers and owners of nightclubs could also face charges for such crimes as tax evasion, bribing officials, fraud, and labor rights violations. Specifically, prosecutors could, but almost never do, rely on tax evasion statutes to prosecute owners of nightclubs for failing to report earnings under Article 272. Under Article 363, traffickers and nightclub owners who engage in bribing public officials with money, free sexual services, or any other inducement could face sentences of up to five years. Because the traffickers and nightclub owners often commit fraud by deceiving the women trafficked into Bosnia and Herzegovina for forced prostitution, it would also be possible to prosecute the perpetrators under Article 282 for acts of fraud committed in Bosnia and Herzegovina.
The traffickers and nightclub owners also frequently violate criminal code provisions relating to the protection of workers.103 Under Article 207, "violation of rights emanating from the working relationship," employers have a duty to protect the rights of workers. Any owner who "consciously disobeys regulations or general acts... on working hours, vacation or leave, protection of women... and thus denies a right the employee is entitled to," can face fines or a jail sentence of up to one year.104
Criminal Charges against Corrupt Officials
Confiscation of Assets and Compensation of Victims
Republika Srpska: Criminal Law
As in the Federation, traffickers and owners of nightclubs in Republika Srpska could also face charges for such crimes as tax evasion, bribing officials, fraud, and labor rights violations. Employers committing business fraud, deceiving someone, or failing to fulfill obligations could face high fines and up to ten years in prison through enforcement of Article 254. And under Article 277, which criminalizes tax evasion and failure to pay other fees, employers might face fines and up to twelve years in prison. Under Article 216, "violation of the fundamental rights of employees," employers could face up to a year in prison and fines for violation of a contract, illegal firing, and wage and hour violations.
Criminal Charges against Corrupt Officials
Confiscation of Assets and Compensation of Victims
Brcko Criminal Code
73 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. res. 55/25, Annex II, 55 U.N. GAOR Supp. (No. 49) at 60, U.N. Doc. A/45/49 (Vol. I) (2001). The Trafficking Protocol has not yet entered into force. As of November 11, 2002, the Protocol had garnered 109 signatures and nineteen ratifications. The Trafficking Protocol will enter into force ninety days after it accumulates forty ratifications.
74 Article 3(b) establishes that the consent of the victim is irrelevant where any means set forth in subparagraph (a) have been used. Article 3(c) directs that "recruitment, transportation, transfer, harboring or receipt of a child for the purpose of exploitation shall be considered `trafficking in persons' even if it does not involve the means set forth in subparagraph (a)." A child is defined in subparagraph (d) as any person under eighteen years of age.
75 The Trafficking Protocol does not require states to criminalize prostitution.
76 Although not defined within the terms of the Trafficking Protocol, forced labor is prohibited by the International Covenant on Civil and Political Rights (ICCPR) and is defined by the International Labour Organization (ILO) Forced Labour Convention as "all work or service which is extracted from any person under menace of any penalty and for which the said person has not offered himself voluntarily." Neither "menace" nor "voluntarily" is defined by the ILO Convention. ICCPR, Article 8(3); ILO Forced Labour Convention, No. 29, Article 2(1). Bosnia and Herzegovina ratified the ILO Convention No. 29 on June 2, 1993, and ratified the ICCPR (by succession) in 1993.
77 Convention to Suppress the Slave Trade and Slavery, 60 U.N.T.S. 253, September 25, 1926, Article 1(1). The Convention defines slavery as "the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised." Bosnia and Herzegovina ratified the Slavery Convention by succession in 1993.
78 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, September 7, 1956, Article 1. In summary, the following four "institutions and practices" are proscribed by the Supplementary Convention: debt bondage, serfdom, delivery of a minor to another by her parent or guardian for exploitation of the child or her labor, and the promise, surrender, or transfer of a woman in marriage through payment of consideration to another or through inheritance. The Supplementary Slavery Convention entered into force in Bosnia and Herzegovina on September 1, 1993.
79 Servitude is prohibited but not explicitly defined by international law. The history of the international law prohibition suggests that "servitude" is more expansive than "slavery" and not confined to the four "institutions and practices similar to slavery" proscribed by the Supplementary Slavery Convention.
81 No indication is given within the Trafficking Protocol as to which cases would qualify as "appropriate" under this article.
82 In fact, in some cases, involvement and complicity by local authorities prevent trafficked women and girls from seeking even the most basic assistance. In December 2001, under pressure from partners within the Stability Pact for South Eastern Europe, the Council of Ministers of Bosnia and Herzegovina adopted a national plan of action to combat trafficking. It remained to be seen whether the document, developed by the Ministry of European Integration and the Ministry of Human Rights and Refugees, would be fully implemented.
83 Article 6(6): "Each state party shall ensure that its domestic legal system contains measures that offer victims of trafficking in persons the possibility of obtaining compensation for damage suffered."
84 Article 7: "(1)...each state party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases. (2) In implementing the provision contained in paragraph 1 of this article, each state party shall give appropriate consideration to humanitarian and compassionate factors."
85 Article 2(a). The U.N. General Assembly adopted the protocol on May 25, 2000; it went into effect on January 18, 2002 (A/Res/54/263). To date the protocol has 105 signatures and forty-one ratifications. Bosnia and Herzegovina ratified the Optional Protocol on September 4, 2002.
86 Article 8(1), Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, U.N. Doc. A/54/L.84 at 5 (2000).
87 Bosnia and Herzegovina became a state party to the Convention on the Rights of the Child on March 6, 1992 by succession. U.N. General Assembly resolution A/Res/44/25, December 5, 1989.
88 Other relevant articles include Article 11(1): "States Parties shall take measures to combat the illicit transfer and non-return of children abroad;" Article 19(1): "States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the case of parent(s), legal guardian(s) or any other person who has the care of the child."
89 Article 19(2). This article also calls for other forms of "prevention and for identification, reporting, referral, investigation, treatment, and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement."
90 The convention states: "For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials."
91 CEDAW, Article 3: "States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men." Bosnia and Herzegovina ratified CEDAW on September 1, 1993.
92 Committee on the Elimination of Discrimination against Women, "Violence Against Women," General Recommendation No. 19 (eleventh session, 1992), U.N. Document CEDAW/C/1992/L.1/Add.15.
94 ICCPR, Article 2(1): "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Bosnia and Herzegovina ratified the ICCPR on September 1, 1993.
95 Human Rights Committee, General Comment 15, "The position of aliens under the Covenant" (Twenty-seventh session, 1986), in which the Committee explained: "In general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness. Thus, the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens alike. Exceptionally, some of the rights recognized in the Covenant are expressly applicable only to citizens (art. 25), while article 13 applies only to aliens." U.N. Doc. HRI\GEN\1\Rev.1 at 18 (1994).
96 Article 8 provides: "No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited," "No one shall be held in servitude," "No one shall be required to perform forced or compulsory labor."
97 Bosnia and Herzegovina ratified the European Convention on July 12, 2002, providing jurisdiction over cases relating to Bosnia and Herzegovina to the European Court of Human Rights in Strasbourg. The European Court of Human Rights issues binding decisions. The Committee of Ministers supervises the execution of judgments. The secretary general of the Council of Europe may request parties to provide explanations as to how their domestic law ensures the effective implementation of the Convention. See http://conventions.coe.int/treaty/en/Treaties/Html/005.htm (retrieved November 10, 2002).
98 Article 44 of the Republika Srpska Constitution states, "Aliens shall have the human rights and freedoms set forth in the Constitution and other rights specified by law and international agreements." The RS Constitution includes a prohibition against forced labor. The Federation Constitution provides guarantees of human rights to "all persons," and includes, among others, the right to privacy, freedom of movement, and the right to social protection, health, nutrition, and shelter.
99 Correspondence with Jasna Dzumhur, legal counsel, Office of the High Commissioner for Human Rights, Sarajevo, October 31, 2001.
100 Translation of the Federation criminal code provided by American Bar Association Central and East European Law Initiative (ABA CEELI), Sarajevo.
101 See Mara Radovanovic and Angelika Kartusch, Lara and Ludwig Boltzmann Institute of Human Rights, "Report on the Combat of Trafficking in Women for the Purpose of Forced Prostitution in Bosnia and Herzegovina," January 2001, pp. 21-22.
102 Depending upon the severity of the injuries, these charges could be brought under Article 177, Grievous Bodily Injury, or under Article 178, Light Bodily Injury. Article 177 carries a penalty of imprisonment between six months and five years; Article 178 carries a penalty of imprisonment not to exceed one year.
103 Although prostitution is illegal in both entities, most of the women are legally employed as dancers.
104 These prohibitions would most likely apply to the legal aspects of the women's work in the nightclubs.
105 Translation provided to Human Rights Watch by the United Women's Association, Banja Luka, Republika Srpska.
106 Article 188, Trafficking in Persons for the Purpose of Prostitution.
107 By the Brcko Arbitration Award of March 5, 1999, the district is technically a "condominium" of both entities, but has its own separate administration and effectively looks to the Office of the High Representative for legal authority and governance.