The proposed anti-trafficking provisions are contained in articles 459 to 466 of Title III, Chapter II of the draft code. Article 460 incorporates the definition of child trafficking found in the U.N. Trafficking Protocol, which is the "recruitment, transportation, transfer, harbouring, or receipt" of a child for the purposes of sexual or labor exploitation, forced labor, or slavery.243 Trafficking of children is punishable by a five-to-ten-year prison term and a fine of between 1 and 10 million CFA (U.S.$1,500-$15,000).244 Participants in organized trafficking rings may be punished more severely, with a prison term of ten to twenty years and a fine of between 10 and 100 million CFA (U.S.$15,000- $150,000).245 Article 462 governs "attempted trafficking," an offense punishable with five to ten years of imprisonment and a 1 to 10 million CFA fine.246
Articles 463 and 464 impose penalties on those who aid and abet child trafficking, including parents. This includes anyone who would "intentionally help in the commission of child trafficking" (Article 463), as well as parents or relatives who "give up a child for sale" (Article 464). No further definition of these practices is provided. Article 463 also imposes a one- to five-year prison term on any relative or other person who, knowing that a trafficking infraction is about to be committed, fails to report it to a relevant authority.247 It reads:
It is noteworthy that, at the same time it imposes a one-to-five-year prison term on parents and relatives who assist child traffickers, the draft legislation contains no explicit provisions on the protection and reintegration of trafficked children, and only one provision calling for "appropriate" state measures to prevent child trafficking (Article 465).
The foregoing provisions on parental complicity were included in the draft legislation over the objections of the president of the Children's Code drafting committee, Judge Emanuel Edorh. Edorh told Human Rights Watch that "everyone [on the committee] wanted to criminalize parental involvement," including "representatives from international NGOs."250 But in his view, "it does not further the rights of the child to violate human rights [of parents] in this way.... If a father takes a risk with his child, we know he's committed an infraction and has to be punished. But where I part with my fellow committee members is whether such a parent should be imprisoned for six years. The punishment should be six months to a year, not six years."251 Suzanne Aho agreed. "We need to soften what's written [in the draft Children's Code] on punishment of parents because of how that might affect children," she told Human Rights Watch. "Children are also stigmatized when they have a parent in prison."252
Edorh's and Aho's views contrast with many that prevail in Togo's interior. In Bafilo, a village elder asserted that for "some parents, children are just a way to make money"; another added that "parents think their children can bring back something valuable. A lot don't think [trafficking] is so bad."253 Waka Cne Arregba, the prefect of Bassar, said he sometimes threatens parents with punishment to deter them from cooperating with traffickers. "In this job, I am both prefect and policeman at the same time," he told Human Rights Watch. "People are afraid of me. We have to show force and tell the parents that if they are complicit we will put them in jail."254
Human Rights Watch opposes the imprisonment of parents who cooperate with child traffickers, in particular those who cooperate merely by failing to report known traffickers to the police. Where parents are guilty of child abuse, criminal negligence or any similar offense, they should be prosecuted to the full extent of the law. However, interviews with trafficked children consistently showed that parents did not intentionally abuse or neglect their children in the course of negotiating with child traffickers, but rather became resigned to the idea of sending their children away based upon false depictions of education, professional training or paid work abroad. Under these circumstances, Human Rights Watch recommends that parental involvement in child trafficking be addressed through a system of public education and special protection for children, rather than through criminal sanctions.
In terms of special protection for trafficked children, Togo's draft Children's Code contains a general section on the protection of children from violence, abuse and neglect perpetrated by parents and third parties. The key provision is article 401, which provides that if a child's health, morals, education or security are threatened, a judge of the children's court may order the child removed from his or her family environment and placed in an institution or with a specified guardian for a period of up to twenty-four months.255
In its 2001 synthesis report on child trafficking in West Africa, ILO-IPEC reviewed the various legal and policy protections available to trafficked children in West Africa and concluded that "there is an absence of legislation in almost all the countries on this theme."3 While recognizing that some prosecutions of child traffickers have taken place, ILO-IPEC noted that criminal proceedings are "complicated and out of reach of the victims" and inaccessible to parents and child welfare professionals who are "ignorant or mistrustful of the judicial system."4 In addition, the report noted that despite the minimum age for employment being laid down by law, a lack of inspection capacity on the part of the ministries of labor contributes to the enduring prevalence of child work. Finally, despite the fact that some countries, including Togo, require special authorization for minors to cross borders, the ILO-IPEC report noted that lax enforcement of immigration laws allows traffickers to evade checkpoints and transport children across borders in large numbers.
Regional Anti-trafficking Efforts
In February 2000, officials from twenty-one countries met in Libreville, Gabon and agreed to a "common platform for action" against child trafficking.6 A follow-up consultation in March 2002 produced a strong consensus for a subregional convention against the trafficking of children and established a plan for the adoption of such a convention by December 2004.7 As of this writing, this convention had not been drafted.
The Libreville process has benefited from a number of regional meetings and declarations designed to increase the knowledge base around child trafficking, mobilize national governments and harmonize national legislation.8 Significant among these is an "Initial Plan of Action" developed by the fifteen member states of the Economic Community of West African States (ECOWAS) in Dakar in December 2001.9 Child trafficking also reached the agenda of the Organization of African Unity (OAU) Council of Ministers just before that organization became the African Union (A.U.) in July 2002. Following the recommendation of the OAU Commission on Labour and Social Affairs,10 the OAU Council of Ministers resolved in July 2002 to call on member states to include "compulsory education, the elimination of child labour as well as children in conflict situations and child trafficking" in their priority programs on children.11
Of additional relevance to child trafficking is the Convention on the Rights of the Child's guarantee of protection against abuse and neglect within the family. Article 20(1) provides that "a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State."15 This provision is especially relevant to children who have already been trafficked, particularly where parents have been complicit in the trafficking. The guiding principle in interpreting article 20 is the best interests of the child,16 a principle that may in certain cases militate against the incarceration of parents who collude with child traffickers. For example, article 5 of the U.N. General Assembly's 1986 Declaration on Social and Legal Principles relating to the Protection and Welfare of Children recognizes the child's need for continued contact with his or her parents; it states that "in all matters relating to the placement of a child outside the care of the child's own parents, the best interests of the child, particularly his or her need for affection and right to security and continuing care, should be the paramount consideration."17
Togo ratified the Convention on the Rights of the Child in 1990. In 1997, the Committee on the Rights of the Child, the treaty body responsible for monitoring implementation of the convention, stated in its concluding observations on Togo that it was "seriously worried by the widespread sale and trafficking of children which result in their economic and sexual exploitation."18 Commenting on Togo's implementation of the child protection provisions of the Convention on the Rights of the Child, the Committee expressed concern about "the persistence of child abuse, including ill-treatment in the family, and the absence at the administration level of an appropriate mechanism to prevent and combat this phenomenon."19
Since 1999, three specialized treaties related to child trafficking have been negotiated. The U.N. Protocol to the U.N. Convention Against Transnational Organized Crime to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000; known as the Trafficking Protocol) provides a model definition of child trafficking which has been incorporated into Togo's draft Children's Code.20 Though not yet ratified by Togo or entered into force worldwide, the Trafficking Protocol has been signed by Togo and reflects a comprehensive international effort to codify a definition of child trafficking. The Trafficking Protocol isolates the three elements of child trafficking as: (1) the recruitment, transportation, transfer, harboring, or receipt;21 (2) of any person under eighteen years of age; 22 (3) for the purposes of sexual or labor exploitation, forced labor, or slavery.23 Because the countries that negotiated the Trafficking Protocol were unable to agree upon a definition of the term "exploitation," the protocol defines the term as including, at a minimum, "the exploitation or the prostitution of others or other forms of exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."24
Article 3(c) of the Trafficking Protocol states that where children, as opposed to adults, are concerned, trafficking can exist in the absence of any coercion, abduction, fraud or deception. The provision has led to the observation that "[the] concept of `willingness' is no longer accepted in international law since the adoption of the [Trafficking Protocol] . . . . The Protocol specifically excludes the possibility of `consent' to trafficking by any person under the age of 18."25 The Trafficking Protocol calls on states to take measures to prevent and punish child trafficking, including the enactment of criminal laws; to provide assistance and protection to trafficked persons; and to cooperate at the ministerial and governmental level in the achievement of these objectives.
ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (1999) situates child trafficking within the broader issue of child labor. 26 Convention 182 obliges states to take urgent and immediate action to eradicate child trafficking; it characterizes trafficking as a "practice similar to slavery," one that belongs in the same category as forced labor.27 Convention 182 underlies the work of the International Programme to Eliminate Child Labor (IPEC), an ILO program designed to mobilize knowledge, advocacy and service around child labor. Having ratified Convention 182 in 2000, Togo is mandated to work with IPEC to create and implement a national plan of action against the worst forms of child labor, including child trafficking. The Convention is buttressed by a range of international conventions on forced labor, discrimination in employment and child labor, all of them ratified by Togo.28
A third recent anti-trafficking treaty is the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000). Togo signed the Optional Protocol in November 2001 but has not ratified it; it entered into force worldwide in January 2002. Parties to the protocol are required to enact penal laws against the "offering, delivering or accepting" of a child for the purpose of sexual exploitation or forced labor.29 They are further required to establish jurisdiction over these offenses, extradite offenders where necessary, provide each other with legal assistance, and provide for the confiscation of prohibited goods or proceeds of crime. Beyond prosecution, states are required to provide support services and witness protection for trafficked children, to take measures to prevent the offenses listed in the protocol, and to strengthen international cooperation in the fight against trafficking.
In addition to mandating the progressive eradication of child trafficking, all four of the abovementioned treaties guarantee trafficked children rights with respect to their social recovery and reintegration. Article 39 of the Convention on the Rights of the Child obliges states parties to "take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of ... any form of neglect, exploitation or abuse."30 This guarantee is given additional content in article 6 of the Trafficking Protocol, article 7 of Convention No.182 and article 8 of the Optional Protocol.31 Guidance in protecting trafficked children may also be found in the Agenda for Action of the First World Congress against Commercial Sexual Exploitation of Children (1996), the so-called Stockholm Agenda, which has been accorded some weight by the Committee on the Rights of the Child.32 Among the recommendations in the Stockholm Agenda applicable to child labor trafficking are the provision of social, medical and psychological counseling to trafficked children; gender-sensitive training of medical personnel, teachers, social workers, and NGOs; action to prevent and remove social stigmatization of trafficked children; promotion of alternative means of livelihood to trafficked children and their families; and measures to create behavioral changes on the part of perpetrators.33
Relevant Law on Child Slavery
Even outside the context of trafficking, child domestic labor has been deemed to constitute a practice similar to slavery when performed under certain circumstances. In interviews with girls trafficked into domestic labor as well as local experts, Human Rights Watch documented long hours of unpaid work, physical abuse, sexual abuse, denial of education for the period of domestic labor, and responsibilities exceeding girls' age and capacity. Many girls recalled negotiations between their parents and intermediaries involving fraud, deception or an exchange of money.36 Noting many of these hazards, UNICEF stated in 1999 that "the exploitation, abuse and discrimination suffered by child domestic workers . . . are to be deplored and . . . are in violation of the 1956 [Slavery Convention]."37
6 "Common Platform for Action of the Sub-Regional Consultation on the Development of Strategies to Fight Child Trafficking for Exploitative Labour Purposes in West and Central Africa" (Libreville: February 22-24, 2000).
7 See UNICEF, "Deuxième Consultation Sous-Régionale Sur le Trafic Transfrontalier des Enfants" (Abidjan: UNICEF-WCARO, 2002); "West and Central Africa: Region to establish child trafficking legislation in 2004," IRIN News, March 20, 2002.
8 See e.g., Executive Secretariat, "ECOWAS Initial Plan of Action against Trafficking in Persons (2002-2003)" (Dakar: ECOWAS, 2001); First Specialized Meeting on the trafficking and exploitation of children in west and central Africa, "Rapport de Synthèse"; Yamoussoukro Declaration on the Trafficking of Children in West and Central Africa (2002); First International Meeting for the Harmonization of National Legislation against the Exploitation of Children in the Francophone Region and other African Countries, "Declaration of Ministers" (Bamako: March 28-29, 2002). See also, UNICEF, "Child Trafficking in West Africa: Policy Responses," Innocenti Insight (Florence: Innocenti Research Centre, 2002), pp. 3-4.
9 See "ECOWAS Plan of Action," ibid. The member states are Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo.
11 OAU Council of Ministers, "Decision on the report of the twenty-fifth ordinary session of the OAU Labour and Social Affairs Commission/Ministerial Conference on Employment and Poverty Reduction in Africa (Durban: June 28-July 6, 2002).
15 This provision reinforces article 24(1) of the International Covenant on Civil and Political Rights (1976) guaranteeing children "the right to such measures of protection as are required by his status as a minor," as well as the Convention on the Rights of the Child's article 19(1), which guarantees protection from "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s)."
16 Article 9(1) of the Convention on the Rights of the Child provides that "a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child." Article 3(1) of the Convention on the Rights of the Child obliges states to make the best interests of the child a "primary consideration" in "all actions concerning children."
17 U.N. General Assembly, Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally (1986)., art. 5.
20 Trafficking Protocol, art. 3. The Trafficking Protocol provides the foundation for the U.N. Office for Drug Control and Crime Prevention's "Global Programme Against Trafficking in Human Beings," a three-year study. Before the adoption of the Trafficking Protocol, the most widely-cited definition of trafficking was a 1994 definition of the U.N. General Assembly: "the illicit and clandestine movement of persons across national and international borders, 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."
28 The ILO's Convention 29 concerning Forced or Compulsory Labour (1930) (ratified by Togo on June 7, 1960) and Convention 105 concerning the abolition of Forced Labour (1957) (ratified by Togo on July 10, 1999) aim to eradicate "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily." Convention 111 concerning Discrimination in Respect of Employment and Occupation (1960) (ratified by Togo on November 8, 1983) governs discrimination against women in the workplace, including gender-based violence and exploitation of women in the employment sphere. The issue of child labor is addressed by Convention 138 concerning Minimum Age for Admission to Employment (1976) (ratified by Togo on March 16, 1984), which obliges states parties to "raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons" (art. 1). The Minimum Age Convention sets at eighteen the minimum age for admission to "any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardize the health, safety or morals of young persons."
29 As noted above, "exploitation" is not defined under international law, and "forced labor" is defined in article 2.1 of ILO Convention No. 29 Concerning Forced Labour as "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily (art 3(1))."
32 In 1997, for example, the Committee on the Rights of the Child drew Togo's attention to the Stockholm Agenda. See United Nations, "Concluding Observations of the Committee on the Rights of the Child: Togo," para. 53. Additional, non-legal sources of child protection measures are Economic and Social Council, "Recommended Principles and Guidelines on Human Rights and Human Trafficking: Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council," U.N. Doc. E/2002/100 (New York: U.N. Publications, May 20, 2002), pp. 3, 10-11, 12-13; "Human Rights Standards for the Treatment of Trafficked Persons," at www.hrlawgroup.org/initiatives/trafficking_persons and wagner.inet.co.th/org/gaatw/index.html (accessed September 3, 2002); and A.D. Jordan, "The Annotated Guide to the Complete U.N. Trafficking Protocol" (Washington, D.C.: International Human Rights Law Group, 2002).
37 UNICEF, "Child Domestic Workers," p. 2. UNICEF also noted that domestic work performed under these circumstances violates girls' rights to independent identity, selfhood and freedom (U.N. Convention on the Rights of the Child articles 8, 13, 15, and 37); parental nurture and guidance (U.N. Convention on the Rights of the Child articles 7, 8 and 9); physical and psychological well-being (U.N. Convention on the Rights of the Child articles 19 and 27); educational development (U.N. Convention on the Rights of the Child article 28); and protection from exploitation, including sexual exploitation, sale and trafficking (U.N. Convention on the Rights of the Child articles 32, 34 and 35).