By Tommy Wong

 

Introduction

All human beings are born free and equal, and are entitled to human rights, regardless of race, sex, nationality, ethnicity, language, religion or any other status. The Universal Declaration of Human Rights is an important milestone in the history of human rights, wherein the fundamental human rights to be universally protected are set out.

Violations of human rights come in various forms of denying a human being from one or more of the human rights he or she is entitled to. Some violations may be considered acts atypical to crimes against humanity. Two examples of such human rights violations are trafficking in persons and smuggling of migrants. While these two forms of human rights violations are, sometimes, intertwined, they are, in fact, distinct crimes.

Although it is almost impossible to accurately ascertain the number of victims of these two crimes, it is estimated that globally, millions of men, women and children fall victim to the crimes of trafficking in persons and smuggling of migrants. Traffickers and smugglers are known to employ violent, manipulative and deceptive methods and tactics to lure vulnerable targets into situations of exploitation. These crimes are serious offences that have tremendously affected the lives and safety of millions of families across the globe.

Trafficking in Persons

The act of trafficking in persons, which is also commonly referred to as human trafficking and modern slavery, is defined by the United Nations in Article 3(a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (“UNTIP Protocol”)[1] as follows:

“The recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms or coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.” [2]

Article 5 of the UNTIP Protocol requires that the conduct of trafficking of persons be criminalized in domestic legislation and a further criminalization of attempts to commit a trafficking offence, participation as an accomplice in such an offence, and organizing or directing others to commit trafficking. The adoption of the UNTIP Protocol by the United Nations General Assembly signifies the international efforts to interrupt, prevent and combat the crime of trafficking in persons.

Trafficking in persons allows traffickers to earn a large amount of money through the trade and exploitation of human beings for personal benefit. The crime can be divided into three elements, being the act, the means and the purpose.[3] The act involves the recruitment, transportation, transfer, harbouring or receipt of persons. The means involves threat or the use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving payments or benefits to a person in control of the victim. The purpose involves the exploitation of the victim for prostitution, forced labour, slavery or similar practices and the removal of organs.

Trafficking in persons is an umbrella for many different forms of exploitation. Regardless of its form, the crime results in the abuse, and sometimes deaths, of many victims. Here are some of the most common forms of trafficking in persons:

Forced Labour

In accordance to the International Labour Organization Forced Labour Convention 1930 (No. 29), forced or compulsory labour is defined as follows:

“… all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily.”[4]

This form of human trafficking refers to situations where victims are forced, often by way of intimindation or violence, or retention of identification documents, to work for little to no remuneration. Although victims may sometimes receive remuneration in consideration of their work, traffickers may demand the victims to pay a portion, if not all, of such remuneration to the traffickers. Forced labour covers a wide range of work, and does not take into consideration the legality of the activity. Victims are often found in industries such as construction, mining, prostitution and domestic work.

One surviving victim from Rwanda was offered a chance by a wealthy family to move to the United States of America with them, and as she was the only surviving member of her own family in the genocide in her country, she gladly accepted the offer. However, upon her arrival in America, she was imprisoned in their home, forced to work long hours and made to sleep on the kitchen floor. On a fortunate visit to the church, she was approached by a kind man who learnt of her situation and assisted in her escape. For the full-length testimony, please click here.

Sex Trafficking

Sex trafficking occurs where men, women and/or children are forced, by way of intimidation or violence, to engage in forced sexual acts for profit. Victims are often treated as sexual entertainment objects, and are forced to work in dreadful situations where sex traffickers gain continuous financial profits from such exploitation. Although men have been victimized, women and girls are more often targets due to high demands of sexual favours or services from the customers of sex traffickers.

Sex traffickers are known to keep victims in control by making false promises of the victim’s release upon repayment of his or her debt due and owing to the traffickers. Upon reliance of such false promises, some victims may voluntarily agree to engage in sexual acts or services in order to expedite their “release”. In such cases, it is important to recognize that, although voluntary, such sexual services are obtained from the victims by the traffickers through the means of deception and thus does not constitute full and unequivocal consent. They are still victims of trafficking in persons.

In 2017, a surviving victim in Mexico shared her story of trafficking in persons and sex trafficking.[5] She was only 12 years of age when she was targeted and lured away by a trafficker. The victim estimates that she was raped 43,200 times during her time as a victim of trafficking in persons, saying that she was sexually forced upon by “up to 30 men a day, seven days a week, for the best of four years”. For the full-length testimony, please click here.

Trafficking for the Purpose of Removal of Organs

Trafficking for organs is not as commonly reported as compared to the forms of forced labour and sex trafficking due to its lack of discussion and advocacy. Given the high demand for organ transplants but low supply of organs, organ trafficking is a lucrative crime. Although there are legal means to obtain organs, there is certainly a lack of supply to meet the high demand for organs. This creates opportunities for traffickers to traffick for the purpose of removing a person’s organs, which are then sold for a high profit.

The commission of this form of trafficking in persons has a special and distinct characteristic, which is the involvement of doctors and other healthcare professionals and service providers, such as medical staff, nurses and ambulance drivers. A common occurrence is where victims are forced or deceived into the removal of their organs, and thereafter, forced or intimidated into an agreement to sell their organs but are then either paid less than what was agreed or not paid at all.

In February 2019, Malaysia was rocked by the death of an 11-year old Cambodian girl. The victim had been missing for approximately two weeks, and her body was found with her hands tied behind her back. She was decapitated and some of her organs had been removed.[6] The police denied any elements of illegal organ harvesting.

Smuggling of Migrants

The act of smuggling of migrants is defined in Article 3(a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime (“UNSOM Protocol”)[7] as follows:

“The procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.” [8]

The crime of smuggling of migrants involves the facilitation of crossing borders or residing in another country illegally, with the purpose of making a financial or other material profit.[9] Migrants, who lack the means to legally cross borders and are willing to take huge risks in search of a better life and opportunities abroad, are vulnerable targets for smugglers. Smugglers offer their services to their targets by providing false promises of lucrative employment abroad and, more often than not, these targets incur a great cost in exchange for the services and promises of the smugglers. As these services are illegal, smugglers hold power and control over the migrants, who are mistreated and abused during the course of the smuggling, sometimes resulting in death.

Although the smuggling of migrants may not be deemed as a violation of human rights due to the migrants’ consent to participate in the illegal crossing of borders or residence in countries, smuggled migrants remain vulnerable to abuse and trafficking. This is largely due to the fact that smugglers exploit the migrants into prostitution or forced labour for the repayment of the migrants’ debts to the smugglers. Such exploitation amounts to a violation of the migrants’ human rights.

Furthermore, the circumstances surrounding the process of smuggling of migrants are dangerous. On 5 December 2019, 58 migrants drowned when their smuggler’s boat capsized in the Atlantic. The boat, reported to have been overcrowded and unseaworthy, was carrying at least 150 people. For more information, please click here.

The UNSOM Protocol seeks to protect the rights of migrants and reduce the power and influence of smugglers. Similar to the UNTIP Protocol, Article 5 of the UNSOM Protocol requires that the following conducts be established as criminal offences:

  • The smuggling of migrants;
  • When committed for the purpose of enabling the smuggling of migrants:

(i)         Producing a fraudulent travel or identity documents;

(ii)        Procuring, providing or possessing such a document;

  • Enabling a person who is not a national or a permanent resident in the State concerned without complying with the necessary requirements for legally remaining in the State by the means mentioned in paragraph (b) above or any other illegal means.

Further to the criminalization of the conducts as set out in paragraphs (a), (b) and (c) above, the UNSOM Protocol requires the criminalization of the following:

  • Attempting to commit an offence established in paragraphs (a), (b) and (c) above;
  • Participating as an accomplice in an offence established in paragraphs (a), (b) and (c) above; and
  • Organizing or directing other persons to commit an offence established in paragraphs (a), (b) and (c) above.

The adoption of the UNSOM Protocol seeks to assist in the prevention and combat against the smuggling of migrants by land, sea and air. Although the UNSOM Protocol has been widely adopted, and unlike the UNTIP Protocol, many countries including Malaysia have not signed and ratified the UNSOM Protocol.

Crimes against the Rohingya Muslims and Bangladeshis

One major incident of trafficking in persons and smuggling of migrants, which involved Malaysia, was the discovery of mass graves in 2015. The camps are believed to be transit points along a structured route used to smuggle migrants from Myanmar and Bangladesh. This discovery led to the exposé of the crimes against Rohingya Muslims and Bangladeshis between 2012 and 2015. During this period, a transnational criminal syndicate held Rohingya Muslims and Bangladeshis at sea and in human-trafficking camps somewhere along the Malaysia-Thailand border.

The severity of the crimes began to unveil when, on 30 April 2015, Thai authorities announced the discovery of a mass grave in a makeshift camp in a forested area near the Malaysian border which contained more than 30 bodies of suspected victims of trafficking in persons. Thereafter, on 25 May 2015, the Royal Malaysian Police announced the discovery of 139 graves and 28 camps suspected to be in connection with trafficking in persons in Wang Kelian, which is located in the state of Perlis in Malaysia. These crimes were covered in a joint report prepared and released by the Human Rights Commission of Malaysia (“SUHAKAM”) and Fortify Rights (“Joint Report”). The Joint Report said that it had found “reasonable grounds” to believe that a human-trafficking syndicate committed crimes against humanity in Malaysia and Thailand against Rohingya men, women and children from 2012 to 2015.[10]

According to the Joint Report, the traffickers often denied their captives access to adequate food, water and space, which then sometimes resulted in illnesses, injuries and/or deaths of their captives. Furthermore, these captives are subjected to mistreatments and/or harsh conditions when they are unable to pay sums of money to their traffickers upon demand. Even if the demanded sums of money are paid to the traffickers, the captives are sold into further exploitation, such as prostitution, or die in the camps. A surviving Rohingya victim recounted that traffickers poured boiling water on his head and body when he was unable to pay the demanded money to his traffickers. The traffickers abused him with violent and degrading methods on a daily basis until he could no longer feel anything in his legs.

Other incidents recounted by surviving victims and eyewitnesses included multiple killings at sea, where captives were denied access to proper food or water and, when the captives reacted with anger, the traffickers stabbed these captives and threw them into the sea. The Joint Report further states that several survivors witnessed numerous deaths occurring in the camp at Wang Kelian, and the camp guard would then take the corpses outside of the camps. A witness testified to SUHAKAM that he saw an estimate of 200 captives die in the Wang Kelian camp as a result of starvation, injuries from beatings and untreated illnesses.

Trials in Thailand and Malaysia

Upon the discovery of the mass grave at the site containing 30 bodies believed to be Rohingya Muslim and Bangladeshi victims, Thai authorities began their criminal investigation into the crimes on 1 May 2015. Their investigation led to the commencement of the largest human-trafficking trial in Thailand. A total of 103 defendants were tried for trafficking-related crimes, some of whom were government officials. On 19 July 2017, a special human-trafficking court in Bangkok convicted 62 defendants, including nine Thai government officials for trafficking-related crimes.

In contrast to the actions taken by the Thai authorities, the Malaysian courts have convicted only 4 individuals for trafficking-related offences connected to the crimes at Wang Kelian, three of whom were sentenced to jail terms of three to 10 years each. The convicted were two individuals from Myanmar, one Thai national and one Bangladeshi national. Although the Royal Malaysian Police had reportedly arrested 12 police officers for their alleged involvement in the crimes at Wang Kelian, all of the policemen were released due to a lack of strong evidence.[11]

Tier Placement of Countries for Trafficking in Persons

The Trafficking in Persons Report (“TIP Report”) is an annual report issued by the U.S. Department of State. The TIP Report provides an insight into countries’ governmental efforts against trafficking in persons. In the annual TIP Report, countries are divided into different tiers based on the respective country’s compliance with the minimum standards for the elimination of trafficking in persons under the TVPA. The tiers are as follows:

  • Tier 1 countries

Countries are placed in Tier 1 when their governments fully comply with the minimum standards to eliminate trafficking in persons imposed by the TVPA. Tier 1 countries in the TIP 2009 Report include, but are not limited to, Australia, Canada, France, Japan, Netherlands, South Korea, Sweden, Switzerland, Taiwan, United Kingdom and the United States of America.

  • Tier 2 countries

Countries are placed in Tier 2 when their governments do not fully comply with the minimum standards imposed by the TVPA, but are making significant efforts to comply with those standards. Tier 2 countries in the TIP 2009 Report include, but are not limited to, Brazil, Croatia, Germany, Hong Kong, Indonesia, Italy, Kenya, Madagascar, Nepal, Rwanda, Singapore, Thailand, Uruguay and Zimbabwe.

  • Tier 2 watchlist countries

Countries are placed in Tier 2 when their governments do not fully comply with the minimum standards imposed by the TVPA, but are making significant efforts to comply with those standards, and (i) the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing, or (ii) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year, or (iii) the determination that the country is making significant efforts to bring themselves into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.

Countries placed in the Tier 2 watchlist by the TIP 2019 Report include, but are not limited to, Afghanistan, Bangladesh, Hungary, Iraq, Liberia, Malaysia, the Republic of Congo, Sierra Leone, South Africa, Sri Lanka and Vietnam.

  • Tier 3 countries

Countries are placed in Tier 3 when their governments do not fully comply with the minimum standards imposed by the TVPA and are not making significant efforts for compliance with the minimum standards. Countries placed in Tier 3 include, but are not limited to, Burma, China, Iran, North Korea, Papua New Guinea, Russia, Saudi Arabia, Syria, Turkmenistan and Venezuela.

  • Special Cases

In the TIP Report, there is also a tier known as Special Cases, where the civil conflict and humanitarian crisis in the countries make it difficult for information to be gained. Countries categorized as Special Cases in the TIP 2019 Report are Libya, Somalia and Yemen.

Malaysia: Tier 2 Watch List

Malaysia is in the Tier 2 Watch List as the TIP 2019 Report states that the country’s government did not fully meet the minimum standards for the elimination of trafficking imposed by Trafficking Victims Protection Act of 2000 (“TVPA”), but was given due recognition for contributing significant efforts to do so. However, there were concerns outlined in the TIP 2019 Report, which include, but are not limited to the government’s failure to demonstrate overall increasing efforts as compared to the previous year and to report initiating new prosecutions or convicting any complicit officials, and the decrease in the numbers of investigations into cases of trafficking and prosecutions against alleged traffickers. Another major concern noted in the TIP 2019 Report is that despite the continuous operation of a special court with two judges with expertise in trying cases of trafficking, the Malaysian government has yet to implement plans to expand special trafficking courts in and around the country.

The TIP 2019 Report highlighted that, over the past five years, human traffickers often exploit domestic and foreign victims in Malaysia, and there are large organized crime syndicates who are responsible for a number of cases in relation to trafficking in persons. In addition, smuggled migrants are usually exploited to forced labour on agricultural and oil palm plantations, at construction sites, and in homes as domestic workers. Young foreign women are also often recruited by way of false promises of legitimate and luxurious employment, but are ultimately deceived and exploited to prostitution. These victims are left in vulnerable positions and forced to remain in their allocated illegal employments, as their traffickers and smugglers retain their passports.

As Malaysia has yet to meet the necessary minimum standards to eliminate trafficking, and its failure to convict the responsible traffickers for the crimes against Rohingya Muslims and Bangladeshis between 2012 and 2015, SUHAKAM and Fortify Rights have, in the Joint Report,  urged the Malaysian authorities to identify and prosecute all offenders, traffickers and perpetrators responsible for the said crimes.

Statistics of Trafficking in Persons in Malaysia

In 2017, the Royal Malaysian Police recorded a total of 410 cases related to trafficking in persons and a total of 648 persons were arrested whereby approximately three-fourths of whom were reported to be from Malaysia. Out of the said arrested persons, 68 offenders were convicted.[12]

The Transnational Organized Crime in Southeast Asia: Evolution, Growth and Impact (2019) (“TOCSA 2019 Report”)[13] issued by the United Nations Office on Drugs and Crime reported that a majority of victims of trafficking in persons in Southeast Asia and neighbouring East Asia are trafficked from less-than-developed countries to more developed countries, such as Malaysia. The TOCSA 2019 Report further highlights that, between 2013 and 2017, Malaysia had detected a total of 2,034 victims of trafficking in person which, on average, is approximately 340 victims per year. During the said period, approximately 34% of these victims were located and found in forced labour conditions, of which women and girls accounted for 81% of the victims. The largest share of these victims were nationals of Indonesia (30%), Vietnam (25%), the Philippines (10%), Thailand (8%) and the remaining were from Myanmar, Cambodia, Malaysia and India.

Statistics of Smuggling of Migrants in Malaysia

It was reported that, between 2013 and 2018, more than half of all smuggled migrants detected in Malaysia were nationals of Indonesia, while the remaining were nationals of Myanmar (28%), Bangladesh (8.5%) and the Philippines (6%). The TOCSA 2019 Report provided that men accounted for more than 77% of all smuggled migrants detected in Malaysia during the said five-year period. Furthermore, as collectable data were only available for 2017, smuggled migrants who were underage accounted for 7.6% of the total number of smuggled migrants in the country during the said year alone.

A Violation of Human Rights

Millions of men, women and children have fallen victim, and millions more will fall victim to human traffickers and migrant smugglers if nothing is done to stop them. Victims of these crimes are exposed to a traumatizing and perilous experience, and they often remain in silence in fear of abuse, blackmail and mistreatment by their offenders. Trafficking in persons and smuggling of migrants are grave offences and serious violations of human rights, including but not limited to, the following:

  • The right to life, liberty and security of person (Article 2 of the Universal Declaration of Human Rights);
  • The right to not be held in slavery or servitude (Article 3 of the Universal Declaration of Human Rights);
  • The right to not be subjected to torture or to cruel, inhuman or degrading treatment or punishment (Article 4 of the Universal Declaration of Human Rights);
  • The right to freedom of movement and residence (Article 13 of the Universal Declaration of Human Rights);
  • The right to marriage and to found a family (Article 16 of the Universal Declaration of Human Rights);
  • The right to freedom of opinion and expression (Article 19 of the Universal Declaration of Human Rights);
  • The right to a standard of living adequate for the health and well-being of himself and of his family (Article 25 of the Universal Declaration of Human Rights); and
  • The right to education (Article 26 of the Universal Declaration of Human Rights).

These are some of the fundamental human rights that all human beings are entitled to upon their birth without discrimination. Human rights reflect the minimum standard necessary for human beings to live with dignity, and no human being should ever be denied from his or her human rights for any reason whatsoever, especially not for financial gain or power.

Conclusion

Despite the Universal Declaration of Human Rights and governmental efforts to combat human rights violations both nationally and internationally, crimes against humanity remain a major challenge in our world today. There are still many countries who have yet to implement fundamental human rights regimes into local legislation. It is not uncommon that surviving victims are not provided with adequate protection, guidance and support upon their reintegration into society. It is fundamental for surviving victims to be encouraged to provide their experiences, which may prove to be of assistance in the national and international quests to implement proper practices to prevent, combat and advocate human rights violations.

Human rights are fundamental and there should be a great sense of urgency to protect such rights and freedoms across the globe. More often than not, we overlook the importance and privilege of having and enjoying basic human rights. However, awareness is key to encourage others to be aware of the millions of people who are and were forcefully denied their human rights. The prevention and combat against human rights violations were, are, and will always be a challenge, but it is only through awareness and working together, can justice truly be served.

 

[1] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime

[2] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, Article 3(a)

[3] United Nations Office on Drugs and Crime, “Human Trafficking” https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html?ref=menuside

[4] Forced Labour Convention, 1930 (No. 29), Article 2(1)

[5] CNN, “Human trafficking survivors: I was raped 43,200 times” https://edition.cnn.com/2015/11/10/americas/freedom-project-mexico-trafficking-survivor/index.html

[6] The ASEAN Post, “Sinister ASEAN: Trading in human organs” https://theaseanpost.com/article/sinister-asean-trading-human-organs

[7] Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime

[8] Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, Article 5(a)

[9] United Nations Office on Drugs and Crime, Transnational Organized Crime, “Smuggling of Migrants: The Harsh Search for a Better Life” https://www.unodc.org/toc/en/crimes/migrant-smuggling.html

[10] Al Jazeera, “Groups urge Malaysia ensure accountability for 2015 mass graves” https://www.aljazeera.com/news/2019/03/groups-urge-malaysia-ensure-accountability-2015-mass-graves-190327131552825.html

[11] Free Malaysia Today, “12 cops held over Wang Kelian human trafficking case freed” https://www.freemalaysiatoday.com/category/nation/2017/03/20/12-cops-held-over-wang-kelian-human-trafficking-case-freed/

[12] Royal Malaysia Police, “Human Trafficking & People Smuggling in Malaysia”, presented at the UNODC Workshop for Developing a New Transnational Organized Crime Threat ASsessment Report, Bangkok, March 2018

[13] The United Nations Office on Drugs and Crime, “Transnational Organized Crime in Southeast Asia: Evolution, Growth and Impact” (2019)

By Tommy Wong

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