The Human Rights Framework Applicable To Trafficking in Persons And Its Incorporation into UNMIK Regulation 2001/4

Abstract

With the General Assembly’s adoption of the text of the Protocol to Prevent, Suppress and Punish Trafficking in Persons in November 2000, the international community achieved a degree of consensus on an issue that has been the subject of politically-charged and morally-loaded debate since it undertook to elaborate the draft in December 1998 – whether and how to incorporate a human rights approach into this new international legal instrument which would supplement the United Nations Convention Against Transnational Organized Crime. Trafficking in persons is a complex phenomenon, encompassing such issues as gender discrimination, economic exploitation, and globalisation. As that complexity has been revealed, so has the international discourse on the issue become more sophisticated, acknowledging the great variety of configurations in which, and purposes for which, it occurs, as well as, in the words of the Special Rapporteur on Violence Against Women, “the continuum of women’s movement and migrations” within which trafficking exists. Another aspect of this complexity is the range of actors typically involved – from the “travel agents” and “employment recruiters” in countries of origin, to the corrupt law enforcement officials in transit countries, to the “bosses” who control the entire process. It is now well established that governments are not absolved of responsibility simply because acts violating human rights are committed by persons other than state officials. Further, such responsibility is not limited to cases where non-state actors are acting on behalf of the state. Human rights law imposes a duty on states to prevent and respond to violations committed by non-state actors, even when there is no connection between such actors and the state. The complexity of trafficking is also reflected in the finally agreed upon definition of trafficking in persons, which is broad enough to cover all actors and intermediaries and to respond to the realities faced by victims of trafficking. This definition has found immediate application in Kosovo, where the absence of law enforcement following the withdrawal of Serbian and Yugoslav forces in June 1999, coupled with the slow build-up of effective interim police services, enabled organized crime to flourish – and with it, the trade in human beings.This article sets forth an analysis of the legal responsibilities of states under human rights law for violations committed in a trafficking context, and demonstrates how Regulation 2001/4 of the United Nations Interim Administration Mission in Kosovo (UNMIK) establishes the legislative foundation for fulfilling those responsibilities in Kosovo. Section I de-scribes the situation in Kosovo, highlighting the particular features of trafficking in persons in a post-conflict territory under United Nations administration. Section II examines the modes of state accountability that apply in a trafficking context, outlining the spectrum from pure state action to pure non-state action, with particular emphasis on the latter. Section III presents a legal analysis of human rights violations typically occurring in a trafficking context, and the obligations of states to prevent and respond to those violations. Section IV provides a commentary on UNMIK Regulation 2001/4, illustrating the incorporation of these obligations into the applicable law of Kosovo. Finally, Section V concludes the analysis and commentary by emphasizing the need for implementation of the Regulation, as well as other measures designed to address the underlying causes of trafficking in persons.