The Palermo Protocol

Human trafficking resurfaced as an issue during the mid-1980s, impelled by a rejuvenated feminist movement, concern over changing migration flows, HIV/AIDS, child prostitution and child sex tourism (Pharoah, 2006: 3). It then rose to prominence during the 1990s (Pharoah, 2006: 3; Legget, 2004: 1). Up until the early 1990s, trafficking was mostly considered to be a form of human smuggling and a type of illegal migration (Laczko & Gramegna, 2003: 179). Despite the extensive and contemptible history of human trafficking, it has only recently become a major political issue for the

international community and the focus of comprehensive international rules (Gallagher, 2010: i).

On 15 November 2000, the United Nations (UN) General Assembly adopted the Convention against Transnational Organised Crime along with three protocols that served as additional instruments to supplement the Convention. These protocols covered the issues of trafficking in persons, smuggling, and illicit firearms, which were also opened for signature (Allain, 2014: 113). The international community began meeting in 1999 to draft the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially Women and Children (Miko, 2003: 15), which took into account that there was “no universal instrument that addresses all aspects of trafficking in

persons” (United Nations, 2000a). After adoption, the Convention and protocols were

formally signed in Palermo, Italy, in December 2000 (Miko, 2003: 15).

Notwithstanding the incorporation of the term ‘trafficking’ into a number of international legal agreements, it was not until December 2000 that it was defined in international law (Gallagher, 2010: 12). The Palermo Protocol, considered the landmark treaty on human trafficking (Kruger, 2010: 190), is generally taken as the point of departure when individual nations begin to draft their own legislation (Kreston, 2014: 21). Noteworthy is the fact that the Palermo Protocol is not a human rights’ instrument, but was designed to facilitate cooperation between countries to combat organised crime (Shoaps, 2013: 933; Anderson & Andrijasevic, 2008: 136; Miko, 2003: 15). It signifies an agreed-upon international definition of trafficking (UNODC, 2006: ix; Laczko & Gramegna, 2003: 180) and accepted standards for prosecution, protection and prevention, which should underpin and harmonise national legislation against trafficking with other countries’ trafficking laws (Raymond, 2001: 4).

Article 3(a) of the 2000 Protocol defines human trafficking as follows:

“‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of 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.”

The Palermo Protocol came into force on 25 December 2003 (Pharoah, 2006: 1) and was subsequently ratified by South Africa on 20 February 2004. As one of the 117 countries to have ratified the Protocol, South Africa was now bound to develop laws to protect the victims of trafficking and prosecute offenders in a manner appropriate to the seriousness of the offence (Bermudez, 2008: 19–20; Pharoah, 2006: 1). According to Kruger (2016: 58-59), the Palermo Protocol has two main purposes. First, it supports the ‘3P’ approach to combating human trafficking, which involves the prevention of human trafficking, the prosecution of traffickers and the protection of victims. Second, it aims to encourage cooperation amongst member states in fulfilling these aims. Cho (2015: 87) points out that the so-called 3P processes not only focus on reducing the incidence of human trafficking, but also promote the protection of victims’ human rights.

The fact that a legal and widely accepted definition of human trafficking exists by no means serves as a panacea for successfully addressing the issue from a legal perspective (Emser, 2013: 15). As highlighted by Zheng (2010: 2), dominant post- Palermo discourses have conflated trafficking and prostitution, underscored mobility restraints of certain populations and defined those trafficked as ‘victims’. Many countries have taken measures such as police rescues, enforced rehabilitation, and deportation of those considered trafficking ‘victims’. Intrinsic to the United Nations definition of trafficking, Zheng (2010: 2) argues, is a moral panic that any migrant woman working in the sex industry is a trafficked victim. Zheng qualifies this assertion with reference to the definition that suggests exploitation to include “at a minimum, the

exploitation of the prostitution of others or other forms of sexual exploitation” and the

consent of the trafficked victim, which is rendered “irrelevant” (United Nations, 2000a). There remains a fair amount of disagreement regarding how human trafficking should be defined and where the focus should be in assessing whether an individual fits the profile and has actually been trafficked or not (Emser, 2013: 15; Emmers, Greener- Barcham & Thomas, 2006: 492). The protocol makes provision for different forms of exploitation; however, trafficking in persons for the purpose of sexual exploitation will

be the focus of this research. It involves the recruitment, transportation and exploitation of an individual and manifests in a variety of forms that include:

 Forced prostitution, pornography or any other forced sexual practices (Bermudez, 2008: 34);

 Brothels and massage parlours (International Association of Chiefs of Police, 2006: 6);

 Non-brothel-based sexual exploitation, where commercial exploitation takes place under the facade of some other genuine activity, such as beer bars, friendship clubs, tourist circuits and beauty parlours (Nair, 2010: 20).

The following sections will briefly look into the different legislative instruments that serve to combat the perpetration of human trafficking in South Africa.