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VIII. THE U.N. RESPONSE
In March 1999, the Office of the High Commissioner for Human Rights and UNMIBH jointly launched the "Trafficking Project," a formal initiative to address the trafficking of human beings with an emphasis on the protection of the human rights of victims. Concerned that local police had subverted UNMIBH efforts to protect trafficking victims, the IPTF commissioner issued an interim directive to all local police "prohibiting operations against café-bars, and other premises suspected of procuring prostitutes, without prior approval of UNMIBH."202 Faced with the reality that trafficked women and girls suffered criminal prosecution, fines, and immediate deportation, the High Representative prohibited local authorities from refusing entry to or deporting aliens without prior consultation with UNMIBH/IPTF.203 By April 2001, IPTF monitors in the field routinely accompanied local police on raids of nightclubs and establishments suspected of holding trafficked women. In some cases, IPTF human rights officers made an effort to interview each woman at each establishment individually to determine if she needed or wanted assistance. These efforts began to show success in 2001, with over 380 trafficked women and girls voluntarily returned to their homes between August 1999 and December 2001. In July 2001, following extremely negative press coverage on trafficking into Bosnia and Herzegovina, UNMIBH announced the creation of anti-trafficking teams of local and international police.204 Celhia de Lavarene, the U.N. mission adviser on gender policy, told reporters at a press conference in Sarajevo that the creation of the Special Trafficking Operations Program, or STOP, entailed a "more aggressive approach."205 The U.N. secretary-general highlighted the success of the STOP teams in his report to the Security Council in November 2001. He credited the teams with assisting ninety victims of trafficking and for success in monitoring criminal investigations and legal proceedings in Bosnia and Herzegovina.206 By October 2002, the number of victims assisted had jumped to 230.207 Despite the improvement in the treatment of trafficking victims in Bosnia and Herzegovina since 1999-all due to efforts made by the international community- major flaws persisted in the U.N. Mission's anti-trafficking efforts well beyond that date. Failure to Define Trafficking in Accordance with International Law
Even if some of the women realized that they would be working in the sex industry, they did not know and could not agree to be sold as chattel, held in debt bondage, and forced to work without pay until they had satisfied their "debt." Agreeing to work in prostitution did not serve as a waiver of one's rights. Prior to the creation of the STOP units in July 2001, two gender officers in Sarajevo made the determination of trafficking status. Both denied trafficking status to persons who knew that they were going to be engaged as sex workers. One told Human Rights Watch: If they know they're going to be prostitutes, then they don't qualify. That qualifies them as an illegal migrant. It is a fine line of assessing whether they are an illegal migrant or a trafficked person. What if they knew that they would be a dancer? What does that mean really? It's tricky to assess these cases. If they knew that they would be prostitutes, though, then they are illegal migrants. This is the policy. 209 The second gender officer stated, "Unless we can determine that they are trafficked they cannot go into the program. We cannot take migrant prostitutes."210 When pressed on this issue and reminded that the definition of trafficking under international law makes the issue of prostitution irrelevant, several UNMIBH officials blamed IOM, which handled all voluntary repatriation, for the failure to include women who knew that they would work in prostitution. 211 Officials also blamed the donor countries. The first gender officer told Human Rights Watch, "Donors are interested in assisting trafficked women _ but no one who is engaged in voluntary prostitution. Those who are voluntary get cut out and they do not qualify for the assistance."212 The other officer repeated this assumption, "[If we helped migrant prostitutes], the donors will be less likely to assist genuine victims."213 IOM officials interviewed in December 2001, however, insisted that they relied upon the U.N. Trafficking Protocol definition. A program officer at IOM told Human Rights Watch, "We use the U.N. protocol definition. Usually IPTF tells us whether a woman is trafficked... but we don't listen to IPTF 100 percent of the time. We do an additional interview and we also check to see if she's trafficked."214 Dr. Lynellyn Long, chief of mission for IOM in Bosnia and Herzegovina, told Human Rights Watch, "The problem before was whether the IPTF officers were properly trained. The STOP teams are trained and now we have a consistent team with good training."215 Long's comments on inadequate training accurately reflected Human Rights Watch's findings in March and April 2001. One IPTF monitor told Human Rights Watch in March 2001, "If they know they are working in the sex industry, then we cannot consider them trafficking victims. When they say, `I knew I would be a prostitute,' I don't think that IOM will help them. IOM doesn't want to be a travel agency."216 Another IPTF human rights officer involved in screening trafficking victims stated an incorrect definition of trafficking, "Some women are here voluntarily. Trafficking means brought over borders against their will or false promises. If some come here to work as prostitutes, that is different."217 Dr. Long maintained that with the new STOP units in place, exclusion of legitimate victims had ceased, reflecting the training provided to the units by IOM and U.N. experts.218 Official UNMIBH legal office guidance on trafficking, issued in May 1999, provided a definition of trafficking in persons: Trafficking in persons consists of all acts involved in: · The recruitment, transportation or movement of persons within or across frontiers whether for financial gain or otherwise · And in which material deception, coercion, force, direct or indirect threats, abuse of authority, fraud or fraudulent non-disclosure is used · For the purpose of placing persons forcibly, against their will or without their consent in exploitative, abusive or servile situations: such as forced prostitution, sweatshop labour, domestic servitude, or other abusive forms of labour or family relationships whether for pay or not.219 Under international law, no individual can consent to debt bondage or to being sold as chattel. Unfortunately, in practice UNMIBH initially emphasized the element of "consent" to deny trafficked status, without giving sufficient consideration to material deception, coercion, and force. The fundamental question should have been about the impossibility of consent to the conditions of work imposed upon the women. The claim by UNMIBH officials that IOM determined the criteria was contradicted by IOM's assertion that it adhered to the Trafficking Protocol definition. Moreover, it was UNMIBH officials who located the women and girls, performed all of the interviews, transported the women from the regions to Sarajevo, reviewed all of the interview transcripts, and certified the women for participation in the IOM program. At best, UNMIBH negligently excluded a sub-set of trafficking victims from the assistance programs. At worst, UNMIBH acted in contravention of the widely accepted definition of trafficking included in the Trafficking Protocol in refusing to assist these women even though they may have suffered grave human rights violations. The checks on the system instituted recently by IOM and the STOP units have largely alleviated the problem, but this is obviously an issue requiring UNMIBH's continuing vigilance to ensure that its anti-trafficking programs and training apply the Trafficking Protocol definition. Until IOM created a program to repatriate irregular migrants in mid-2001, women who admitted to agreeing to work in prostitution or who were present in the country illegally faced criminal charges and deportation by local authorities. Dr. Long of IOM told Human Rights Watch, "Women fell through the cracks [back in April 2001]. Now we have the irregular migrant program, and we can get them home through that mechanism. The program is designed to repatriate those who intended to travel to Western Europe, but we give them the benefit of the doubt. We have repatriated about sixty migrants so far, about 20 percent of them women... They [IPTF monitors] don't eliminate women anymore [for assistance], but they refer them to the irregular migrants program."220 Failure to Provide Safe Shelter Outside the Capital
If the individual cannot be brought to the HRID by 18:00 hours [6:00 p.m.], the individual must be housed in a safe location until s/he can be transported to the HRID the next morning. Safe locations include a hotel or pension; Local Police stations; and IPTF Stations. Any expenses incurred in housing the individual in a safe location may be reimbursed if funds donated by the International Community are available. Please contact the HRID for updated information on the availability of funds.221 In reality, UNMIBH almost never supplied funds for safe housing. And because local police were often suspected of complicity in the trafficking, IPTF human rights officers generally preferred to house women overnight in the IPTF stations. However, in March 2001, UNMIBH barred trafficked women from overnight stays in IPTF stations.222 Outside Sarajevo, the policy change created enormous difficulties for IPTF human rights officers attempting to assist trafficking victims. As one IPTF officer stated, "We had to pay out of pocket to keep the women in hotels. For every case we collected money, and we created a fund."223 Another IPTF monitor told Human Rights Watch: We deal with the victims, and I try to help them. We dip into our own pockets. We kept them here [in the station] for a little while. Until they are accepted by IOM, they have to be here. We feed them, get them coffee, and get them cigarettes. There is no place to keep them. If I have twenty girls and four hours per girl, I am working around the clock. The U.N. gives us no funds and no money to take care of them. The local government needs to do this. Some guys pay to put them in hotels. Now they are not keeping them in IPTF stations. We have to dip into our own pockets or show them the street. We're tapped out. Every time we dip into our own pockets. We make it possible for the U.N. to do nothing.224 In April 2001, Human Rights Watch found this completely ad hoc approach to caring for trafficking victims prevailed in all but three cities. In Banja Luka, IOM had arranged for temporary housing for women waiting to travel to Sarajevo. In Bijeljina, Lara, the local NGO, with funding from the U.N. Trust Fund, provided shelter for dozens of women who escaped from nightclubs in Republika Srpska.225 In the Brcko district, an anonymous donor had created a fund to pay for housing women in local hotels. These three exceptional local initiatives created a relatively effective and dependable system for housing trafficked women while they provided testimony to local courts and awaited final certification from Sarajevo as trafficking victims. However, the Bijeljina example shows that even these initiatives proved vulnerable to an uncertain funding stream, with recourse to individual generosity again substituting for the absent commitment by the international community (and Bosnian government) to provide shelter. As a representative of Lara told Human Rights Watch, "[At one point] we had no money, and we could not pay their [the trafficked women's] expenses.... We have one Romanian [IPTF officer] in the Bijeljina station. He wanted to help. That Romanian IPTF officer collected money to help. We could tell that he cared about this as we do."226 IOM began providing some temporary accommodation in the regions in September 2001 (having previously run only two shelters in Sarajevo and managed the transfer of victims out of Bosnia and Herzegovina).227 With this development, more women received shelter in the regions while the UNMIBH determined whether they qualified for assistance as trafficking victims.228 When asked why IOM had taken on the task of establishing safe housing in the regions, Chief of Mission Long told Human Rights Watch, "We were completely fed up. They kept the women in terrible places where they had to face their traffickers."229 Until IOM took action in September 2001, UNMIBH's failure (in conjunction with the failure of the Bosnian government, as described above) to provide shelter inadvertently assisted in maintaining impunity for traffickers, because-with the exception of the three cities mentioned above-trafficked women and girls could not remain in a regional city long enough to provide testimony before an investigative judge or at a full trial. 230 Due in part to the provision of safe housing in the regions, UNMIBH has lately had some success in encouraging women to testify before investigative judges: as of December 14, 2001, 174 trafficked women and girls had testified in the pre-trial stage.231 202 U.N. Mission in Bosnia and Herzegovina Legal and Human Rights office and U.N. Office of the High Commissioner for Human Rights in BiH, "Report on Joint Trafficking Project," May 2000, p. 6, on file with Human Rights Watch. 203 Decisions of the High Representative have the force of law in Bosnia and Herzegovina. "Report on Joint Trafficking Project," pp. 6-7. 204 UNMIBH Special Press Conference, "UNMIBH Trafficking Project and Introduction to the New Special Trafficking Operations Program (STOP), July 26, 2001. See Alix Kroeger, "U.N. Targets Bosnian Vice Rings," BBC, July 27, 2001. See also Aida Cerkez-Robinson, "New Special Police Units to Help Fighting Trafficking of Women," Associated Press, July 26, 2001. 205 Aida Cerkez-Robinson, "New Special Police" Associated Press. 206 U.N. Security Council, "Report of the Secretary-General on the U.N. Mission in Bosnia and Herzegovina," November 29, 2001, S/2001/1132, para. 8. 207 Human Rights Watch telephone interview, Celhia de Lavarene, March 14, 2002. 208 See Chapter V, International and Domestic Legal Protections Against Trafficking. 209 Human Rights Watch interview, Sonja Cronin, U.N. human rights gender officer, Sarajevo, April 3, 2001. 210 Human Rights Watch interview, Maxwell Woodford, IPTF gender officer, Sarajevo, March 20, 2001. 211 It is important to understand the legal relationship between the IOM and the U.N. IOM is an independent intergovernmental organization created outside the U.N. that has long maintained close ties to the U.N. IOM has formal observer status in the General Assembly, as does the U.N. in IOM's Council. On the operational side, IOM has cooperation agreements with the U.N. Secretariat and a number of U.N. organs with which IOM collaborates most regularly or whose work most closely relates to IOM's work. These include, inter alia, the U.N. High Commissioner for Refugees, the U.N. Development Program, the U.N. Population Fund, and the World Health Organization. While not part of the U.N. system, IOM is frequently invited by the U.N. to participate in formal and informal U.N. inter-agency meetings. E-mail communication with the IOM External Relations Department, July 5, 2001, on file with Human Rights Watch. 212 Human Rights Watch interview, Sonja Cronin, U.N. human rights gender officer, Sarajevo, April 3, 2001. 213 Human Rights Watch interview, Maxwell Woodford, IPTF gender officer, Sarajevo, March 20, 2001. 214 Human Rights Watch telephone interview, IOM staff member [name withheld], December 4, 2001. 215 Human Rights Watch telephone interview, Dr. Lynellyn Long, chief of mission, IOM Bosnia, Washington, D.C., December 21, 2001. 216 Human Rights Watch interview, IPTF human rights officer [name withheld], Doboj, March 28, 2001. 217 Human Rights Watch interview, Stefan Kuhn, IPTF monitor, Mostar, March 30, 2001. Although he was involved in raiding establishments with possible trafficking cases, he noted that the raids in the Mostar area had not uncovered any trafficking victims. 218 Human Rights Watch telephone interview, Dr. Lynellyn Long, , Washington, D.C., December 12, 2001. 219 UNMIBH Legal Office, Guidance no. 21, "Trafficking in Persons," May 1999, on file with Human Rights Watch. The document cites as the international law applicable to trafficking the Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others; the European Convention for the Protection of Human Rights and Fundamental Freedoms, Articles 3, 4, and 14; the Convention on the Elimination of all Forms of Discrimination against Women, Article 6; the International Covenant on Civil and Political Rights, Articles 8 and 26; the Convention of the Rights of the Child, Article 11; the Slavery Convention and Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Trafficking Protocol was not opened for signature until December 2000. 220 Human Rights Watch telephone interview, Dr. Lynellyn Long, chief of mission, IOM, Washington, D.C., December 12, 2001. 221 UNMIBH/IPTF Operating Procedures for Trafficking Victims, Guidance No. 9-A (revised), paragraph 4.2, September 22, 2000, p. 2, on file with Human Rights Watch. 222 Human Rights Watch interview, high-level UNMIBH official [name withheld], Sarajevo, March 26, 2001. 223 Human Rights Watch interview, former UNMIBH official from Brcko [name withheld], New York, June 14, 2001. 224 Human Rights Watch interview, IPTF human rights officer [name withheld], Sarajevo, April 8, 2001. 225 As of October 2002, the United Nations Trust Fund had provided approximately 50 million convertible marks (KM) to finance more than 500 reconstruction projects in Bosnia and Herzegovina. Lara also cooperated with the U.N. Working Group on Contemporary Forms of Slavery. For more information on the Working Group, see http://www.unhchr.ch/html/menu2/9/vfslaver.htm (retrieved November 10, 2002). 226 Human Rights Watch interview, Mara Radovanovic, director of Lara, Bijeljina, March 27, 2001. 227 By October 2002, IOM had shelters in Sarajevo and Banja Luka. In addition, shelters in Mostar, Bijeljina, Bihac, and Doboj_run by NGOs_provided safe accommodation to trafficking victims in those regions. NGOs La Strada (Mostar), Forum of Solidarity (Doboj), and Women from UNA (Bihac) worked on contract with IOM. Lara (Bijeljina) did not receive any financial support from IOM. Human Rights Watch telephone interview, Amela Efendic, IOM program officer, Sarajevo, October 21, 2002. 228 The trafficking status decision, made by U.N. officials in Sarajevo on the basis of extensive interviews with a trafficked woman taken by IPTF human rights officers and now STOP team members in the field, determines whether a woman will be accepted into IOM's repatriation program. This determination can take several days, during which a trafficking victim must stay in the locality to await the decision. Only those women who wish to return to their countries of origin are classified as trafficking victims. 229 Human Rights Watch telephone interview, Dr. Lynellyn Long, chief of mission, IOM Bosnia, Washington, D.C., December 12, 2001. 230 A good example of this phenomenon is the Prijedor case described in Chapter X. IPTF almost immediately transported the thirty-four women discovered in the Prijedor raids in November 2000 to Sarajevo. An investigative judge took several weeks to agree to travel to Sarajevo to take testimony. By the time the local authorities had appointed a judge, the women had returned home. As a result, not one of the women provided testimony to an investigative judge, making the prosecution of the owners extremely difficult. As of December 2001, the case against the owners of the Prijedor clubs was suspended as the court refused to admit the written statements of the trafficking victims and witnesses. Human Rights Watch telephone interview, Alun Roberts, UNMIBH spokesman, Banja Luka, December 12, 2001. In another case in Brcko in 1998, well-intentioned IPTF officers raised money to purchase bus tickets to repatriate two Romanian trafficking victims. One of the monitors told Human Rights Watch, "We had to send the two ladies home. We cannot keep them for two months and then make them testify.... Our monitors collected Deutschmarks amongst ourselves and they went by bus through Yugoslavia." Human Rights Watch interview, Juhe Roine, IPTF human rights officer, Brcko, March 21, 1999. 231 U.N. Mission in Bosnia and Herzegovina, internal memorandum, "Prosecution of Trafficking Cases," December 14, 2001, on file with Human Rights Watch.
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