TIP: Implementation Guidelines for the Minimum Standards

UNCLAS STATE 150188 E.O. 12958: N/A TAGS: KCRM PHUM KCRM KWMN PGOV PREL SMIG SUBJECT: TIP: Implementation Guidelines for the Minimum Standards of the Trafficking Victims Protection Act ¶1. (U) This is not an action cable, but is intended to guide Post reporting for the annual Trafficking in Persons (TIP) Report. The Implementation Guidelines provided in para 6 can be shared with host governments if posts deem this useful. ¶2. (U) In an effort to improve the transparency and clarity of the Trafficking in Persons (TIP) Report, the Department's Office to Monitor and Combat Trafficking in Persons (G/TIP) and the regional bureaus have reached agreement on interpretation guidelines for parts of the "minimum standards for the elimination of trafficking" -- used to assess foreign governments' anti-trafficking efforts in the TIP Report - contained in the 2000 Trafficking Victims Protection Act, as amended by the 2003 and 2005 Trafficking Victims Protection Reauthorization Acts (collectively, "TVPA"). ¶3. (U) This is not an action cable, but rather a cable intended to be an informational aide to Post officer(s) providing input for the annual TIP Report. The Implementation Guidelines provided in para 6, however, can be shared with host governments if posts deem this useful. The TVPA Minimum Standards Implementation Guidelines have been developed to: 1) bring more clarity and consistency to the Department's Trafficking in Persons Report; 2) assist posts in their engagement with host governments on TIP; and 3) explain implementation of 2005 amendments to the Minimum Standards that take effect during the current 2007-2008 TIP reporting cycle, specifically as of January 2008. PLEASE NOTE CAREFULLY THESE NEW REPORTING CRITERIA UNDER MINIMUM STANDARD 4(3) AND (7) BELOW. References to existing international and regional documents used to develop the implementation guidelines were passed to regional bureaus and can be emailed to posts upon request. ¶4. (U) Background: Over the course of producing the last seven annual TIP Reports, the need to establish guidelines for the implementation of the minimum standards has become evident. Working definitions have been developed to assist the Department in its application of the minimum standards regarding foreign governments' anti-TIP efforts. The interpretive guidelines were developed to address how the minimum standards are used to evaluate governments' efforts in terms of Protection, Prosecution, and Prevention. ¶5. (U) Background continued: The guidelines incorporate, where consistent with the TVPA's minimum standards, current minimum international standards and recognized practices for effectively combating severe forms of trafficking in persons. It should be noted that these are not meant to embody overall "best practices" - indeed, the very best practices often exceed these minimum encouraged practices, and of course Tier 1 countries will be expected to meet the "appreciable progress" criterion in the minimum standards. -------------- Implementation Guidelines for TVPA Minimum Standards -------------- ¶6. (U) MS 1. The government of the country should prohibit severe forms of trafficking in persons and punish acts of such trafficking. IMPLEMENTATION: At minimum, governments must criminalize and prescribe penalties for all forms of trafficking relevant in the country, including forced labor. This must include the elements of "severe forms of trafficking in persons" -- force, fraud, and coercion. Although desirable, this need not be accomplished through a comprehensive law, so long as relevant elements of trafficking, specifically including fraud/deception and coercion along with force, are covered by the country's laws. ¶7. (U) MS 2. For the knowing commission of any act of sex trafficking involving force, fraud, coercion, or in which the victim of sex trafficking is a child incapable of giving meaningful consent, or of trafficking which includes rape or kidnapping or which causes a death, the government of the country should prescribe punishment commensurate with that for grave crimes, such as forcible sexual assault. IMPLEMENTATION: Sanctions for sex trafficking should be on par with rape. The prescribed penalties for sex trafficking crimes or trafficking involving rape, kidnapping or death should be substantially similar to those for rape, taking into account the full range of sentences available. ¶8. (U) MS 3. For the knowing commission of any act of a severe form of trafficking in persons, the government of the country should prescribe punishment that is sufficiently stringent to deter and that adequately reflects the heinous nature of the offense. IMPLEMENTATION: Consistent with the UN Convention Against Transnational Organized Crime, criminal penalties to meet this standard should include a maximum of at least four years deprivation of liberty, or a more severe penalty. ¶9. (U) MS 4. The government of the country should make serious and sustained efforts to eliminate severe forms of trafficking in persons. In determinations under subsection (a)(4) of this section, the following factors should be considered as indicia of serious and sustained efforts to eliminate severe forms of trafficking in persons: (NOTE: Per long-standing agreement between G/TIP and the regional bureaus, only five of these 10 "indicia" are considered essential: 1, 2, 3, 7, and 10. The other five indicia are to be considered only if applicable to a particular country's trafficking problem and anti-trafficking response, and therefore are not cited in this cable. END NOTE.) (1) Whether the government of the country vigorously investigates and prosecutes acts of severe forms of trafficking in persons, and convicts and sentences persons responsible for such acts. IMPLEMENTATION: Under interpretation of the TVPA, all governments, consistent with their capacity to do so, are required to submit full comprehensive data on trafficking enforcement actions, including length of sentences actually imposed on convicted traffickers, as evidence of their vigorous law enforcement efforts. Imposed sentences should involve significant jail time, with a majority of cases resulting in sentences on the order of one year imprisonment or more, but taking into account the severity of an individual's involvement in trafficking, imposed sentences for other grave crimes, and the judiciary's right to hand down punishments consistent with that country's laws. Convictions obtained under other criminal laws and statutes can be counted as trafficking if the government verifies that they involve trafficking offenses. (2) Whether the government of the country protects victims of severe forms of trafficking in persons and encourages their assistance in the investigation and prosecution of such trafficking, including provisions for legal alternatives to their removal to countries in which they would face retribution or hardship, and ensures that victims are not inappropriately incarcerated, fined, or otherwise penalized. IMPLEMENTATION: CRITICAL FACTORS CONSIDERED IN WHETHER A COUNTRY FULLY SATISFIES THIS PART OF THE MINIMUM STANDARDS: Proactive identification: Victims should not be expected to identify themselves. Formal screening procedures should go beyond checking a person's papers. Some form of systematic procedure should be in place to guide law enforcement and other governmental or government-supported front line responders in the process of victim identification. (An example of such procedure can be found in UNODC's "Toolkit to Combat Trafficking in Persons" starting on page 104 - www.unodc.org/pdf/Trafficking_toolkit_Oct06.p df) Shelter/temporary care: A government should ensure that victims receive access to primary health care, counseling and shelter that allows them to recount their trafficking experience to trained social counselors and law enforcement at a pace with minimal pressure. Shelter and assistance can be provided in cooperation with NGOs. Part of the host government's responsibility includes funding and referral to NGOs providing services. To the best extent possible, trafficking victims should not be held in immigration detention centers, or other detention facilities. ALSO CONSIDERED AND STRONGLY RECOMMENDED FOR FAVORABLE PLACEMENT: Victim/witness protection, rights and confidentiality: Governments should ensure that victims are provided with legal and other assistance and that, consistent with its domestic law, proceedings are not prejudicial to victims' rights, dignity or psychological well-being. Confidentiality and privacy should be respected and protected to the extent possible under domestic law. Victims should be provided with information in a language they understand. Repatriation: Source and destination countries share responsibility in ensuring the safe, humane and, to the extent possible, voluntary repatriation/reintegration for victims. At a minimum, destination countries should contact a competent governmental body, NGO or IO in relevant source country to ensure that trafficked persons who return to their country of origin are provided with assistance and support necessary to their well-being. Trafficking victims should not be subjected to deportations or forced returns without safeguards or other measures to reduce the risk of hardship, retribution, or re-trafficking. (3) Whether the government of the country has adopted measures to prevent severe forms of trafficking in persons, such as measures to inform and educate the public, including potential victims, about the causes and consequences of severe forms of trafficking in persons, measures to reduce the demand for commercial sex acts and for participation in international sex tourism by nationals of the country, measures to ensure that its nationals who are deployed abroad as part of a peacekeeping or other similar mission do not engage in or facilitate severe forms of trafficking in persons or exploit victims of such trafficking, and measures to prevent the use of forced labor or child labor in violation of international standards. IMPLEMENTATION: Provide/fund a hotline or similar mechanism to provide victims and potential victims with a number to call for assistance and or information about TIP. Also, per the 2005 amendments to the Minimum Standards, starting with the april 2007- march 2008 reporting period to be covered in the 2008 TIP Report, countries should, FOR EXAMPLE, WHERE APPLICABLE: REDUCE DEMAND FOR COMMERCIAL SEX ACTS (NEW WITH 2008 TIP REPORT): Implement or support some form of visible awareness campaign that educates the clients of the sex trade (and potential sex trafficking victims) if the country has a significant sex trafficking problem, or a campaign that targets those who form the demand for victims of forced labor about the nature of the relevant form of TIP. Nations with legalized prostitution should make additional efforts to proactively identify TIP victims among those in prostitution in the legalized sex trade. This includes the systematic and sensitive screening of persons in the legalized sex trade. ADDRESS CHILD SEX TOURISM (NEW WITH 2008 TIP REPORT): Countries that have a significant number of nationals traveling abroad as child sex tourists should undertake an awareness campaign that targets tourists traveling to known child sex tourism destinations. ADDRESS TRAFFICKING AND EXPLOITATION COMMITTED BY MULTINATIONAL PEACEKEEPERS: Governments with more than 100 troops on peacekeeping or other similar missions abroad should provide anti-TIP training for these troops (whether directly or by participating in multilateral efforts),and should investigate and, if appropriate, prosecute any allegations of trafficking crimes or crimes of facilitating trafficking or exploiting trafficking victims committed by these troops abroad and referred to it by the UN or another competent organization. (4) Whether the government of the country cooperates with other governments in the investigation and prosecution of severe forms of trafficking in persons. IMPLEMENTATION: Self-explanatory; no additional guidelines. (7) Whether the government of the country vigorously investigates, prosecutes, convicts, and sentences public officials who participate in or facilitate severe forms of trafficking in persons, (including nationals of the country who are deployed abroad as part of a peacekeeping or other similar mission who engage in or facilitate severe forms of trafficking in persons or exploit victims of such trafficking) (added in the reauthorization of the TVPRA of 2005) and takes all appropriate measures against officials who condone such trafficking. After reasonable requests from the Department of State for data regarding such investigations, Prosecutions, convictions, and sentences, a government which does not provide such data consistent with its resources shall be presumed not to have vigorously investigated, prosecuted, convicted, or sentenced such acts. IMPLEMENTATION: Governments, consistent with their capacity to do so, must provide full comprehensive data on actions taken against TIP related complicity. Information on general government corruption does not satisfy this minimum standard, except in cases in which specific cases of complicity are not reported by the government or known to the USG, but where there is a reasonable probability of such complicity within the wider context of generalized corruption in that country. (10) Whether the government of the country achieves appreciable progress in eliminating severe forms of trafficking when compared to the assessment in the previous year. IMPLEMENTATION: Particularly relevant for existing Tier 1 countries. Governments should show evidence of sustained progress in fighting trafficking in persons. ¶10. (U) Minimize considered. RICE