Nepali Times
For victims of trafficking, hope may be unconventional


Then she was a ten-year-old in New Delhi, Jamuna was married off to a 60-year-old man as repayment for a Rs 600 loan her father had taken from him. She still vividly remembers her midnight "marriage"-her hands were tied behind her and she was gagged to stop her from raising an alarm. Her mother was pushed down the stairs where she lay unconscious throughout the "marriage" Jamuna's groom and his friends forcefully conducted. Jamuna's drunken father slept through everything.

To prevent her from going back to her parents, Jamuna's husband brought her to Nawalparasi in Nepal three days later. Once in Nepal, she was regularly abused physically and sexually by her husband. "He wanted to have children. How could I produce one, I hadn't even started menstruating. I didn't even realise what the old man was doing to me," she says. If this weren't enough, she was raped several times by her own uncle.

And then it seemed as if Jamuna had a way out. A village "uncle" said he could help her find a job in Mumbai that paid enough for Jamuna to support herself and her parents. "That man looked like a saviour to me, and I was happy to go back to India with him," she told us. The "uncle" sold her to a brothel, for how much, she never found out. She worked there for a year, until Indian police rescued her in a routine raid.

Women like Jamuna were the centre of concern when the 11th SAARC summit adopted the Convention on Preventing and Combating Trafficking in Women and Children for Prostitution. Non-governmental bodies estimate that approximately 200,000 Nepali women are working in Indian brothels. But nobody knows for sure whether this number is increasing annually, or decreasing. The International Labour Organisation in Nepal says that 12,000 girls are trafficked out of Nepal every year. But this is an estimate, not a fact-the ILO's recent rapid assessment report on Trafficking in Girls with Special Reference to Prostitution came up with this figure assuming that every month five girls each are trafficked from the 26 most trafficking-prone districts identified by the government, and 2.5 from 11 additional districts the assessment team found were prone to trafficking.

Activists here see the SAARC convention as a "great step forward" in regional co-operation to curb trafficking in persons-the adoption of the convention, they say, means political commitment and state-level initiations to combat crime, and this is the first time South Asian governments have said combating transnational crime is a priority.

"This is a realisation among the South Asian countries that blaming each other is leading us nowhere, and that regional co-ordination is needed," said Bimal Rawal, the national project co-ordinator for the ILO's South Asian Sub-Regional Programme to Combat Trafficking in Children.

For Nepal, the immediate benefit of this convention is the automatic activation of its extradition treaty with India, the country identified as the biggest recipient of Nepali women in the commercial sex industry. The extradition treaty signed between the two countries enlists 16 offences for which criminals can be extradited. The new convention means that trafficking in persons is automatically added to the treaty. The new regulation makes it more likely that justice is done, because the countries of both origin and destination, for instance Nepal and India, will now both have extra-territorial jurisdiction, and be responsible for providing legal assistance to the victim. States are now required to grant the widest possible measures for legal assistance to prevent human trafficking, whether to conduct investigations, inquiries or trials.

For someone like Jamuna, who was first trafficked from India to Nepal and then back to India, the violators might find that it is now harder to get away just by simply hiding in a neighbouring country. This is a gain that will be difficult to reverse-Article VII of the convention requires that in addition to existing treaties, all future extradition treaties signed between any SAARC countries must automatically include trafficking in persons as an extraditable crime.

The convention also tries to address the common charge that political and bureaucratic patronage helps offenders and makes any real crackdown difficult, if not impossible. It clearly identifies as an "aggravating circumstance" the direct and indirect involvement of public office holders, and the abuse of authority to protect or assist traffickers. They also identify other aggravating circumstances-the involvement of an organised group, the use of violence or arms and victimisation of underage children.

All that is well and good, but there are already rumbles of discontent. "The convention overlooks recent international developments in approaching and addressing the problem of trafficking in persons," says advocate Sapana Malla-Pradhan. She and other legal experts point out that the SAARC convention totally ignores the rights-based approach recommended by the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons 2000. The UN protocol emphasises that the human rights of the victims should be upheld by the countries of origin, destination and transit, but under the SAARC convention, the liability of countries involved in trafficking is slight. The second World Conference on Trafficking in Persons held in Japan last month concluded that the most basic tool to control trafficking in humans is discouraging demand for them. The SAARC convention totally ignores this.

It is also silent about compensation, if any, and services victims are entitled to from the destination country. Apart from providing a temporary "protective home" for people rescued from traffickers, the recipient country has no moral or legal obligation to provide any other services or support for their rehabilitation. Under the new convention, victims of trafficking have little say in their future. What, for example, are the obligations of the recipient country should a woman or child not want to return to the country of her origin? Durga Ghimire, a women's rights activist, believes that repatriation should be voluntary. "Only 5-10 percent of the girls trafficked from Nepal to India want to come back, mainly because they anticipate social problems," she says. In 1996, for instance, 128 Nepali women, mostly minors, were rescued from Bombay brothels. But less than half of them returned to Nepal, and that with the help of Nepali NGOs.

The convention does not hold states responsible for the reintegration of victims into their families and society. "Rescued victims need to be psychologically and socially prepared to reintegrate into society. Unless they are well trained in income generating skills, educated about their legal rights and assured that there is some place they can go in case of an emergency, there is high chance they will either be trafficked again or end up as commercial sex workers," says Nirmala, who spent five years in an NGO transit home before she could start a new life with her family.

The convention recognises "prostitution" as the sole reason for trafficking in women and children-a definition which does not recognise that people are trafficked for cheap and forced labour, and domestic work. The definition of offenders is broader, citing "a person who keeps, maintains or manages, or knowingly finances or takes part in the financing of a place used for the purpose of trafficking, and knowingly lets or rents a building or other place".

(Names of trafficked women have been changed.)

(11 JAN 2013 - 17 JAN 2013)