Strengthening Preventive Measures to Combat Trafficking for Forced Criminality Through Effective Intelligence Sharing and Corporation in the Southeast Asian Region

NESA Center Alumni Publication
Major Sandun Gunawardana – LL.B (Colombo), LL.M (KDU) & Attorney at Law, A Legal Officer in Ministry of Defence, Member of the National Anti-Human Trafficking Task Force in Sri Lanka, and NESA Center Alumnus.
5 November 2024

 

ABSTRACT

Traffickers exploit individuals by employing them in various legal or illegal enterprises without obtaining the victims’ consent. In cases of human trafficking, the legality of the professions in which the victims are engaged is irrelevant in a court of law; the critical factor is whether the victims are providing any services voluntarily. Notably, in instances where the victim is a minor, the issue of consent rendered is immaterial for the purposes of convicting individuals charged with human trafficking.

The utilization of human trafficking victims in illicit trades and activities is a significant concern reported globally. A particularly troubling aspect of forced labor is that victims of human trafficking may face criminalization by law enforcement authorities in either the country of destination or their country of origin, unless the trafficking chain is duly recognized by the relevant authorities in contexts where the victims are involved in unlawful activities. Therefore, it is imperative to establish a comprehensive mechanism to identify and address the phenomenon of forced criminality, thereby safeguarding the rights and welfare of victims of human trafficking.

Key Words – Forced Criminality, Human Trafficking, Forced Labour

 

INTRODUCTION

Forced criminality:

The act of employing individuals in criminal activities through coercion could be defined as “Forced Criminality.” This concept is intrinsically linked to the broader notion of “Forced Labour,” which is defined as “all work or service exacted from any person under the threat of a penalty, for which the individual has not offered themselves voluntarily.”[1] The domestic law of Sri Lanka aligns with international standards in providing a similar definition of forced labour.[2] Such practices constitute a gross violation of Articles 4 and 23 of the Universal Declaration of Human Rights. In this context, human trafficking is recognized as a form of modern slavery. When victims of human trafficking are compelled to engage in unlawful activities under duress, they are subjected to forced criminality.

From the perspective of human trafficking, traffickers may coerce victims into committing various crimes during their victimization, including but not limited to theft, illicit drug production and trafficking, prostitution, terrorism, cybercrimes, and other illegal activities. These acts may occur both domestically and across international borders.

 

METHODOLOGY

This research falls within the domain of social sciences and humanities, and is thus characterized as a scientific study of human behaviors and activities. Social research specifically investigates general practices, attitudes, assumptions, traditions, beliefs, social stratifications, and regulatory frameworks. The researcher has conducted a thorough analysis of both international and domestic legal instruments, as well as authoritative texts authored by experts, to critically examine the subject matter.

Data collection primarily relied on library and internet research, through which primary data was obtained by studying relevant legislations. Additionally, secondary data was gathered from authoritative texts, case studies, current situational analyses, and journal articles authored by experts in the field. Both primary and secondary data are classified as non-quantifiable qualitative data.

To further substantiate the findings, several interviews were conducted with legal practitioners, human rights activists, law enforcement officials, university law lecturers, and victims of human trafficking. These interviews provided valuable primary data, including opinions, perspectives, personal narratives, and case studies. Consequently, the researcher has engaged in subjective interpretation based on a subjective methodology.

 

RESULT AND DISCUSSION

Legal Principles and the Presumption of Innocence

The legal maxim “Actio non facit reum nisi mens sit rea” translates to “An action does not make one guilty unless the intention is bad.” [3]

This principle underscores the fundamental legal norm that an accused individual is presumed innocent until proven guilty in a court of law. This presumption is enshrined in the Universal Declaration of Human Rights (UDHR)[4] and is similarly upheld by the Constitution of the Democratic Socialist Republic of Sri Lanka within its Chapter on fundamental rights[5].

In criminal law, two essential elements must be established beyond a reasonable doubt to support any allegation against an accused: Actus reus (the physical act of committing a crime) and Mens rea (the mental state of the offender at the time of the crime). To secure a conviction, it must be demonstrated that the accused acted knowingly, willfully, and intentionally.

In circumstances where an individual is compelled to commit a criminal offense due to fear or a lack of alternatives, the question arises; is it justifiable to convict that individual for a crime if they lacked the requisite intent? This inquiry is central to the rationale underpinning the presumption of innocence.

 

Ignorance of Law and its Implications

The legal principle “ignorantia juris non excusat” asserts that ignorance of the law is not a valid defence in any Court. This principle emphasizes that an individual cannot evade liability for violating a law simply due to a lack of awareness of its provisions. Consequently, it could be argued that an adult who commits a criminal offense under any circumstances should be held accountable without excuse. However, the intention of the accused remains paramount in determining culpability. Thus, if Mens rea cannot be established, no accused could be convicted.

When an individual is compelled to act under duress, resulting in the commission of an offense, that individual should be regarded as innocent before the law, as they lacked the intent to commit the recognized offense.

 

Judicial Precedent and the Evaluation of Forced Criminality

In the case of  PEOPLE’S UNION FOR DEMOCRATIC RIGHTS VS. UNION OF INDIA,[6] the Supreme Court of India held that “Forced Labour deprives the choice of alternatives and compels the victim to adopt a specific course of action.” The Court further clarified that “force” encompasses not only physical and legal coercion but also economic distress that eliminates viable alternatives for the individual.

Therefore, it is imperative that the circumstances surrounding an individual’s coercion be meticulously evaluated during investigations and prosecutions to protect innocent individuals from exploitation by perpetrators. Victims of human trafficking must be safeguarded while legal actions are pursued against traffickers involved in forced criminality.

 

Addressing Forced Criminality in Sri Lankan Penal Law

Forced criminality is addressed by various jurisdictions through their domestic penal laws, albeit in differing manners. Within the Sri Lankan legal framework, the intention of the alleged offender is meticulously evaluated in determining culpability for purported offenses. The Penal Code of Sri Lanka contains specific provisions that afford safeguards for individuals to present a defense against charges of forced criminality.

The presumption of innocence is acknowledged as a fundamental right within the framework of Sri Lankan law, as explicitly enshrined in the Constitution [7]. However, this presumption is characterized as a rebuttable presumption before the courts, contingent upon the relevant evidence obtained through criminal investigations. The burden of proof lies upon the prosecution in relation to the accused individual[8],as underscored in the judicial precedent of SUNIL V. ATTORNEY GENERAL.[9]

Furthermore, any individual facing charges for an offense is entitled to be heard, either personally or through legal representation, in a fair trial conducted by a competent court, in accordance with the constitutional provisions of Sri Lanka[10]. The right to a fair hearing, encapsulated in the principle of audi alteram partem, is an essential component of the principles of natural justice and is firmly safeguarded by the Constitution of Sri Lanka.

Additionally, the General Exceptions outlined in the Penal Code [11] of Sri Lanka offer protections for individuals who have been forced or compelled to commit offenses to a certain extent. Specifically, if a person has provided consent under duress or due to a misconception, and there are justifiable grounds to assert that such consent was obtained as a result of fear or misunderstanding, it shall not be deemed that the individual has committed the offense knowingly, willfully, and intentionally. Consequently, under Sri Lankan penal law, no act shall be considered as an offense if it is committed by an individual who is compelled to do so through force or threat.

However, it is essential to recognize that these exceptional provisions of the law do not offer any protection for the commission of offenses such as murder or any other crimes against the State that are punishable by death under Sri Lankan penal law.[12]

A pertinent illustration of forced criminality can be found in the human trafficking incident reported in Myanmar. In this case, a group of Sri Lankans was subjected to human trafficking and subsequently coerced into participating in cybercrimes. The circumstances clearly indicated that the victims had no viable means to extricate themselves from such malpractices, as they were under the control of terrorists. The victims were subjected to severe threats by the traffickers, who deprived them of basic necessities such as food and water, and inflicted corporal punishments.

In the domestic context, instances of forced begging, forced prostitution, and the sexual exploitation of individuals, including children and women, in pornography through coercion, threats, or extortion may be cited as examples of forced criminality.

 

Investigations and Framing Charges

Investigations are typically carried out by police officers, who gather evidence and compile preliminary reports. If these reports provide sufficient grounds, judges at the Magistrate Court level will then frame charges against the accused individuals. This process ensures that there is a legal basis for proceeding with the case in court.[13]. As a common law country[14], the Sri Lankan judiciary operates within an adversarial judicial system, which means that the role of judges is primarily to oversee the legal proceedings between opposing parties rather than to actively investigate the matters at hand. This contrasts with the inquisitorial system found in many civil law countries, where judges take a more active role in investigating cases. In the adversarial system, the responsibility for presenting evidence and arguments lies largely with the parties involved, and judges serve to ensure that the legal process is followed fairly and impartially[15]. In the civil law tradition, the judge plays a pivotal role in guiding the inquiry into disputed matters, aiming to develop a comprehensive set of facts to apply the relevant codified laws for a just outcome. However, it is important to note that judges do not engage in the investigation of cases; this responsibility lies solely with the police or investigation officers. Consequently, judges lack the authority to inquire into the facts themselves.

In common law countries, police investigations play a vital role in the administration of justice. They are tasked with gathering evidence and conducting inquiries, which emphasizes the necessity of an effective investigation system to secure justice for victims. This distinction illustrates the differing functions of judges and investigative bodies within various legal traditions.

United Nation Convection against Transnational Organized Crimes has highlighted the importance of having a robust legal framework against organized crimes such as human trafficking[16].

 

Importance of Cooperation and Collaboration

Given that trafficking in persons constitutes an organized crime, perpetrators may be involved in this egregious network while present in the country of destination, transit, or origin. Under the domestic laws of each nation, practical challenges may arise in effectively conducting investigations when such offenses occur beyond the territorial boundaries of any given country. The jurisdiction of local courts may be constrained by considerations of national sovereignty of the country of origin, transit or destination.

In this backdrop, international cooperation is indeed crucial in the fight against human trafficking. The measures you mentioned, such as extradition, mutual legal assistance, and joint investigations, are vital for effectively addressing this complex issue. The United Nations Convention against Transnational Organized Crime emphasizes the need for State Parties to collaborate in these areas to enhance their collective efforts in combating human trafficking and safeguarding victims. By fostering law enforcement cooperation and facilitating the exchange of information on organized crimes, nations can work together more effectively to prevent further victimization and ensure justice for those affected.[17]

 

Intelligence Sharing and Combating Human Trafficking

The utilization of intelligence services is equally important to combat human trafficking. By leveraging intelligence, authorities can effectively prevent the crime, identify its sources, and understand the various stages involved in the trafficking chain. This approach not only aids in the protection of victims but also facilitates the identification and prosecution of perpetrators by ensuring that charges are framed accurately. Overall, intelligence services play a fundamental role in both the prevention and enforcement aspects of combating human trafficking.

 

Lacunas in Domestic and International Law and Mechanism

Domestic situation:

• The initiatives by the Ministry of Defence, Sri Lanka, to introduce the National Intelligence Bill and The Office of National Intelligence Bill are crucial steps towards establishing a comprehensive legal framework for intelligence activities. However, it is important to note that these initiatives are currently pending, highlighting the need for timely legislative action to ensure legal recognition and regulation of intelligence services.
• Human trafficking has indeed evolved into a significant concern within the realm of cybercrime, as traffickers increasingly exploit technology and online platforms to target vulnerable individuals, including children and women. This shift necessitates the development of effective monitoring mechanisms to oversee cyberspace and identify cybercriminal activities. Such measures are essential for the timely detection and prosecution of those involved in human trafficking. Furthermore, it is important to recognize human trafficking as a non-traditional security threat, which poses challenges not only to individual victims but also to the broader security landscape of nations. Addressing this issue requires a coordinated effort among law enforcement, policymakers, and technology experts to create comprehensive strategies that can effectively combat these emerging threats.[18] Having considered above, he Ministry of Defence has indeed initiated the introduction of the Defence Cyber Command Bill. However, it is important to note that the bill has not yet been finalized.
• It is indeed a concerning issue that victims of human trafficking may face further harassment due to a lack of knowledge among law enforcement authorities, as well as potential corruption or negligence. When authorities fail to report facts accurately to the judiciary, it can lead to inadequate legal protection for victims, perpetuating their suffering and hindering justice. This highlights the critical need for comprehensive training and awareness programs for law enforcement personnel, as well as robust mechanisms to ensure accountability and proper handling of human trafficking cases.

 

International loopholes:

• Human trafficking is not universally recognized as an extraditable offense, as its status largely depends on the specific bilateral mutual Memorandum of Understanding (MoUs) established among countries. This means that the ability to extradite individuals for human trafficking charges can vary significantly based on the agreements in place between the nations involved.
• It appears that there is currently no regional Court, Tribunal, or Commission specifically established to address human trafficking issues among the nations in the region. This lack of a dedicated judicial body may hinder the ability to effectively investigate and resolve such matters, particularly in cases where cooperation among nations is necessary for amicable settlements.
• It is noted that there is currently a lack of a regional effective cyber security mechanism specifically designed to combat human trafficking in cyberspace. This gap highlights the need for collaborative efforts among nations and organizations to develop comprehensive strategies and frameworks that can address the complexities of human trafficking facilitated through digital platforms. Establishing such mechanisms would be crucial in enhancing the protection of vulnerable populations and improving the overall effectiveness of law enforcement in tackling this issue.
• It is observed that there is currently no established Regional Anti-Human Trafficking Task Force in place to address the issue of human trafficking within the region. The absence of such a task force may hinder coordinated efforts to combat this serious issue effectively. Establishing a dedicated task force could enhance collaboration among various stakeholders, improve resource allocation, and strengthen the overall response to human trafficking in the area.

 

CONCLUSION

The text emphasizes the critical role of authorized officials in investigating human trafficking. It highlights the importance of thoroughly examining all aspects of the trafficking chain and ensuring that victims receive a fair hearing to accurately identify the nature of forced criminality. This approach advocates against making presumptive charges based solely on the examination of offenders’ patterns without considering the victims’ perspectives.

Furthermore, the text underscores the necessity of regional cooperation in various legal and law enforcement areas, including extradition, mutual legal assistance, and the exchange of information. Such collaboration is deemed essential for enhancing the efficiency and effectiveness of efforts to combat human trafficking and protect victims in trafficking in persons.

 

RECOMMENDATIONS

• The recommendation to formulate a Regional Convention against Human Trafficking and Human Smuggling aims to enhance collaboration among nations in addressing these critical issues. Such a convention would provide a structured framework for countries to work together, share resources, and implement effective strategies to combat human trafficking and smuggling. By fostering cooperation, nations can strengthen their collective response, improve victim support services, and enhance law enforcement efforts to dismantle trafficking networks.
• Establishing a Regional Court or Tribunal to prosecute human traffickers and human smugglers is indeed a recommended approach. This initiative would not only enhance the legal framework for addressing these serious crimes but also promote cooperation among nations. By creating a specialized judicial body, countries can work together more effectively to combat human trafficking and smuggling, share resources, and ensure that perpetrators are held accountable across borders. This collaborative effort is essential for addressing the complexities of these issues on a regional scale.
• The recognition of human trafficking as an extraditable offense at least within the region, along with the establishment of mutual Memoranda of Understanding (MoUs) as outlined in the Regional Convention, signifies a collaborative effort to combat this serious crime. This framework facilitates cooperation among member states, enabling them to extradite individuals involved in human trafficking and enhance their collective response to this issue. Such measures are crucial for strengthening legal frameworks and ensuring that perpetrators are held accountable across borders
• The recognition of forced criminality as a component of human trafficking is an important aspect of addressing the complexities of this issue. By including exceptional clauses in the Regional Convention, it aims to provide necessary safeguards for victims. These safeguards are crucial in ensuring that individuals who are coerced into criminal activities are not further victimized by any legal system. This approach emphasizes the need for a comprehensive understanding of human trafficking that encompasses various forms of exploitation, thereby enhancing the protection and support available to victims.
• The establishment or upgrade of any Regional Anti-Human Trafficking Secretariat is a strategic initiative aimed at enhancing awareness and addressing the multifaceted challenges of human trafficking. This Secretariat would focus on several key areas:
• • Awareness Enhancement: It would work to increase public and institutional awareness about the realities and implications of human trafficking, thereby fostering a more informed community.

• • Policy Decision-Making: The Secretariat would play a crucial role in formulating and recommending policies that effectively combat human trafficking at the regional level.

• • Technology Sharing: By facilitating the sharing of new technologies, the Secretariat would enable law enforcement and other stakeholders to utilize advanced tools and methods in their anti-trafficking efforts.

• • Capacity Building: The Secretariat would focus on building the capacity of law enforcement authorities and Domestic Anti-Human Trafficking Task Forces, ensuring they are well-equipped to tackle trafficking issues effectively.

• • Collaboration with Entities: It would also engage with various anti-human trafficking organizations and entities to create a cohesive and collaborative approach to combatting this issue.
• The establishment of a Regional Anti-Human Trafficking Task Force is a strategic initiative aimed at combating human trafficking within the region. This task force will operate under the auspices of the Regional Anti-Human Trafficking Secretariat, which will provide the necessary oversight and coordination. The task force wills likely focus on collaboration among various stakeholders, including law enforcement agencies, non-governmental organizations, and community groups, to enhance efforts in prevention, protection, and prosecution related to human trafficking. This collaborative approach is essential for effectively addressing the complexities of human trafficking and ensuring a comprehensive response to this critical issue.
• The establishment of a Regional Cyber Security Centre aimed at combating human trafficking in cyberspace is a significant initiative under the auspices of the Regional Anti-Human Trafficking Secretariat. This center will likely focus on enhancing cyber security measures, developing strategies to identify and prevent online human trafficking activities, and fostering collaboration among regional stakeholders. By leveraging technology and expertise, the center aims to create a safer digital environment and effectively address the challenges posed by human trafficking in the online realm.
• The establishment of a Regional Anti-Human Trafficking Information Gathering, Exchange, and Intelligence Service Centre is a strategic initiative aimed at enhancing the effectiveness of anti-human trafficking efforts within the region. This Centre will operate under the auspices of the Regional Anti-Human Trafficking Secretariat, facilitating the collection, analysis, and dissemination of critical information related to human trafficking activities. By fostering collaboration among member states and relevant stakeholders, the Centre aims to improve intelligence sharing, support law enforcement operations, and ultimately contribute to the prevention and eradication of human trafficking in the region.
• Providing legal representation for victims of human trafficking from their country of origin is a crucial aspect of ensuring justice and support for these individuals. It allows victims to present their cases effectively before tribunals or courts, ensuring that their rights are upheld and that they receive the necessary legal assistance to navigate complex legal systems. This representation can help in securing appropriate remedies, including compensation and protection, and can also play a vital role in raising awareness about human trafficking issues within the legal framework. It is essential that such legal support is accessible, culturally sensitive, and tailored to the specific needs of the victims to facilitate their participation in legal proceedings.
• To enhance collaboration and cooperation among law enforcement authorities, judicial officials, intelligence officers, and task force members in regional countries, it is essential to implement a variety of initiatives. These may include organizing seminars, workshops, and training sessions that focus on best practices and shared challenges. Additionally, providing scholarships for further education and hosting conferences can facilitate knowledge exchange and strengthen professional networks. Such efforts will foster a more integrated approach to addressing regional security issues and improve overall effectiveness in law enforcement and judicial processes.

 

REFERENCES

Legislations:

1. United Nation Convention against Transnational Organized Crimes – General Assembly Resolution 55/25 of 15^th November, 2000.
2. Protocol to Prevent, Suppress and Punish Trafficking in persons, especially Women and Children, Supplementing the United Nation Conventional against Transnational Organized Crime.
3. Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime.
4. Universal Declaration of Human Rights.
5. The Constitution of the Democratic Socialist Republic of Sri Lanka.
6. Evidence Ordinance of Sri Lanka.
7. The Act No. 15 of 1979, The Code of Criminal Procedure of Sri Lanka.
8. The Penal Code of Sri Lanka.
9. SARC (South Asian Association for Regional Cooperation) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution.
10. The Act No. 30 of 2005, the Convention on preventing and Combating Trafficking and Women and Children for Prosecution Act of Sri Lanka.
11. Co29- Forced Labour Convention, 1930 (No.29).

 

Textbooks and Journal Articles: 

1. Fundamental Rights and the Constitution by R KW Goonasekare, Published by Law and Society Trust of the Open University of Sri Lanka in 1988.
2. Labour Migration Research on Sri Lanka by Madushika Lansakara, Published by International labour Organization in 2022.
3. Learning from Provincial and District Responses to Trafficking in persons for forced criminality by Harley Hamilton (World Vision), George May(UNDP), Ingpat Pakchairatchakul(UNDP) & Saphasakon Songsukkai(World Vision) published by UNDP in 2023.
4. The Impact of the Dark Web on Internet Governance and Cyber Security, “Center for
5. The Impact of the Dark Web on Internet Governance and Cyber Security, “Center for by M. Chertoff, T. Simon, published by International Governance Innovation and Chatham House” Publishing House, Canada, 2015; p. 3.
6. Immerging Trends of Human Trafficking in Sri Lanka; Trafficking for Forced Criminality published by International Organization for Migration in 2023.
7. Forced Labour, Modern Slavery and Human Trafficking published by International Labour Organizationin 2022, available at: https://www.ilo.org/global/topics/forced-labour/land–end/index.htm
8. Comparing Methods for Detecting Child Exploitation Content Online by B. Westlake, M. Bouchard, R. Frank, published in European Intelligence and Security Informatics Conference (2012)” Publishing House, 2012: p. 156.
9. The Effect of Globalization on Human Trafficking and Forced Servitude by Luz Estella Nagle published in “Wisconsin International Law Journal, Vol. 26, No. 1, 2008” Publishing House, 2008 pp. 131–162.
10. The Art of Deception: Controlling the Human Element of Security by K. D. Mitnick, W. L. Simon in “Wiley Pub” Publishing House, Indiana, 2002.

 

[1] Article 02 of the Forced Labour Convention, 1930 (N0.29)

[2] Section 7 of the Penal Code (Amendment) Act, No.16 of  2006

[3] Collection of Legal Maxims in Law and Equity by S.S.Piloubet.

[4] Article 11 of the Universal Declaration of Human Rights.

[5] Article 13 (5) of the Constitution of the Democratic Socialist Republic of Sri Lanka, Chapter – (III).

[6] (1982) 3SCC 235.

[7] Article 13(5) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

[8] Section 101 of the Evidence Ordinance of Sri Lanka.

[9] 1986 1SLR 230.

[10] Article 13(3) of the Constitution of the Democratic Socialist Republic of Sri Lanka.

[11] Section 83& 87 of the Penal Code, Chapter (IV).

[12] Chapter (VI), the Offences against the State.

[13] Sections 109- 125 of Act No.15 of 1979, the Code of Criminal Procedure, Section 182 of the Act No.15 of 1979, the Code of Criminal Procedure.

[14] Common law country is a nation where the legal system is based on judicial decisions and precedence rather than solely on written laws or statutes.

[15] A civil law country is defined as a nation that follows a legal system based on a comprehensive written set of laws covering various areas.

[16] The Article 11 of the United Nation Convection against Transnational Organized Crimes.

[17] Articles 13, 16, 17, 18, 19, 21, 25, 27, 28 of the United Nation Convection against Transnational Organized Crimes.

[18] American Intelligence Journal- Threats from non-traditional actors by Jennifer A. Davis, Publisher- National Military Intelligence Foundation, 2011 Vol.29.