Recognition of trafficking of women and girls as a form of violence against women and of its incidence in conflict brings the issue implicitly into the WPS agenda. Christine Chinkin introduces her working paper, which explores this latest disruption of the traditional boundaries in the international legal regime.

In the year since the Centre for Women, Peace and Security’s Working Paper Series was launched a consistent theme has been the interaction of the Women, Peace and Security (WPS)  agenda with other contemporary issues of international affairs, for instance refugee and migration flows, transitional justice processes, sexual orientation and gender identity and examining the silence around violent women. These papers have shown the potential of WPS to become a comprehensive agenda for addressing the ways in which gender impacts upon conflict, and conflict impacts upon gender. My paper International Human Rights, Criminal Law, and the Women, Peace and Security Agenda continues this trend by examining the relationship between these legal regimes in the context of human trafficking.

Heat map of human trafficking activity across the world. By DARPA graphic

The WPS agenda provides a normative framework for addressing the experiences of women in armed conflict, notably prevention of and protection against ‘all forms of violence against women and girls’ (Security Council Resolution 1325, 2000). WPS is not the first international regime for combating gender-based and sexual violence against women and girls; rather it supplements other specialised international legal regimes, notably International Humanitarian Law (IHL), International Human Rights Law (IHRL) and International Criminal Law, each with its own language, objectives and processes. While institutionally separate the overlapping nature of these legal regimes has blurred conceptual boundaries and distinctions between conflict and peace. In 1993 the World Conference on Human Rights at Vienna asserted that: ‘Violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law’ (para 38.) This disruption of the traditional divide between IHL and IHRL supports the notion of a continuum of violence against women between that occurring in ordinary everyday life – peacetime – and that taking place in armed conflict and its aftermath.  In so-called post-conflict violence against women ‘does not stop … and often increases.’ (CEDAW Committee, General recommendation No. 30, para 35).  The separation of crimes against humanity from warfare (Rome Statute, article 7) likewise serves to emphasise the reality of violence across all situations whether termed ‘war’ or ‘peace’.

While the WPS resolutions have incorporated these regimes, another older legal regime for regulation of a particular manifestation of gender-based violence has not been brought explicitly into their scope: human trafficking, especially of women and girls. And while 1325 was ‘conceived of and lobbied for as a human rights resolution that would promote the rights of women in conflict situations’ (p 15) the international fight against trafficking has been primarily through the processes of criminal law enforcement. The Palermo Protocol – the principle legal instrument for combating trafficking – was a product of the UN Crime Commission, not the (then) Human Rights Commission. In response, the Office of the High Commissioner for Human Rights produced Recommended Principles and Guidelines on Human Rights and Human Trafficking that put the human rights of trafficked persons ‘at the centre of all efforts to prevent and combat trafficking. The UN Special Rapporteur on Trafficking, especially women and girls has emphasised that the concern of human rights is not just to ensure that the rights of victims are respected but that human trafficking is understood as ‘a gross human rights violation’. Trafficking in women and girls also constitutes gender-based violence and creates vulnerability to further forms of such violence – rape, sexual abuse, sexual slavery, harassment (para 7).

Bringing sexual violence against women as a tactic of war within the Security Council’s responsibility for the maintenance of international peace and security (Security Council Resolution 1820) and urging a range of measures upon member states and UN agencies securitised such violence and in effect privileged such victims over others who have also been subject to gender-based or sexual violence outside this framework. The security focus of WPS has been sharpened by the recognition that sexual and gender-based violence are ‘part of the strategic objectives and ideology of certain terrorist groups, used as a tactic of terrorism’. States are accordingly called upon to integrate their WPS agendas with those for countering terrorism and violent extremism (Security Council Resolution 2242). This additional politicisation and securitisation of WPS has the potential to move it ever further away from the transformative human rights agenda of the civil society advocates of Resolution 1325. The same has happened with human trafficking. In 2016 the Security Council addressed human trafficking in armed conflict for the first time. (Security Council Resolution 2331, see also Resolution 2388). It recognised the association between conflict-related human trafficking, sexual and gender-based violence in conflict and that addressing trafficking in conflict is part of countering violent extremism and the terrorism.  The Council condemned trafficking in conflict areas and called upon member states to take measures, primarily with respect to criminalising and prosecuting trafficking in the context of armed conflict, and to investigate, disrupt and dismantle trafficking networks in this context. The resolution’s scope is on all armed conflict but its emphasis is on trafficking, terrorism and violent extremism. Human trafficking has long been politicised, by its association with prostitution, with people smuggling and migration flows, and now with terrorism and extremism. As with WPS the Security Council has created a hierarchy of victims, as victims of trafficking in this context are to be treated as victims of terror, eligible for official support and redress. This recommendation does not extend to persons made vulnerable to being trafficked through fleeing from conflict or violence, or to those who have no secure migration routes because of strict border controls and security policies.

Recognition of trafficking of women and girls as a form of violence against women and of its incidence in conflict brings trafficking implicitly into the WPS agenda. This could mean the application of the WPS pillars to trafficking, including women’s participation in decision-making about trafficking. Trafficking has long attracted greater allocation of funding than other forms of violence against women; if such resources were pooled and directed towards trafficking within a WPS framework it could provide a co-ordinated and strengthened human rights-based response.  While the importance of combating violence against women and human trafficking is self-evident, linkage with the countering terrorism and violent extremism agendas threatens the integrity of combating those crimes and seeking the empowerment of women for their own sake and not for the advancement of other political priorities.  This conjunction of legal and policy regimes could strengthen the rights-based approach to human trafficking urged by the human rights institutions, although ensuring that neither trafficking nor WPS are subjugated to the security imperatives of the Security Council remains imperative.

Read more: International Human Rights, Criminal Law, and the Women, Peace and Security Agenda

_______________________________________________________________________

About the author

Professor Christine Chinkin CMG FBA is Emerita Professor of International Law and founding Director of the Centre for Women, Peace and Security.