VZCZCXYZ0001
RR RUEHWEB
DE RUEHBU #0501/01 1091448
ZNR UUUUU ZZH
R 181448Z APR 08
FM AMEMBASSY BUENOS AIRES
TO SECSTATE WASHDC 0810
UNCLAS BUENOS AIRES 000501
SIPDIS
SENSITIVE
SIPDIS
G/TIP FOR FLECK, FORSTROM, AND SIGMON
E.O. 12958: N/A
TAGS: ASEC ELAB KCRM PHUM PREL SMIG AR
SUBJECT: ARGENTINA: ANALYSIS OF TIP LAW
REF: A) BUENOS AIRES 465
B) BUENOS AIRES 438
1. (SBU) Summary. Local NGOs and the Argentine government's
National Institute for Anti-Discrimination (INADI) and the National
Ombudsman's Office have criticized the anti-TIP legislation passed
on April 9. Their concern is that adult trafficking victims will
have to prove that they did not consent to their exploitation.
However, under a strict interpretation of the law, even adult
victims who "consented" to exploitation would still be considered
trafficking victims under the law if the state proves any of the
means of trafficking (e.g., by fraud, intimidation, force, abuse of
power or vulnerability, etc.).
2. (SBU) According to legal scholars, the GOA can ensure that
judges, prosecutors, and law enforcement officials properly
interpret and implement the law -- if there is sufficient political
will to do so. The local representative of the International
Organization for Migration (IOM) and other NGOs argue that
Colombia's first anti-trafficking law had similar gaps which
resulted in low prosecutions until amendments were adopted a few
years later. Time will tell whether the Argentine law needs similar
amendments. In the meantime, Post will continue to urge, monitor,
and support vigorous implementation of the anti-TIP law. End
summary.
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Victim's Consent Explained
--------------------------
3. (U) On April 9, the Argentine Congress passed anti-TIP
legislation despite concerted objections from some Members of
Congress and some NGOs over whether an adult trafficking victim can
consent to his or her own exploitation. The debate centers around
article 3(b) of the Palermo Protocol which clarifies that once a
prosecutor not only proves that a suspected trafficker recruited,
transferred, transported, harbored, or received a victim for the
purpose of exploitation, but also used one of the necessary "means"
(i.e., force or other forms of coercion, abduction, fraud,
deception, abuse of power, abuse of a position of vulnerability, or
giving/receiving payments or benefits to achieve a persons'
consent), a victim's consent is not possible, regardless of age, and
therefore legally irrelevant.
4. (U) The law's definition of exploitation tracks with the Palermo
Protocol. In the case of children, the law's article 3 excludes the
"means" element, which also appears to be protocol-consistent.
Article 3 defines trafficking in minors as:
"the recruitment, transportation and/or transfer -
whether domestically or internationally - the
harboring or receipt of persons younger than 18 years
of age, for the purpose of exploitation.
Trafficking in minors exists even when no deception,
fraud, violence, threat or any means of intimidation
or coercion, abuse of authority or a vulnerable
situation, giving or receiving payments or benefits
was used to obtain the consent of a person having
control over the victim."
5. (U) Article 3 of Argentina's law also explicitly states that in
the case of victims under the age of 18 "assent will not have any
effect", i.e., irrelevant. The law, however, does not explicitly
make "assent" irrelevant in the case of adult victims. As a result,
IOM, various NGOs, and government agencies such as the National
Institute of Anti-Discrimination and the National Ombudsman's Office
have argued the law falls short of Argentina's Palermo Protocol
obligations.
6. (SBU) Instead, article 2 of the law defines trafficking of adults
aged 18 and over as:
"the recruitment, transportation and/or transfer -
whether domestically or internationally- the harboring
or receipt of persons older than 18 years of age, for
the purpose of exploitation, by means of deception,
fraud, violence, threat or any means of intimidation
or coercion, abuse of authority or a vulnerable
situation, or of the giving or receiving of payments
or benefits to obtain the consent of a person having
control over the victim, even if the victim assented."
One penal expert told us that a strict interpretation of this
article would mean that even if an adult victim consented to his or
her own exploitation, they would be considered trafficking victims
under the law if the state proves any of the means of trafficking
(e.g., by fraud, intimidation, force, abuse of power or
vulnerability, etc.). A university law professor noted that the word
"assent" in legal terminology means "passive consent", but many
attorneys would most likely not make this distinction, and would use
it interchangeably with "consent". This expert believed that the
law's intent is clear: adult trafficking victims should receive due
protection under the law regardless of consent. Still, both experts
acknowledge that strong political will from the GOA is required to
ensure that judges, prosecutors and law enforcement officials
properly interpret and implement the law.
7. (SBU) The local IOM office, some local NGOs, and some members of
the Argentine Congress maintain, however, that the law is subject to
misinterpretation precisely because the law does not explicitly
state that "assent" is irrelevant in the case of adult victims.
They point out that Colombia's first anti-trafficking law had
similar gaps which resulted in low prosecutions until amendments
were adopted a few years later. IOM Country Representative Eugenio
Ambrossi explained that if law enforcement, prosecutors, or judicial
officials do not wish to investigate a possible TIP crime, they may
stop the line of questioning by establishing that a victim initially
consented and hence, dismissing the case. Citing the level of
corruption in Argentina, he speculated that most officials would
stop at the first line of questioning.
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Other Provisions
----------------
8. (U) Article 5 of Argentina's anti-TIP law establishes that
"trafficking victims can not be punished for committing any crime
that is the direct result of having been a trafficking victim." It
also states that victims will not be subject to penalties arising
from migration violations when the violations are a direct result of
having been a trafficking victim. Article 6 outlines a victim's
right to:
-- Receiving information on their rights in a language they
understand, and in a manner that is appropriate to their age and
maturity;
-- Receiving appropriate housing, maintenance, enough food and
appropriate personal hygiene;
-- Receiving free psychological, medical and juridical assistance;
-- Testify under protection and care;
-- Protection against any possible retaliation against the victim or
the victim's family, participate in Argentina's national witness
protection program;
-- The adoption of necessary measures to guarantee their physical
and psychological integrity;
-- Be informed of the status and evolution of trial proceedings;
-- Keep their identity protected
-- Remain in-country, in conformity with existing legislation
-- Have their return to their place of residence facilitated; and
-- Voluntarily gain free access to assistance.
In the case of minors, Article 6 stipulates that in addition to the
aforementioned rights, under no circumstance will they be compelled
to face their captors. In addition, measures to protect minor
victims can not be used to restrict their rights or guarantees, nor
deprive them of their freedom. Finally, the law states that
authorities will seek to reintegrate minor victims with their
nuclear or extended family or community.
9. (U) Article 7 states that under no circumstance will prisons,
jails, police stations or detention centers be used to house
trafficking victims. Article 8 establishes that trafficking victims
have the right to privacy, identity protection, and confidential
trial proceedings. Article 9 directs Argentine diplomatic and
consular representatives to provide assistance and facilitate the
return of Argentine trafficking victims abroad, should they ask for
such assistance.
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COMMENT
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10. (SBU) The local IOM representative, some Members of Argentina's
Congress, and a number of interested NGOs have valid concerns that
the law's omissions may result in a misapplication of the law. Only
time will tell if the GOA and the judicial branch have the political
will to make it work. In the meantime, Post will continue to urge,
monitor, and support vigorous implementation of the anti-TIP law.
WAYNE