Prosecuting human traffickers by mobilizing human rights defenders as victims' advocates.

• Author: Bang, Naomi Jiyoung
• Position: Abstract through III. Overview of Relevant Laws and Actors in the Human Trafficking Field B. Players in the Human Trafficking Justice System 3. Public Prosecutors and Law Enforcement, p. 1-24

Abstract

Freed from brick kilns, organ transplant clinics, and brothels, survivors of human trafficking are re-victimized by a "justice " system in Nepal that has been entrenched for decades in legitimized prejudice against the marginalized. As a consequence, former victims of human trafficking find it nearly impossible to navigate through Nepal's opaque judicial system to a successful prosecution of their traffickers. To turn around the laughable conviction rate, the justice system needs articulate and courageous witnesses for the prosecution. This Article proposes a framework to meet this goal.

An under-utilized cadre of foot soldiers--working to expose human rights violations, known as "Human Rights Defenders " (HRDs)--should be mobilized as court advocates in every district of Nepal, to advise victims from police intake through sentencing. Strategically placed and trained, HRDs would provide a cost effective oversight in a legal system that cries out for accountability and change, as well as serve as the eyes of the international community.

1. INTRODUCTION II. COUNTRY BACKGROUND AND RELEVANT CONDITIONS A. History and Geo-Politics B. Social Cultural Factors Affecting Human Trafficking in Nepal 1. The Caste System and Discrimination 2. Gender Issues III. OVERVIEW OF RELEVANT LAWS AND ACTORS IN THE HUMAN TRAFFICKING FIELD A. International Treaties, National Laws, Constitution, and Strategic Plans 1. International Treaties 2. Nepal's Domestic Human Trafficking Laws B. Players in the Human Trafficking Justice System 1. Government Agencies and District Committees 2. The Judiciary 3. Public Prosecutors and Law Enforcement 4. Lawyers IV. PROSECUTION OF HUMAN TRAFFICKING CASES IN THE NEPAL JUSTICE SYSTEM V. WHY HUMAN RIGHTS DEFENDERS? A. There is an Immediate Need and Role for Victims' Advocates in the Court System B. HRDs are Internationally Sanctioned and Protected C. Mobilization of Defenders Follows Nepal's National Strategy for their Judiciary D. Networks of HRDs Are Already Geographically Available throughout Nepal E. HRDs, by Nature, Are Already Committed to Fighting Against Human Rights Violations and Have Experience in the Field F. HRDs have Voiced a Need for Training as Victims ' Advocates VI. INCORPORATING HUMAN RIGHT DEFENDERS AS VICTIM ADVOCATES A. Guidance from Existing Models 1. Guardians Ad Litem 2. Special Victims' Counsel VII. PROPOSED PARAMETERS FOR IMPLEMENTATION OF TRAINING A. Curriculum Should be Culturally, Historically, Socially and Politically Sensitive B. Curriculum Should be Technical and Practical C. Curriculum Should be Human Rights-Focused and Comprehensive D. Proposed Trainers E. Incorporation of Law Enforcement Issues VIII. CONCLUSION I. INTRODUCTION

   Freed from red-hot brick kilns, nefarious organ transplant clinics, seedy brothels, and dangerous construction projects, survivors of human trafficking are re-victimized by a "justice" system in Nepal that is rampant with corruption and entrenched in legitimized prejudice against the marginalized. As a consequence, former victims of human trafficking are unable to navigate through Nepal's opaque judicial system to successfully prosecute their offenders and vindicate their rights. To turn around the laughable conviction rate of human traffickers, the Nepalese justice system needs strong, articulate, and courageous witnesses for the prosecution. This Article proposes a framework to meet this goal. Human trafficking is "about people being bought and sold as chattel," (1) and the Nepalese people are especially vulnerable.

   Although the "Muluko Ain," Nepal's law, recognized human trafficking as a crime as far back as 1963, (2) and the government publically expresses its strong intent to combat trafficking, (3) approximately 200,000 Nepalese women and girls were still found to have been forced into prostitution in India more than a decade ago in 1999. (4) More recently, there was a 60% increase in sex trafficking during the 18 months from May 2013 to September 2014. (5) Nepal is home to the district of Kavre, known as the "kidney bank of Nepal," (6) one the most notorious black markets for organ trafficking in the region. Daily, 1,600 Nepali men are whisked away to Qatar to work under excruciating conditions to build glistening tower hotels and state of the art soccer stadiums for the 2022 World Cup. (7) Young girls, born into lower castes and extreme poverty, are targeted at birth by traffickers and even betrayed by their own communities, some of which believe that their children are fated to lives of sex work. (8)

   An undeveloped judicial system with little tried avenues of redress and protection for victims discourages meaningful prosecutions of traffickers. (9) The rampant corruption and absence of judicial enforcement further contribute to the rising growth of human trafficking in Nepal. (10) "[L]ocal level political apathy, and the chronic lack of law enforcement and political will to address [the] problem" (11) have long been roadblocks to meaningful change in fighting human trafficking, and are reflected in the rapidly increasing statistics of human trafficking victims in Nepal. Over the past decade, many well-meaning experts have painstakingly researched and written exposes about Nepal's fledging and corrupt judicial system, calling for more transparency, monitoring, and training. (12) However, little has improved.

   In light of the dire need for immediate advocacy and protection of human trafficking victims, this Article urgently proposes a stand-alone and easily implementable solution that can gain traction in a poor nation, one that utilizes and expands upon current resources to provide effective representation to victims of human trafficking, and shines a light into an ineffective judicial system. (13) An under-utilized cadre of foot soldiers, tirelessly working to expose human rights violations, known as the "Human Rights Defenders," (HRDs) should be mobilized to stand beside these brave survivors--from police intake through sentencing of the trafficker. The current judicial system should be pressured to hire and train defenders to serve as victims' advocates for survivors of human trafficking. After these defenders are trained, they should be appointed to seek justice on behalf of victims of human trafficking in every region of Nepal.

   This Article boldly and aggressively calls the Nepalese and international communities to immediately identify and build upon the existing human rights defenders in all the districts of the country, mobilize them, and provide practical technical assistance to launch a new breed of human rights defenders in the justice system to serve as victim advocates for victims of human trafficking. In this novel capacity, these advocates could assist victims report to the police, monitor court proceedings, help relocate victims who are being threatened by their traffickers to safe houses and assist prosecutors to gather evidence and locate witnesses, providing a cost effective layer of oversight over a legal system that cries out for accountability and change. With some focused training and coordination, these "barefoot" advocates could impact the judicial process by not only empowering victims in meaningful and personal ways, but also serving as the ever-present "eyes" in the international community.

   Part II of this Article highlights unique factors in Nepal's political, religious, and socio-economic landscape that contribute to Nepal's reputation as a fertile source country for the exploitation of its people into sex trafficking and forced labor.

   Part III of this Article sets forth an overview of the relevant international and national treaties, laws, strategic plans and protocols that negatively and positively affect avenues of relief for human trafficking victims in Nepal's justice system.

   Part IV of this Article summarizes the current framework and process for prosecuting a Human Trafficking case through the Nepalese judicial system, examining the existing procedures that human trafficking victims must currently navigate.

   Part V introduces the Human Rights Defenders (HRDs), their history, current roles, functions and abilities, and sets forth a comprehensive rationale of why mobilizing and training these front-line workers dovetails perfectly and efficiently within the existing justice system (described in Part IV) to enhance chances of success for victims of human trafficking.

   Part VI sets forth this Article's vision of casting Human Rights Defenders as human trafficking victims' advocates into the Nepalese justice system.

   Part VII sets forth some proposed parameters for the implementation of the training of HRDs.

   Part VIII will set forth the conclusions.

2. COUNTRY BACKGROUND AND RELEVANT CONDITIONS

   1. History...