Corruption and Human Trafficking

TABLE OF CONTENTS

EXECUTIVE SUMMARY??

I.???????????INTRODUCTION

II.??????????TRAFFICKING IN PERSONS - THE DEFINITION???????

III.?????????CORRUPTION - THE DEFINITION

IV.????????THE INTERSECTION BETWEEN TRAFFICKING IN PERSONS AND CORRUPTION???

a.??????????The Acts - Transfer????????

b.??????????The Means - Threat and abuse of a position of authority

c.??????????The Purpose - Sexual exploitation???????????

V.??????????QUID PRO QUO

a.??????????Sexual Bribes????

b.??????????Sextortion?????????

VI.????????CORRUPTION AMONG CRIMINAL JUSTICE PRACTITIONERS AND DIPLOMATS??????

a.??????????Law Enforcement???????????

b.??????????Judiciary????????????

c.??????????Diplomats?????????

VII.???????PROPOSED INTERVENTIONS??????

a.??????????Establishing Monitoring Mechanisms in the Banking Systems??????

b.??????????Regulating Prepaid Financial and Communication Services???????????

c.??????????Recruitment of Public Officials??23

d.??????????Community Awareness

e.??????????Invoking the Persona Non Grata Principle????????????

f.???????????Suppressing Diplomatic Immunity via “Jus Cogens”?????????

g.??????????Adopting a Narrower Interpretation of Article 3 of Vienna Convention on Diplomatic Relations, 1961??????????

VIII.??????CONCLUSION

EXECUTIVE SUMMARY

For decades, legal scholars and practitioners have attempted to develop strategies, model laws, and national action plans to counter trafficking in persons (hereafter, “TIP”). These interventions focused mostly on the supply and demand sides of TIP. For example, on the demand side, countries have enacted domestic legislation to prosecute perpetrators of TIP, such as exploitive commercial sex, and cheap labor. On the supply side, countries implemented development plans for economic development and education, which are the primary reasons for the increased supply in labor and sexual exploitation.

The purpose of this paper is to offer a new approach in countering TIP by targeting corrupt public officials who could be directly involved in exploitative practices, such as diplomats abusing domestic workers. Others could be indirectly involved through the recruitment or transfer of victims, such as employees in the visa sections. The latter are the most dangerous as they are better equipped, through their jobs, to provide means for the exploitation of multiple victims. A diplomate employing a domestic worker can only exploit their worker. An employee in a visa section, however, can issue multiple visas for potential victims of TIP every single day.

The first section of the paper presents a general background on the significance of integrating corruption in the fight against TIP. The second and third sections provide definitions for TIP and corruption. Section four establishes the relationship between corruption and the different constituting components of TIP. Part five offers examples of corruption cases committed by criminal justice practitioners. Finally, part six proposes several interventions to counter corrupt public officials.

I.??????????INTRODUCTION

Let us remember that the officers of the slave ships were for the most part educated people, like you and me. Yet they were apparently at ease in their role. Instead of recognizing the slaves as fellow human beings, they looked on them as simple merchandise. This reminds us how easy it is to blind ourselves to the suffering of fellow creatures, so long as our own comfort and security are not threatened. We should all look carefully at our own lives, and ask what abominations we may even now be tolerating, or joining in, or benefiting from

?– Kofi Annan, former UN Secretary General

For as far back as the legal community realized the need to counter TIP, countries' efforts have been directed towards addressing the supply and demand sides, which is a challenging, yet less effective approach. To address the supply side, governments are required to reform their economies and educational systems, in order to create more job opportunities and provide individuals with proper education that enables them to avoid falling into exploitative situations, for example, learning their rights under labor laws, etc. On the other hand, an effective demand-side requires international cooperation between different jurisdictions and firm domestic legislation that criminalizes all forms of TIP for effective deterrence. The latter approach could get more complicated as it will most likely involve multiple jurisdictions due to the transnational nature of the crime.

Why not cut the process into one efficient step? Instead of running around trying to catch the bad guys who are scattered across different jurisdictions, prosecuting the public officials who facilitated the criminal act is easier. They are often within the jurisdictional reach of countries and those who are serving in diplomatic missions are subject to their respective countries’ jurisdictions and cannot invoke diplomatic immunity.

Corruption functions as an intermediary between the supply and demand sides. It is like a bank that executes a financial transaction, without it, neither party of the supply and demand will get together to complete the criminal act.?

It is so important to address the role of corruption in transnational organized crime, especially TIP. Unlike drug trafficking and illicit trafficking on firearms, the human asset in TIP crimes does not perish. It can be exploited many times and continue generating profit for the criminal organization. One main repercussion of having such a sustained criminal asset is that it hinders the ability of law enforcement to detect the crime as it progresses because perpetrators do not have to keep committing the act of transporting victims of TIP over and over in order to create profit.?

II.?????????TRAFFICKING IN PERSONS - THE DEFINITION

Dealing with transnational crime, for the most part, like TIP[1] requires understanding the international legal framework that defines it.

According to Article 3(a) of the UN Protocol to Prevent, Suppress, and Punish TIP (hereafter, "Palermo Protocol"), TIP is:

The recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs

According to this definition, in order to establish the crime of TIP, three main elements must be present, an act, a mean, and a purpose of exploitation. The absence of any of these three elements means that the committed crime is anything else but TIP. For example, if the perpetrator committed the act via the prescribed means under Palermo Protocol, but without the purpose of exploitation then the crime committed is kidnapping, not TIP.

It is worth noting that in many cases, the completion of TIP crimes is facilitated through the assistance provided by corrupt public officials as it shall be presented later in the paper. Therefore, combating corrupt public officials will dramatically reduce TIP crimes, at least the cases that are carried out transnationally. ??

III.???????CORRUPTION - THE DEFINITION

The United Nations Convention Against Corruption (hereafter, "UNCAC") does not offer a definition for corruption; however, it provides a list of criminal acts that are considered corrupt practices, for example, “bribery of national public officials” under article 15, and “embezzlement, misappropriation or other diversion of property by a public official” under article 17.

To create a context for this paper, the definition that will be used throughout the text is the one provided by the World Bank and the International Monetary Fund (hereafter, "IMF"), which provides that corruption is “the abuse of public office for private gains."[2] It is worth noting that this definition is also adopted by Transparency International (hereafter, “TI”) that defines corruption as “the abuse of entrusted power for private gain.”[3] According to TI “corrupt officials [include] individuals … [who] employ cheap domestic help who have been trafficked.”[4]

These private gains could be sexual or pecuniary. Thus, establishing the crime of TIP does not require a?quid pro quo?as opposed to other corruption crimes under the Foreign Corrupt Practices Act (hereafter, as “FCPA”).

IV.???????THE INTERSECTION BETWEEN TRAFFICKING IN PERSONS AND CORRUPTION

a.?????????The Acts - Transfer

In light of the definition under section II, the acts that constitute the TIP are “recruitment, transportation, transfer, harboring or receipt of persons.”

Of the above-mentioned acts, “transfer” is the most common in TIP cases that involve public officials. Other less common TIP crimes, such as domestic servitude and coerced sex, could involve recruitment and harboring by public officials as later discussed under section VI.[5]?

In the context of TIP, “transportation” and “transfer” should not be used interchangeably as they are significantly different. The act of facilitating the “transfer” of the victims of TIP is established by providing the mean(s), whether legal (entry visas or passports), or physical (providing car rental service). Thus, the person providing the “transfer” is not necessarily the same person transporting the victims. ?

Against this backdrop, “transfer” services are almost always carried out by public officials who provide the legal means for organized criminal groups to “transport” their victims across borders.

b.?????????The Means - Threat and abuse of a position of authority

As shall be presented under section VI of this paper, public officials implicated in TIP usually resorted to abusing their position of authority to threaten their victims, for example, one police officer threatened his victims using his badge or gun, a diplomat abused his immunity to evade prosecution, and a judge threatened his victims with arrest or eviction.

c.?????????The Purpose - Sexual exploitation

In cases where public officials were involved in TIP, sexual exploitation and domestic servitude were almost always the purposes of exploitation.

V.????????QUID PRO QUO

A sound legal argument might suggest that there is no?quid pro quo?in the TIP corrupt practices committed by many public officials; therefore, it is inaccurate to construct these practices as TIP.

This argument is true if the public officials were to be prosecuted under the Bribery of public officials and witnesses statute,18 U.S.C.A. §§ 201(a)(3), 201(b)(2)(A).[6] However, in TIP crimes, they are not prosecuted for bribery, but as perpetrators of TIP.

According to Article 3(a) of the Palermo Protocol, the crime of TIP is completed once the purpose of exploitation is satisfied through certain acts and means.

A?quid pro quo?is inapplicable in a case where a police officer harbors a girl in his place by abusing his authority to sexually exploit her since the girl did not voluntarily provide for the officer’s sexual gratification. ?

Whether a government official receives financial benefits to provide certain services in their official capacity that otherwise would not be obtained,?a quid pro quo?is irrelevant in establishing their involvement in TIP, for instance, an employee working in the visa section and is paid by a criminal organization to facilitate the transfer of women from the country of origin can be prosecuted despite the lack of a?quid pro quo?from the criminal organization. Since the employee provided the mean of transfer, which, otherwise, would have been impossible to obtain, a prosecutor needs only to prove there was a?mens rea. The Palermo protocol requires "transfer" as one of three elements to establish TIP and it does not require a?quid pro quo.?In fact, a?quid pro quo?was never mentioned in the text of the United Nations Convention Against Transnational Organized Crime (hereafter, "UNTOC"), its supplementary Palermo Protocol, or their legislative guidelines.??

a.????Sexual Bribes

It is worth noting that there is a distinction between sexual bribes and TIP. The former involves a voluntary?quid pro quo?by the provider of the sexual service to obtain a benefit, for example, a job, a promotion, or something of value. The latter, however, does not involve obtaining any benefit. On the contrary, sexual exploitation does not translate to any improved conditions, but rather maintaining an exploitative situation.?

Unlike sexual bribes, a victim of TIP does not have the power to end the exploitative condition whenever they want, although they could be free to move and leave the premises in which they are being exploited. For example, a domestic servant working for a diplomat in a foreign country could be a victim of TIP despite the lack of forced confinement to limited space. They are still a victim as they cannot end the exploitative situation due to other control methods, such as debt bondage, or the need for the little money they are getting paid (a situation described as the "abuse of the position of vulnerability" under Article 3(a) of the Palermo Protocol), fear of harm, threat, etc...?

b.????Sextortion

According to the International Association of Women Judges, “sextortion” is the involuntary offering of sexual activity to obtain a benefit. It requires two components, sexual and corruption. The sexual component involves an implicit or explicit sexual request. The corrupt component requires that the sexual request be made by a person in a position of authority for?a quid pro quo?exchange; through psychological coercion rather than physical force.[7]

TIP, on the other hand, must involve involuntarily means of control over the victim, and the end purpose does not have to be sexual. It could be domestic servitude, forced labor, or the removal of organs.??

Accordingly, a?quid pro quo?is not a prerequisite to constructing TIP crimes since victims can neither end their exploitative conditions anytime they want, nor obtain any benefit from their exploitation other than sustaining the status quo of exploitation.

VI.???????CORRUPTION AMONG CRIMINAL JUSTICE PRACTITIONERS AND DIPLOMATS

a.?????????Law Enforcement

Police corruption is referred to as the ‘acts of misconduct by police officers aimed at obtaining financial benefits or other personal gains in exchange for selectively enforcing or manipulating rules, as well as the conduct of investigations and arrests.”[8]

In the US?“significant number of … children are victims of sex trafficking or related offenses, at the hands of police officers.”[9] The domestic legal framework on TIP in the US, whether through the Trafficking Victims Protection Act (“TVPA”), the Violence Against Women Act (“VAWA”), or the Model Penal Code (“MPC”), did not take into account law enforcement involvement in TIP.[10]

Between 2005 and 2007, 398 law enforcement officers from 43 states and DC were arrested for sexual misconduct, 21% for forcible rape, 9.9% for forcible sodomy, and 7.1% for child pornography.[11]

Below cases are selected from the four regions of the US (Northeastern, Midwestern, Southern, and the Western US). They are fairly recent and involve the same?modus operandi?of the abuse of authority and the position of the vulnerability of the victims.

Washington, DC - In October 2014, a judge in D.C. sentenced 48-year-old Linwood Barnhill, former police officer, to 7 years in prison for “pandering a minor and one count of possession of child pornography.” Barnhill was arrested during a search for a missing 16-year-old girl that led to his home.[12] According to the court, for two weeks, Barnhill was preparing the young girl for a sexual encounter with a man by means that included taking nude pictures of her.

Another 15-year-old girl told the police that she first met Barnhill at a bus stop when he asked her if she might be interested to model for him? He then took naked pictures of her and arranged a sexual encounter for her with another man from whom he collected money and paid her a portion.[13]

Los Angeles, California - Former police officer, Mauricio Edgardo Estrada, was sentenced in November 2017 to five years in federal prison for “using the internet as part of his efforts to solicit a 15-year-old girl to have sex.”[14]

The case was unfolded during an undercover operation by the Los Angeles Regional Human Trafficking Task Force, which posted an advertisement on Craigslist to attract individuals interested in commercial sex with minors.[15]

Estrada responded to the advertisement through e-mail followed by a series of text messages with an undercover agent who pretended to be the 15-year-old girl. According to the court, Estrada agreed to pay $150 to have sex with the girl. When he was attested at the gas station, where they were supposed to meet, he had condoms and around $150 in his possession.[16]

Oklahoma City, Oklahoma - Former police officer, Daniel Holtzclaw, was sentenced to 263 years in prison on December 11, 2015, after forty-five hours of jury deliberation.[17]

During trial, 13 of Holtzclaw’s victims took the stand, including Janie Ligons, a daycare worker in her 50s, who testified that Holtzclaw pulled her over for no legal reason, and had to peform oral sex on him while she was handcuffed to a hospital bedrail after he arrested her for being under the influence. Also, A.G., an 18-year-old woman (17 at the time of the assault), testified that she was threatened by Holtzclaw to attest her and that she was raped on her front porch. Asides from Ligons, all women had criminal records or were involved in drugs of prostitution, and they were preyed upon by Holtzclaw who knew that no one will believe them.[18]

Chicago, Illinois - 62-years-old former police officer with the Chicago Police Department, William Whitley, was sentenced to 25 years in federal prison for engaging in prostitution with minors. Between 2012 – 2016, Whitley paid his underage four victims to engage in sex with him. He encountered three of the victims when they were runaways and two of them were 14 years old when they were assaulted. The investigation also revealed that he shared his status as a police officer with his victims, and that he was in a police car and uniform when he first encountered one of them. Two of his victims added that he used to keep a loaded gun under his pillow when the sexual assault took place.[19]

In addition to the above direct criminal acts and individual cases of human trafficking where police officers obtain monetary benefits through their jobs by sexually exploiting their victims, other cases involved direct collaboration with organized criminal groups.

At a more structured level of corruption, corrupt law enforcement officers collude with organized criminal groups by providing protection for the latter’s illegal activities, and/or conspiring with the criminal groups to commit crimes. The collusion between law enforcement and criminal groups could be in the form of kickbacks that the former collects from drug dealers, and brothels to protect them from other police officers. In other cases, corrupt police officers demand they get paid for leaking information on future police raids and investigations or perverting investigation against involved the respective criminals.[20]

On August 15, 2019, 15 police officers were arrested in Madera, Chihuahua in a joint operation by state and federal authorities. Among them was Madera’s police commander who allegedly provided protection to drug traffickers and obstructed the work of local authorities.[21]

On August 23, 2018, 205 police officers in Tehuacán in central Puebla state?were disarmed and suspended by state authorities and military personnel, 113 other officers were believed to have escaped. The suspension of the entire police unit was for collusion with organized crime and corruption.[22]

One second! There was no mentioning of TIP in the above cases??

True, nevertheless, that does not mean that collusion with drug traffickers excludes TIP. Organized criminal groups use the same?modus operandi?for transporting victims of TIP and drugs. According to Charles K. Edwards, former Acting Inspector General, US Department of Homeland Security (DHS), “the smuggling of people and goods across the Nation’s borders is a large-scale business dominated by organized criminal enterprises. The Mexican drug cartels today are more sophisticated and dangerous than any other organized criminal group [who] turn to corrupting DHS employees.”7 Also, “border control and customs are often infiltrated by Mexican organized criminal groups working on drug and TIP who are in many cases able to cross to the US through urban regions, which are usually heavily guarded, by paying off customs and border control officials.”[23]

b.?????????Judiciary

“Although the behavior of the executive, legislative, and administrative officials tends to be forgiven and forgotten rather expeditiously, the judiciary has seemingly been held to a higher standard. This is consistent with the myth of legality and the legal model of judicial decision-making in which judges are viewed as the neutral voices of wisdom.”[24]

In February 2018, former Judge Timothy Nolan pleaded guilty to 21 counts of human trafficking and unlawful transaction with a minor that dated back to 2004.

The former district Judge employed threat of arrest and eviction to force women and minors into sex. Charges also included giving drugs and alcohol to minors.[25]

In August 2019, former magistrate judge, Carl Alois Hrabovsky, was arrested and charged with sexual exploitation of children, criminal solicitation and furnishing tobacco products to minors.[26]

Although both abovementioned cases do not strictly fall within a conventional scope of corrupt practices, yet, they fit within the definition provided earlier under section III by the World Bank and the IMF that corruption of public officials is “the abuse of public office for private gains.”

c.?????????Diplomats

Diplomatic privileges and immunities are prescribed under Article 31(1) of Vienna Convention on Diplomatic Relations, 1961 (hereafter, as “VCDR”),[27] which provides that “a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction.”

On September 8, 1996, an Indian domestic worker, Swarna, arrived in New York on a G-5 visa[28] to work for a Kuwaiti diplomat, Al-Awadi, who was a Third Secretary for Kuwait's Permanent Mission to the United Nations.[29]

Upon her arrival in New York, Al-Awadi confiscated her passport and visa, paid her $200 to $300 per month instead of $2,000 as per their agreement. The amount she received was sent to her family in India and was not paid directly to her. She lived in Al-Awadi’s apartment and worked approximately seventeen hours a day every day. She was not allowed to leave the apartment, to use the phone, to watch any English-language television in an attempt to prevent her from learning English, or to make her annual trip back to India as she was promised. She was kept from attending Church on Sundays, and she only left the apartment ten to fifteen times during her entire stay for 4 years.[30]

In 2013, Michael T. Sestak, U.S. former Foreign Service Officer, pled guilty to conspiracy, bribery, and money laundering charges for accepting more than $3 million in bribes to issue entry visas for nearly 500 non-immigrants.[31]

Under the plea deal, Sestak agreed to forfeit the proceeds of his crimes that included nine properties he purchased in Thailand with the illicit proceeds and to cooperate with the federal investigation.[32]

Sestak was the Non-Immigrant Visa Chief in the Consular Section of the US Consulate in Ho Chi Minh City, Vietnam from August 2010 to September 2012. His responsibilities included reviewing visa applications, conducting in-person interviews, and issuing entry visas. Four others were arrested for taking part in the conspiracy.[33]

To carry out his scheme. Sestak conspired with other US and Vietnamese citizens who recruited customers that appeared before Sestak at the consulate. He admitted having received between $15,000 to $70,000 from individuals who paid for entry visas between February 2012 and September 2012. Many of them were denied entry visas before.[34]

The entire scheme generated at least $9,780,000 from which Sestak received over $3 million, which he laundered by purchasing nine real estate properties in Thailand worth over $3 million.[35]

VII.?????PROPOSED INTERVENTIONS

a.?????????Establishing Monitoring Mechanisms in the Banking Systems

Unlike other forms of organized criminal activities, TIP interacts extensively with the financial system.

Drug trafficking, for example, is a cash business where criminal proceeds are either held in cash or integrated into the money laundering cycle. Other crimes target money that is already in the financial system, like fraud, which is designed to appear legitimate.[36]?

This significant use of the banking system could be beneficial in mitigating the impact of TIP. One preemptive legislation could compel employers of domestic workers to make a monthly deposit of their workers’ salaries in a US-based bank. This amount shall only be accessible by the workers through in-person cash withdrawals and limited monthly cash withdrawals via debit cards.

This legislation could ensure that the workers are getting paid the amounts prescribed in their contracts and that employers will not coerce them to deduct any amount through reimbursements.

b.?????????Regulating Prepaid Financial and Communication Services

Consider this hypothetical. A person walks into a grocery store and purchases a prepaid debit card with cash. They later use the prepaid debit card to purchase a prepaid cellphone to call a border/passport control officer to arrange for the entry of potential victims of trafficking. Most likely, the officer at the other end of the line is also receiving the call on a prepaid cellphone. The question is, how can prosecutors indict either or both if there is no record that the perpetrator and the officer ever coordinated this criminal scheme?

Prepaid debit cards should be subject to strict regulations that require identity verification at the purchase point and while using it online. This will ensure that the identity of the person using the prepaid card is known to the financial institution and the authorities in case it was used in a criminal act. Prepaid phones should also be subject to the same restrictions that require identity verification and registration over the cellphone carrier. Other regulations could include blocking international phone calls from prepaid phones to other prepaid if either is not registered on a cellphone carrier via valid identity.

c.?????????Recruitment of Public Officials

In Tehuacán’s case of corrupt police officers discussed earlier under section IV(a), “authorities … determined that some of the police should not even be in the force as 20 officers never went through the proper protocols required to become a police officer.”[37]

In May 2018 and in similar circumstances to the Tehuacán case, the state police took charge of the municipality of San Martín Texmelucan when 113 of its 185 officers were not fit to serve.[38]

Ismael Ramos Mendez, a police officer in Mexico City, told Al-Jazeera that in order for a police officer to get promoted and obtain the latest basic equipment, officers need to pay “the quota” to their superiors. He explained that quotas range between $1,000 and $5,000 depending on the level of the job an officer is seeking.[39]

Mendez added that "If you [a police officer] get paid 200 bucks a month, and organized crime comes and gives you $1,000 a month, of course, you're going to take it.”[40]

Corrupt practices of senior police officers who impose quotas force junior officers to resort to corrupt practices, such as receiving bribes, in order to secure a better job. However, things become more complicated for these junior officers as they end-up trapped working with the organized criminal groups in fear of either retaliation or exposure if they decided to leave.

Developing a rigorous hiring process could help diminishing the level of corruption within law enforcement. Ethics is central to police corruption. It is therefore essential to place ethical scrutiny at the heart of the recruitment and selection process in conjunction with service training, in order to create a culture that is intolerant of corruption.[41]

d.?????????Community Awareness

Anti-corruption measures should consider the public as a partner by informing them about anti-corruption initiatives and creating accessible means for reporting. Considering the public as a partner will produce three main benefits. ?

First, educating the public on what is considered corrupt practices will likely have them resisting solicitation for bribes. Corrupt police officers will, as a result, refrain from soliciting bribes, as citizens will report them. This is particularly pertinent to law enforcement who are in more direct contact with the public. Second, the public is a valuable source of information and reporting, thus, tapping public knowledge is instrumental in steering reform strategies and evaluating their success. Finally, once the public is assured that the government is serious about countering corruption, their respect for the criminal justice practitioners will increase. This public's respect is psychologically important for the latter's self-esteem and is a force to advance their effort for countering corruption.[42] ?

e.?????????Invoking the Persona Non Grata Principle

Article 9(1) of Vienna Convention on Diplomatic Relation, 1961 (VCDR) provides that:

the receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be declared non grata or not acceptable before arriving in the territory of the receiving State.

Although this tool could be useful in getting rid of members of the diplomatic missions who might be implicated in TIP crimes. However, declaring a diplomat a?persona non grata?does not provide deterrence to members of the respective diplomatic mission since they are aware that the worst that could happen is sending them back home, and that they won’t face criminal liability in the host country.?

f.??????????Suppressing Diplomatic Immunity via “Jus Cogens”

Jus cogens means “the compelling law.” It holds the highest hierarchical position among all legal axioms of international law, and its principles are deemed peremptory and non-derogable.[43] It is fair to say that jus cogens functions as the international equivalent of public order in national legal systems. ?

According to the doctrine, countries can choose to opt-out of international treaties by placing reservations, withdrawal, or refuse to ratify, but they cannot opt-out of others. In other words, countries can choose not to be bound by certain international laws; however, some international doctrines are so fundamental to humanity that a country’s violation of these doctrines constitutes a?prima facie?violation of international law.

Article 53 of the Vienna Convention on the Law of Treaties 1969[44] provides that:

a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

Following this line of reasoning, by applying?jus cogens?on VCDR, which governs the privileges and immunities of diplomatic missions, a diplomat should be stripped of their immunity in a receiving country if authorities found them implicated in a TIP crime. TIP, including slavery, suppresses diplomatic immunities as it has been condemned by the international community when it was abolished in 1926 by the Slavery Convention, which preceded VCDR.

In?Yousef v. Samantar,[45] the Fifth Circuit of the United States court of appeals affirmed the district court's denial of a head-of-state and a foreign official's immunity. The Court of Appeals argued that “a foreign official may assert immunity for official acts performed within the scope of his duty, but not for private acts where the [official acts] as an individual and not as an official [capacity] ... [thus] a suit directed against that action is not a suit against the sovereign.” The court added that “a foreign official or former head-of-state will therefore not be able to assert ... immunity for private acts that are not arguably attributable to the state.” The court further stated that those acts subject?to jus cogens?norms include “international crimes or human rights violations.”[46]

g.?????????Adopting a Narrower Interpretation of Article 3 of Vienna Convention on Diplomatic Relations, 1961

Few diplomats misuse their immunity to abuse domestic workers knowing that the latter will have no recourse due to the former’s immunity from civil and criminal liability as per Article 3 of VCDR.

For these ill-mannered individuals to face justice, the Second Circuit of the United States Court of Appeals narrowly construed Article 3(1) in Swarna v. Al-Awadi[47] in order to try a Kuwaiti diplomat who abused his domestic worker.

In Swarna, the court, correctly, narrowly construed Article 3 of VCDR by arguing that:

A diplomat enjoys broad personal immunity from civil and criminal jurisdiction while performing the functions of a member of a diplomatic mission.?See?Vienna Convention art. 31. This immunity exists “not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States” Vienna Convention pmbl. cl. 4. For this reason, while?residual?diplomatic immunity applies to the “acts performed by such a person in the exercise of his functions as a member of the mission,” Vienna Convention art. 39(2), it does not apply to actions that pertain to his household or personal life and that may?provide, at best, “an indirect” rather than a “direct ... benefit to” diplomatic functions.[48]

The court construed Article 3 of VCDR in-light of its Article 31 (c), which provides a waiver of absolute immunity in three cases, including “an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.”[49]

The court then examined whether the employment and injury of the domestic worker occurred as part of an official act on behalf of the diplomat? In making its determination, the court adopted a functional consideration. In other words, the court examined whether the contractual relationship and injury were the result of personnel management within the official’s professional responsibility.

The court concluded that since the domestic worker was paid out of the diplomat’s own funds and was working under a G-5 visa, the domestic worker was privately employed by the diplomat and not his respective diplomatic mission.

In Baoanan v. Baja,[50] the court emphasized in determining whether a service is subject to diplomatic immunity or not, it is required to consider the nature of the work. In its opinion, the court stated that “to hold categorically that it is always an official act to employ an individual who works within the four walls of a diplomatic mission—even when, at the time it was contracted for and during the course of the performance of its duties, the nature of that employment is entirely unrelated to the diplomatic agent's functions as a member of the mission—would improperly reward form over substance.”[51]

VIII.????CONCLUSION

Corruption of public officials weakens the rule of law, and the implementation of the supply and demand policies to counter TIP. Its impact extends to the community and could in the long run develop a public tolerance and cultural indifference towards victims of TIP by weakening the ethical standards in society. If the public regards the police to be benefiting from corruption, this could lower the latter’s ethical standards and make them more inclined to engage in criminal behavior. Police corruption in particular can damage a countries’ international reputation if, for example, there is evidence of police involvement in transnational arms, drugs, or TIP.[52]

An effective application of the proposed interventions in section VII requires incorporating them in the international legal framework of UNTOC. However, prior to their incorporation within the convention itself or under its legislative guideline, three substantive terms must be addressed.

“Palermo Protocol” suffers from three major deficiencies that hinder its ability to function independently.?

First, it does not provide a definition for the term “transfer,” which could be offered under its legislative guidelines.

Second, it lacks a definition of corruption in the context of TIP, which does not require a?quid pro quo. Article 2 “Use of Terms” of the UNTOC could include a provision on corruption that refers to the corrupt practices under the UNCAC, while noting that in the cases of TIP crimes, there will be no need for a?quid pro quo.

Third, the UNTOC does not offer a detailed definition of a “public official. Article 8 “Criminalization of corruption” can expand its scope for the purpose of countering corruption of public officials involved in TIP by including the broader definition of a public official as provided under Article 2(a)(b)(c) of the UNCAC, which includes a “foreign public official” and “official of public international organization.” It can also borrow the definition of a diplomat provided under VCDR.?

Once these definitions are provided whether in the text of the UNTOC or its legislative guidelines, the proposed measures can be incorporated under the legislative guidelines for the State Parties to the Palermo Protocol to adopt, except for proposed intervention (e),?Persona Non Grata, which shall remain in the discretion of the executive authority.?

BIBLIOGRAPHY

World Bank, Corruption in Economic Development: Beneficial Grease, Minor Annoyance, or Major Obstacle? 2, Working Paper No. 2048 (1998)

Transparency International, Best practices in addressing police related corruption, available at https://www.u4.no/publications/best-practices-in-addressing-police-related-corruption

Transparency International, Corruption and Human Trafficking, Working Paper No. 03/2011 (2011)

International Association of Women Judges, Naming, Shaming, and Ending Sextortion, 9 (2012), available at https://www.iawj.org/wp-content/uploads/2017/04/Corruption-and-Sextortion-Resource-1.pdf

Samuel Vincent Jones,?Police, Heroes, and Child Trafficking: Who Cries When Her Attacker Wears Blue?, 18 Nev. L.J. 1007, 1009–10 (2018)

Washington 4, Ex-D.C. Cop Linwood Barnhill Jr. Sentenced to 7 Years for Pimping Teen Girls, October 9, 2014, available at https://www.nbcwashington.com/news/local/ex-dc-cop-to-be-sentenced-for-pimping-teen-girls/68655/

Press Release, US DOJ, Norwalk Man Sentenced to Five Years in Federal Prison for Using Internet to Entice Minor to Have Sex (November 21, 2017), available at https://www.justice.gov/usao-cdca/pr/norwalk-man-sentenced-five-years-federal-prison-using-internet-entice-minor-have-sex

Tamara Rice Lave,?The Prosecutor's Duty to "Imperfect" Rape Victims, 49 Tex. Tech L. Rev. 219, 222 (2016)

Press Release, US DOJ, Sex Trafficker Sentenced To 25 Years In Federal Prison For Engaging In Prostitution With Minors (September 13, 2018), available at https://www.justice.gov/usao-ndil/pr/sex-trafficker-sentenced-25-years-federal-prison-engaging-prostitution-minors

U4 Expert Answer, Anti-corruption and police reform, 3 (2010), available at https://www.u4.no/publications/anti-corruption-and-police-reform.pdf

Insight Crime, Entire Police Forces Continue to be Arrested in Mexico, August 21, 2019, available at https://www.insightcrime.org/news/brief/entire-police-forces-continue-arrested-mexico/

Insight Crime, Suspension of Entire Local Police Force Shows Depth of Mexico Corruption, August 27, 2018, available at https://www.insightcrime.org/news/brief/suspension-entire-local-police-force-shows-depth-mexico-corruption/

United States Senate. Hearing before the Ad Hoc Subcommittee on Disaster Recovery and Intergovernmental Affairs of the Committee on Homeland Security and Governmental Affairs, Hearing, June 9, 2011 (S. Hrg. 112-110)

Splintered Justice: Is Judicial Corruption Breaking The Bench? 47 No. 5 Crim. Law Bulletin ART 5

Cincinnati Enquirer, Tim Nolan, judge accused of human trafficking, asks to withdraw guilty plea: 'What is going on?', May 7, 2018, available at https://www.cincinnati.com/story/news/2018/03/29/tim-nolan-judge-accused-human-trafficking-trying-withdraw-guilty-plea/463805002/

Fox 8, Former judge charged with child sexual exploitation, Aug. 11, 2019, available at https://myfox8.com/news/former-judge-charged-with-child-sexual-exploitation/

Vienna Convention on Diplomatic Relations, available at, https://treaties.un.org/doc/Treaties/1964/06/19640624%2002-10%20AM/Ch_III_3p.pdf

Swarna v. Al-Awadi, 622 F.3d 123, 129 (2d Cir. 2010)

Press Release, US DOJ, U.S. Consulate Official Pleads Guilty To Receiving More Than $3 Million In Bribes In Exchange For Visas-Scheme Allegedly Generated More Than $9 Million In Bribes (November 6, 2013), available at https://www.justice.gov/usao-dc/pr/us-consulate-official-pleads-guilty-receiving-more-3-million-bribes-exchange-visas-scheme

Financial Integrity Network, Human Trafficking and its Intersection With the Financial System, 9 (2019), available at https://www.banking.senate.gov/imo/media/doc/Murray%20Testimony%209-3-2019.pdf

MILENIO, San Martín Texmelucan had spurious police, says SSP head, May 3, 2018, available at https://www.milenio.com/policia/san-martin-texmelucan-policia-espuria-titular-ssp-1

Transparency International, Best practices in addressing police related corruption, 2 (2018), available at https://www.u4.no/publications/best-practices-in-addressing-police-related-corruption

United States Institute of Peace, Police Corruption:?What Past Scandals Teach about Current Challenges, https://www.jstor.org/stable/pdf/resrep12415.pdf?refreqid=excelsior%3A7744dc281b79bb81f82dc50df408000b

M. Cherif Bassiouni,?International Crimes: Jus Cogens and Obligatio Erga Omnes, Law & Contemp. Probs., AUTUMN 1996, at 63, 67

Yousuf v. Samantar, 699 F.3d 763, 775 (4th Cir. 2012)

Baoanan v. Baja, 627 F. Supp. 2d 155, 169 (S.D.N.Y. 2009)

REFERENCES?

[1] TIP crimes can be confined within a single country’s border, in which the acts, means, and purpose take place. However, most TIP cases are transnational since victims are easier to intimidate by abusing their position of vulnerability, for example, need for money, debt bondage, or fear of reaching out to law enforcement especially if they were undocumented aliens.

[2] Corruption in Economic Development: Beneficial Grease, Minor Annoyance, or Major Obstacle? 2 (World Bank, Working Paper No. 2048, 1998).

[3] Transparency International, Best practices in addressing police related corruption, 2 (2018), available at https://www.u4.no/publications/best-practices-in-addressing-police-related-corruption (last visited April 8, 2020)

[4] Transparency International, Corruption and Human Trafficking, Working Paper No. 03/2011 (2011)

[5] The individual cases suggest that there are more public officials involved in the acts of recruitment, transportation, harboring, or receipt of victims than those involved in facilitating the victims’ transfer. However, the cases of facilitating the transfer of the victims suggest that they are responsible for creating more victims than the other prescribed acts all together.

[6] The Bribery of public officials and witnesses statute as construed by the court in United States v. Silver, 948 F.3d 538 (2d Cir. 2020), provides that “bribery requires an official to accept a payment, knowing that he is expected to use his office to influence a focused, concrete, and specific question or matter that may be understood to refer to a formal exercise of governmental power; the question or matter need only be focused, concrete, or specific enough to satisfy the quid pro quo requirement.”

[7] Toolkit – Naming, Shaming, and Ending Sextortion, International Association of Women Judges, 9 (2012), available at https://www.iawj.org/wp-content/uploads/2017/04/Corruption-and-Sextortion-Resource-1.pdf (last visited April 6, 2020)

[8] Transparency International, Best practices in addressing police related corruption, 2 (2018), available at https://www.u4.no/publications/best-practices-in-addressing-police-related-corruption (last visited April 8, 2020)

[9] Samuel Vincent Jones, Police, Heroes, and Child Trafficking: Who Cries When Her Attacker Wears Blue?, 18 Nev. L.J. 1007, 1009–10 (2018)

[10] Id.

[11] Id.

[12] Washington 4, Ex-D.C. Cop Linwood Barnhill Jr. Sentenced to 7 Years for Pimping Teen Girls, October 9, 2014, available at https://www.nbcwashington.com/news/local/ex-dc-cop-to-be-sentenced-for-pimping-teen-girls/68655/ (last visited March 6, 2020).

[13] Id.

[14] Press Release, US DOJ, Norwalk Man Sentenced to Five Years in Federal Prison for Using Internet to Entice Minor to Have Sex (November 21, 2017), available at https://www.justice.gov/usao-cdca/pr/norwalk-man-sentenced-five-years-federal-prison-using-internet-entice-minor-have-sex (last visited March 7, 2020).

[15] Id.

[16] Id.

[17] Tamara Rice Lave, The Prosecutor's Duty to "Imperfect" Rape Victims, 49 Tex. Tech L. Rev. 219, 222 (2016)

[18] Id.

[19] Press Release, US DOJ, Sex Trafficker Sentenced To 25 Years In Federal Prison For Engaging In Prostitution With Minors (September 13, 2018), available at https://www.justice.gov/usao-ndil/pr/sex-trafficker-sentenced-25-years-federal-prison-engaging-prostitution-minors (last visited March 7, 2020)

[20] U4 Expert Answer, Anti-corruption and police reform, 3 (2010), available at https://www.u4.no/publications/anti-corruption-and-police-reform.pdf, (last visited April 7, 2020)

[21] Entire Police Forces Continue to be Arrested in Mexico, Insight Crime, August 21, 2019, available at https://www.insightcrime.org/news/brief/entire-police-forces-continue-arrested-mexico/ (last visited, February 19, 2020).

[22] Suspension of Entire Local Police Force Shows Depth of Mexico Corruption, Insight Crime, August 27, 2018, available at https://www.insightcrime.org/news/brief/suspension-entire-local-police-force-shows-depth-mexico-corruption/ (last visited, February 19, 2020).

[23] United States Senate. Hearing before the Ad Hoc Subcommittee on Disaster Recovery and Intergovernmental Affairs of the Committee on Homeland Security and Governmental Affairs, Hearing, June 9, 2011 (S. Hrg. 112-110).

[24] Splintered Justice: Is Judicial Corruption Breaking The Bench? 47 No. 5 Crim. Law Bulletin ART 5

[25] Cincinnati Enquirer, Tim Nolan, judge accused of human trafficking, asks to withdraw guilty plea: 'What is going on?', May 7, 2018, available at https://www.cincinnati.com/story/news/2018/03/29/tim-nolan-judge-accused-human-trafficking-trying-withdraw-guilty-plea/463805002/ (last visited March 23, 2016).

[26] Fox 8, Former judge charged with child sexual exploitation, Aug. 11, 2019, available at https://myfox8.com/news/former-judge-charged-with-child-sexual-exploitation/ (last visited March 9, 2020).

[27] Vienna Convention on Diplomatic Relations is available at, https://treaties.un.org/doc/Treaties/1964/06/19640624%2002-10%20AM/Ch_III_3p.pdf, (last visited, Feb. 29, 2020)

[28] According to the U.S. Department of State – Bureau of Consular Affairs, a G-5 visa may be issued to personal employees, attendants, domestic workers, or servants of individuals who hold a valid G-1 through G-4, or NATO-1 through NATO-6 visa, available at https://web.archive.org/web/20161118235531/https://travel.state.gov/content/visas/en/other/employee-of-international-organization-nato.html (last visited, Feb. 28, 2020)

[29] Swarna v. Al-Awadi, 622 F.3d 123, 129 (2d Cir. 2010)

[30] Id.

[31] Press Release, US DOJ, U.S. Consulate Official Pleads Guilty To Receiving More Than $3 Million In Bribes In Exchange For Visas-Scheme Allegedly Generated More Than $9 Million In Bribes (November 6, 2013), available at https://www.justice.gov/usao-dc/pr/us-consulate-official-pleads-guilty-receiving-more-3-million-bribes-exchange-visas-scheme (last visited March 11, 2020)

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Financial Integrity Network, Human Trafficking and its Intersection With the Financial System, 9 (2019), available at https://www.banking.senate.gov/imo/media/doc/Murray%20Testimony%209-3-2019.pdf (last visited February 15, 2020)

[37] Suspension of Entire Local Police Force Shows Depth of Mexico Corruption, Insight Crime, August 27, 2018, available at https://www.insightcrime.org/news/brief/suspension-entire-local-police-force-shows-depth-mexico-corruption/ (last visited, February 19, 2020)

[38] San Martín Texmelucan had spurious police, says SSP head, MILENIO, May 3, 2018, available at https://www.milenio.com/policia/san-martin-texmelucan-policia-espuria-titular-ssp-1 (last visited February 21, 2020)

[39] Mexico police officers 'underpaid, under-equipped,' Al-Jazeera, August 2, 2018, available at, https://www.aljazeera.com/news/2018/07/mexico-police-officers-underpaid-equipped-180729120903772.html, (last visited, February 21, 2020)

[40] Id.

[41] Transparency International, Best practices in addressing police related corruption, 2 (2018), available at https://www.u4.no/publications/best-practices-in-addressing-police-related-corruption (last visited April 8, 2020)

[42] David Bayley and Robert Perito, "Police Corruption: What Past Scandals Teach about Current Challenges," United States Institute of Peace, https://www.jstor.org/stable/pdf/resrep12415.pdf?refreqid=excelsior%3A7744dc281b79bb81f82dc50df408000b (last visited April 6, 2020). 11

[43] M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, Law & Contemp. Probs., AUTUMN 1996, at 63, 67

[44] According to the United Nations Treaty Collection, the United States ratified Vienna Convention on the Laws of Treaties in 24 Apr 1970, available at, https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXIII-1&chapter=23&Temp=mtdsg3&clang=_en, (last visited, February 28, 2020)

[45] Yousuf v. Samantar, 699 F.3d 763, 775 (4th Cir. 2012)

[46] Id.

[47] Swarna v. Al-Awadi, 622 F.3d 123, 134–35 (2d Cir. 2010)

[48] Id.

[49] Id.

[50] Baoanan v. Baja, 627 F. Supp. 2d 155, 169 (S.D.N.Y. 2009)

[51] Id.

[52] Transparency International, Best practices in addressing police related corruption, 4 (2018), available at https://www.u4.no/publications/best-practices-in-addressing-police-related-corruption (last visited April 8, 2020)

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