RF_DIS_2_L_PART_1_SUDHA.pdf · Community Health

RF_DIS_2_L_PART_1_SUDHA

7/18/03

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19-20 July 2003 BangAlcro Xadia

Tcsit^vc Schedule
...40 n*
AQ.V / .4.wva

of OuUtadon Participants

Saturday i 9.O7.2QII3

8.30 AM

Arrival of Participants from Bangalore

RSOAMto 930AM

Registration

9,30 AM to 10,00 AM

Welcome and Introductions

10.00 AM tn 11.30AM

TtrAffirdr a
Political Imaginary
Presentation on the Courts of Women

11.30 .\M to 11.45 .IM

Tea

11.45 .IM to 1245 PM

Ovorriew of South Asia Court of Women on the Violence of
Tr^ki^/IITVAIDS
issues, concerns ano Bxpectatiotis

12.45 PM to 1.00 PM

Clarifications/ Discussions

100PM tn 7 00 FM

I nnch

no n* « 4 > 4 nn w»

»■»«

A X»A iV **.W A 4?

Panel PrcscntatiGns
Rn^uluiiott ofTtctffiokinji andIHV/AIDS: A Ciiiiutl Guquuy into
legal ana poiiucai implications

Violence and Vulnerabilities: Trafficking, HIV/ AIDS, Prostitution
and Migration
4.W PM to 4.15 PM

Tea

4.15FM luu^GFM

SiMall Group Di^u&siou

7.00 PM

Departure for Bangalore Participants

SUNDAY 40.074003

8.30 AM

Arrival of Participants from Bangalore

9.00AM to 11.30AM

Pane! Presentations
Globalisation, Militarisation and Conflict. A conceptual frame
work for trafficking /HTV /AIDS
HIV/ AIDS. Trafficking and Human Rights'. Some debates and
dilemmas

11.30AM to 1.30PM

Small group discussions

1.30PM to 2.30PM

Lunch

2.30PM to 5.30PM

Presentation of Small Group Discussions

Tsxiiw for follow tin al (he Smith Asia Cmirl ofWomwi on
Trafficking and HIV/AIDS
fi.WPM

AH Participants depart to Bangalore

MOMDAY 21.07.2003

11.30A.M

Press Conference in Bangalore

Appendix C
Provisional World Heath Org-ani^ation Clinical Case Definition
for AIDS CBanguD
(The following information is quoted from Chirimuuta,
Richard and Rosalind, pp. 171-172, who referenced
WHO's Weekly Epidemiological Record No. 10, March 7,
1986, page 71.)

case definition was developed at a WHO Workshop on
AIDS held in Bangui, Central Africian Republic, 22-24
October, 1985. This definition was reviewed and slightly
adapted at the Second Meeting of the WHO Collaborating
Centres on AIDS as follows;

A clinical case definition is needed in countries where
diagnostic resources are limited. A provisional clinical

Adults
AIDS in an adult is defined by the existence of at least 2 of the major signs associated with at least 1 minor sign, in the
absence of known causes of immunosuppression such as cancer or severe malnutrition or other recognized etiologies.
1. Major signs

(a) weight loss > 10% of body weight;
(b) chronic dianhoea > 1 month;
(c) prolonged fever > 1 month (intermittent or constant).

2. Minor signs
(a) persistent cough for > 1 month;
(b) generalized pruritic dermatitis;
(c) recurrent herpes zoster;
(d) oro-pharygeal candidiasis;
(e) chronic progressive and disseminated herpes simplex infection;
(f) generalized lymphadenopathy.
The presence of generalized Kaposi's sarcoma or cryptococcal meningitis are sufficient for the diagnosis of AIDS

Children
Paediatric AIDS is suspected in an infant or child presenting with at least 2 of the following major signs associated with
at least 2 of the following minor signs in the absence of known causes of immunosuppression such as cancer or severe
malnutrition or other recognized etiologies.
I. Major signs
(a) weight loss or abnormal slow growth;
(b) chronic diarrhoea > 1 month;
(c) prolonged fever > 1 month.
2. Minor signs
(a) generalized lymphadenopathy;
(b) oro-pharygeal candidiasis;
(c) repeated common infections (otitis, pharyngitis, etc.);
(d) persistent cough;
(e) generalized dermatitis;
(f) confirmed.maternal 1.AV/I IT1 V-lII infection.

Uncommon. Questions — 35

Appendix D
Factors Known to Cause Fal0e~Po£itive HIV Antibody Tests Results
Anti-carbohydrate antibodies52, 19,13
Naturally-occurring antibodies5,19
Passive immunization: receipt of
gamma globulin or immune globulin
(as prophylaxis against infection
which contains antibodies)18, 26, 60, z1,
22, 42, 43, 13

Leprosy2, 25
Tuberculosis25
Mycobacterium avium25
Systemic, lupus erythematosus15, 23
Renal (kidney) failure48,23, 13
Hemodialysis/renal failure56,16,41 • 10,49
Alpha interferon therapy in hemodialysis
patients54
Flu36
Flu vaccination30, 11, 3' 20, 131 43
1 lerpes simplex I27
Herpes simplex II11
lipper respiratory tract infection
(cold or flu)11
Recent viral infection or exposure to
viral vaccines11
Pregnancy in multiparous women58, 53,
13, 43, 36

Malaria6, 12
High levels of circulating immune
complexes6,33
Hypergammaglobulinemia (high levels
of antibodies)40, 33
False positives on other tests, including
RPR (rapid plasma reagent) test for
syphilis17, 48,33, 10, 49
Rheumatoid arthritis36
Hepatitis B vaccination28, 21, 40, 43

Tetanus vaccination40
Organ transplantation1, 36
Renal transplantation35, 9r 48, 13, 56
Anti-lymphocyte antibodies56, 31
Anti-collagen antibodies (found in gay
men, haemophiliacs, Africans of both
sexes and people with leprosy)31
Serum-positive for rheumatoid factor,
antinuclear antibody (both found
in rheumatoid arthritis and other
autoantibodies)14,62, 53

Autoimmune diseases:44,29,10,40,49,43
Systemic lupus erythematosus,
scleroderma, connective tissue
disease, dermatomyositis
Acute viral infections, DNA viral infec
tions59, 48, 43, 53, 40, 13
Malignant neoplasms (cancers)40
Alcoholic hepatitis/alcoholic liver
disease32, 48, 40, 10, 13, 49, 43, 53
Primary sclerosing cholangitis48, 53
Hepatitis 54
"Sticky" blood (in Africans)38, 34, 40
Antibodies with a high affinity for
polystyrene (used in the test kits)62,
40, 3

Blood transfusions, multiple blood
transfusions63, 36,13, 49, 43,41
Multiple myeloma10, 43, 53
HLA antibodies (to Class I and II
leukocyte antigens)7,46, 63,48,10, 13,49,
43, 53

Anti-smooth muscle antibody48
Anti-parietal cell antibody48
Anti-hepatitis A IgM (antibody)48

REFERENCES
1. Agbalika E Ferchal E Gamier J-P, et al. 1992. False-positive antigens related to
emergence of a 25-30 1<D protein detected in organ recipients. AIDS. 6:959-962.
2. Andrade V, Avelleira |C, Marques A, et al. 1991. Leprosy as a cause of false
positive results in serological assays for the detection of antibodies to HIV-1.
Inti. J. Leprosy. 59:125.
3. Arnold NL, Slade RA Jones MM, et al. 1994. Donor follow up of influenza
vaccine-related multiple viral enzyme immunoassay reactivity. Vox Sanguinis.
67:191.
4. Ascher D, Roberts C. 1993. Determination of the etiology of seroreversals in
HIV testing by antibody fingerprinting. AIDS. 6:241.
5. Barbacid M, Bolgnesi D, Aaronson S. 1980. Humans have antibodies capable
of recognizing oncoviral glycoproteins: Demonstration that these antibodies
are formed in response to cellular modification of glycoproteins rather than as
consequence of exposure to virus. Proc. Natl. Acad.Sci. 77:1617-1621.

36 - Uncommon Questions

Anti-Hbc IgM48
Administration of human
immunoglobulin preparations
pooled before 198510
Haemophilia10, 49
Haematologic malignant
disorders/lymphoma43, 53, 9*48, 13
Primary biliary cirrhosis43, 53, 13, 48
Stevens-Johnson syndrome9,48, 13
Q-fever with associated hepatitis61
Heat-treated specimens51, 57,24,49,48
Lipemic serum (blood with high levels
of fat or lipids)49
Haemolyzed serum (blood where
haemoglobin is separated from
the red cells)49
Hyperbilirubinemia10,13
Globulins produced during polyclona’
gammopathies (which are seen in
AIDS risk groups)10, 13, 48
Healthy individuals as a result of
poorly-understood cross-reactions10
Normal human ribonucleoproteins48,13
Other retroviruses8, 55, 14, 48' 13
Anti-mitochondrial antibodies48, 13
Anti-nuclear antibodies48, 13, 53
Anti-microsomal antibodies34
T-cell leukocyte antigen antibodies48,13
Proteins on the filter paper13
Epstein-Barr virus37
Visceral leishmaniasis45
Receptive anal sex39, 64
® Sept. 1996, Zenger's, California

6. Biggar R, Melbye M, Sarin P, et al. 1985. ELISA HTLV retrovirus antibody reac
tivity associated with malaria and immune complexes in healthy Africans. Lance
ii:520-543.
7. Blanton M, Balakrishnan K, Dumaswala II, et al. 1987. HLA antibodies in blood
donors with reactive screening tests for antibody to the immunodeficiency vims.
Transfusion. 27(1 ):118.
8. Blomberg J, Vincic E, Jonsson C, et al. 1990. Identification of regions of HIV-1
p24 reactive with sera which give "indeterminate’results in electrophoretic
immunoblots with the help of long synthetic peptides. AIDS Res. Hum. Retro.
6:1363.
9. Burkhardt II, Mertens T, Eggers H. 1987. Comparison of two commercially
available anti-HIV EUSA's: Abbott HTLV-III ELA and DuPont HTLV-III EUSA
I. Med. Vir. 23:217.
10. Bylund D, Ziegner II, Hooper D. 1992 Review of testing for human immuno
deficiency virus. Clin. Lab. Med. 12:305-333.
11. Challakere K, Rapapon M. 1993. False-positive human immunodeficiency
vims type 1 ELISA results in low-risk subjects.West. I. Med. 159(2):214-215.

Appendix E
AST LABEL

TOXtC
Toxic by iahala-lon, in
contact with sklc cod It
swailawed. Target argsatc): Blood a one .’nar
row, h you feel unwell,
seek medfcjU advice
(show the label where
possible). Wear suitable
protective clothing,

3’-AZ!DO~3’~DEOX¥THYMIDINE
(AZT; Azidothymidine)
(305^^1)
C[tK,A:A
FW 2S7.2
desiccate
Puiltym (HPtC)
Store at less
?«s Eo::«r*tirY itcn •Jt4y. X»t lor
than G'C
rfttij. hceseiiutf c< «:-<r mo.

ACTUAL COPY OF AN AZT LABEL

This label has appeared on boules containing as little as 25 milligrams,
a small fraction (1/20-1/50) of a patient's daily prescribed dose*

(*Reference: Physicians Desk Reference 1994, pp. 324)

38 — Uncommon Questions

12. Charmot G, Simon F. 1990. IUV infection and malaria. Revue du practicien.
40:2141.
13. Cordes R, Ryan M. 1995. Pitfalls in HIV testing. Postgraduate Medicine. 98:177.
14. Dock N, Lamberson H, O'Brien T, etal. 1988. Evaluation of a typical human
immunodeficiency vims immunoblot reactivity in blood donors. Transfusion.
28:142.
15. Esteva M, Blasini A, Ogly D, et al. 1992. False positive results for antibody
to HIV in two men with systemic lupus erythematosus.Ann. Rheum. Dis.
51:1071-1073.
16. Fassbinder W, Kuhni P, Neumayer H. et al. 1986. Prevalence of antibodies
against LAV/HTEV- III |HIV| in patients with terminal renal insufficiency'
treated with hemodialysis and following renal transplantation. Deutsche
Medizinische Wochenschrift. 111:1087.
17. Fleming D, Cochi S, Steece R. et al. 1987. Acquired immunodeficiency
syndrome in low-incidence areas. JAMA. 258{6):785.
18. Gill MJ, Rachlis A, Anand C. 1991. Five cases of erroneously' diagnosed
HIV infection. Can. Med. Asso. J. 145(12):1593.
19. Healey D, Bolton W. 1993. Apparent HIV-1 glycoprotein reactivity on Western
blot in uninfected blood donors. AIDS. 7:655-658.
20. Hisa J. 1993. False-positive ELISA for human immunodeficiency virus after
influenza vaccination. JID. 167:989.
21. Isaacman S. 1989. Positive HIV antibody test results after treatment with
hepatitis B immune globulin. JAMA. 262:209.
22. Jackson G, Rubenis M, Knigge M, etal. 1988. Passive immunoneutralisation
of human immunodeficiency vims in patients with advanced AIDS. Lancet,
Sept. 17:647.
23. Jindal R, Solomon M, Burrows L. 1993. False positive tests for HIV in a
woman with lupus and renal failure. NEJM. 328:1281-1282.
24. lungkind D, DiRenzo S, Young S. 1986. Effect of using heat-inactivated serum
with the Abbott human T-cell lymphotropic vims ty'pe III |HIV| antibody test.
J. Clin. Micro. 23:381.
25. Kashala O, Marlink R, Ilunga M. et al. 1994. Infection with human immunod
eficiency virus type 1 (HIV-1) and human T-cell lymphotropic viruses among
leprosy patients and contacts: correlation between HIV-1 cross-reactivity' and
antibodies to lipoarabionomanna. J. Infect. Dis. 169:296-304.
26. Lai-Goldman M, McBride J, Howanitz P, et al. 1987. Presence of HTLV-III
|HIV| antibodies in immune serum globulin preparations. Ant.J. Clin. Path.
87:635.
27. Langedijk J, Vos W, Doornum G, et al. 1992. Identification of cross-reactive
epitopes recognized by HIV-1 false-positive sera. AIDS 6:1547-1548.
28. Lee D, Eby W, Molinaro G. 1992. HIV false positivity after hepatitis B vaccina
tion. Lancet 339:1060.
29. Leo-Amador G, Ramirez-Rodriguez J, Galvan-Villegas F, et al. 1990. .-\ntibodies
against human immunodeficiency vims in generalized lupus erythematosus.
Salud Publica de Mexico. 32:15.
30. Mackenzie W, Davis J, Peterson D. etal. 1992. Multiple false-positive serologic
tests for HIV, HTLV-1 and hepatitis C following influenza vaccination, 1991.
JAMA. 268:1015-1017.
31. Mathe G. 1992. Is the AIDS vims responsible for the disease? Biomed
Pharmacother. 46:1-2.
32. Mendenhall C, Roselle G, Grossman C, et al. 1986. False-positive tests for
HTLV-III |HIV| antibodies in alcoholic patients with hepatitis. NEJM. 314:921.
33. Moore ), Cone E, Alexander S. 1986. HTLV-III |l 1IV| seropositivity in 1971-1972
parenteral drug abusers - a case of false-positives or evidence of viral exposure?
NEJM. 314:1387-1388.
34. Mortimer P, Mortimer), Parry J. 1985. Which anti-HTLV-Ill/LW |HIV| assays
for screening and com firm atory' testing? lancet. Oct. 19,p873
35. Neale T, Dagger J, Fong R, et al. 1985. False-positive anti-HTLV-Ill |HIV|
serology. New Zealand Med. J. October 23.
3t>. Ng V. 1991. Serological diagnosis with recombinant peptides/proteins. Clin.
Chem. 37:1667-1668.
37. Ozanne G, Fauvel M. 1988. Perfomance and reliability of five commercial
enzyme-linked immunosorbent assay kits in screening for anti-human immun
odeficiency- virus antibody in high-risk subjects. J.Clin. Micro. 26:1496.
38. Papadopulos-Eleopulos E. 1988. Reappraisal of AIDS - Is the oxidation
induced by the risk factors the primary cause? Med. Hypo.25:151.

39. Papadopulos-Eleopulos E, Turner V, and Papadimitriou J. 1993.Is a positive
Western blot proof of HIV infection? Bio/Technology. Junell: 69 6-707.
40. Pearlman ES, Ballas SK. 1994. False-positive human immunodeficiency virus
screening test related to rabies vaccination. Arch. Pathol.Lab. Med. 118-805.
41. Pe.ternanT, Lang G, Mikos N, et al. Hemodialysis/renal failure. 1986. JAMA.
255:2324.
42. Piszkewicz D. 1987. HTLV-IH |HIV| antibodies after immune globulin. JAMA.
257:316.
43. ProfittMR, Yen-Lieberman B. 1993. laboratory diagnosis of human immuno
deficiency virus infection. Inf. Dis. Clin. North Am. 7:203.
44. Ranki A, Kurki P, Reipponen S, et al. 1992. Antibodies to retroviral proteins in
autoimmune connective tissue disease Arthritis and Rheumatism. 35:1483.
45. Ribeiro T, Brites C, Moreira E, et al. 1993. Serologic validation of HIV infec
tion in a tropical area. JAIDS. 6:319.
46. Sayers M, Beatty P, Hansen J. 1986. HLA antibodies as a cause of false
positive reactions in screening enzyme immunoassays for antibodies to
human T-lymphotropic virus type III |HIV|. Transfusion. 26(1): 114.
47. Sayre KR, Dodd RY, Tegtmeier G, et al. 1996. False-positive human immuno
deficiency virus type 1 Western blot tests in non-infected blood donors.
Transfusion. 36:45.
48. Schleupner CJ. Detection of HIV-1 infection. In: (Mandell GI, Douglas RG,
Bennett JE, eds.) Principles and Practice of Infectious Diseases, 3rd ed. New
York: Churchill Livingstone, 1990:1092.
49. Schochetman G, Geotge J. 1992. Serologic tests for the detection of human
immunodeficiency vims infection. In AIDS Testing Methodology and
Management Issues, Springer-Verlag, New York.
50. Simonsen L, Buffington J, Shapiro C, et al. 1995. Multiple false reactions
in viral antibody screening assays after influenza vaccination. Am. J. Epidem.
141-1089.
51. Smith D, Dewhurst S, Shepherd S, et al. 1987. False-positive enzyme-linked
immunosorbent assay reactions for antibody to human immunodeficiency vims
in a population of midwestem patients with congenital bleeding disorders.

Transfusion. 127:112.
52. Snyder H, Fleissner E. 1980. Specificity of human antibodies to oncovirus
glycoproteins; Recognition of antigen by natural antibodies directed against
carbohydrate Structures. Proc. Natl. Acad. Sci.77:1622-1626.
53. Steckelberg JM, co*ckerill F. 1988. Serologic testing for human immunodefi
ciency vims antibodies. Mayo Clin. Proc. 63:373.
54. Sungar C, AkpolatT, Ozkuyumcu C, et al. Alpha interferon therapy in
hemodialysis patients. Nephron. 67:251.
55. Tribe D, Reed D, Lindell P, et al. 1988. Antibodies reactive with human
immunodeficiency' vims gag-coated antigens (gag reactive only)are a major
cause of enzyme-linked immunosorbent assay reactivity in a bood donor
population. J. Clin. Micro. April:641.
56. Lljhelyi E, Fust G, lllei G, et al. 1989. Different types of false positive anti-HIV
reactions in patients on hemodialysis. Immun. Let.22:35-40.
57. Van Beers D, Duys M, Maes M, etal. Heat inactivation ofsenim may interfere
with tests for antibodies to/HTI.V-III |HIV|. J. Vir.Meth.12:329.
58. Voevodin A. 1992. HIV screening in Russia. Lancet. 339:1548.
59. Weber B, Moshtaghi-Borojent M, Brunner M, et al. 1995.Evaluation of the
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55:97.
60. Wood C, Williams A. McNamara J, et al. 1986. Antibody against the human
immunodeficiency vims in commercial intravenous gammaglobulin prepara
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61. Yale S, Degroen P, Tooson J, etal. 1994. Unusual aspects of acute Q feverassociated hepatitis. Mayo Ciin. Proc. 69:769.
62. Yoshida T, Matsui T, Kobayashi M, et al. 1987. Evaluation of passive panicle
agglutination test for antibody to human immunodeficiency vims. J. Clin.
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63. Yu S, Fong C, Landry M, et al. 1989. A false positive HIV antibody reaction
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64. National Institute of Justice, AIDS Bulletin. Oct. 1988.
(Johnson, 1906: 5)

Uncommon Questions —37

piS-2-l..(

National Workshop on South Asia Court of Women
on Violence of Trafficking and HIV/AIDS
19-20 July 2003 Bangalore India

PROGRAMME

19.07.2003
7.30 am

Departure of Bangalore participants

8.30 am - 9.30 am

Registration

9.30 am - 10.00 am

Welcome and Introductions
Shanthamma, Vimochana

10.00 am - 11.30 am

Overview of South Asia Court of Women
on the Violence of Trafficking and HIV AIDS
Issues, Concerns and Expectations
AWHRC, UNDP

11.30 am - 11.45 am

Tea

11.45 am - 1:15 am

Panel Presentation
Violence and Vulnerabilities: Trafficking,
H1V/AIDS, prostitution and migration

Meena Seshu: Sangram, Sangli
Manjima Bhattacharjie: Jagori, New Delhi
Tapti Bhowmick: Sanlaap, Calcutta
S Lalitha: JWP, India
Moderator: Ms. Sarsu Esther Thomas,
Co-ordinator, Trafficking Programme,
CWL / NLSIU, Bangalore
1.15 am - 2.00 pm

Lunch

2.00 pm - 4.15 pm

Panel Presentation
State Policies, Laws and Conventions:
The Problems of defining and regulating
trafficking and HIV/AIDS
Rajalakshmi: CWL, NLSIU, Bangalore
Miriam Chinappa: ALP, Bangalore
Moderator: Donna Fernandes, Vimochana

The Human Rights approach to Trafficking and
HIV/AIDS - Some debates and dilemmas

Anand Grover: Lawyer's Collective, Bombay
Dr. Manu Kothari: KEM, Bombay
Dr. Thelma Narayan: CHC, Bangalore
Moderator: Shakun Mohini, Vimochana
4.15 pm - 4.30 pm

Tea

4.30 pm - 6.30 pm

Small Group Discussions

7.00 pm

Departure for Bangalore Participants

20.07.2003
7:30 am

9.30 am - 11.00 am

Departure of participants from Bangalore
Panel Presentation

Globalisation, Militarisation and Conflict:
A contextual frame work for
trafficking/HIV /AIDS

Rukmini Rao : DDS, Hyderabad
Jarjum Etc : APWWS, Arunachal Pradesh

Moderator : Mercy Kappen, Visthar, Bangalore

11.00 am - 11.15 am

Tea

11.15 am - 1.30 pm

Towards a New Political Imaginary
Presentation of the Courts of Women

Corinne Kumar : AWHRC / Vimochana
1.30 pm- 2.30 pm

Lunch

2.30 pm - 5.30 pm

Presentation of Small Group Discussions
Issues for follow up at the South Asia Court
of Women on Trafficking and HIV/AIDS

6.00 pm

All participants depart to Bangalore

Uncommon
Questions:
A Feminist Exploration of AIDS

Women's Health Interaction
August 1999

Uncommon Questions: A Feminist Exploration of AIDS
Research and uniting:

WHI Collective: Donna Chiarelli, Julie Delahanty, Carla Marcelis, Rose Mary Murphy
Bibiana Nalwiindi Seaborn, Karen Seabrooke

Published by:

Women's Health Interaction, Ottawa, 1999

Design:

Allegro 168 Inc.

Acknowledgements

We have benefited a great deal from the friendship, resources, and perspectives shared by our colleagues at Inter Pares
in Ottawa - special thanks to Brian K. Murphy for his editorial assistance. We also wish to thank Health Education AIDS
I iaison (HEAL) in Toronto, especially Carl Strygg, Rob Johnston and Patricia Watteyne for their generous contributions
to our dialogue and research process. Many thanks to Liz Fajber and Barbara Blokpoel for then early contnbut.ons to
the research and writing of Uncommon Questions, when they were part of the WHI Collective.

While we gratefully acknowledge these contributions, Women's Health Interaction takes sole responsibility tor the views
expressed in this publication.
WHI Website:

www.web.net/~whi

ISBN:

0-9695267-6-8

Women’s Health Interaction CWHD: Who are we?
Women's Health Interaction is a voluntary feminist health collective, started in 1983. We advocate for women s health in
the context of social and economic justice. At WHI we develop and use feminist principles in working together, sharing

responsibilities in the group and making decisions by building consensus.

WHI believes that the personal is political, and we link our own experiences to those of other women around the world.
We analyze these experiences for common themes and build our education and advocacy work from this. We collaborate
with women's and health organizations and networks in Canada and around the world.

Uncommon
Questions:
A. Feminist Exploration of AIDS
Table of Contents
PREAMBLE

SETTING THE CONTEXT

. . 2

INTRODUCTION

PART I

A FEMINIST FRAMEWORK

PART II

COMMON KNOWLEDGE/UNCOMMON QUESTIONS

PART III

How is AIDS defined?

AIDS as an Epidemic - Reviewing the Statistics

AIDS and Testing

AIDS and Breastfeeding

Treatment . .

Reflections on the Construction of Knowledge about AIDS

POLICY IMPLICATIONS

5
. . 5

. . 12

16
. . 17
21

23
. . 24

BIBLIOGRAPHY

Appendix A:

Alternative Activists, Theories and Organizations

Appendix B:

Chronology of CDC's AIDS Definitions....................................

Appendix C:

Provisional WHO Clinical Case Definition for AIDS (Bangui)

Appendix D:

Factors Known to Cause False-Positive HIV Antibody lest Results

Appendix E:

AZT Label . .

. . . 40

Uncommon Questions:
A Feminist Exploration of AIDS
Preamble: Setting- the Context
Womens Health Interaction (WHI) has prepared this paper
as a contribution to the ongoing discussion on AIDS. We are
concemed about the suffering and death around the world
that has been attributed to IIIV/AJDS. At the same time,
along with a growing number of people, we have come to
question the Units between HIV and AIDS, and the idea that
HIV = AIDS = Death. Specifically because of the high human
costs involved, it is important to understand the wealmesses in
the dominant theory concealing the cause oj AIDS, and to
question the treatments that are being prescribed and, in some
cases, imposed.
The focus on HIV and AIDS is relatively new to our group, in
the past, WHI has worked on issues of women's reproductive
rights and women and pharmaceuticals, promoting our femi
nist vision of holistic and integrated approaches to health care
that increase women's control over our own bodies and health,
and that focus on prevention of illness. We believe, together
with many others, that women's health status is fundamentally
linked to the position and power of women in society, and to
the social and economic conditions in which we live. The medicalization and manipulation of women's health has led to
programs and strategies that ignore the root causes of illness.
Women are victimized and targeted for dangerous drugs, often
bypassing the right to informed consent. Further, alternative
health therapies and strategies are ignored. This focus on med
ical interventions by governments and the medical industry is
based on a model that promotes and relies on a "pill for every
ill" rather than the eradication of the social conditions that
cause disease to flourish.

It is from our evolving understanding and critique of the
medical model as applied to women's health that WHI has
begun to take a look at the issue of AIDS. Our previous work
on women's health has caused us to question "common knowl
edge" about issues, and challenge the assumptions that under
pin popular beliefs. It has caused us to question in whose
interest specific knowledge is constructed and disseminated.
As we delved deeper into the literature and spoke with HIVseropositive "dissidents", we began to question some of the
assumptions about the relationship between HIV and AIDS.
We learned that there were alternative theories about the
causes of AIDS, and that the researchers and activists who
questioned whether HIV = AIDS = Death, were often silenced
and in other ways isolated and punished for challenging the
dominant theory.

We became concemed that women diagnosed as 11IV positive,
particularly pregnant and breast-feeding women, are routitiely
advised and sometimes pressured to take extremely toxic drug
therapies, such as AZT. Pregnant or nursing women who
refuse retroviral drugs for themselves or their newborns, or who
refuse to stop breastfeeding, have been threatened with having
their children taken from them (Farber, 19()8, 1.9.99). We
began to have concerns about the human rights and reproduc
tive rights of HIV-positive women seeking treatment or having
treatment imposed, in addition to many questions about the
safety of the AIDS drugs, and the link between HIV and
AIDS itself.
With the above in mind, WHI decided to engage in a deeper
learning process, to educate ourselves about HIV and AIDS,
to identify gaps in our knowledge and to seek to fill these gaps
through research and consultation with others. We have written
this paper as a first step in this learning and dialogue process.

We recognize that there are gaps in this discussion paper; for
example, it was difficult to obtain alternative information on
HIV/AIDS in the Third World. This is a priority for our
future exploration.

While many women's health advocates have argued that
women have been excluded from treatment and are discrimi
nated against in programs that address HIV and AIDS, this
critique has generally not extended to challenging prevailing
HIV/AIDS orthodoxy itself. We feel that our own questioning
in this regard is important and consistent with the history of
our work. We realize that for many this paper will represent a
great deal of unexplored territory and its content may be per
ceived as threatening to those living with an HIV-positive or
AIDS diagnosis. We know (hat others in the women's health
movement will respect our choice in asking these questions,
and will engage with us in seeking answers.
Donna Chiarelli
Julie Delahanty
Carla Marcelis
Rose Mary Murphy
Bibiana Naluhindi Seaborn
Karen Seabrooke

Women's Health Interaction
Ottawa, August, 1999

Uncommon Questions — i

Introduction
Our involvement in AIDS is not an academic exercise.
We fear that people are dying unnecessarily as a direct
result of the way that AIDS has been conceptualized and
treated. In this paper, we challenge common assumptions
that are made about AIDS and HIV. We ask questions
that focus on three basic injustices associated with the
way that HIV and AIDS have come to be understood and
addressed globally. The first injustice is the unequal
power and marginalization of women. The second injus
tice arises when people are prevented from exercising
their right to fully-informed consent in issues of testing
and treatment. The third injustice arises when alternative
viewpoints are discredited, or worse, silenced.
Part I of this paper identifies the feminist framework that
has informed our analysis. The framework identifies prin
ciples associated with women's health that guided our
elaboration of the issues. These include: 1) critiquing the
medical model of disease; 2) defining women as experts
in our own health; 3) enshrining principles of informed
consent; and 4) challenging the current allocation of
research funding.
In Part II, we ask specific questions about the AIDS
paradigm. Each section begins with a set of common
assumptions or "common knowledge" on a particular

2 — Uncommon Questions

issue, followed by a series of "uncommon questions" questions that are rarely asked, but ought to be. While
we do not have all the answers ourselves, we believe that
these questions have to be asked, and ultimately, they
have to be answered. Identifying the "uncommon ques
tions," and developing a discussion around them, began
with reading extensively in the mainstream literature on
AIDS, as well as literature by those dissenting from the
popular understanding of AIDS. Our bibliography, and
Appendix A, include many of these resources. We con
clude this section by exploring how the AIDS paradigm
has been constructed, with particular reference to the
medical establishment and pharmaceutical companies
which have had overwhelming control over the scientific
information produced and disseminated publicly about
AIDft
Finally, in Part III, as a contribution to the dialogue we
hope to promote, the paper outlines some' of the policy'
learned
implications which emerge from what we have
1
in creating this discussion paper. A series of appendices
is also attached to the discussion paper, which provide
more detail on points raised throughout the document.

A Feminist Framework

Women have unequal power in society, which results
in less control over our lives and health, fewer choices,
unequal treatment and, for many women, physical and
psychological violence that critically affects our health. In
addition, women's health and disease, and the research
and treatment of women's disease, are defined by those
who hold most power in society. It is in this context that
women's health needs and problems have to be under
stood. The concepts valued by the women's health move
ment promote better lives and health care for women,
and for all people.

The women's health movement has a powerful tool in
feminist theory which, at base, includes a critique of
male-dominated and hierarchical power structures that
underlie poverty and powerlessness. A feminist analysis
of women's health problems is based upon core princi
ples with which to approach the phenomena of disease
and health, as well as the related processes involved in the
research, treatment and prevention of disease. The follow
ing principles are central to a feminist analysis of health.

Critique of the Medical
Model of Disease
The medical model of disease, including its preoccupation
with the germ theory of disease, is a limited and often
harmful model. The medical model assumes that illness
is caused by a specific and identifiable agent, bacteria or
virus, that invades the body. When the body cannot fight
off the invader, a person succumbs to the attack and
becomes ill. The physician identifies the agent through
laboratory tests, and then prescribes specific drugs de
signed to repulse the invading organism. This model
implies that the causes of disease lie within the (weak
and imperfect) individual, and focuses therapeutic inter
vention on individuals, and on symptoms, while ignor
ing other variables and elements within the social and
physical environment. The model defines the body in a
mechanistic way and sees medicine quite literally in mili
tary terms as a "war" against hostile agents, requiring the
use of an arsenal of drugs to combat the disease, lust as
in war, the side effects of therapies are seen as unfortu
nate but necessary consequences of medicine, echoing
the military notion of "collateral damage".

A feminist perspective attempts to de-medicalize disease
and health by taking a broader, more holistic and com
prehensive view of these processes. It takes into consider
ation the multi-factoral elements of disease, including the
economic, social and political factors that have a direct
impact on health. It recognizes that health is affected by
a whole range of factors, including nutrition, stress, pol
lution and other contaminants. A feminist perspective
emphasizes the need to recognize the complex way the
internal environment, which is the body, interacts with
the external environment.
We recognize the role and power of mind in maintaining
health, as well as in healing, and the interactive effects of
our social environment on our state of wellness (or illness).
We advocate for improving peoples' social conditions
and for preventing disease rather than treating people
exclusively with powerful drugs. Confronting and tesolving the causes of poverty, stress and addiction are central

to dealing with disease.

Women aS Experts: Knowing
our Bodies, Defining our
Health
We advocate that women have the central role as experts
in their own health and illness. Women need to be heard
and their experiences validated. 1 •undamental to a femi
nist perspective is the recognition that consciousnessraising is a powerful tool to empower women, and that
women's health depends on that empowerment. When we
share our experiences and gain knowledge and authority
to make decisions, we can prevent many harmful prac
tices and promote alternative solutions. Consciousnessraising and political activism brought about the childbirt!
movement, identified violence against women as a major
global problem, made visible and reduced the psychiatrizing and tranquilization of women, and built a movement
for women to regain reproductive control of our bodies.
It is through discussion with other women that we have
named our experience, identified the powerful forces that
have kept us dependent on, and often harmed by, medical
processes, and empowered us to find alternatives. Ibis
process has played an important role in "dc-medicalizing

Uncommon Questions - 3

disease and going beyond measures that focus on indi
viduals and too often "blame" us for our own illness.
Consciousness-raising, sharing experiences and becoming
fully-informed, allows us to redefine problems and create
healthy solutions.
Women need to be a central part of all processes dealing
with disease and health. Our experiences and voices need
to be included in every phase of research, treatment and
prevention programs. Women's needs are different from
men's needs, and our bodies react differently than men's.
Women's reproductive and breastfeeding capacities place
us in a critical and vulnerable position. What happens to
a pregnant woman can directly affect her baby in utero
and after birth. Further, the gender roles that women are
ascribed by society may also create specific health prob
lems that need to be addressed. For example, it is well
documented that women arc more likely to work in the
unregulated sector of the economy where occupational
health issues go unaddressed by formal regulations and
where they are physically and psychologically vulnerable.

Informed Consent
A central principle that has been promoted by the
women's health movement is that every person has the
right to control over her own body and to fully-informed
choice and consent concerning medical interventions.
This means that therapeutic alternatives should be pre
sented with the full range of risks and benefits outlined.
It means receiving full information on alternative thera
pies, as well as the consequences of refusing treatment.

The importance of informed choice extends to testing.
No one should be coerced into being tested for a disease.
For consent to be truly informed, information should be
based on sound research conveyed accurately, honestly
and objectively. It is also fundamental that the potential
consequences of our choices should never be exaggerated.

Funding Research
The women's health movement has questioned why
women's health problems receive such a low proportion
of funding in comparison to funding for male-identified
diseases, and specifically in comparison to research on
AIDS. Comparison with funding for breast cancer research
is illustrative. In 1992, Health Canada pledged $25 million
over five years to the Breast Cancer Initiative. At the same
time, it allocated $203.5 million for a five year national
AIDS strategy. And yet, in the fourteen years between
1982 and 1996, while 9,500 Canadians (565 women)
had died of AIDS, more than 60,000 died of breast cancer.
In other words, in this period for every person who died
of AIDS, 6 women died of breast cancer, and for every
woman who died of AIDS, 106 died of breast cancer
(Mallet, 1996)1.

This disproportionately low level of funding for research on
women's specific health issues is a serious flaw in current
research programs, but we must also question medical
research priorities in general, regardless of their gender
bias. Research funds are weighted heavily in favour of
funding the medical/pharmacological approach to under
standing and addressing disease, rather than emphasizing
prevention and alternative therapies that take social and
economic conditions into consideration.
The application of these four principles as a guide in our
analysis of women's health issues has focused our concern
that current research, testing, treatment and portrayals
of AIDS are remote from a feminist understanding and
approach and may be putting women and their children
at risk. This process has led us to explore the very mean
ing and definition of AIDS, and the potential human
rights questions arising from the testing and treatment
of women.

1. Because AIDS is considered a relatively "new” health problem, funding might for a time justifiably have been higher than for a health problem with an
already well established research program. However, the unprecedented investment in AIDS research and the rapid establishment of AIDS research tacilas a .widespread
and deadly epidemic - confinn
ities since
since me
the iniu-cagiuir.b
mid-Eighlies -- coupled
the. fact v,.
of .die
failure of early, ,predictions of AIDS developing
mes
iwupH.ii with
wim hk
...........................
. . ■
■
,
the conclusion that the present disproportionate levels of funding for AIDS research and prophylaxis cannot be lustthed.

4 — Uncommon Questions

II. Common Knowledge/
Uncommon Questions
1. How is AIDS Defined?
Common Knowledge
HIV = AIDS = DEATH

Uncommon Questions

Is HIV the cause of AIDS? Does HIV always lead to AIDS? Has the definition of AIDS changed over the
I years Are there alternative
theories? Is death inevitable? Do social, economic and political factors play a role in developing AIDS?

Is HIV the cause of AIDS, and does
HIV always lead to AIDS?

The relationship of HIV to AIDS is not an obvious
and undisputed fact, but rather a theory constructed,
advanced and defended by the scientific and medical
community. The dominant medical model of AIDS
(Acquired Immune-Deficiency Syndrome) states that
AIDS is a condition directly linked to 1IIV, a virus that
attacks the body's T-Cells and immune system, weaken
ing the body's capacity to resist disease, thereby making it
susceptible to a long (and rapidly lengthening) list of
'opportunistic" infections. AIDS is a medical "construct",
and integral to its definition and diagnosis is the pres
ence of HIV. In the U.S. for example, according to the
Centers for Disease Control's definition, a person cannot
have AIDS, regardless of other symptoms, unless she has
I IIV, since HIV is considered the cause of AIDS and is
part of its diagnosis. As Celia Farber reports, "it is the per
fect circular definition, and has ensured the AIDS estab
lishment a near perfect correlation between HIV and
AIDS" (Farber, 1997: 99).
Are there alternative theories?

liven within the scientific community there is controversy
over the cause and treatment of AIDS.2 A number of
established researchers have challenged the prevalent
theory that 11IV causes AIDS and have raised alternative
explanations for the disease. Robert Root-Bernstein,
Professor of Physiology at Michigan State University and
author of Rethinking AIDS: Ihe Tragedy of Premature

Consensus (1993), was one of the first to publicly ask:
"What if HIV doesn't cause AIDS?" Root-Bernstein along with other scientists such as Peter Duesberg, a
renowned microbiologist and virologist, member of the
National Academy of Science, and a former candidate for
the Nobel Prize, and Eleni Papadopulos-Eleopulos, bio
physicist and chairwoman of the Board of the International
Forum for Accessible Science - has pointed out many gaps
in this simplistic virus-disease causation theory. They
assert that even within the medical paradigm, HIV does
not meet the criteria of a human retrovirus, nor does
it follow the epidemiological course of an "epidemic"
(Root-Bernstein, 1993). Nobel Laureate (Chemistry),
Kary Mullis, asserts that "...we have not been able to dis
cover any good reasons why most of the people on earth
believe that AIDS is a disease caused by a virus called
HIV. There is simply no scientific evidence demonstrating
that this is true" ("Introduction" to Duesberg, 1996: xiii).

Despite strong resistance to their speculation and
alternative theories, many members of the scientific
establishment continue to raise questions about how
"AIDS" functions. Root-Bernstein, for example, places
emphasis on an immune system already weakened by any
of a wide variety of possible "co-factors" (other than HIV)
which allows the infections associated with AIDS to take
hold. Others, such as Joseph Sonnabend, suggest that there
are other, more specific, co-factors which play key roies in
the onset of AIDS (Sonnabend, 1993). K. Shallenberger
asserted in the journal Medical Hypotheses that the single
HIV infectious pathogen model of AIDS, "just does not

2 See Appendix A: Xhenuuive Activisb,, theories and Organizations.

Uncommon Questions

fit the bill" (Shallenberger, 1998: 67-80). Shallenberger
has developed a theory of AIDS based on the immune
system itself, rather than a single invasive virus. 1 le does
not question the existence of HIV, but argues that AIDS is
a multifactoral condition based on a reversal of the tradi
tional roles of the two principle arms of the immune
system, "cell mediated immunity" (CMI) and "antibody
mediated immunity" (AMI). Shallenberger suggests that
AIDS is a disease event entirely separate from HIV, and
found principally in people most subject to repeated
antigenic exposure, including I) people with multiple
sexually-transmitted diseases, and viral, bacterial and
parasitic infections; 2) drug addicts exposed to various
hepatitis and other pathogens via dirty syringes and con
taminated street drugs; and 3) hemophiliacs exposed to
commercially-made clotting factor consisting of 99%
alloantigenic impurities (Shallenberger, 1998: 67-80).
Do social, economic, and political factors
play a role in developing AIDS?

The greatest number of AIDS cases are reportedly among
groups which are socially and economically marginal
ized. It is well known that social, economic and political
conditions play integral roles in building, or in destroy
ing, immunity. People living in poor social and economic
conditions do not have access to good nutrition, safe
water, or adequate health care. Their immune systems may
be weakened and they are often much more susceptible
to disease.
In Europe and North America, AlDS-defining diseases
include over 30 conditions,3 including tuberculosis and
cervical cancer. In addition, an HIV-positive test and a
T-cell count below 200 in the absence of other symptoms
may be adequate for a confirmed diagnosis (Geshekter,
1994). Conversely, despite the official definitions and
AIDS orthodox)', in Africa and other developing countries
the presence of HIV is not necessary' for an AIDS diagno
sis, and testing is rare. The World Health Organization's
clinical-case definition for these countries is based on a
list of symptoms that include chronic diarrhea, prolonged
fever, ten percent body weight loss in two months and a
persistent cough.'1

These criteria for AIDS are disturbingly similar to endemic
diseases such as dysentery, tuberculosis, cholera and
malaria. Many experts, such as Dr. Harvey Bialy, eminent
Science Editor of Bio/Technology, a sister publication of the
journal Science, argue that AIDS is simply a new name for
old diseases that result from inadequate health care, wide
spread malnutrition, endemic infections and unsanitary
water supplies (Shenton, 1998; Murphy, 1994). In this
case, it would be very easy for widespread, and counter
productive, misdiagnosis of AIDS. For those who do
undergo testing for HIV, the tests have been proven
remarkably unreliable, particularly in developing countries
(Johnson, 1996: 5). The potential for false positives is
very high partly due to anomalies in the tests themselves,
but also because - as is now well-documented - people
who live in areas where leprosy, malaria, andTB are
prevalent, routinely produce false positive HIV test results
since the test reacts to the proteins of the antibodies for
these diseases" (Harrison, 1996:9).

A growing number of scientists and researchers argue
that, to be effective, AIDS research and prevention has
to address structural poverty, unhealthy living conditions
and the lack of primary health care, rather than simply
attempting to change peoples' sexual behaviour (Murphy,
1994; Geshekter, 1997). Shenton reports that in Uganda,
"As a result of the redefined AIDS problem, coping with
malaria, a curable disease, has become seriously neglected
with cutbacks in funding for malaria control and medica
tion" (Shenton, 1998: 168).

The focus on the 11IV virus as the cause of AIDS and the
key to its prevention means that research and treatment
programs continue to search solely for pharmaceutical
cures. Financial and human resources are diverted away
from addressing the underlying social and economic
causes of the chronic immune suppression that blights
the lives of hundreds of millions who live in grinding
poverty.

3. Sec Appendix B: Chronology of CDCs AIDS Definitions.
4. See Appendix C: Provisional WlK) Clinical Case Definition for AIDS (Bangui) In Africa there are upwards of 2,200 documented cases of people who met
the WHO definition of AIDS and who are HIV-free. At a leading African centre for AIDS research in Abidjan, the researchers found that, "over one-third
of cases not qualifying as AIDS under |the| Bangui definition of symptoms were HIV-positive, and one-third of cases that did quality as AIDS were HIV
negative '(Shenton, 1998: 13 ).

6 — Uncommon Questions

Has the changing definition of AIDS affected women?

/s death ineiritable?

rhe list of AIDS-defining diseases is being continually
changed, and from year-to-year diseases are added to or
deleted from the list. Recently, more attention has been
given to women's specific conditions related to AIDS. In
the beginning of 1993, the Centers for Disease Control
(CDC) in the United States added cervical cancer and
pelvic inflammatory disease (RID) to the list of AIDSrelated conditions. Notably, and not surprisingly, at the
same time that these diseases were added, the number of
women diagnosed with AIDS and HIV increased rapidly,
and often retroactively. However, many researchers believe
that there is in fact no causal link between IIIV and cervi
cal cancer, and that the potential for misdiagnosis is very
high (Ratcliffe, 1995: 15). In both cervical cancer and PID,
researchers claim that the conditions themselves may cause
a woman to test positively, but falsely, for HIV antibodies.
It is important to note that no other kind of cancer, with
the exception of kaposi sarcoma, has been linked to AIDS
or to other immune suppression conditions.

It is the standard assumption that there is no cure for
AIDS. We are told that if we contract HIV we will even
tually develop AIDS and ultimately die from its effects.
When a person is diagnosed as HIV-positive, she is pres
sured to take whatever drug treatments she can afford,
regardless of whether she has symptoms of disease. Even
when asymptomatic, she is forced to struggle with the
presumed fatality of her condition, and the rapidly debil
itating side effects of (he drugs. I lowever, the number of
healthy long-term HIV-positive people - particularly sero
positive women, men and children who have not initiated
drug treatments - is an increasingly identifiable group, and
more and more we are hearing dissenting and concerned
voices pose the question: is AIDS really the fatal disease
and epidemic that we have been led to believe? (Doherty;
1999; see also HEAL Website www.epcnet.com; and
Appendix A attached).

2. AIDS aS an Epidemic : Reviewing the Statistics
Common Knowledge
AIDS spreads rapidly and has now reached epidemic proportions. AIDS is not just a gay disease. Everyone is at risk. More and more
women are getting AIDS, and the fastest growing risk group is heterosexual women.

Uncommon Questions
Does AIDS follow the pattern of an epidemic? Is there an /JDS explosion? Are heterosexual women really at high risk? Have we been
manipulated by AIDS statistics? Do we need to re-assess this "epidemic?"

Does AIDS follow the usual pattern of epidemics?

As Celia Farber asks, "If the HlV-spreads-like-wildfirekills-like-a-truck model of disease were true, then why
wouldn't there be a heterosexual explosion by now?"
(Farber, 1996: 87). One of the reasons why AIDS is
assumed to have reached "epidemic" proportions is
because of the mainstream belief that AIDS is caused by
an infectious agent, HIV, which is transmitted through
the blood and other bodily fluids, such as sem*n or
breast milk. While these routes of transmission would
actually make it more difficult to contract HIV than, for

example, a flu or a virus transmitted through the air, the
assumption persists that the general population is at high
risk of contracting IIIV, particularly men and women
who are sexually active, people who come into contact
with infected blood products, and infants born to HIV
positive women. Because of these assumptions about
how AIDS is spread and the high risk associated with the
routes of transmission, AIDS is (quite understandably)
believed to be spreading rapidly and evenly across the
general population.

Uncommon Questions - 7

Following this logic, if we assume that AIDS works like
a typical infectious disease, then we would expect that
it would follow the five characteristics of an infectious
disorder (Horton, 1996: 14), that is:

It would spread randomly between sexes;

It would rapidly appear, at least within months;

It would be possible to identify "active and abundant
(HIV) microbes in all cases";

Cells would die or be impaired, beyond the ability of
the body to replace them;

There would be a consistent pattern of symptoms in
those infected.

In the case of AIDS, most of these characteristics have not
been met. In the U.S. and Europe, men are affected far
more commonly than women, particularly hom*osexual
men. In 1988, Toronto-based epidemiologist, Eric Mintz,
already questioned the epidemic hypothesis: "...if the
median time between HIV seropositivity and full-blown
AIDS is at least 7 years (or 15 years, as has been recently
claimed), then this epidemic is about 20 years old. Since
it has begun to plateau, it is most likely in middle age. If
there has been no widespread heterosexual spread, why
would one expect it to occur now, as the reservoir in
most of the high-risk groups is diminishing?" (Mintz,
1988: 28).
The disease does not appear rapidly; in fact, for most
it has never appeared even many years after the original
diagnosis. This is evident by the fact that only 1 percent
of HIV-positive people in the [ISA develop AIDS per year
(Duesberg, 1987). Further, it is not possible to identify
active and abundant HIV microbes in all cases. The CDC
has shown that 10 percent of cases diagnosed with AIDS
have no sign of antibodies to HIV (Shenton, 1998: 11).
Cells do not die out in the numbers necessary to cause
disease and death. Finally, in Africa, the symptoms asso
ciated with AIDS are very' different from those seen in
North America and Europe, although this can be partially
explained by the fact that immune deficiency will make
people more vulnerable to the infections endemic in
their specific locale, which may differ from place to place.

8 — Uncommon Questions

In fact, figures published by the U.S. Centers for Disease
Control for the year ending 1997 show total U.S. IIIV/A1DS
diagnoses declined from 68,808 in 1996 to 60,634 in
1997 in a population of 272,000,000. In 1996, hetero
sexual contact was ascribed to 14 percent of all cases;
in 1997, 13 percent. In absolute numbers, heterosexual
contact cases declined from 9,526 in 1996, to 8,112 in
1997. Female adult diagnoses declined from 13,767 to
13,105. Pediatric diagnoses declined from 671 to 473, of
which all but 63 were among those defined as "racial/
ethnic minorities".

Is there an AIDS explosion?

According to Health Canada the global figure of all
reported AIDS cases, living or dead, as of December,
1996, was 1,393,638. North America accounted for
555,321 of these cases. The remaining cases were distri
buted among all the countries of Europe (167,571) and
the other continents, including the Third World. Africa
accounted for 499,035 cases, with all other regions com
bined reporting the remaining cases. All of Asia accounted
for only 29,705 cases. These statistics are from the World
Health Organization (WHO) for the diagnosed incidence
of AIDS to December 1996 (Health Canada, 1996: 5).
The totals in these statistical updates from the WHO are
cumulative since 1979, and reflect not merely cases diag
nosed in a particular year, but all cases ever reported
worldwide, living and dead. There is no other endemic
or epidemic disease for which such cumulative statistics
are maintained (Murphy, 1995: 39-46).
Even at that, these numbers are far lower than the predic
tions made about the scale of the problem. The frequent
explanation for the differential between the predicted
incidence of HIV/AIDS and the more modest figures that
are actually reported is that: 1) very few countries have
the capacity to diagnose AIDS; and 2) they resist report
ing the true incidence because they do not want to admit
to the problem. While some countries may not have the
capacity, or inclination, to do wide-scale testing for HIV,
these countries are still diagnosing AIDS in the absence
of the test. As a result, given the potential for mis-diagnosis based on common symptoms, actual cases of AIDS
may well be much lower than reported, rather than higher.

In any case, the idea that governments resist reporting
AIDS has little credence, given the pressure on govern
ments to bow to the agenda of the WHO and other inter
national institutions, and the funds made available to
governments willing to accept AIDS as a priority. In many
cases virtually the only international health money avail
able is for AIDS research and treatment so there is a great
incentive to diagnose AIDS wherever possible, and to
focus on sexual/reproductive behaviours in treatment
and education programs. A common complaint of Third
World NGOs is that if they do not give priority to AIDS,
there is little international funding available for their
health activities. Given this pressure, together with the
tremendous interest in tracking down and reporting AIDS
by the multilateral and non-governmental humanitarian
sector - not to mention the lucrative pharmaceutical
industry and its associates in the medical training and
research field - we can have some confidence that the
numbers reported above are not significantly below actual
incidences. The idea that the incidence of AIDS is worse
by a factor of five, ten, or twenty has no basis. In many
countries, NGOs are hard-pressed to find AIDS sufferers
(Health Canada, 1996: 4).

Many activists are concerned about the effect of claims
that AIDS has reached epidemic proportions in Africa
and other developing countries. These claims have been
used to justify the use of Third World populations, par
ticularly in Africa, but also in South-East Asia and the
Americas, for vaccine trials and drug tests that are not
permitted in Europe and North America. Poor countries
in the South - desperately seeking health care funding and
drugs to curtail the reported "epidemic" - employ much
less strict regulations over testing of drugs and vaccines,
and are under extreme pressure to acquiesce to sponsoring
such experimental trials. When governments in the South
make decisions that run counter to prevailing orthodoxy
on AIDS, as was recently the case in South Africa, they
come under extreme attack from AIDS advocates
(Mickleburgh, 1999; Murphy, 1999).
It is the theoretical premise that the cause of AIDS is
primarily viral, together with the social-sexual theories
about the spread of AIDS, that leads to a prediction of
an epidemic, not the observable facts. If a deadly virus
was indeed spreading widely and rapidly throughout the

globe through sexual transmission, the present modest
numbers would be much higher. Indeed there would be
no controversy, because the numbers in Canada and the
United States themselves, where diagnosis and reporting
is aggressive and rigorous, would already be astronomi
cal, which they are not. The facts simply do not back up
the theory.
One explanation given for the present low numbers in
North America is that the figures are in part due to the
increased use of more effective anti-retroviral drugs which
are prolonging the onset of full blown AIDS in those with
HIV. Yet there is serious debate about the positive and
negative impact of AZF and the so-called "drug co*cktails",
with many critics challenging the claims of their effective
ness in preventing the onset of disease in HIV-positive
people. The recent use of these drugs cannot explain the
failure of the prediction made in the mid-1980s that Nortl
America and Europe would experience a major catastrophic
epidemic by the early nineties. Indeed, research compiled
by Kevin Doherty (1999) indicates that the three most
common characteristics of long-term "HIV-positive
survivors" are:
1.

They avoided taking chemotherapy/anti-retroviral
drugs such as AZT, ddl, ddC, d4T, and 3TC;

On learning of their HIV status (HIV-positive), they
stopped all high-risk activities such as drug use and
unprotected sex;

They began taking charge of their lives, including
their nutrition, exercise, and health.

Clearly, more research is required that carefully accounts
for these factors.
Are heterosexual tuoinen really at high risk?

In hard numbers, relatively few women are diagnosed
with AIDS even with the inclusion in recent years of spe
cific women's diseases such as cervical cancer. As Celia
Farber reports, fewer women are becoming infected, and
"the bulk of heterosexual transmission is taking place
within a disenfranchised community that is marked by
poverty, poor health care, sexually-transmitted diseases
and drug use" (Farber, 1996). This conclusion is not new.

Uncommon Questions — 9

Stephen Strauss, a science editor for tire Globe and Mail,
years ago asked the critical question. "If AIDS is caused
solely by HIV, and spread via sexual intercourse, then
why is it not spteading along sexual lines so much: as
along sociological lines, with poverty and drug use being
central co-factors?...prostitutes have no higher incidence
of either HIV or AIDS than any non-risk groups - unless
they are (V-drug users" (Strauss,. 1993). The work of Eric
Mintz (1988) discussed earlier also undermined the con
clusion that women were at significant risk of contracting
HIV through sexual contact
Have ive been manipulated by AIDS statistics?
It appears that .AIDS statistics are ofien manipulated to
give the illusion of an increase in AIDS cases, when there
has actually been a decrea.se. In a very revealing example..
Christine Maggiore (1997) reports that:
Ln Canada, a nation with an extremely low inci
dence of AIDS, AIDS groups and reporters play up
the few cases they can find and often petform their
own magic with -he numbers. For example, new7
Canadian AIDS cases for 1995 were 1.369 and of
these, HI or 8% were among women. In 1996..
when the mtmber of new AIDS cases dropped by
almost 50% to a total of 712, the media and AIDS
organizations not only ignored the good news, but
devised a way to make it appear bad. Since 67 of
the 712 AIDS cases for 1996 were among women
(a decrease of 44 from the year before), the lower
number of cases among women was now part of
a smaller total. This provided an opportunity to
express a det^'ease of 44 as an increase of 1.4%
(ern ph a sis a dded).

Maggiore provides -he following char- to illustrate:

year RcpGnei.i.
1995
1996

N’iTW

AI DS Cases
1369
71 2

Nwndoer of
\Mome.a
til
67

What is key here is that in 1996, only a miniscule total
of 67 women - among a population of over 15 million
women - were diagnosed with AIDS in Canada; and
although this itself was an almost 50 percent iediictum in
new cases, we read about it as a major and continuing
increase. We can only ask why, and in wnose interest, are
statistics teported this wa.y?
In addition, unlike other statistics on disease which are
reported on an annual basis, .AIDS statistics in Canada
and around the world are calculated cuniulatively. I his
means that statistics report the cumulative total of people
who have AIFJS or have died from AIDS since it was first
defined as a category in the late seventies. Thus, of the
total number of AIDS cases ever reported in Canada
between :979 and December 1998 (that is, 16,236
cases), 71 percent (11,525; are deceased. Since 1995,
the number of AIDS deaths each year has significantly
declined, with an 39.5 percent drop in deaths in 1998 as
compared w'ith I995. Deaths peaked at 1,420 in 1995,
and fell to just above 100 in 1998. Similar trends are visi
ble in the incidence of positive HIV tests, which have

(Health Canada. 1999:5). This is precisely the kind of
plateau and decline in figures predicted by people like
Eric Mintz over ten years earlier.
Since numbers ort their owt) are difficult to interpret, espe
cially given the differing ways numbers are presented, it is
important that these figures are contextualized. Well over
100 women and childresi are murdered across Canada every
year. In Quebec alone, between December 6, 1989, wru:n
14 'women in Montreal were killed by a gun-wielding amifeminist, and December 6, 1998, 501 women and children
were killed by .men (Montreal Men Against Sexism, 1998).
The generalized confusion and fear about AIDS is
caused not by direct experience, but by speculation out

% of Cases
of \\dmev;
8%
9.4%

(From: Whiit if everything you thought you knetv about AIDS was wron^t by Christine Maggiore, 1997: 371

io — Uncommon Questions

What tnakes the News? Rise of
.AIDS among Women by i.4%

of proportion with the scale of events in the real world.
Prevailing preoccupation about AIDS among most
Canadians, for example, could not be based on direct
personal experience since, according to the official
Government of Canada cumulative statistics as of
December, 1998, reported above, there has been a total
of 16,236 cases of AIDS reported in the almost twenty
years since records have been kept, of which 1,218 were
women. As in the United States, most of the increase in
diagnosis in Canada in the past several years has been due
to the retroactive inclusion of new diseases within the
diagnostic definition of AIDS, rather than the discovery
of new cases. As Brian Murphy emphasizes, "...compared
to other deadly conditions, such as breast cancer and
heart disease, for example, which are far more prevalent,
or the horrendous incidence of traffic deaths and occupa
tional accident and disease, this number of cases in and
of themselves would have relatively little direct impact on
30 million Canadians, very few of whom have ever met
a person with AIDS" (Murphy, 1995).
Another poignant example is the alarming statistic that
iatrogenic death (death from medical treatment) is now
one of the largest causes of death in the United States. A
recent ground-breaking study by Pomeranz, Lararou &
Corey (1998) documents the very serious adverse effects
of both prescription and over-the-counter drugs, reveal
ing that adverse drug effects are one of the leading causes
of death worldwide. The side effects of drugs are between
the 4th and 6th leading cause of death after heart disease,
cancer and lung disease. Following analysis of thousands
of hospital patients in 39 U.S. cities, the researchers found
that adverse reactions - which didn't include prescribing
errors or drug abuse - kill 100,000 Americans every year
and seriously injure 2.1 million more (Pomeranz, Lararou
& Corey, 1998: 1200-1205)!

In 1995, 12 times more Americans died of cancer (538,455)
and 17 times more of heart disease (737,563) than died
of AIDS (43,115). Yet today at the U.S. National Institute
of Health, funding for AIDS research (US$1.5-billion) is
second only to cancer research ($2.2-billion) and exceeds
the $ 1.4-billion spent on heart disease (Bailey, 1995). As
Celia Farber notes, "because AIDS is perceived as 'every
body's disease', funds that might have saved lives had the
education campaigns been better targeted were instead
squandered across a broad population, most of whom
were neverat risk" (Farber, 1996).

Joan Shenton argues that money is at the root of the
alarming AIDS figures put out by the UN system. In
the early 1990s, the WHO's Global Programme on AIDS
[later to be taken over by UNAIDS] was employing
between 2,000 - 3,000 people. They continually fed
highly inflated figures to the press, and officials at public
meetings began to quote their estimated cases for AIDS
in order to drum up funding, quietly dropping the actual
reported figures. When they were challenged there was
acknowledgment that the figures they were using as fact
were no more than guesswork" (Shenton, 1998: 59).
By 1995, the WHO AIDS program dismissed 750 of
its workers because none of the pandemic predictions

had come true.
Do we need to re-assess this "epidemic" ?

The fact is, the number of people with AIDS is not astro
nomical; the numbers are not increasing but decreasing,
and they reveal none of the mathematical characteristics
of an epidemic. The projections issued by the UN and
other bodies concerning "estimated" cases worldwide are
just that - projections based on estimates, specifically esti
mates of infection with HIV - all based on a theory that
itself is highly suspect, and in direct contradiction with
the actual diagnosed incidence of AIDS. And increasingly
we are seeing this question being asked even in the popu
lar media, when only a few years ago headlines predicted
only apocalypse.

A challenge to the epidemiology' of AIDS must be
made, because such extravagant numbers are used to
justify the preoccupation with AIDS. In an open letter
from the Secretary General of the International Forum
for Accessible Science (IFAS), iVlichael Baumgartner advo
cates a full reappraisal of the HIV-AIDS hypothesis by
an international independent scientific committee. Fie
asserts that, "Epidemiological data does not support the
predictions made in 1984 that the conditions labeled
AIDS were caused by a new specific retrovirus, transmissi
ble by sexual intercourse, inevitably fatal and spreading
uncontrollably in the general population, culminating
in a global pandemic. Independent epidemiological
research together with the passage of time has since
shown that this hypothesis and the ensuing predictions
are wrong" (Baumgartner, 1998: 11).

Uncommon Questions — it

3. AIDS and Testing-

Common Knowledge
Everyone should be tested for HIV. The tests designed to determine a persons HIV status are accurate and reliable. IJ you test positive
for HIV you will eventually get AIDS. Pregnant women should have an HIV test as part of their routine testing.

Uncommon Questions
Does HIV eveii exist? What do HIV tests actually measure? How reliable are HIV tests, and what are the chances of getting a false
test result? Should pregnant women be subject to routine or mandatory HIV tests? What are the effects of being diagnosed with HIV?
What are the human rights implications of such a diagnosis? How might someone be discriminated against having tested positive or
been diagnosed with AIDS?
Does HIV exist?

Eleni Papadopulos-Eleopulos and a group of HIV/AIDS
dissident scientists at the University of Western Australia,
known as the 'Perth Group', maintain that HIV has never
truly been isolated, that the proteins alleged to be specific
to HIV are actually stress proteins released in response to
a severe disease condition. The various indirect molecu
lar, biochemical and genetic findings have been inter
preted as meaning HIV isolation, but none have offered
conclusive direct evidence of HIV - that is, HIV has not
been isolated as an independent, stable particle - and
therefore, according to Papadopulos-Eleopulos, HIV may
not exist at all (Papadopulos-Eleopulos, 1993 and 1995;
Ankomah, 1996).

mend that all positive test results be verified by repeat
ELISA tests and a second independent assay, usually the
Western Blot immunoblot or radioimmune precipitation.

The Western Blot test demonstrates antibodies to specific
viral proteins. The different proteins are separated and a
person's serum is placed over each of the antigens. If the
antibodies are present in the serum, they will bind to the
test antigens causing a colour change or dark band. The
formations of various bands of the viral proteins is con
sidered a positive result because the bands are said to
confirm the presence of specific HIV antibodies in the
person's blood. The Western blot is technically difficult
and expensive (Malarkey, 1996:158). When a person has
a negative or indeterminate result, it is recommended
that she be tested again in 6 weeks.

What do HIV tests actually measure?
Current HIV tests do not test for the HIV virus itself, but
for its antibodies. In fact, tests look for any antibody
whose "key" fits the "lock" of the proteins in the mixture.
The most commonly used test world-wide for the detec
tion of HIV antibodies is called ELISA - the Enzyme
Linked Immunosorbent Assay. The proteins reacting
with the antigens of the ELISA test are supposed to be
exclusive to HIV. According to the Canadian Medical
Association, "A positive test result indicates that the
person has been infected with HIV and can transmit the
infection to others" (CMA Guidelines, 1995: 12). However,
the ELISA test is known to produce false positive results
because the solution reacts to many different antibodies,
not just HIV antigens.. CMA guidelines therefore recom-

/2 — Uncommon Questions

According to many AIDS experts, the Western blot is
more specific than ELISA, but neither is accurate enough
to be used as a benchmark for measuring HIV status.
Notably, the criteria for a positive Western Blot test varies
widely around the world. The number of bands of pro
teins needed to react before considering the Western Blot
positive depends on where and by whom the test is done,
reflecting a lack of standardization globally. "Around the
world different combinations of two or three or four of
the ten possible bands are deemed proof of infection.
In Africa you need two bands but in France, the United
Kingdom and Australia you need four and under the U.S.
FDA and Red Cross rules you need three" (Turner, 1998,
as quoted by Christie, 1998: 14). The number of bands

is set according to the prevalence of HIV infection. In
theory, by emigrating from New York to Australia, an
HIV-positive status can become negative.

Hom reliable are HIV tests, and what are the chances
of getting a false test result?
Several AIDS experts critique the HIV tests because they
are unreliable. HIV antibody tests lack what are techni
cally known as specificity and sensitivity,5 and according
to Peter Duesberg, "the [ELISA] test can be wrong over
50% of the time" (Guccione, 1996: 9).

rXntibodies are known to be non-specific and they
cross-react with many conditions and proteins. Valendar
Turner of the Perth Group says that "all the (antibody)
test indicates is that some antibodies in patients react
to some proteins present in cultures of tissues from the
same patients. But, given that information, what a scien
tist is obliged to do next is make the comparison with
the virus gold standard, before pronouncing the test
highly specific for diagnosing HIV infection" (Christie,
1998:18). In other words, scientists must be able to find
the virus itself to determine the presence of HIV. Without
this "gold standard" there is no way to interpret test results
accurately. Turner suggests that it is incorrect for scientists
to claim that HIV antibody tests are better nowadays
because they use purer proteins, because the gold stan
dard comparison has not been used (because HIV itself
has never been independently isolated in the lab). He
goes on to say that it is a "tragedy that these tests were
introduced in the total absence of proof of their speci
ficity" (Turner, cited in Christie, 1998: 18).
Further, "In 1988 the U.S. Army tested over a million
soldiers and found that even in healthy military recruits,
half of all the 12,000 first positive ELISA's were negative
second time around. And after a second positive ELISA
two thirds failed to react on a first Western Blot. And
some first Western Blots failed to react on a second
Western Blot" (Turner, cited in Christie, 1998: 18).

'fhe potential for false positive test results escalates when
the population tested is likely to have infections such as
those frequently seen in the Third World or among immi-

grants from these countries. There are more than 70 con
ditions and proteins that can cause false positive HIV
tests, including hepatitis, TB, malaria, leprosy and even
certain types of influenza which produce similar anti
body proteins as the so-called HIV antibodies.6 Both the
ELISA and Western Blot tests have difficulty detecting the
difference (Burkett, 1995: 13; Christie, 1998; Johnson,
1996). Pregnancy can itself cause an antibody reaction.
Repeating the test is only likely to repeat the same cross
reaction to non-HIV antibodies. Furthermore, new cross
reactions are being discovered all the time.

In spite of these serious and well documented limitations,
kits for the rapid and simple testing of the presence of
HIV advertise that they can provide a person with a defi
nite negative or preliminary positive result in 10 minutes
or less. As of April 1995, none of these tests had been
approved for sale in Canada. However, the CMA Guidelines
suggest that these tests have advantages over current pro
tocols (for example, they do not require complex labo
ratory equipment or technical training to perform) in
specific settings, such as remote areas, or developing
countries, even though in their own document they admit
that these tests raise "significant scientific, technical, epi
demiological, cost and ethical issues" (CMA Guidelines,
1995: 19). Given the probability of errors, widespread use
of these kits can have serious and dangerous consequences.

In addition to some of these technical factors in generat
ing unreliability in various tests, Root-Bernstein explains
the statistical error (known as Bayes Law) involved with
reliability of diagnostic tests in general. When testing is
done on a random or a screening basis for people who
are not at specific risk for AIDS due to other factors (usu
ally socio-economic), the number of false positives esca
lates. Under laboratory conditions tests are reliable about
97 percent of the time. This sounds good on the surface,
but it actually means in random testing under laboratory
conditions, "...about eight false positives for every true
positive. [And] if the test kit were 90 percent reliable, a
home test for HIV would yield between twenty-five and
several hundred false positives for every true positive"
(Root-Bernstein, 1990: 7). This high probability of error
is one of the reasons tests should be re-confirmed and
administered only to people who belong to an identified

5. Specificity is essential for reliability and is usually indicated as a percentage. Specificity is a measure of how often a positive test turns up when it is
known that HIV is absent; this is called a false positive result. A test should not react unless the 111V antibody is actually present, if the test is negative
100 times in 100 people with no HIV, then it is considered 100% specific. Sensitiuit)', on the other hand, is a measure of how often a test is positive
when you know HIV is present. If you get a negative result when HIV is present, this is commonly called a false negative (Christie, 1998: 18).
6. See Appendix D, Ftictora Known to Cause False Positives.

Uncommon Questions — 13

risk group or who already display other symptoms of
AIDS, such as opportunistic infections, and therefore
have a much higher than average probability of being
infected. "Accuracy begins to approximate reliability only
when an appreciable fraction of the population is afflicted
- say 10 percent - or if the test is limited to [people] who
display symptoms suggesting a high probability of being
infected - that is, when testing is not random" (RootBernstein, 1990: 7).
Should pregnant women be subject to routine or
mandator}' HIV tests?

While HIV testing of pregnant women is theoretically
done only with the consent of the woman, some
provinces have recently made routine HIV testing and
counselling the norm. In 1998, the Ontario Ministry of
Health announced that the provincial screening program
was being expanded to include voluntary prenatal HIV
testing for all pregnant women, regardless of other risk
factors. Under the new program, approximately 150,000
prenatal HIV screening tests will be performed annually
(Government of Ontario, 1998). According to the Health
Ministry, the primary goal of the new program is "to
assist women in accessing appropriate treatment for HIV
as early as possible. Anti-retroviral treatment will help to
maintain the health of the woman as well as reduce the
risk of passing the virus to the baby" (Government of
Ontario, 1998). According to the Ontario Government,
"many women with HIV do not have obvious risk factors
- most are diagnosed only after their children are found
to have the virus" (Government of Ontario, 1998). The
test is also being recommended to all women considering
becoming pregnant.

Elsewhere in Canada other provinces are making changes.
The Quebec Ministry of Health and Social Services has
initiated a new program recommending that all pregnant
women, and women contemplating pregnancy, be offered
an HIV test. Since 1993, the Northwest Territories' Maternal
and Perinatal Committee, which has representation from
the Department of 1 lealth and Social Services and the
Northwest Territories Medical Association, has recom
mended that all pregnant women be tested for HIV. This
is now considered routine, although technically women
may "opt out" (Health Canada, 1998; Samson, 1998).

— Uncommon Questions

There are real concerns about routine HIV testing of
pregnant women. First, pregnancy is a condition that is
known to cause cross-reactions with HIV tests, leading
to higher rates of false positive test results. The Alberta
Reappraising AIDS Society (ARAS) asserts that testing this
low-risk population will likely result in many false posi
tives, with dangerous consequences. They maintain that
the health of every pregnant woman who is branded HIV
positive, as well as that of her baby, will be damaged by
both toxic AZF therapy (used to fight 11IV) and the prohi
bition against breastfeeding. ARAS suggests that people
have forgotten some of the lessons history has taught
us about the dangers of certain drugs in pregnancy.
For example, they wonder, "Does anybody remember
Thalidomide?" (ARAS press release, February 23, 1999).

What are the effects of an HIV-positive diagnosis?
One of the problems of consenting to an HIV test in
the first place, especially in the case of asymptomatic per
sons, is that a positive test causes profound psychological
distress and immediately moves a person into the med
ical system and treatment with toxic drugs. In the case
of a pregnant woman, she will be given information on
terminating her pregnancy and if she continues with the
pregnancy, drug treatments will be recommended in the
belief that AZT administered to the pregnant woman
reduces mother-to-child transmission of HIV. She often
will be advised to have her birth by cesarean section.
Furthermore, breastfeeding will be strongly discouraged,
and possibly prohibited, because it is believed that unin
fected infants breast-fed by HIV-positive women can
become infected (GMA, 1995: 17-18). All of these drastic
measures are based on the assumptions that HIV is accu
rately detected by the tests, that HIV causes AIDS, that
drugs such as AZT effectively treat and prevent AIDS, and
that it is justifiable to use AZF in the presence of positive
HIV tests, even in asymptomatic infants and their mothers.
We, along with many others, question each of these
assumptions and point out the serious impacts - physical,
mental, emotional, economical, social and legal - that
can result.

The implications of testing include real physical, psycho
logical and economic concerns. When people are diag
nosed as HIV-positive, their doctors often suggest that

they begin to take chemotherapeutic drugs to treat their
condition. The medical model of disease and treatment
cultivates this response. People who are misdiagnosed,
or are in any case asymptomatic, are still treated with
potent drugs, such as AZF, which have hazardous effects;
indeed, effects that precisely parallel the defined symp
toms of AIDS itself, since these chemotherapies destroy
virtually all growing cells and critically undermine the
immune system along with much else in the body. In this
case, testing - which leads to treatment - jeopardizes a
person's health.
The Canadian Medical Association (CMA) recommends
that testing only be carried out with the consent of the
patient and when the patient considers the advantages to
be greater than the disadvantages, and that the person be
counselled pre- and post-testing. However, even though
the CMA promotes "informed consent", the underlying
assumptions are that 1) tests actually identify the pres
ence of HIV; 2) HIV will lead to the development of
AIDS; and 3) an HIV-positive test should be followed
by medical treatment (CMA, 1995: 10).

Meanwhile, beyond all of these risks to health, there
is the risk of alienation and social isolation. The public
continues to stigmatize people who are identified as HIV
positive or diagnosed with AIDS. A person is blamed for
her condition - it is her fault because she is "promiscu
ous"; it is his fault because he is gay; it is their fault
because they are drug addicts. In many people's eyes,
it is "wrongful" behaviour that has led to this condition.
The responsibility for contracting the disease is placed on
the sufferer; she is made to feel guilty and shameful for
her condition, in addition to being pressured into making
choices of testing and treatment.

What are the human rights implications of an HIV-positiue
diagnosis? How might someone be discriminated against
having tested positive or been diagnosed with AIDS?
In the United States there have already been cases where
I UV-positive women have had their babies removed by
child welfare authorities, and then been ordered by the
courts to give their newborns AZF and to stop breastfeed
ing, under threat of losing custody of their children. This
is happening even though, as Farber points out, the U.S.

Centers for Disease Control and Prevention specifies in
their recommendations that: "Discussion of treatment
options should be non-coercive, and the final decision
to accept or reject AZT treatment recommended for her
self and her child is the right and responsibility of the
woman. A decision not to accept treatment should not
result in punitive action" (Farber, 1999).
It is these kinds of actions that concern us because,
despite the right of women to informed consent, the
wide acceptance of the assumption that HIV causes AIDS
and can be transmitted by breastfeeding poses very real
potential for human rights violations, over and above
health implications. It is already happening, in the
United States, and in Canada.

Yet there continue to be calls for mandatory' testing and
treatment for HIV in North America. Already in some
cases, employers or health insurance companies will not
consider applicants without proof of HIV-free status. The
potential for discrimination is clear: people may lose
their jobs or be prevented from access to employment,
may not be granted health care, and may not be able
to visit or immigrate to some countries. According to a
recent report, "Canada is considering whether it should
routinely screen would-be immigrants for HIV, the deadly
virus that causes AIDS, as it does for communicable dis
eases such as tuberculosis and syphilis. The government
says that it is the first time it has raised the possibility of
testing and excluding carriers of the virus. The review is
linked to proposed changes to immigration policy’..."
(The Ottawa Citizen, January 9, 1999: A4).
Another serious implication of HIV-positive status is the
possibility of being denied treatment for other illnesses.
For example, at a clinic in Haiti where patients come for
treatment forTB and other infectious diseases, those
identified as HIV-positive have been refused treatment
on the assumption that they "will definitely die of AIDS"
and that the clinic "cannot afford to give HIV-positive
patients medication" (Shenton, 1996: 12-14). There is
considerable anecdotal evidence among Canadian aid
workers and their Third World counterparts, that this
reaction is very common in poor areas of the world
where they work.

Uncommon Questions — 15

4. AIDS and BreastfeedingCommon Knowledge
Although breastfeeding is normally the best infant care possible, women with HIV should not breastfeed because the baby can get
AIDS from breastmilk.

Uncommon Questions
Can a mother pass on the HIV virus through breastmilk? Do infants develop AIDS through this kind of transmission ? Should HIVpositive pregnant women be discouraged from breastfeeding, especially where conditions are known to be unsafe for formula feeding?

Can a mother pass on the 11IV virus through breastmilk, and
do infants develop AIDS through this kind of transmission?

A number of reports claim that HIV infection rates
increase with breastfeeding. UNAIDS states that more
than one third of infants infected through "vertical trans
mission" (mother-to-child transmission) are infected
through breastfeeding. In a recent report, UNICEF
announced that a child stands a 20 percent risk of vertical
transmission of the virus in late pregnancy' and childbirth
and is at an additional 14 percent risk of infection
through breastmilk. Obviously, these conclusions are
controversial, and the policy dilemmas enormous, given
the staggering implications for breastfeeding practices
worldwide. Yet despite the potentially disastrous conse
quences, in 1998 the UN released a statement warning
HIV-positive women not to breastfeed their children,
but rather resort to infant formula.
There are a number of points that need to be raised in
connection to AIDS and breastfeeding. The first question
is whether the studies which indicate that breastfeeding
increases the rate of HIV transmission are valid. In fact,
these are speculative statements, projections from models
of prevailing AIDS theory - like all projections on AIDS
issued by the UN. The hypothesis that AIDS can be con
tracted from mother to child in this way has not yet been
proven. Some of the studies simply compared the chance
of vertical transmission in developing countries, where
women generally breastfeed, and developed countries,
where the rate of breastfeeding is much lower, and showed
the risk to be higher in the developing countries, and
extrapolated breastfeeding as the determining variable in
the difference (Goldfarb, 1993). Obviously, without look
ing at control samples, such studies are not conclusive.

16 — Uncommon Questions

The American Academy of Pediatrics, while presently
holding that breastfeeding can be a source of HIV infec
tion, does state that, "currently no randomized clinical
trials are available that accurately document the incre
mental risk of HIV transmission through breastfeeding
over that occurring during the intrauterine and intrapartum
periods. Evaluation of populations that vary only by
method of infant feeding have been limited to date, due
to the hom*ogeneity of feeding practices in current cohorts,
with breastfeeding the norm in developing countries and
formula feeding the norm in industrialized countries'
(AAP Policy Statement on Human Milk, Breastfeeding
and Transmission of HIV in the LIS, 1997).
Secondly, while some accept that HIV can be present in
breast milk and conclude that it is the source of some
infants testing positive for HIV antibodies, there is as yet
no study done on the number of those infants developing
AIDS. In fact, some studies have shown that breastfeeding
slows the progression of the disease in babies who are
born HIV-positive. A 1995 study showed that human milk
contains a factor that inhibits the binding of HIV to spe
cific receptor sites on human T-cells (La Leche League,
1995). It is important to note also that there have been
multiple anti-infectious, protective substances which have
been identified in human milk (Jelliffe & Jelliffe, 1978;
La Leche League International, 1995; Radetsky, 1999).
Another issue that has significant policy implications
derives from the fact that world-wide, most pregnant
women are not aware of their HIV status. There is no reli
able test that guarantees against false positives and it is
highly unlikely - and in any case, undesirable - that all
pregnant women could be tested for HIV antibodies,

particularly given the cost and the reality that most women
the world over do not have access even to basic prenatal
care. As such, the policy of discouraging breastfeeding is
absurd, and any significant shift from breastfeeding to
bottle-feeding as a result of such a policy will generate
child mortality figures several times higher than the best
estimate of those dying as a result of HIV transmission.
Should pregnant women who are HIV-positive be discour
aged from breastfeeding, especially when conditions are
known to be unsafe for formula feeding?

In the absence of appropriate information, discouraging
breastfeeding due to its purported connection with HIV
is truly frightening. It is imperative that policy-makers
not lose sight of the importance of breastfeeding to
maternal and infant health. For decades health advocates
have been able to say without hesitation that breastfeed
ing is the best thing for both the mother and the baby.
Besides being an excellent source of nutrition, a mother's
milk protects her child against morbidity and mortality
from infectious diseases of bacterial, viral, and parasitic
origin, while the act of breastfeeding establishes a bond

between mother and infant. As a spokesperson from
UNAIDS states, "In 90% of the developing world, the
protection that is afforded by breastfeeding against the
diseases of the Third World is higher than the rate of
HIV transmission" (Meier, 1997).
Over the years, the campaign to restrict manufacturers
from marketing and selling infant formula to women who
are unable to use it safely, or who do not have appropri
ate information about its negative health effects, has been
an uphill struggle. Despite an international code of con
duct for the sale and marketing of breastmilk substitutes,
infant formula manufacturers have continued to flaunt
these codes, continuing to put profits over maternal and
child health (Delahanty, 1994). The efforts by health care
workers and advocates, including earlier important efforts
of UNICEF, to improve infant health through breastfeeding
have saved the lives of countless children - and improver
their long-term health and life expectancies even more.
Breastfeeding also confers significant and well documented
benefits to women's health (Jelliffe and Jelliffe, 1978;
Palmer, 1988; Van Esterik, 1989; Minchin, 1989; La Leche
League, 1995).

S. Treatment
Common Knowledge
There is no known cure for AIDS but life can be prolonged through drug therapy. People with HIV-positive status should begin treat
ment early to prevent the onset of the disease. An HIV-positive pregnant woman should begin treatment early and have a cesarean
section to avoid transmission to her child. HIV-positive infants should begin treatment at birth.

Uncommon Questions
What are the effects of these highly toxic drugs, and how have they been tested before being administered? Could these drugs in fact be
making some people sick, and even killing them, who would otherwise not be seriously ill at all? Who is benefiting from the emphasis
on dmg treatment? Are there any alternatives?

What are the effects of these highly toxic drugs, and how
have they been tested before being administered?
When we hear in the media about people who are living
with HIV and AIDS, the discussion is most frequently
centered around treatment. Those who have been diag
nosed as being HIV-positive are advised immediately to
take chemotherapeutic drugs such as AZT or drug co*ck-

tails known as protease inhibitors. These incredibly
expensive drugs involve a highly regimented schedule.
We often hear about people who are struggling to gain
access to these drugs to "save" their lives. We have been
told that these drugs offer the only prospect for survival
and that everyone who has HIV or AIDS needs these
dings. Yet these dings do not cure AIDS - the research

Uncommon Questions

literature does not even pretend they do - and they have
severe adverse effects, many of which are similar to the
symptoms ascribed to AIDS itself.
What generally goes unquestioned is the safety and
value of these drugs. How have they been tested before
being marketed? There is conclusive documentation that
the trials for AZT contain flawed data and that the trials
were cut short before long-term effects could be known
(Lauritsen, 1993: 381-398). Beyond this, the known toxicity
of AZF is of real concern, for any human being, but espe
cially when its use is proposed for pregnant women. We
know the vulnerability of the mother and her developing
fetus, and as a result pregnant women are discouraged
from smoking, drinking and even therapeutic use of patent
medicines and prescription drugs - all to protect her own
health and that of her unborn child and infant. Yet now
we would force powerful toxins like AZF on the mother
and baby as a prophylaxis?

This seems absurd, and even more so since scientific
studies have pointed towards a similarity between AZF
and DES - diethylstilbestrol (Avicenne 1996: 86-102).
DES is a synthetic estrogen that was used in Canada for
prevention of miscarriage between 1941 and 1971. When
it was withdrawn from the market in 1971, scientists
knew that it had direct health impacts, including a risk
for vagin*l cancer on the daughters whose mothers had
taken DES during pregnancy. We question why this infor
mation about the link between DES and AZT compounds
has not meant a radical re-examination of the therapeutic
value of AZF use in pregnant women and their children.

are known. Maggie Atkinson, an HIV-positive woman
who was offered a new drug co*cktail, reported that her
body began to change after taking the drugs: "her arms
and legs started wasting away; her breasts became enlarged;
her body fat got redistributed; her period came twice a
month" (Foot, 1998: A5). Ms. Atkinson and a group of
women with the Canadian AIDS Society criticized Healdi
Canada for allowing die drugs to enter the market before
the side effects were documented. They noted that there is
no system in Canada that ensures that long-term studies of
the drugs are carried out to determine their adverse effects.
Once a drug is licensed and marketed, pharmaceutical
companies monitor the effects of drugs only on an ad
hoc basis through sporadic reports from physicians and
on-going clinical trials. Often doctors don't report unex
pected side effects, either because they arc not sure that
die cause of the side-effect is due to a specific drug, or
because the reporting process is too time-consuming.
In any case, there has not been much discussion on the
long-term effects of drug treatments on AIDS itself. W'e
know that misuse or overuse of antibiotics leads to drug
resistance, the development of virulent strains which
cannot be treated, and to severely compromised immune
systems. How will AIDS treatment affect the "opportunis
tic" diseases from which people with an AIDS diagnosis
actually suffer? The side effects of the drugs cause many
to end treatment - side effects such as metabolic disor
ders, body changes like swollen abdomen and breasts,
severe weight loss, soaring cholesterol levels and diabetes.
Doctors have noted that many patients rationally end
treatment, largely, in the words of one patient, because
"sometimes battle fatigue just comes along" (Picard,
July, 1998: A6).

Many women's groups have sought the inclusion of more
women in clinical trials for HIV drugs, emphasizing that
the side-effects appear to be very different for women
than for men. Perhaps we should instead question why
clinical trials should be done with women or men at all,
when the research thus far has not attempted to determine
the long-term effects of these drugs in any systematic way,
and to the extent that their effects are known, they are
known to be deleterious, and potentially deadly.

The problems with the main anti-viral drug therapy,
AZT, are massive. AZT is, in fact, a cause of death in HIV
positive people (Iziuritsen, 1993: 71-86). As Christine
Maggiore reports:

A good example of these problems was highlighted
recently in The Ottaiua Citizen. The article pointed to our
flawed system of approving and administering HIV drugs
before the adverse side effects, particularly for women,

AZ7' is not a new drug. It was not created for the treat
ment of AIDS and is not an anti-viral. AZF is a chemical
compound that was developed - and abandoned - over
30 years ago as a chemotherapy treatment for cancer.

18 — Uncommon Questions

Could these drugs be killing people?

As we know, chemotherapy works by killing all growing
cells in the body. Many cancer patients do not survive
chemotherapy due to its destructive effects on the
immune system... AZT was designed to prevent forma
tion of new cells by blocking the development of DNA
chains. In 1964, experiments with AZT on mice with
cancer showed that AZT was so effective in destroying
healthy growing cells that the mice died of extreme
toxicity. As a result, AZT was shelved and no patent
was ever filed. Twenty years later, the pharmaceutical
company Burroughs Wellcome (now Glaxo Wellcome)
[took out a patent and| began a campaign to re-market
AZP as an anti-viral (anti-HIV) drug and won FDA
approval for its use as an AIDS treatment after one
highly flawed study of only four months duration...
In addition to destroying'!’ Gells, B Gells and the red
blood cells that carry oxygen throughout the body, AZT
and other nucleoside analog drugs destroy the kidneys,
liver, intestines, muscle tissue, and the central nervous
system (Maggiore, 1997: 14-15).

The lack of efficacy of available AIDS drugs has led
researchers to the widespread belief that, "...a safe and
effective vaccine remains the single most important scien
tific goal in AIDS research, for it offers the only realistic
strategy for stopping the worldwide epidemic" (Montreal
Gazette, July 3, 1998: B7). However, the same report sug
gests that research on AIDS vaccines to date have shown
them to be both unsafe and ineffective. Given the many
questions that exist in the scientific community about
the way HIV is transmitted and the factors underlying
the onset of disease, the drive towards finding a vaccine
appears premature and potentially unfounded (VereyElliott, 1997: 6-7). Who would be the target groups for
receiving such a vaccine if it existed? Would a vaccine be
appropriate for the general population? Would certain
marginalized groups be pressured to use the vaccine
against their will? We know that already the prime targets
for testing are people in Africa and Asia, where some
trials have already been allowed to proceed.
Who is benefiting from the emphasis on drug treatment?
How much is the drive for profit a factor in advocating
drug therapy? Pharmaceutical companies have much
invested in marketing their treatments for AIDS. Inevitably,

and often unwittingly, the medical profession itself is a
primaty vehicle to improved pharmaceutical sales, since
advice to patients for earlier or increased use of phar
maceutical treatments - even without adequate testing increases sales and profit for the companies that produce
these agents. And despite the toxicity of AIDS drugs,
HIV-positive people, including those with no symptoms
of disease, are increasingly being told to begin early
drug treatment.

Joan Shenton reveals astonishing figures in her book,
Positively False - Exposing the Myths around HIV and AIDS.
She describes how governments have spent thousands
of millions of dollars on AIDS since 1984 - some
US$40 billion of public money. "With $40 billion spent
in 14 years in the U.S. alone, it is the biggest industry
next to the defense department" (Shenton, 1998: 31, 246).
Shenton believes the AIDS establishment is at least partly
driven by money. The sale of HIV test kits has become a
source of immense revenue. Each time blood is tested, it
means about Cdn$1.00 for the company producing the kit.
"Many scientists researching the AIDS vims themselves had
companies selling test kits and owned millions of dollars
in company shares. AIDS for these individuals was a
very’ profitable business" (Shenton, 1998: 15). Gallo and
Montagnier, the two scientists who claimed discovery of the
11IV vims, worked out a settlement where they agreed to
"split the royalties from the blood test kits. By 1994, those
royalties had amounted to $35 million" (Shenton, 1998:
47). Gallo holds thirteen U.S. patents and has applied for
twenty-nine others. He will split the profits 50-50 with his
employers, the University' of Maryland. The royalties from
11IV test kits were providing Montagnier's employer, the
Pasteur Institute, with a steady 5 percent of its funding.
'I he sales of diagnostic and monitoring kits totaled
more at $186 million in 1995 in the U.S. alone and
were predicted to rise by 50 per cent within five years
(Hodgkinson, 1998:2).
The greatest profit is made by the pharmaceutical com
panies which produce drug therapies for not only those
people diagnosed with AIDS, but also those who have
merely tested positive for HIV but remain symptom-free.
By 1997, cumulative worldwide sales of Glaxo Wellcome's
AZ'P, die first "anti-HIV drug", had exceeded $2.5 billion

Uncommon Questions — fp

(Hodgkinson, 1998:2). Canadian researchers have calcu
lated that providing drug co*cktails to everyone in the
world with HIV-AIDS who would supposedly benefit from
treatment would cost US$36 billion annually. A threedrug co*cktail would cost US$24 billion to distribute to
patients in Africa, another $7 billion in Asia, $4 billion
in the Americas and almost $1 billion in Europe (Picard,
May 4, 1998: A5). The three-drug co*cktail costs one person
about Cdn$ 11,000 per year. Ontario residents following
these regimes have to cover many of these high drug costs
themselves (see Box 1).
Are there alternatives?
Little attention is given to the underlying factors of
poverty and poor social and economic conditions that
have a direct and dramatic impact on health conditions
and on people's immune systems, or to the social justice
measures that could radically reduce people's vulnerability

to immuno-suppression and easily-preventable diseases
(Murphy, 1994, 1995). Most money that goes into AIDS
research is focused on the biomedical link between HIV
and AIDS, rather than on examining the socio-economic
causes of chronic immuno-deficiency, whether in the
industrialized North or in the nations of the South. In
the South, where pervasive poverty increases the likeli
hood of the breakdown of already weakened immune
systems, the use of toxic drugs like A27T to treat HIV rather than employing other remedial public health and
economic measures - is even more questionable than it is
in the industrial nations of the North. But increased use
of AZE is exactly what is transpiring, as Glaxco Wellcome
makes the drug available at a much lower cost - often
reduced by 50 to 75 percent - through subsidized pro
grams with local governments in developing countries.
In any other case this would be called drug dumping
(Marais, 1999: 1).

Box 1

’The cost ol AIDS •treatment in Ontario
According to 3 study published by the Globe and Mail (May 4, 1598), it costs 518,14G to rtea.l a pet son living wi-h HiV ot AIDS
in Ontario, About half goes to diugs. and one-quarttr each to fonnal cafe (doctois, hospitals) and coimnunity caie (mostly home
care). Even though Canadians are supposed to enjoy universal health care, only about half the cosr.s are covered by these programs.
Sunuybrook research found (ha- average nut-of-pocket expenses for people with HIV-AIDS are cluse in $5,000 anm-ally. Much othat is spent on drugs as well as supplements {-na-iy necessitated by the side eltects of the co*ck-ai-s) tis .weli as physical therapy and
hotne ca-e.

20 — Uncommon Questions

6. Reflections on the Construction of Knowledge about AIDS

Common Knowledge
The medical profession and the media provide the public with all the information about AIDS that is available.

Uncommon Questions
Does the public have access to alternative information about AIDS? Who controls how we understand AIDS? What if they are wrong?

Does the public have access to alternative information
about AIDS?
Those people who have claimed that HIV does not cause
AIDS or is not the sole cause of AIDS - and the numbers
within the medical community are growing - have been
vilified by both the medical establishment and the media.
The most famous "heretics" in the H1V=A1DS theory experts such as Root-Bernstein, Duesberg, PapadopulosEleopulos and the Perth Group, Mullis - all have impec
cable credentials. Despite their record of excellence and
scientific rigour, these scientists face severe criticism and
are ostracized by the scientific establishment. Efforts to
silence these and other scientists have been intense. They
have lost funding and the respect of their peers and they
find it difficult to publish in mainstream scientific and
medical journals (Duesberg, 1996: 396; Horton, 1996).
Given the repercussions to outstanding scientists who
have questioned AIDS orthodoxy, it is no wonder that
others are nervous about making similar claims. When
we at WHI began to think about some of these issues, we
were very apprehensive about delving into this area, and
particularly to entertain critiques of the H1V=AIDS con
nection. Grappling with these questions has not been
easy, particularly in an environment where to ask a ques
tion, to express doubt, is tantamount to heresy. Still, even
though at times we have felt insecure in our own course,
we continue to ask the questions that need to be asked
and seek answers that can increase our understanding.
We believe that debate and the investigation of alterna
tive views of AIDS, its causes, treatment and prevention,
are essential. It is through healthy debate that the most
appropriate health policies are promoted, particularly
where treatment involves toxic and experimental drugs.

Who controls how we understand AIDS?
The medical-pharmaceutical industry' is a powerful force
rarely questioned by the media, or other institutions in
society or the public. Healthy debate and adherence to
accepted scientific protocols is often considered unneces
sary, redundant, and even a threat to public health. This
is particularly evident with AIDS. Because powerful scier
tific institutions and individuals believe they already have
an acceptable answer, alternative investigation of AIDS is
seen as diversionary and discredited. For the most part,
the media uncritically perpetuate many of the myths sur
rounding AIDS and are reluctant to publish alternative
views. As a result, mainstream media coverage of critical
voices is rare.
What if the}' are wrong?
While examining the reality of AIDS is necessary, we have
not asked these questions simply to determine the truth.
We would not have had the courage to do that.
What has kept us going in this inquiry is the simple
question, "What if they are wrong?" We realize that if
the common definitions, assumptions and solutions to
AIDS are wrong, or even distorted, the life and death
consequences are enormous. If prevailing AIDS theory is
wrong, then resources are being diverted from real needs.
More importantly, the conventional solution, AZ1'and
other drugs, are harming people, not healing them. For
us, then, this investigation is about social justice and
human rights. We are asking these difficult questions
because silence is no longer an acceptable alternative.

Uncommon Questions

• III. Policy Implications
While we ask questions about the causes of and solutions
to AIDS as it is currently defined, we also know that people
are dying - whatever the causes - and that solutions need
to be found. Our research has led us to the conclusion
that current approaches are inadequate, and we advocate
for greater attention to the root causes of immune defi
ciency. From a public health perspective there needs to be
a re-focusing of attention on issues of poverty, empower
ment, drug use, social infrastructure and other determi
nants of health. All health problems, including AIDS,
will remain a problem as long as communities face prob
lems of poverty, malnutrition, drug abuse, and lowered
health status. Governments, health authorities, and com
munities themselves need to address long-term solutions
to health problems as a first line of action. A number of
policy recommendations are implicit in our analysis.
They include:

Government and private sector research funds should
be directed towards alternative theories and treatments
for AIDS, including the multi-factor causation theory.
Research into alternative and holistic interventions
should be supported. Research on specific anti-viral
therapies, including vaccines, should cease until the
role of HIV in AIDS is understood.
Research should be conducted on the toxic effects of
AIDS drugs and the effects on the immune system
from multiple infection, IV drug use, blood transfu
sions and malnutrition.
All testing should be voluntary, and involve intensive
counselling. Under no circ*mstances should manda
tory testing be introduced, or testing be imposed on
an individual or a group. Such testing increases the
probability of discrimination, forced treatment and
other human rights violations. In the context of
highly unreliable testing, and questions concerning
the relationship between 11IV and AIDS, such viola
tions can never be justified on public health grounds.

•

There should be no screening for HIV, particularly for
pregnant women or for immigration purposes, until
problems of accuracy, reliability, standardization and
specificity are addressed.

HIV self-testing kits should be banned. These kits
are extremely unreliable and the consequence of
receiving a positive diagnosis can result in severe
psychological and physical consequences.
•

True informed consent should be promoted by requir
ing that alternative treatment be presented as well as
full disclosure of the toxic and long-term effects of
drug therapy for AIDS, as well as the consequences
of refusing treatment.

•

Pregnant women, including those identified as HIV
positive, should have fully-informed choice regarding
drug therapy and method of delivering their child.

•

The Canadian health protection system should be
strengthened and actively enforced to protect the
safety of Canadians, particularly with respect to
drug approval processes.
Reporting by physicians and pharmaceutical compa
nies of adverse drug effects should be systematic and
mandatory, not voluntary, and criminal sanctions for
liability in cases of injuries through negligence and
corruption ijiust be maintained.

Direct-to-consumer advertising of prescription drugs
should be prohibited.
Breastfeeding should be encouraged for all women.
The risk of transmission of HIV compared to the
risks of not breastfeeding should be fairly portrayed.
Women should have access to all information regard
ing the consequences of having a positive test for
HIV, including the material provided in this paper.
The World Health Organization (WHO) Code of
Marketing for Breastmilk Substitutes should be
monitored and enforced in all countries.

Official Development Assistance (ODA) should
prioritize eradication of poverty. Budgets for health
should be reflective of the true needs identified by
the recipients and current levels of funding for AIDS
should be reassessed in light of this information. In
particular, ODA money should not be diverted from
primary health programming to AIDS work.

Uncommon Questions — 23

•

Public education programs and medical practitioners
should impart a broad view of health and the multi
ple factors that affect the immune system so that
prevention of immune deficiency can be enhanced.

•

Governments and international organizations should
critically examine the statistics on AIDS reported in

24 — Uncommon Questions

Canada and worldwide. Existing contradictory statis
tics bring into question the reliability of these num
bers and highlight the problem of formulating policies
based on these figures. Governments should re-assess
whether AIDS is an epidemic in their countries, and
globally, and revise their policies accordingly.

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sparks debate", in The Globe and Mail, May 4, 1998, p. A5.

Picard, Andre, "AIDS Preventable for babies - but a
million a year infected", in The Globe and Mail, June 30,
1998, p. Al.
Picard, Andre, "Simple jelly bean a lifesaver at co*cktail
time", in The Globe and Mail, July 2, 1998, p. A6.

Pomeranz, Bruce, Jason Lazarou, and Paul N. Corey,
"Incidence of Adverse Drug Reactions in Hospitalized
Patients", in Journal of the American Medical Association,
279, 1998, pp. 1200-1205.
Radetsky, Peter, "How Cancer Cells Commit Suicide:
Quite by accident, Dr. Catharina Svaborg discovered
that ordinary breast milk compels cancer cells to die , in
The Ottawa Citizen, July 2, 1999, p. A10, reprinted from
Discover.
Ratcliffe, Molly, "Pelvic Inflammatory Disease and
Cervical Cancer", in Continuum, Vol. 3, No. 1, AprilMarch, 1995, pp. 15-16.
Root-Bernstein, Robert, "Misleading Reliability", in The
Sciences, The New York Academy of Sciences, March/April,

1990, pp. 6-8.
Root-Bernstein, Robert, Rethinking AIDS. The Tragic Cost
of Premature Consensus, The Free Press, New York, 1993.

Samson, Lindy, and Susan King, "Evidence-based guide
lines for universal counselling and offering of HIV testing
in pregnancy in Canada", Canadian Medical Association
Journal, June 2, 1998, pp. 1449-1457.

Shallenberger, K., in Medical Ffpotheses, Vol. 50, No. 1,
Jan. 1998, pp. 67-80.
Shenton, Joan, "AIDS in Africa", television transcript
from Meditel, Rethinking AIDS www site, 1993.
Shenton, Joan, "Whatever Happened to AIDS in Haiti",
in Continuum, Vol. 4, No. 1, 1996, pp. 12-14.

Shenton, Joan, Positively False - Exposing the Myths around
HIV and Aids, LB. Tauris & Co. Ltd., Victoria House,
Bloomsbury Square, London, 1998.
Sonnabend, Joseph, quoted in Graham, Lamar, "The
Heretic: What if HIV doesn't cause AIDS", in GQ,
November, 1993, p. 243.

Strauss, Stephan, "Something's wrong when we have 600
stories on AIDS and only six on arthritis", in lhe Globe
and Mail, April 10, 1993.

Uncommon Questions

'-27

The Ottawa Citizen, "Canada considers HIV tests for
would-be immigrants", January 9, 1999, p. A4.

Walton, Clair, "What makes a survivor?", in Continuum,
Vol. 5, No. 5, Winter, 1998-99, pp. 16-18.

Van Esterik, Penny, Beyond the Breast-Bottle Controversy,
Rutgers University Press, New Jersey, 1989.

Winikoff, B„ M.A. Castele and H. Lankaran (eds.), Feeding
Infants in Four Societies: Causes and Consequences of Mothers
Choice, Greenwood Press, New York, 1988.

Verney-Elliott, Michael, "AIDS Vaccines - the Cruel
Delusion", in Continuum, Vol. 5, No. 2, 1997, pp. 6-7.

Walton, Clair, "Lust for Life, Clair Walton challenges
anomalies in a healthcare system that ignores her
choices", in Continuum, Vol. 4, No. 6, June/July, 1997.

28 — Uncommon Questions

' .Appendix A
Alternative Activists,
Theories and Organizations
Bialy, Harvey, a molecular biologist, worked for many
years as a tropical disease expert and is now the sci
ence editor of Bio/Technology. He believes that "AIDS
death" in Africa is caused by poverty-linked diseases
likeTB, whose deadliness is exacerbated when peo
ple mistakenly diagnosed HIV-positive are denied
proven conventional treatment for their already wellknown diseases - TB, malaria, parasitic infections;
and that much needed funding is being diverted
to AIDS and away from treating these conventional
diseases (Shenton, 1998: 155-160).

Duesberg, Peter, a professor of molecular and cell biology
at the University of California, and a renowned
pioneer in retrovirus research, challenges the HIVcauses-AIDS hypothesis and advocates for research
funds into other explanations for AIDS. Duesberg
argues that HIV is a harmless hitch-hiker unable
to cause AIDS because: there are very low levels of
HIV in the body, which never rise, even in advanced
AIDS; there are too few infected cells in the body
for HIV to cause disease; the latency period, from
infection with HIV to full-blown AIDS, is unprece
dented in any viral disease, is inexplicable within
prevailing viral theory, and inconsistent with what
is known of viral behaviour and effects; there are
many cases of HIV infection with no AIDS; and
10 percent of diagnosed AIDS cases have no sign
of antibodies to HIV (Duesberg, 1996; Shenton,
1998:11). Duesberg also does not believe that AIDS
is an infectious disease, because it does not adhere
to Koch's 4 postulates for infectious diseases. Instead
he believes that AIDS results from toxic agents. He
believes that the immune system is weakened by
co-factors including the recreational use of amyl
nitrates, intravenous drug abuse, repeated infections,
and malnutrition. Once the immune system is defi
cient, opportunistic infections invade the body. His
book, Inventing the AIDS Virus (1996) and the
following articles explain these arguments. See:

Duesberg, Peter, "Retroviruses as carcinogens and
pathogens: expectations and reality" in Cancer
Research, Vol. 47, no. 5, CNREA 8, 1 March 1987,
pp. 1199-1220.
Duesberg, Peter, "AIDS epidemiology: inconsisten
cies with human immunodeficiency virus and with
infectious disease", in PNAS, Vol. 88, February 1991,
pp. 1575-9.
Duesberg, Peter, "AIDS Acquired by Drug
Consumption and Other Noncontagious Risk
Factors", Appendix B, p.505-642, in Inventing
the AIDS Virus, Regnery, Washington, 1996.
A very useful summary of Duesberg's perspective
on the causal relationship between AIDS and drug
use can be found in Duesberg, Peter, and David
Rasnick, "The Drug-AIDS Hypothesis", a supple
ment insert to Continuum, Vol. 4, No. 5,
February/March, 1997, pp. 1-24.
More information about Dr. Duesberg's research
can be found at: www.duesberg.com

Farber, Celia is a journalist who has researched and written
many articles challenging the AIDS orthodoxy which
were, for many years, published in Spin magazine.
She now writes for several periodicals, including a
regular column in the webzine, Impression. In an
article written for Mothering, Farber comprehen
sively outlines the flawed process for adopting AZ1
for the treatment of AIDS and pregnant women
who are HIV positive. Farber clearly documents
the toxic effects of ATT therapy and the potential
dangers to pregnant women. She also reviews the
critique that HIV causes AIDS and the research that
demonstrates that HIV tests are inaccurate. Farber's
regular column in Impression can be found at:
www.i mpression mag.com/aids.ht m 1. See:
Harber, Celia, "AZP Roulette. The Impossible
Choices Pacing I HV-Positive Women", in .Mothering,
September-October, 1998, pp. 53-65.

Uncommon Questions — 29

Criffiths, Mark, a musician, tested HIV-positive in
1986 while staying at a detoxification centre in
Switzerland. 1 le relates his positive test result to a
decade of alcohol and heroine addiction and his
self-destructive life as a rock musician. Since his
diagnosis he has transformed his life, improved his
nutrition and his general emotional health. When
in 1990 he found out about Duesberg and other sci
entists confronting the HIV/AIDS paradigm, he was
confirmed in what he intuitively knew all along. He
remains in good health and works at making alter
native AIDS theories known in Erance. His story’ can
be read on the web site: perso.wanadoo.fr/sidasante/
te m o i gn a/te m m a rkg. h t m I

Lanka, Stefan, is a member of a group of retired scientists
who formed a Study Group on Nutrition &
Immunity, to study emerging fields of science, and
they challenge the virus - AIDS hypothesis. Lanka's
article, "HIV: reality or artifact?" (Continuum, Vol. 3,
no. 1, April/May, 1995) presents the Alfred Hassig
(Berne) group's opinion on the cause of AIDS. They
say that AIDS is the result of a persistent stress
response, shifting the metabolism of the body into
a state of assault on the immune system which the
body cannot sustain, resulting in chronic whole
body inflammation, causing antibodies to be formed
against proteins from the body's own cells. These
are the antibodies that have become interpreted as
HIV antibodies. They say the inflammatory response
involves the neuroendocrine system much like other
autoimmune disease such as SLE (lupus), and isn't
viral at all. They are opposed to drug treatment and
suggest practical ways of helping people with this
phenomena - reducing stress, controlling inflam
matory response, ensuring good nutrition and
avoiding recreational/street drugs (Shcnton, 1998:
225). See:
Conlan, Mark G., "Interview with Stefan Lanka,
Challenging both Mainstream and Alternative AIDS
Views", Neiusma^azine. December 1998. This article
about the virologist, biochemist and evolutionary
biologist, describes Lanka’s discoveries and view
points about 11IV in easily understandable terms.
It explains why Lanka believes that all so-called

Uncommon Questions

retroviruses are actually the body's own creations;
that hepatitis is an autoimmune disorder rather than
a viral disease; that AIDS has nothing to do with
immune suppression and that it should actually
be called Acquired Energy Deficiency Syndrome AEDS - because its true cause is a breakdown of the
immune system itself. This interview can be found
on the Rethinking AIDS homepage at: www.virus
myth. com/aids/data/mgglanka.htm

Also see: A. Hassig, et. al., "Errors on pathogenesis,
prevention and treatment of AIDS", Continuum,
Vol. 5, No. 4, Summer 1998, pp. 28-29.
Passi, Siro, is a biochemist, presently Scientific Director of
the Pathophysiology Laboratory of the St. Gallicano
Research Institute (Rome). Over the past two decades
he has published many papers on oxidative stress
and its adverse consequences in different patholo
gies. On the basis of his studies on HIV positive
and AIDS patients, he asserts that HIV phenomena
are the outcome of oxidative stress, and not vice
versa. I le says there are multiple factors capable of
inducing oxidative stress and leading to immuno
suppression: recreational drugs including ampheta
mines, nitrates, heroin, cocaine, alcohol, cigarette
smoke, etc.; medication drugs, including antiviral,
antimicotic, antibiotic, chemotherapeutic, and other
drugs. He argues that malnutrition/denutrition,
poor sanitation, and parasitic infections represent
the main causes of African AIDS. See:

Passi, Siro, "Progressive Increase of Oxidative
Stress in Advancing Human Immunodeficiency",
Continuum, Vol. 5, No. 4, Summer, 1998, pp. 20-26.
Passi, Siro, and Chiara de Luca, "Dietic Advice for
immunodeficiency", in Continuum, Vol. 5, no. 5,
Winter, 1998-99.
Papadopulos-Eleopulos, Eleni, is a bio-physicist from the
University of Western Australia,and the Chairperson
of 1FAS (International Eorum for Accessible Science).
She leads a research team that argues for a reap
praisal of 11IV and its role in AIDS. The Penh group
contends that antibody proteins are not specific to
HIV and are probably endogenous (pan of the body
itself) and may increase when the body is under

severe immunological stress. They argue that because
HIV has never been isolated according to the Pasteur
Institute's criteria of 1973, it may not exist at all. See:
Papadopulos-Eleopulos, Eleni, V. E Turner, J.M.
Papadimitriou et al. "HIV Antibodies: Further
Questions and a Plea for Clarification", in Medical
Research and Opinion,Vol. 13, 1997, pp. 627-634.

Papadopulos-Eleopulos, Eleni, "Factor VIII, HIV
and AIDS in haemophiliacs: an analysis of their
relationship", in Genetica, Vol. 95, 1995, pp. 25-50.
Papadopulos-Eleopulos, Eleni, "Is a positive Western
blot proof of 11IV infection?", in Bio/Technology,
Vol. 11, June, 1993.

Papadopulos-Eleopulos' views on the false link
between HIV and haemophilia are reviewed by
Christine Johnson, in "Bad blood or bad science:
are haemophiliacs with AIDS diagnoses really
infected with HIV?", in Continuum, Vol. 5, No. 4,
Summer 1998, pp. 32-36. The same issue contains
an essay by Papadopulos-Eleopulos and her Perth
colleagues on "Oxidative stress, HIV and AIDS",
reprinted from Research in Immunology, No. 143:
145-148, Paris 1992. See also:
"Is HIV the cause of AIDS?", an interview by
Christine Johnson with Eleni PapadopulosEleopulos, in Continuum, Vol. 5, No. 1, 1997
More information and references can be found at:
www. v i rus m yt h. co m/a i d s/ perth gro u p. i n dex. h t m 1

Root-Bernstein, Robert, held the MacArthur Prize fellow
ship (known as the MacArthur "genius" award)
from 1981-1986, and is associate professor of phy
siology at Michigan State University. In his book,
Rethinking AIDS. The Tragic Cost of Premature
Consensus (1993), Root-Bernstein reviewed the
entire existing body of AIDS research to that point.
Root-Bernstein believes that 11IV cannot be the sole
cause of the immune-suppression found in AIDS
patients. He argues that co-factors are necessary for
AIDS, and that they alter its course (1993: 337). He
shows that many people infected with HIV remain

healthy and sometimes HIV positive people even
rid themselves of the virus; that sexual transmission
is extremely difficult and rare - female prostitutes
virtually never contact HIV unless they also use
drugs; and that the predicted heterosexual epidemic
has not come about. Root-Bernstein presents a
"multi-factorial" model of AIDS, which views the
disease as resulting from numerous insults to the
immune system itself. He identifies co-factors such
as illicit and prescription drug use, sexual promiscu
ity, anal exposure to sem*n, transfusions, malnutri
tion, or multiple infections (1993: 338). He argues
that a person's life-circ*mstances (socio-economic)
and behaviours are a much more important factor
in determining a person's susceptibility to develop
ing AIDS than is commonly accepted in the medical
community. Thus he focuses on specific controllable
factors that increase risk of AIDS. He advocates for
more research into the various co-factors and their
effects on our health. See:
Root-Bernstein, Robert, Rethinking AIDS. The Tragic
Cost of Premature Consensus, The Free Press, New
York, 1993.
Root-Bernstein, Robert, "Misleading Reliability",
in The Sciences, The New York Academy of Sciences,
March/April 1990, pp. 6-8.

The Croup for the Scientific Reappraisal of H1V/A1DS
Hypothesis is a group of 500 scientists and health pro
fessionals, whose purpose is to study and challenge
the AIDS orthodoxy, founded by Dr. Charles Thomas
and Dr. Peter Duesberg and includes Dr. Kary Mullis,
Chemistry Nobel Prize winner (Shenton, 1998: 12,
33). This group produces a monthly newsletter
called Reappraising Aids.

Articles by many of the members of the group
and other interesting information challenging
the H1V=AIDS paradigm can be found on the
group's Rethinking AIDS homepage at www.virusmyth.com/aids. Subscription information as well
as an index of issues can be found at:
w ww. vi rus m yt h. co m/a i ds/ rea ppra isi n g/i ndex. h t ml.

Uncommon Questions} — 31

Health Education AIDS Liaison (HEAL) is a non-profit
education network committed to increasing public
awareness of important information not made
available by AIDS service agencies and unacknowl
edged by most media. HEAL's mission is to inform
people of the evidence that the I I1V=A1DS
Hypothesis is false. HEAL asserts that "anti-viral"
drugs, claimed to eradicate HIV, are harmful and
dangerous. HEAL supports people who have been
labeled HIV-positive by assuring them that their
diagnosis is not a death sentence. HEAL encourages
people to EXPECT HEALTH and pursue holistic,
non-toxic approaches to the prevention and
treatment of disease.
The HEAL Los Angeles homepage with lots of infor
mation can be found at: www.epcnet.com/heal
There is also a dynamic HEAL chapter in Toronto.
IIEAL Toronto's pamphlet is available from tel/fax
416-406-4325; email: endaids@hotmail.com. The
I IEALToronto homepage is at: www.geocities.com

'rhe French MEAL affiliate, called A.M.G. can be
found at: perso.wanadoo.fr/sidasante
The International Coalition for Medical lustice fights for the
rights of consumers and parents to reclaim respon
sibility for their own health without government
intrusion into the decision making. They insist on
accountable scientific and medical research and try'
to help people make "true" informed decisions
rather than simply trust the hypotheses set forth by
the CDC and Nil I. The ICMJ Legal Defense Fund
offers patients, families and parents legal informa
tion, advice and funding, and the Fund will also
establish an initiative in the United States to hold
all health departments and medical practitioners to
standards as they relate to testing, the toxic effects
of conventional treatment and the "true" cause of
AIDS and other diseases and conditions. ICMJ can
be reached at 540-829-9350, or by e-mail at iemjustice@yahoo.com; their websites are www.icmj.org
o r w w w. t ri pod. m e m bers/1 CM j /

Uncommon Quest ions

International Fomin for Accessible Science (IFAS) is an
umbrella group which has brought together scien
tists, gay health activists and human rights workers
to highlight radical challenges to current AIDS
research, diagnosis, and treatment strategies.
International Long Term Sumivors Network (FIIV/AIDS)
has been established to link and support people
living with HIV for seven years and longer without
recourse to anti-HIV pharmaceutical drugs, and to
do research on alternative measures to maintain
health. The Network is currently conducting what it
has called the International Community Collaborative
Long Term Survivor Survey. People wanting infor
mation about the network or to participate in the
survey, can contact Clair Walton, the Network
coordinator, through Continuum.

The Alberta Reappraising AIDS Society (ARAS) was "formed
to challenge the myth that HIV is the cause of AIDS
and to provide information to Albertans that will
ensure that they realize that HIV tests are inaccurate,
that AIDS is caused by exposure to toxic or immunesuppressive substances, and that anti-HIV drugs are
extremely toxic, can cause AIDS, and may be fatal."
ARAS President, David Crowe can be reached at
crowed@cadvision.com or (403) 289-6609.
Continuum is A UK-based magazine edited by Huw
Christie, which promotes an open discussion of
a wide variety of views on the causes of AIDS, and
the consequences of orthodox views and treatments,
as well as news of alternatives. The address for sub
scriptions is Continuum, Rear Unit 4, IA Hollybush
Place, London E2 9QX, phone 44-171-613-3909, fax
613-3312, email continu@dircon.co.uk. An index of
issues and subscription information can be found
at www.continuum.org or www.virusmyth.com/
aids/continuum/index.html

Medecines Nouvelles is a French critical alternative health
quarterly with articles on a wide range of studies and
criticisms of the conventional medical system, includ
ing toxicity of vaccines, death and illness caused by
pharmaceuticals, and alternative approaches to dif
ferent diseases. Every issue contains one or more
articles on AIDS, ranging from French translations of
articles by Duesberg and Lanka, to a critique of AZ1'
toxicity by Dr J. Avicenne, a physician and conseiller
medical with "Positifs", an organization of "angry
HIV-positive people" (as they call themselves).
Medecines Nouvelles can be contacted at:
www.positifs.org. The magazine, Medecines
Nouvelles, can be obtained from: B.P. 2, 14130
Blangy-le-Chateau, France, tel: 31.64.63.00.

IDEAS About AIDS is an extensive series of excellent radio
documentaries on AIDS dissent and alternative AIDS
theories broadcast by the Canadian Broadcasting
Corporation (CBC) program "CBC Ideas" between
1987 and 1999. The series, which has won awards
from the Canadian Science Writers Association, has
been produced by a brilliant and courageous team
of journalists led by Max Allen and Colman Jones.
All transcripts, including extensive bibliographies,
are available from CBC Radio at: Ideas Transcripts,
CBC, Box 500, Stn. A, Toronto, Canada, M5W 1E6,
or by email from ideastran@toronto.cbc.ca. For
more information and extensive resource lists, see:
www.radio.cbc.ca/ programs/ideas/Aids/index/html.

A French alternative AIDS activist website can be
found at: perso.wanadoo.fr/sidasante

Uncommon Questions — 33

Appendix B

Chronology of Centres for Disease Control's AIDS Definitions
(Duesberg, Inventing the AIDS Vims, pp. 210-211)

Year

Diseases

1983

Protozoal and helminthic infections
1. Cryptosporidiosis, intestinal, causing diarrhea for more than a month
2. Pneumocystis carinii pneumonia
3.
Strongyloidosis, causing pneumonia, central nervous system (CMS)
infection or disseminated infection
4.
Toxoplasmosis, causing pneumonia or CNS infection

Fungal infections
5. Candidiasis, causing esophagitis
6. Crytococcosis, causing CNS or disseminated infection

HIV Antibody

not required

Bacterial infection
7.
"Atypical" mycobacteriosis, causing disseminated infection

Viral infection
8.
Cytomegalovirus, causing pulmonary, gastrointestinal tract, or central
nervous system infection
9.
Herpes simplex virus, causing chronic mucocutaneous infection with
ulcers persisting more than a month or pulmonary, gastrointestinal tract,
or disseminated infection
10. Progressive multifocal leukoencephalopathy (presumed to be caused
by a papovavirus)
Cancer
11. Kaposi's sarcoma in persons less than 60 years of age
12. Lymphoma, primary' of the brain

1985

1987

1993

13.
14.
15.
16.
17.
18.

Histoplasmosis
Isosporiasis, chronic intestinal
Lymphoma, Burkitt's
Lymphoma, immunoblastic
Bronchial or pulmonary candidiasis
Chronic lymphoid interstitial pnemonitis (under 13 years of age)

19. Encephalopathy, dementia, HIV-related
20. Mycobacterium, tuberculosis any site extrapulmonary
21. Wasting syndrome, HIV-related
22. Coccidiomycosis, disseminated or extrapulmonary
23. Cryt o co ccos i s, ext ra p u 1 m o n a ry
24. Cytomegalovirus, other than liver, spleen, or nodes
25. Cyto m ega lovi rus ret i n i t i s
26. Salmonella septicemia, recurrent

27. Recurrent bacterial pneumonia
28. Mycobacterium tuberculosis any site (pneumonia)
29. Pneumonia, recurrent
30. Invasive cervical cancer
31. T-cell count less than 200 cells per microliter or less than
14 percent of the expected level.

Uiicommon Questions

required

J>fS - Xc-3

I iie Bangladesh Observer

Democracy and Human Riehts
Trafficking in Persons Report - Report Released by the Office to
Monitor and Combat Trafficking in Persons
Introduction
A Look at the Problem
Over the past year at least 700,000, and possibly as many as four million men, women
and children worldwide were bought, sold, transported and held against their will in slave like
conditions. In this modern form of slavery, known as "trafficking in personstraffickers use
threats, intimidation and violence to force victims to engage in sex acts or to labor under
conditions comparable to slavery for the traffickers’ financial gain. Women, children and men
are trafficked into the international sex trade for the purposes of prostitution, sex tourism and
other commercial sexual services and into forced labor situations in sweatshops, construction
sites and agricultural settings. The practice may take other forms as well, including the abduction
of children and their conscription into government forces or rebel armies, the sale of women and
children into domestic servitude, and the use of children as street beggars and camel jockeys.
Traffickers often move victims from their home communities to other areas - within their
country or to foreign countries - where the victim is isolated and may be unable to speak the
language or be unfamiliar with the culture. In many cases, the victims do not have immigration
documents or they have fraudulent documents provided by the traffickers. Most importantly, the
victims lose their support network of family and friends, thus making them more vulnerable to
the traffickers’ demands and threats. Victims also may be exposed to a range of health concerns
including domestic violence, alcoholism, psychological problems, HIV/A1DS and other sexually
transmitted diseases. Victims in these situations do not know how to escape the violence or
where to go for help. Victims may choose not to turn to authorities out of fear of being jailed or
deported, especially because the governments of some countries treat victims as criminals. In
other countries, there is no protection for victims who come forward to assist in the prosecution
of traffickers.
Traffickers recruit and find potential victims in a number of ways. Traffickers advertise
in local newspapers offering good jobs at high pay in exciting cities. They also use fraudulent
employment; travel, modeling and matchmaking agencies to lure unsuspecting young men and
women into the trafficking networks. In local villages, a trafficker may pose as a “friend of a
friend,” meet with families and convince parents that their children will be safer and better taken
care of by the “friend”. Traffickers often mislead parents into believing that their children will be
taught a useful skill or trade - but the children end up enslaved in small shops, on farms, or in
domestic servitude Traffickers also promise parents that they will marry their daughters - but
the girls are forced into prostitution. In some violent situations, traffickers may kidnap or abduct
victims.

The Causes of Trafficking

Economic and political instability greatly increases the likelihood that a country will
become a source of trafficking victims. In countries with chronic unemployment, widespread
poverty and a lack of economic opportunities, traffickers use promises of higher wages and good
working conditions in foreign countries to lure people into their networks. Victims, who want a
better life for themselves and their families, are easily convinced by the traffickers’ promises.
Civil unrest, internal armed conflict, and natural disasters destabilize and displace populations
and, in turn, increase their vulnerability to exploitation and abuse. In some countries, social or
cultural practices contribute to trafficking. For example, the low status of women and girls in
some societies contributes to the growing trafficking industry by not valuing their lives as highly
as those of the male population. In other societies, the practice of entrusting poor children to
more affluent friends or relatives may lead to abusive and exploitative situations.
In many destination countries, commercial sexual exploitation and the demands for
inexpensive labor have increased over the past several decades. Many traffickers who are part of
criminal networks involved in other transnational crimes have recognized that they can profit
greatly by supplying people to fill these demands. Trafficking does not require a large capital
investment and it frequently involves little risk of discovery by law enforcement. In addition,
trafficking victims, unlike drugs, can be re-sold and used repeatedly by traffickers. In some
countries, corruption contributes to the problem of trafficking, where local officials are complicit
in trafficking or turn a blind eye.

Trafficking victims are often brought through “transit countries” from a source country to
a destination country. Traffickers may use false documents in doing so. Weak border controls
and corruption of migration officials also may further facilitate the transit of victims.

The magnitude

Given the nature of trafficking and its often hidden face, it is extremely difficult to
develop accurate statistics on the extent of the problem. According to a U.S Government
estimate based on 1997 data, 700,000 persons, mainly women and children, are trafficked across
national borders worldwide each year. Other global estimates of the number of victims trafficked
annually range from approximately one to four million. According to an International
Organisation for Migration 1997 estimate, the number of victims trafficked both internally and
across national borders is four million. The United States is principally a transit and destination
country for trafficking in persons. According to a 1997 estimate, some 50,000 women and
children are trafficked annually for sexual exploitation into the United States.
The Trafficking Victims Protection Act of 2000
In October 2000, the Trafficking Victim Protection Act (Division A of Public Law 106386) (the Act ) was enacted to combat trafficking to ensure the just and effective punishment of
traffickers and to protect victims. The Act added new crimes, strengthened pre-existing criminal
penalties, afforded new protections to trafficking victims, and made available certain benefits
and services to victims of severe forms of trafficking. With this comprehensive approach to the

problem, the Act created significant mandates for several federal government agencies, including
the Departments of State, Justice, Labor, Health and Human Services and the U.S Agency for
International Development. One of the State Department’s responsibilities is the annual
submission of a report to Congress on the status of severe forms of trafficking in persons; this is
the second such report. The Act’s definition of “severe forms of trafficking in persons” is in the
following box, as are its definitions of other terms that are elements of that definition. For the
purpose of this report, the term “trafficking” refers to “severe forms of trafficking in persons” as
defined in the Act.

Bangladesh (Tier 2)
Bangladesh is a country of origin for women and children trafficked for purposes of
sexual exploitation, domestic servitude, and bonded labor. There is also internal trafficking of
women and children from rural areas to the larger cities. The majority of trafficking victims are
women and girls trafficked to India, Pakistan, Bahrain, and the Middle East. Boys are also
trafficked to the United Arab Emirates and Qatar and forced to work as camel jockeys and to the
United Arab Emirates to work as beggars.

The Government of Bangladesh does not yet fully comply with minimum standards for
the elimination of trafficking; however, it is making significant efforts to do so. Bangladesh has
laws that prohibit various forms of trafficking. The government has arrested and prosecuted
some traffickers, and courts have handed down tough sentences. The government does
investigate trafficking cases; however, the court system is backlogged by approximately one
other million cases, severely hampering the ability to bring criminal cases to closure quickly.
Police and government officials have received specialized training from international
organisations and NGOs in investigating and prosecuting trafficking cases. Corruption is
widespread at lower levels of government and police, customs, immigration officials and border
guards receive bribes and may assist in trafficking. If caught, prosecuted and convicted, corrupt
officials may receive reprimand; but their employment is rarely terminated. The government
does not adequately monitor its borders. Regarding victim protection, trafficked victims are not
detained, jailed, or prosecuted for violations of immigration or prostitution laws. The
Government works closely with and refers victims to NGOs that provide shelter an access to
legal, medical and psychological services. Government officials support prevention programmes
and actively participate in workshops, meetings and public awareness campaigns, but most
funding comes from international donors. To encourage parents to send their children to school,
the government supports “food for education” programmes. To reduce drop out rates, the
government provides stipends to girls attending secondary schools in rural areas. The
government has initiated an anti-exploitation public information campaign for citizens going
abroad to work. In January, Bangladesh signed the South Asian Association for Regional Co
operation (SAARC) Convention on Prevention and Combating Trafficking in Women and
Children for Prostitution. The government has recently adopted a national plan of action to
address child sexual exploitation and trafficking in persons.

Definition of “Severe Forms of Trafficking in Persons”

The Act defines “severe form of trafficking in persons” as sex trafficking in which a
commercial sex act is induced by force, fraud or coercion, or in which the person induced to
perform such act has not attained 18 years of age; or (b) the recruitment, harboring,
transportation, provision, or obtaining of a person for labor or services, through the use of force,
fraud or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage,
or slavery.
Definition of Terms Used in the Term “Severe Forms of Trafficking in Persons”
“Sex trafficking” means the recruitment, harboring, transportation, provision, or
obtaining of a person for the purpose of a commercial sex act.
“Commercial sex act” means any sex act on account of which anything of value is given
to or received by any person.
“Involuntary servitude” includes a condition of servitude induced by means of (A) any
scheme, plan, or pattern intended to cause a person to believe that, if the person did not enter into
or continue in such condition that person or another person would suffer serious harm or physical
restraint; or (B) the abuse or threatened abuse of the legal process.
“Debt bondage ’ means the status or condition of a debtor arising from a pledge by the
debtor of his or her personal services or of those of a person under his or her control as a security
for debt, if the value of those services as reasonably assessed is not applied toward the
liquidation of the debt or the length and nature of those services are not respectively limited and
defined.
“Coercion” means (A) threats of serious harm to or physical restraint against any person;
(B) any scheme, plan or pattern intended to cause a person to believe that failure to perform an
act would result in serious harm to or physical restraint against any person; or (C) the abuse or
threatened abuse of the legal process.
United States’ Efforts

The U.S. Government condemns trafficking in persons and remains firmly committed to
fighting this scourge and protecting the victims who fall prey to traffickers. The U.S Government
has taken numerous steps to enhance its efforts to monitor and combat trafficking, including the
annual drafting of this report.
Pursuant to the Act, President Bush established the President’s Interagency Task Force to
Monitor and Combat Trafficking in Persons. This Task Force is chaired by the Secretary of State
and is made up of the Attorney General, the Secretary of Labour, the Secretary of Health and
Human Services, the Director of Central Intelligence, the Director of Central Intelligence, the
Director of the Office of Management and Budget and the Administrator of the U.S Agency for
International Development. The Task Force responsibilities include coordination of the
implementation of the Act as well as assisting the Secretary of State in the preparation of this
report. The Task Force held its first meeting, chaired by Secretary Powell, in February 2002.
As authorized by the Act, the Department of State established the Office to Monitor and
Combat trafficking in Persons in October 2001 The Trafficking Office leads the development

and implementation of our international engagement on trafficking in persons and provides
assistance to the Task Force. It also prepares reports and analyses on trafficking, coordinates
international programs to prevent trafficking and to aid victims, and conducts outreach with non
governmental organizations (NGOs) and International organizations. In addition, other federal
agencies represented on the Task Force provide detailees to the Trafficking Office in order to
strengthen interagency coordination and assist with Task Force activities. More information
about the Trafficking Office can be found on its website.

The efforts of the Trafficking Office are guided by a legislative mandate to combat and
eradicate human trafficking. Given the magnitude and urgency of this task, the Trafficking
Office’s priorities are to:
Assist countries with the elimination of trafficking;
Promote regional and bilateral cooperation for trafficking eradication; and
Support service providers and NGOs in their trafficking prevention and victim protection
efforts.
The Department of State has taken numerous steps to craft and implement an overall
strategy to combat trafficking worldwide within the last year. The State Department is assisting
in the coordination of anti-trafficking policy and programs among federal agencies, international
organizations, foreign governments and NGOs worldwide. This report, addressing 89 countries
that were found to have a significant number of trafficking victims, is the most comprehensive
international anti-trafficking review issued by any single government.
Leveraging the attention generated by its Trafficking in Persons Report, the State
Department continuously engages with foreign government officials to promote cooperation and
enhanced anti-trafficking campaigns, both regionally and on a per-country basis. The
Department also continued to expand reporting on trafficking in persons in its annual Country
Reports on Human Rights Practices.

The Trafficking Office is working with other U.S Government agencies that are pursuing
aggressive policies to prevent trafficking, to prosecute traffickers and to protect and assist
victims domestically and internationally. Various U.S. Government agencies have worked
together to create informational brochures on trafficking for victims, NGOs and law enforcement
personnel; to conduct training programs for U.S Government officials; to issue regulations and
establish guidelines regarding the protection and assistance for trafficking victims; and to fund
anti-trafficking activities in the United States and throughout the world. A chronicle of U.S.
Government efforts to implement the Act is contained in the document “Overview of the
Administration’s Implementation of the Trafficking Victims Protection Act,” which can be found
on the Trafficking Office’s website.
The U.S Government supported over 110 anti-trafficking programs in approximately 50
countries in fiscal year 2001. The types of assistance include the following: economic alternative
programs for vulnerable groups; education programs; training for government officials and
medical personnel; development or improvement of anti-trafficking laws; provision of equipment
for law enforcement, establishment or renovation of shelters, crisis centers, or safe houses for
victims; support for voluntary and humane return and reintegration assistance for victims; and

support for psychological, legal, medical and counselling services for victims provided by
NGOs, international organizations and governments. The Department’s priority is to help the
governments of countries in Tiers 2 and 3 that are eligible for assistance and committed to
combating trafficking. (See pages 10-12 for an explanation of tier listings.)

The State Department has actively sought out the crucial cooperation of NGOs, given
their invaluable practical experience. It would be challenging to implement successfully an on
going international campaign to combat trafficking without their partnership. Within this last
year, the Trafficking Office has hosted numerous meetings and briefings with NGOs to solicit
their expertise and recommendations. Moreover, in preparation for this report, the Trafficking
Office asked over 140 NGOs to provide information on trafficking practices and programs
throughout the world. Carrying out the legislative mandate to engage NGOs, the Trafficking
Office invites further suggestions to enhance NGO cooperation.
I liternational Engagement

Trafficking has reached staggering dimensions around the globe. Solving this problem
and bringing relief to its many victims will be possible only through cooperative efforts. This
cooperation must occur bilaterally and multilaterally among various governments, but also
between governments and civil society, including NGOs. It must involve governmental
coordination on national counter-trafficking strategies, as well as coordination at a local level.
Destination countries must work with transit and source countries to stem the flow of trafficking;
source countries must work not only to prevent trafficking, but to help with the reintegration of
trafficking victims back into their home societies. The United States’ international engagement is
focused on bolstering international political will to combat the issue, increasing a dialogue
among countries to identify ways to expand national, regional and international efforts to address
trafficking, and strengthening nations’ efforts to fight trafficking.

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons. Especially
Women and Children, which supplements the UN Convention against Transnational Organized
Crime and was adopted by the UN General Assembly in November 2000, is an important new
tool to facilitate International cooperation. Governments that sign and ratify this Protocol make a
commitment to criminalize trafficking, protect its many victims, and prevent future trafficking.
To date, the United States and 104 other countries have signed the Protocol.
Two other International instruments that address the sale of and trafficking in children
have also recently been adopted -International Labor Organization (ILO) Convention 182
concerning the prohibition and immediate action for the elimination of the worst forms of Child
Labour (which the United States ratified in December 1999), and the Protocol to the Convention
on the Rights of the Child on Sale of Children, Child Prostitution and Child p*rnography (which
the United States signed in July 2000). ILO convention 182 requires that countries take steps to
provide children removed from the worst forms of child labor, such as prostitution and
p*rnography, with access to free basic education. The Protocol requires that states criminalize
prostitution and p*rnography with respect to children under the age of 18. The US Government
engages with its co-signatories of ILO Convention 182 to ensure that government efforts against
child exploitation remain sustained and significant.

The Report
This is the second annual report to Congress, as required by the Act, on the status of
severe forms of trafficking in persons worldwide. It covers the time period of April 2001 through
March 2002. In this year’s report, several countries have moved from their placement in last
year’s report, as discussed on pages 12 through 13. Some countries are not listed in this year’s
report because of a lack of reliable information, as discussed on pages 11-13. With this annual
report, the United States seeks to bring international attention, both of governments and the
general public, to the horrific practice of trafficking in persons. This report serves as a major
diplomatic tool for the U.S Government, which hopes that other governments will view this as an
instrument for continued dialogue, encouragement for their current work, and an instrument to
help them focus their future work on prosecution, protection, and prevention programs and
policies. After the release of this year’s report, the Department will continue to engage in
discussions with governments about the content of the report to help strengthen cooperative
efforts to eradicate trafficking. The Department will use the information gained in the
compilation of this year’s report to target assistance programs more effectively and to work with
countries that need help in combating trafficking. Finally, the Department hopes the report will
be a catalyst for government efforts to combat trafficking in persons around the world, so that
this degrading practice will be eliminated.

Methodology
To lead the State Department’s efforts in preparing this report, the Trafficking Office
assembled a panel with staff from the Trafficking Office and other U.S. Government agencies.
The panel included representatives from the Department of Justice, the Department of Health and
Human Services, the Intelligence community and the Department of State’s Bureau of
Democracy, Human Rights and Labor, and the Bureau of Population, Refugees, and Migration,
and it received counsel from the Office of the Legal Adviser.

The State Department obtained information from a variety of sources in preparing this
report. It solicited information from U.S embassies and consulates around the world. These
diplomatic posts reported on the extent of trafficking in their host countries and the host
government’s efforts to address the problem. Their reports reflected discussions with host
government’s, local and international NGOs, international organizations, immigration officials,
police, journalists, academics and victims, in addition to reviews of government, press and NGO
reports. Along with these reports from posts, the report panel also reviewed information from
other sources including, but not limited to, other U.S Government agencies, United Nations
International Children’s Emergency Fund, United Nations High Commissioner for Refugees, the
International Organisation for Migration, Human Rights Watch, Amnesty International, the
Protection Project, the media, academics and foreign governments. The panel also took into
consideration information learned by the Trafficking Office staff in numerous meetings with
foreign government officials, NGOs and international organizations Finally, the Trafficking
Office established an email address,
for NGOs to report information on
government progress in addressing trafficking, provide updates on the scope of the problem, and
focus attention on particular obstacles they encounter in their work.

To compile this year’s report, the Department used the same two-step approach it
employed for last year’s report. First, the report panel determined whether or not a country is a
“country of origin, transit, or destination for a significant number of victims” of trafficking. In
making this determination, the panel required credible reporting that the country was country of
origin, transit or destination for a number of victims on the order of one hundred or more, the
same threshold that was applied in the 2001 report. Only those countries that reach this threshold
are included in the report.
As a second step, the report panel placed each of the countries that are included on the
report into one of the three lists, described here as tiers, mandated by the Act. This placement is
based upon governments’s efforts to combat trafficking. In accordance with the Act, countries
whose governments fully comply with the Acts minimum standards for the elimination of
trafficking were placed in Tier 1. Countries whose governments do not fully comply those
standards were placed in Tier 2 if they are making “significant efforts to bring themselves into
compliance” with the standards, or in Tier 3 if they are not. Each tier encompasses a wide range
of countries.

Minimum Standards

The Act defines “minimum standards for the elimination of trafficking”, which are
summarized as follows:
The government should prohibit trafficking and punish acts of trafficking.
The government should prescribe punishment commensurate with that for grave crimes,
such as forcible sexual assault, for the knowing commission of trafficking in some of its most
reprehensible forms (trafficking for sexual purposes, trafficking involving rape or kidnapping, or
trafficking that causes a death).
For knowing commission of any act of trafficking, the government should prescribe
punishment that is sufficiently stringent to deter, and that adequately reflects the offense’s
heinous nature.
The government should make serious and sustained efforts to eliminate trafficking. The
Act also sets out seven criteria that “should be considered” as indicia of the fourth point above,
“serious and sustained efforts to eliminate trafficking” Summarized, they are:
Whether the government vigorously investigates and prosecutes acts of trafficking within
its territory. Whether the government protects victims of trafficking, encourages victims’
assistance in investigation and prosecution, provides victims with legal alternatives to their
removal to countries where they would face retribution or hardship, and ensures that victims are
not inappropriately penalized solely for unlawful acts as a direct result of being trafficked.
Whether the government has adopted measures, such as public education, to prevent
trafficking.
Whether the government cooperates with other governments in investigating and
prosecuting trafficking.
Whether the government extradites persons charged with trafficking as it does with other
serious crimes.
Whether the government monitors immigration and emigration patterns for evidence of
trafficking, and whether law enforcement agencies respond appropriately to such evidence.

Whether the government vigorously investigates and prosecutes public officials who
participate in or facilitate trafficking, and takes all appropriate measures against officials who
condone trafficking.

The Act also states three factors that the Department is to consider in determining
whether a country is making significant efforts to bring itself into compliance with these
minimum standards. Summarized, these considerations are: 1) the extent of trafficking in the
country; 2) the extent of governmental noncompliance with the minimum standards, particularly
the extent to which government officials have participated in, facilitated, condoned, or are
otherwise complicit in trafficking; and 3) what measures are reasonable to bring the government
into compliance with the minimum standards in light of the government’s resources and
capabilities.
The Tiers
Tier 1

The governments of countries in Tier 1 fully comply with the Act’s minimum standards.
Such governments criminalize and have successfully prosecuted trafficking, and have provided a
wide range of protective services to victims. Victims are not jailed or otherwise punished solely
as a result of being trafficked, and they are not summarily returned to a country where they may
face hardship as a result of being trafficked. In addition, these governments sponsor or
coordinate prevention campaigns aimed at stemming the flow of trafficking.
Tier 2

The governments of countries in Tier 2 do not yet fully comply with the Act’s minimum
standards but are making significant efforts to bring themselves into compliance with those
standards. Some are strong in the prosecution of traffickers but provide little or no assistance to
victims. Others work to assist victims and punish traffickers, but have not yet taken any
significant steps to prevent trafficking. Some governments are only beginning to address
trafficking, but nonetheless have already taken significant steps towards the eradication of
trafficking.
Tier 3

The governments of countries in Tier 3 do not fully comply with the minimum standards
and are not making significant efforts to bring themselves into compliance. Some of these
governments refuse to acknowledge the trafficking problem within their territory. On a more
positive note, several other governments in this category are beginning to take concrete steps to
combat trafficking. While these steps do not yet reach the appropriate level of significance, many
of these governments are on the path to placement on Tier 2.

Penalties
According to the Act, beginning with the 2003 report, countries in Tier 3 will be subject
to certain sanctions, principally termination of non-humanitarian, non trade-related assistance.
Consistent with the Act, such countries also would face U.S. opposition to assistance (except for
humanitarian, trade-related, and certain development-related assistance) from international
financial institutions, specifically the International Monetary Fund and multilateral development
banks such as the World Bank. All or part of the bilateral and multilateral assistance sanctions
may be waived upon a determination by the President that the provision of such assistance to the
country would promote the purposes of the Act or is otherwise in the national interest of the
United States. The Act provides that the President shall waive those sanctions when necessary to
avoid significant adverse effects on vulnerable populations, including women and children.

Country Narratives
This report provides a brief narrative for each country that has been placed in a tier. The
narratives do not include extensive details or comprehensive information about the countries or
their governments. Instead, they provide an overview of the trafficking situation in the country
and the government’s efforts to combat trafficking. The first paragraph of each narrative
describes the scope and nature of the trafficking problem in the country and thus indicates the
reasons the country ahs been included in the report. The second paragraph describes some of that
government’s efforts to combat trafficking, and thus illustrates the reasons the country has been
placed in Tier 1, 2 or 3 of the report. This second paragraph addresses government efforts in
several areas: first in the areas of law enforcemenl and prosecution of traffickers, then protection
of trafficked victims, and finally prevention of trafficking.
Establishing task forces and action plans are methods that some countries have
successfully used to create goals and benchmarks of their anti-trafficking efforts. However, these
plans and task forces, on their own, are not weighted heavily in assessing country placements.
Rather, the report focuses on concrete efforts that governments have undertaken to combat
trafficking. Similarly, the report does not weigh heavily laws that are in draft form or that have
not been enacted, because they cannot yet be used to combat trafficking. In some cases, task
forces, action plans or draft laws have been mentioned in a Country narrative as examples of a
positive attitude, or preliminary steps that the government is beginning to take to combat
trafficking.

In a few countries, armed forces beyond the government’s control forced children to
become soldiers or laborers, or to provide sexual services to rebels. In such countries, the
government may be unable to take many steps, along the lines of the Act’s “minimum
standards,” to combat the trafficking problem. This report categorizes such countries primarily
based on what steps, if any, their governments have taken to assist these victims. These
considerations are reflected in the country narratives.

The Department appreciates the response to last year’s report, including reactions from
the Congress, press, foreign governments and NGOs. Much of that response was positive and
contributed to an increasing awareness of the issue of trafficking in persons. Mindful of the

statutory requirement for the report and of its ultimate goal to help eliminate trafficking in
persons, we carefully considered suggestions that were made about last year’s report. For
example, we took additional steps to address the link between corruption and trafficking and the
report includes more detailed information on corruption. Similarly, we strove to increase the
consistency of the country narratives.
Tier Placements

Some countries were not included in the 2001 report or this report. Their omission should
not be construed necessarily as a positive result of such countries’ efforts to eliminate trafficking
in persons. Instead, their omission simply may indicate that at the time of the report’s
preparation, the Department did not have credible information that provided evidence of a
significant number of victims of trafficking. As noted above, trafficking is an underground
criminal activity, and, as such, information about it is difficult to obtain. The State Department
received reports of possible trafficking in many countries that do not appear in this report. The
Department cross-checked all reports with our diplomatic missions abroad and other sources. If
the Department determined that the information received was not reliable or did not adequately
document a significant number of victims, the country was not placed in the report. If additional
information becomes available, such countries may be included in a future report. A few
examples of the many countries in this situation include Uzbekistan, Turkmenistan and
Botswana.

Another difficulty in obtaining information, which mainly affects transit countries, arises
from the fact that it may be difficult to distinguish between trafficking in persons and migrant
smuggling. The mere facilitation of illegal entry into a country is not, on its own, trafficking in
persons, although such migrant smuggling may be part of a trafficking operation. Trafficking
victims, as they are being moved through transit countries, may not know that they will be forced
into prostitution or labor when they arrive in the destination country. Similarly, border patrol or
migration officials may recognize illegal entry into or transit through a country but not have
information alerting them that that smuggling is part of a trafficking situation. In preparing this
year’s report, the Department noted several countries, such as Croatia, that appear to have
considerable migrant smuggling, and thus may be transit countries for trafficking. However, for
the reasons mentioned above, the Department does not have enough information at this time to
include these countries in this year’s report.
The Department has only minimal information about some countries. North Korea is of
particular concern, and it is difficult to corroborate anecdotal information about trafficking.
Other examples of countries for which minimal information is available are Iraq and Somalia. In
such cases we have minimal information because, for example, there is no U.S diplomatic
presence in the country, the society is closed, there is no free press, or few NGOs operate in the
country. 1 he Department used all information that could be gathered from available sources
about these countries, but our ability to report on them is necessarily limited. We will continue to
seek additional information on these countries through other means, while recognizing the
difficulty of verification.

Again, countries omitted from this year’s report may be included in future reports on the
basis of changed circ*mstances or new information. The Department, its diplomatic posts around
the world, and other U.S Government agencies will continue to monitor trafficking in all
countries, with a special emphasis on those countries that are not in this year’s report but that
raise concern for the reasons described above, and will continue to seek new sources of
information for future reports. The structure of the new Trafficking Office will enable increased
collection of data year round. The Department also welcomes updates to the information
provided there.
Several countries that were not included in the 2001 report appear in this report because
of changed circ*mstances or new information about the number of trafficked victims in those
countries. In addition, a few countries that were included in the 2001 report are not in this year’s
report. This may indicate either a decrease in the number of trafficked victims to below the
“significant” threshold or the availability of new information that caused a reassessment of last
year’s finding.

Because the placement of a country in one of the three tiers is based on a determination
of that country’s efforts to address trafficking, we closely examined trends and developments in
each country over the last year. Several countries increased their efforts to combat trafficking
since issuance of the Department’s 2001 report. In some cases, the increased efforts justified
moving the country to a higher tier. As an example, South Korea, which has made extraordinary'
strides since the last report, moved from Tier 3 to Tier 1. Romania and Israel also made great
strides in strengthening their efforts demonstrating a clear commitment to this issue and
implementing a wide range of activities to combat the problem. Both have accordingly been
moved from Tier 3 to Tier 2. Other countries that moved from Tier 3 in 2001 to Tier 2 this year
as a result of improving their anti trafficking efforts are Albania, Gabon, Kazakhstan, Malaysia,
Pakistan and Yugoslavia. Although they do not yet fully comply with the minimum standards,
each was determined this year, as a change from last year, to be making significant efforts to do
so.
Several other countries that were placed in Tier 2 on the 2001 report improved to the
degree that they now fully comply witl) the minimum standards, and they are in Tier 1 of this
year’s report. These countries are the Czech Republic, France, Lithuania, Macedonia and Poland.
A small number of countries, whose efforts disappointingly lagged over the last year, dropped
from Tier 2 in 2001 to Tier 3 this year.

It is possible for a country to have a high number of trafficked victims and for its
government to be making significant efforts even if there are some glaring weaknesses. For
example, Thailand and Vietnam are listed in Tier 2 because they do not fully comply with
minimum standards but have made significant efforts to do so, by taking measures to prevent
trafficking and protect victims through a variety of efforts such as public awareness campaigns;
social and economic development for at risk individuals; partnering with NGOs, international
organizations and foreign governments to train police; and providing services and shelter to
victims. However, in both countries, law enforcement is poor due to corruption and complicity
by some police and government officials. The governments of Thailand and Vietnam have
conducted investigations and prosecuted some traffickers, however, they could and should do

much more to end impunity for corrupt officials and increase arrests and prosecutions of
traffickers.
Regardless of tier placement, there is more that every country can do. Those countries
that have been moved from one tier in last year’s report to a higher tier in this year’s report have
particularly demonstrated progress in addressing the problem of trafficking. It is also possible for
countries to be downgraded to a lower tier by reducing or limiting their efforts. No country
placement is permanent. All countries must maintain and increase their efforts to combat
trafficking. Toward its goal of eradicating trafficking globally, the United States will continue to
monitor progress throughout the world and work with partners to strengthen international efforts
to end this scourge.

The Bureau of Public Affairs, U.S. Department of State.
Taken Questions office of the Spokesman Washington, DC

Trafficking in persons: International reaction to annual report
Question: Has the Department received demarches from foreign governments protesting the
characterizations in the TIP report?
Answer: There have been no specific demarches. The Office to Monitor and Combat Trafficking I
in Persons meets throughout the year with foreign government representatives to discuss the
Trafficking in Persons Report and provide information on anti-trafficking activities. We will
continue to invite governments to meet with us. Our embassies abroad were tasked with meeting
with host government officials to discuss this year’s report.

International Symposium: The International Legal Order
International Institute for Peace, Nov.4-5, 2002

Session I:

Economy - Prosperity and Social Justice

Some comments on the legal regulation of trafficking, migration and terrorism:
Impact on cross-border movements and women’s rights

I raise three issues for discussion. The first is to discuss how global economic

processes have triggered a contemporary wave of migration, legal and illegal, and the

international and domestic responses to this phenomenon.
Secondly, to discuss the gender impact of anti-trafficking initiatives in the

domestic and international arena, which have adversely affected women’s economic
choices, curtailed their rights to mobility, and produced a clandestine migration-mobility
regime.
Thirdly, how recent legal responses to cross-border movements have been

informed by the “War on Terror”, which has converged with the discourse of the

conservative Right (here and there), building on the xenophobia pre-dating September
11th, and turned it into a hostile antagonistic fear of the Other’ who is threatening the

security of the nation.
My remarks focus on how the political and legal agenda that is currently being
pursued in relation to cross-border movements is diametrically opposed to women’s

rights and others who cross borders in their capacities as migrants, refugees or asylum
seekers. The contemporary legal interventions in the lives of the transnational subaltern

subject’ are being articulated primarily from the perspective of the host country and

within the overarching concern for the security of the nation.
The Context
Nearly 150 million migrants are crossing borders in our world today - from rural

towns to urban centers, from the periphery into the metropolis, from the global south into

the global north. And these crossings are profoundly challenging our most basic notions
of women’s reproductive labour, family, community, nation, culture and citizenship

Evicted from their homelands by powerful forces of exclusion and disadvantage, a

growing mass of floating migrants is squatting on global borderlands - searching lor a
new home, waiting to arrive. Countries of the global North and the global South are
pockmarked with these global borderlands inhabited by alien migrants. The residents of

the global borderlands are non-nationals, non-citizens and practically non-existent to

those who reside in and manage the business and defense of homelands. While often
invisible to agents of governance and the acknowledged citizenry in their host countries
this new breed of migrants, are gendered. Of the numerous new categories of migrants,
young women and adolescent girls predominantly from the global South and a significant

majority from the Asia-Pacific region, constitute their numbers.

Globalization is invariably used to refer to the free flow of capital, deemed as
critical to the efficiency of the market and intrinsic to the globalization process. The

market also triggers a global flow of labour, yet the free flow of labour is not addressed
within the discourse of market management. It is addressed in and through the

international legal order by initiatives dealing with trafficking, human smuggling, border
controls, terrorism and sexual morality. The impact of these various initiatives on cross-

border movements is mediated by gender, class, religion, sexual and marital status.

What remains unaddressed in these responses is how countries of origin and
destination stand to gain in significant economic ways from migration, including from

clandestine migrant-mobility. In the context of globalization, migrations do not just
happen - they are produced. And they do not simply involve a random cluster of
countries of destination, sites of employment or mobile groups of labour. For example, as

Saskia Sassen has argued that “ worldwide evidence shows rather clearly that there is
considerable patternizing in the geography of migrations, and that the major receiving

countries tend to get immigrants from their zones of influence.” This would explain some
of the patterns of migrations to the United States and the United Kingdom. It is partly an

outcome of the actions of government’s foreign policy and their economic involvement in
country’s of origin Earlier colonial patterns also inform current migration patterns,

captured in the slogan, ‘We are here, because you were there’

In countries of destination, there is also a persistent demand on the part of capital

for an increased rate of profit, which is partly fulfilled by depressing the wages of labour
and lowering costs of production. The specific demand for an abundant supply of low
wage labour and a shrinking supply of a local workforce especially in the global North

also helps to sustain the economy of the global metropolises. At the same time, cash

remittances to countries of origin have registered phenomenal increases over recent years,
with recorded remittances increasing from two billion to seventy billion over the course

of the past two decades. These remittances are largely invisible as they do not flow

through regular channels of the economy. Few sending or receiving countries have data
on the precise economic and non-economic impact of migration. Yet some studies in the

Asia-Pacific reveal that the remittances flow back through informal and underground
conduits, and sustain household, community and sometimes even local and national

economies.

Although migration is a fact of a globalized economy, the response of the
international legal order to what is cast as the migration dilemma is exceedingly

incomplete and continues to occupy a sensitive and politically charged field. The mass

movements of people have produced both domestic and international responses that fail

to account for the factors that trigger such movements. At the international level, crossborder movements have been addressed within the framework of trafficking and
smuggling. And as I discuss below, this approach has had a particularly adverse impact

on women pushing them further into situations of violence and exploitation. At the
domestic level, these movements have been addressed through appeals to assimilation

and tests of fealty to the nation, as well as the criminal law and the othering of the 'alien

migrant’, who fails to assimilate and continues to enter countries through illegal means.
Since September llth, security has become an overarching concern, and enabled some
governments to use the fear of threats to the security of the nation to detain the 'Other in
ways that fan the flames of hatred and intolerance and fail to make a distinction between

the migrant, terrorist and trafficker.

While the avenues for regular,

legal and

safe migration

have decreased

worldwide, due to restrictive migration and immigration policies of countries of transit

and destination, this phenomenon has actually produced a growing market for clandestine

migration services under the migrant-mobility regime. This regime is a system that
emanates out of the need for marginalized social groups to migrate on the one hand and

the demand for cheap, exploitable labour, on the other. Irregular labour services,
smuggling, facilitation of illegal migration, provision of false passports and visa permits,

underground travel operations, and trafficking constitute the array of activities that get
subsumed under the expanding continuum of clandestine migration services. This regime

is not an aberration or a rogue’ regime. It is a regime produced in part by the disciplinary
and at times punitive legal order that has been erected to address cross-border

movements, and it is a regime that generates increased surplus accumulation in tandem
with the regular labour-importation system.
Gendered Aliens

The response to migration is highly gendered. Female migration is not addressed
within the framework of the global economy, the search for better economic

opportunities or the demand for women’s reproductive labour Women’s cross border
movements continue to be addressed primarily through anti-trafficking initiatives at the
international, regional and domestic level. Under these initiatives, a woman s consent is
irrelevant and her subjectivity denied. She is addressed primarily as a victim, to be

rescued, rehabilitated and repatriated. At times her consent is acknowledged only to

implicate her in the discourses of immorality,( for such migration is consistently and
erroneously conflated with sex work) and criminality, to be penalized together with

traffickers, and terrorists for exposing the porosity of borders and the vulnerability of the
nation-state. These responses do not engage with the premise that migration is a

manifestation of globalization - that it is indeed globalization. The responses are
constructed along the binaries of the West and the Rest. And women, especially from the

post-colonial world, are cast as either victims, incapable of decision making or
consenting, or sexual deviants, disrupting the moral and social fabric of the sexually

sanitized West and/or dangerous 'Others’, threatening the security of the nation state.
Women are the primary squatters of the new global borderlands that constitute

part of the contemporary transnational, transmigratory world. Half of nearly all migrants
are women and girls, and many of these are migrating independently rather than as part of
a family. The process of women’s movement is determined by a number of factors that

render them amenable to migration and expose them to human rights violations: the
insecurity of food and livelihood and the growing economic reliance of households on

earnings of women and girls; the erosion of social capital and the break down of
traditional societies; the transnationalization of women’s labour in sectors which do not
comply with labour or human rights standards and often rely on exploitative labour,

forced labour, and slavery like practices. And this movement is rendered vulnerable as a
result of several normative assumptions about gender and sexuality, quite specifically, the
normative assumption that women’s primary work is in the home, underscored by the

sexual division of labour. The fact that women’s movement is impelled by a number of
economic push and pull factors remains largely unaddressed in schemes that focus on

anti-trafficking, restrictive immigration regulations at borders, and the penalizing,
criminalizing and deportation of alien migrants as a response to the growing “problem”

of transnational migration and trafficking. Closing doors to keep the individual migrants

out by resorting to the tools of deportation or incarceration, ignores the economic engine
that drives transborder and female migration.
Women migrants constitute a substantial pool of workers, offering their

reproductive labour in the form of sex, domestic work, and/or marital bliss. And she
becomes more attractive to the global economy if her status as a migrant is illegal, in
which case her social and economic options and demands will be constrained. The
disadvantaged migrant woman becomes the ideal worker from the standpoint of capital

and integral to sustaining the current structure of the economy. This situation of illegality
and disadvantage also renders migrant women vulnerable to exploitative and forced
labour like conditions of work,

Barrier Methods :

The choice of female migrants to cross borders is conditioned by the push and

pull factors that induce movement, This choice is not facilitated or protected by

international legal mechanisms, which are triggered once she steps across the line that
separates here from there.’ Instead, the moment of border crossing also marks the

moment when her choice is determined primarily within the framework of anti

trafficking discourse This discourse fails to distinguish between women’s migration, sex

work and trafficking. In fact, trafficking has come to be variously and integrally

interwoven with migration (mainly illegal), clandestine border-crossings, and the

smuggling of humans. And on a parallel plane, the trafficking in women and girls is
routinely conflated with their sale and forced consignment to brothels in the sex industry.

This conflation of trafficking with various manifestations of migration and mobility on
the one hand, and sex work on the other, lies at the core of the confusion that underpins
women’s cross borders movements and the legal responses to these movements.
Equating trafficking with migration leads to simplistic and unrealistic solutions -

in order to prevent trafficking there is a conscious or inadvertent move to stop those who
are deemed vulnerable from migrating. Even when curbing migration is not a stated

programmatic focus, an inadvertent impetus is to dissuade women and girls from moving

in order to protect them from harm. Conflating trafficking with migration results in
reinforcing the gender bias that women and girls need constant male or state protection
from harm, and therefore must not be allowed to exercise their right to movement or right

to earn a living in the manner they choose.

Secondly, curbing migration will not stop trafficking, but merely drive the activity

further underground, and make it more invisible. This lesson has been learnt from states

who have proceeded to enforce increasingly stringent immigration controls as a response
to heightened trafficking in persons and narcotics. Borders cannot be impermeable, and

stricter immigration measures have resulted in pushing the victims further into situations
of violence and abuse.
Thirdly, when no clear conceptual or operational distinctions are drawn between

migration and trafficking, and in fact, when migration is considered equal to trafficking,
then it logically follows that the number of victims of trafficking is equal to the number

of those who have migrated voluntarily. This logic operates particularly in the case of

adolescent girls and women migrants, and not in the case of men. This practice has
resulted in an extremely flawed methodology for conducting baseline surveys on
trafficking in ‘risk-prone’ and ‘affected districts’ in different South Asian countries.
Absence of women or girls is routinely considered tantamount to “missing persons1’, and

therefore, trafficked This logic has resulted in the viewing all consensual migrant

females as trafficked.

And finally, there has been a continued persistence among anti-trafficking players
to conflate trafficking with sex work/prostitution. By collapsing the process with the

purpose, the abuse and violence inherent in trafficking is mistaken for the actual site of
work and form of labour. Furthermore, trafficking for all other purposes is largely

ignored, and targeting trafficking for prostitution becomes the principal agenda of antitrafficking interventions, policies and laws.
Women’s choice to cross borders needs to be viewed within the context of

empowerment and their search for better economic market opportunities. Their consent
must be located in the matrix of the global economy, market demand and cross-border
migrations. Currently, their cross-border movements are largely located and addressed

within normative understandings about women’s sexuality, the security of the nation, and
the criminal law. Her choice is re-configured through international legal processes, and

she is either rendered a victim, to be repatriated to her home country, or a criminal/
trespasser, to be prosecuted along with traffickers and terrorists for having exposed the
porosity of national borders. Legal barrier methods fail to attend to the complex factors

that induce migration, and instead, target the individual, as being exclusively responsible
for the problem of transnational migration. The receiving country is not implicated in this

migration phenomenon, and is justified in resorting to methods of containment and
confinement. These punitive measures constitute migrant women as outlaws, and compel

them to live illegal lives The international legal order has failed to facilitate women s
freedom of mobility and safe migration, especially though not exclusively, from the south

to the north. Her consensual movement is rendered illegal, through the foregrounding of
the security of the nation-state, the conservative sexual morality that informs anti

trafficking laws, and the xenophobic responses to global movements that increasingly
inform immigration laws. These “overground’’ legislative measures are supplemented by
a parallel “underground migrant-mobility regime”, where travel agents and transporters,

complete with route maps, directions, and a list of the least vulnerable points of entry,
negotiate how their human cargo will cross borders, avoiding apprehension by state
agents and border patrols.

The focus of ant-trafficking initiatives at the domestic, regional and international
level, rarely focus on providing women who move with human rights — the tools that are

critical to fighting abuse, violence and harm they may experience in the course of

movement. Instead, some of these measures are morality measures that conflate women s
cross-border movement with sexual corruption and contamination. Other initiatives

assume that the problem exists over there" in the third world or post-colonial world and
suggest strategies that reinforce the image of a truncated seriously battered, culturally

constrained, and oppressed subject that needs to be rescued and rehabilitated by a
civilizing west. More recently, trafficking initiatives have been obscured by an
overarching concern with security, which perceives the outsider' as a dangerous threat,
from which the nation must be protected.

Migration and Terrorism

The issues of trafficking and migration are now being caught within the global
nets cast in pursuit of the 'War on Terror"

The War on Terror has acquired a

supernatural life and existence outside of the international legal order, while

simultaneously pursued in and through the processes and institutions of the international
regime. The Security Council and the General Assembly have been deployed to
foreground the security and sovereignty of some nation-states through the abrogation of

the security and sovereignty of other nation-states. The legal mechanisms endorsed in
pursuit of this endeavor have resulted in the enactment of laws at the domestic and

international level that have further cauterized cross-border movements, and justified

going after anything and anyone we do not like.

Globally, we are witnessing a heightened anxiety about the Other", who is
perceived as a threat or someone who is dangerous to the security of the nation. The

boundary line of difference is being redrawn along very stark divides - between friend
and enemy, those who are good and those who are evil. Although these concerns are most
explicitly voiced by the extreme right or religious right, less noticed is the more

uniformly pervasive emergence of similar forms of conservatism within mainstream
discourses. The alien migrant’ has become one of the primary targets and casualties of

the failure to define either the purpose or limits of the War on Terrorism. And this failure
forces migrants to continue to move through illicit channels, and remain vulnerable,

stigmatized and illegitimate

The new War on Terrorism has created space for a more strident and alarming
response to the global movements of people, reducing it at times to nothing more than an

evil threat. If terrorism is defined as a transnational crime, then by merely committing the

crime of seeking illegal movement and illegal entry these people could be defined as
terrorists. Because the smugglers offer travel sendees to illegal migrants, they would

easily fall within the category of transnational organized crime, criminals and potential
terrorists. At the very worst they are terrorists and at best they are criminals who have

sought to cross the border illegally. These simple equations again led to a disjuncture
between reality of the illegal migrant and the issue of terrorism. The conflation of the

migrant with the terrorist is not new, but it has received greater attention since September

11th. It has afforded more space for the representation of the ‘Other’ as a fanatic and
dangerous and opposed to freedom.
The space for the migrant is being eroded through the discourse of trafficking and

through the discourse of terrorism. Both justify initiatives designed to keep the Rest'
away from the ‘West’. This shift is troubling given that movement and migration is partly

a phenomenon of the current phase of globalization and hence it is and will continue to be
a feature of our transnational world. Criminalizing or victimizing those who cross borders

forces these people to continue to move through illicit channels, and remain vulnerable,
stigmatized and illegitimate. It seems unlikely that the security of what’s left of the

nation-state can be achieved at the cost of the security of the alien migrant. Indeed it will
only serve to encourage the construction of a paradox, where the security of the alien

migrant is perhaps less threatened by people smuggleis than by the current international

system of protection offered to people who move as migrants, refugees, or asylum
seekers.

The War on Terror has resulted in legal reforms that alienate those who have been
cast as the 'new enemy’ and justifies the resort of punitive measures on the grounds that
these people are evil or dangerous and not entitled to due process or rights. The recourse
to border controls, ethnic purity, cultural values and nationalism, are constructed along

the anxieties of dealing with difference and serve to stigmatize, penalize and criminalize

those who cross borders. These responses push us further away from addressing the

complexity of cross border movements and the equally complex legal and political

responses required to address the issues raised by such movements.
Re-configuring Responses to Cross-Border Movements
The legal interventions in the lives of the alien migrant have been articulated primarily

from the perspective of the host country'’. The subaltern voices are omitted from these

conversations and yet these are the voices that can assist in untangling the conflations and

confusions that are taking place between trafficking, migration and terrorism in the
international and domestic legal arenas. The voice of the subaltern needs to be

foregrounded - not as a terrorist, nor as a victim, but as a complex subject who is affected

by global processes, and seeking safe passage across borders. They are exposing the need

to think about international law and rights in ways that are not confined to the boxes of
sovereignty, the nation state and the autonomous subject of liberal rights discourse. Their

stories provide a very different narrative about why people move and how to
accommodate this movement

The role of law must be determined against the backdrop of the broader
transnational economic and political processes that affect flows or movements of people
and recognize that such movements are an integral feature of globalization. And this in
turn requires radical rethinking. As long as these issues are not viewed through the

complex lens of globalization, market demand and the in/security of the nation-state, the
rights and legitimacy of these people will remain unaddressed or compromised, and

contribute to the growing instability of both the host country and this itinerant
population. Cross border movements have been caught within the framework of a 'War1

fought along the simple binaries of good versus evil, civilization versus barbarism. A

response to border crossing cannot be adequately addressed through such binaries. Indeed
this myopic response will do little to discourage the illegal crossing of borders or the

determination of those who want to move.
The agency of women also needs to be foregrounded. She is currently invoked as

either a victim in need of rescue from the conniving, manipulative, culturally primitive

subaltern family or is herself equated with the deomonized Other. Her complex
subjectivity remains unaddressed in the legal and policy approaches being pursued at the

national and international levels. Women’s choice or agency remains either non-existent.

questionable or tainted. Her choice to move must be distinguished from other situations

where her consent is absent or her movement is compelled by strife or conflict.

To provide protection to women who are moved or choose to move across

borders, a distinction must be made between the abuse and human rights violations
committed during the entire process of transport and subjection to exploitative labour

conditions, and the form of employment or the purpose of the movement. Exploitation in
marriage, domestic work or the carpet industry, has not resulted in the elimination of
these arenas of work. Interventions focus on targeting the abuse, violence and violation of

rights that these workers endure. Similarly, eradicating the sex industry in a bid to
prevent the harm of trafficking is unworkable. Sex work as the exclusive purpose of
trafficking is an untenable definition of trafficking as not all victims of trafficking are sex

workers nor have all sex workers been trafficked.
Regardless of why women move, their assertion of the right to mobility, selfdetermination and development, must not be confused with the violence, force, coercion,

abuse or fraud that may take place in the course of migration or transport. The crime rests
in the elements of abuse and violations, which are committed against women along the

continuum of women’s migration and not because of the movement or mobility per se.

Trafficking becomes an offense and a violation of human rights because of the
non-consensual or deceptive nature of the movement and the exploitative or servile
nature of the conditions of work and life to which the trafficked person is confined. It

does not become an offense because of the purpose for which a person is move. The

common elements in the trafficking are not the movement or the s women ite of work per
se but the brokering, lack of consent and exploitative conditions of work. Unfortunately,

most initiatives are directed at stopping movement, regardless of consent, especially of,
on the assumption that they will be trafficked.

It is also important to recognize that the erection of borders through immigration
policy, anti-terrorist legislation and anti-trafficking laws, will not succeed in stopping

cross border movements or meet a nations security needs for two reasons. People will
continue to move, illegally if legal means are not available. This process cannot be

arrested through stricter border controls or immigration policy. Secondly, as Saskia

Sassen has pointed out, there has been a significant reconfiguration of the nation-state in

two directions. The first is the relocation of certain attributes of the state onto
supranational regime of authority, such as the World Trade Organization, the European

Union or certain human rights codes and institutions. The second is an increased
significance of transnational private actors that are also resulting in the emergence of a

transnational legal and illegal regime for cross-border transactions that include labor
mobility and exit options for refugees.
In order to address the issue of cross-border movements, we cannot simply remain
confined to the domestic arena, where regulatory7 enforcement is focused on the

individual and the border. Nor can this process be addressed in the international legal
arena purely in terms of criminality or trafficking. These responses fail to understand the

global context in which such movements are occurring. In order to understand and
respond to the relationship between such global movements and the law, it is necessary to

revisit this issue as not one that is cast in terms of binaries - the security and cohesion of
the state, versus the invasion of hoards of Others’. It must be addressed against this
broader canvass of transnationalism. Transnational movements require a transnational

response and analysis -they cannot be caught within older frameworks.
From the position or location of migrating subjects, the struggle in part requires a
modification of immigration laws in ways that accommodate their transnational reality.

The problems produced through trafficking, smuggling and unlawful movement can be
partly alleviated by the expansion of immigration laws that acknowledge and
accommodate the entry of people, other than those who are part of the information
technology, highly skilled work force, or economic migrants with a big bank balance.

The fear of a flood of" Others' is neither grounded in statistics nor a self-evident negative
process. The fear of change or survival of ones culture and identity is based on a false
assumption that cultures are static and fixed and frozen in time. Yet the colonial

encounter is evidence of the fact that a return, the retrieval of a pristine and culturally
authentic space is not possible
At the same time, by virtue of her subaltern status, the transnational subject also
brings a normative challenge - to the porosity of national borders, and the emergence of

non-state entities as a significant force in the international arena. The sovereign state and
the sovereign subject are being laid bare through the challenges posed by the worlds

constitutive Others'. The liberal state and the liberal subject are based on the idea of
fixed borders, with clearly identifiable interests and identities. They are imbued with the
power to decide, choose, and act autonomously. Yet globalization, which produces the

challenge of migration and non-state actors to the legitimacy of the borders of the

sovereign state and the autonomous subject, indicates otherwise. The complexity of new

global formations and the dynamic character of the individual who crosses borders,
challenges any notion that the state and individual are hermetically sealed and capable of

exercising control through self-contained power. The inability to distinguish those who
constitute national subjects from those who are alien or foreign is blurred reflecting the
uneasy location of a distinct national entity with distinct borders and a distinct, clearly

delineated national subject. This conception breaks down the binaries,- the us and them,
here and there distinctions - and enables us to recognize how these oppositions are

produced and naturalized through historical power relationships.

These challenges expose the complex global processes that instigate cross-border
movements and force the international legal order to relocate understandings about social
justice and prosperity in a transnational context. Cross-border movements cannot remain
confined to determining the extent of legitimate encroachment on state sovereignty. Such

movements are unstoppable and a policy of incarceration or annihilation merely
facilitates the growth of a parallel, clandestine, migration-mobility regime. This regime
continues to blunt the legitimizing tools of social cohesion, unity and sovereignty. It

exposes a different way of perceiving and living in the world, but at great risk to the

subaltern subject who is currently rooted in her transience and whose moment of arrival
remains elusive and endangered by the international legal order

1)rs - 2-L. S'

Enabling and Empowering Mobile Women and Girls

Strategy paper on the Migration and Human Rights of Women and Adolescent
Girls

By Jyoti Sanghera
Note on the strategy paper: This paper is an attempt to highlight the linkages between
migration and trafficking from the perspective of development, gender and human rights.
While there is a general spate in migration, both in-countiy and cross-border, this paper
seeks to draw attention to the feminisation of migration, a specific phenomenon which
has been grow ing over the recent two decades, especially in Asia. Since a majority of the
female migrants are mo\ ing through clandestine means, this area of study is consequently
mired b\ absence of reliable statistics. An attempt is made via this discussion paper to lay
out some critical reasons for the expansion of feminisation of mobility as well as to
suggest some possible areas for formulating rights-protective remedies. In looking at the
gendered face of mobility this paper fore-grounds the movement of young w omen and
girls. In so far as the categoiy 'youth' extends wax beyond the age of majority (i.e. 1 8
years), and in so far as a preponderant majority of female migrants do fall within the
categoiy of 'youth', the analysis in this paper is certainly located at the centre of the
international community's concern with the vulnerability, rights and protection of young
women and adolescent girls.
Context
Evicted from their homelands by powerful forces of exclusion and disadvantage, a
growing mass of floating migrants is squatting on global Borderlands1, yearning and
searching for new homes. Contained within countries of the global North as well as the
global South, are growing patches of these global Borderlands the migrant inhabitants of
which are marked perhaps by still worse exclusion and disadvantage than that which they
sought to escape from when they emigrated from their homelands. The migrant residents
of the global Borderlands are non-nationals. non-citizens and practically non-existent to
those that reside in and manage the business and defence of homelands. While often
invisible to agents of governance and the acknowledged citizenry' in their host countries
the new Borderlanders do have a face and a body. And increasingly this is a young
woman's face with a disproportionately smaller body. Of the numerous newz migrants
criss-crossing borders and boundaries today a large number are adolescent girls and
w omen, predominantly from the global South: and of these a significant majority belong
to the Asia-Pacific region.
Indisputably, transnational migration as well as in-countiy migration is increasing
in all regions of the w orld, including the Asia-Pacific. By now it is clear that migration is
a necessity and a growing feature of the current global economy: it benefits both
1 The term 'Borderlands' is employed as an analytical category signifying exclusion from entitlements and
rights. 'Borderlands' also denotes actual physical spaces within the territorial boundaries of nation states,
which are occupied by clusters of flailing global migrants. Homelands are real countries with defined
territoriality, sovereignty and a demographically determined citizenry7. Borderlands, on the contrary, are
fluid spaces devoid of physical definition - mere patches of floating migrant concentration upon the body of
a homeland. These patches expand and contract as a function of several factors, including the interplay
between demand and supply of labour and regimes of migration control. Sired by Globalization,
Borderland is considered to be the ■illegitimate and wayward junior sibling' of the nation stale, and is seen
by those that maintain law and order as harbouring ' undesirable' tendencies of migrancy. vagrancy and
delinquency.

countries of origin and destination in \ ital economic ways. Migration affects the lives of
millions of women, men and children, of those who move and of those who are left
behind. International responses to the 'Migration Dilemma' are exceedingly incomplete
and this issue continues to occupy a sensitix e and politically charged field.
Today, according to available statistics, more than 2.5 percent of the world's
population is migrant. This eHectively means that one in every7 50 human beings, or more
than 150 million people are migrants2. If one deconstructs the category of’migrant' into
its various segments, then of these 150 million. 80-97 million are estimated to be migrant
workers and members of their families and approximate!} another 12 million are refugees
living outside of their countries'. These figures do not include the estimated 20 million
internally displaced persons4 w ho are forced to move, nor the tens of millions of internal
migrants w ho mo\ e from \ ill ages to cities and from cities to cities of their own countries.
These statistics certainly do not include the millions of invisible transnational migrants
who are illegal, undocumented, irregular and trafficked. These countless invisible
migrants - increasingly young women and often continuously floating - constitute the
principal subjects of this paper and are referred to as the squatters of the new global
borderlands.
In Harms Way: The Gendered Face of Migration and Trafficking
It is notew orthy that half of all the migrants today are women and girls, man\ of
whom are migrating independent!} rather than as part of a family'. The feminisation of
migration is observed to be of relatively recent origin, increasing fairly rapidly over the
past two decades. It is estimated that in most countries of Asia, within a decade prior to
1987, the transnational migration of women had increased from 15 percent to 27 percent,
resulting in Asian women outnumbering Asian men as overseas migrants6. The numbers
of mobile Asian women have on’y increased since. A majority of these women come
from the Philippines, Thailand. Indonesia. Hongkong, Singapore, Bangladesh, Thailand
and Sri Lanka and are headed towards countries of the Middle-east, other Asian
destinations such as Japan, South Korea. Taiwan, Singapore and Malaysia, and the global
North. Furthermore and equally important!}’. Asian w omen also migrate internally within
regions and subregions of Asia. There is rapid mobility of women crossing borders within
the Mekong region as well as within the South Asian subregion.
The right to freedom of mobility is a fundamental human right enshrined in the
Constitutions of most countries. Trans-border mobility is supported by Article 13(2) of
the Universal Declaration of Human Rights (UDHR) which accords ever}- one the Tight
to leave one's country’. Article 12 of the International Covenant on Civil and Political
rights (ICCPR) further reinforces the right to freedom of movement within and across
borders and the right to choose one's residence. Coupled with these, 'the right to a
nationality' outlined in Article 15 of the UDHR. which is upheld as the Tight to have
rights', should ideally provide adequate protection to migrants against the vulnerabilities
emanating from mobility and statelessness as well as provide them with access to other
fundamental rights in the civil, political, social, economic and cultural realms. Therefore.
2IOM, World Migration Report, 2000, Geneva.
International Labour Office. Migrant Workers, [LO Conference Report 111, 87th Session, Geneva, 1999.
1 ILO, IOM and OHCHR, International Migration, Racism, Discrimination and Xenophobia, World
Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, August 2001.
Nafis Sadiq; 'Undocumented and Irregular Migration in the Asia-Pacific Region'. United Nations
Population Fund, Paper presented al the International Sxinposium on Migration, ‘Towards Regional
Cooperation on Irregular/Undocumented Migration. Bangkok 21-23 April. 1999.
Lin Lean Lun and Nana Oishi, "International Labour Migration and asian Women: Distinct
Characteristics and Policy Concerns", in The Asia Pacific Migration Journal, vol. 5, No. 1. 1996, p. 87

a young woman desirous of migrating, for whatever reasons, in order lo pursue her fate
and fortunes across borders should be able to do so whilst being sufficiently equipped
with human rights. As she traverses borders on her journey, she should feel assured that
she is a resident of this planet and not an alien, and by virtue of being a human being she
is entitled to some fundamental human rights and protections, regardless of her
nationality.
Why then is there an expanding litany of tales of disempow erment, violations and
abuse of migrants, especially women and girls, by state and non-state actors, alike9
To answer this query it is necessary to grasp the forces of exclusion and
disadvantage which contribute to the large scale movement, voluntary or forced, of so
mam- young women, especially from the Asia-pacific region9 Al the same time it is vital
to comprehend the conditions under which w omen and girls negotiate their journeys in
the public world of travel, and the various pitfalls they encounter or a\ ert.
Gender discrimination and lack of social status together with domestic
responsibilities, reduce the access of girls and women to resources, education, training
and labour markets. The traditional male outmigration for employment, alongside
increasing insecurity of food and sustainable livelihoods, have pushed women and girls
into assuming key roles as income earners for their families. At the same time,
reconfiguration of the global labour markets generates a sustained demand for a female
workforce in underpaid work ghettos of the unregulated sen ice sector. This interplay of
supply and demand in the labour market has resulted in increasingly larger numbers of
women and girls migrating in search of gainful employment lo urban centres of their own
or neighbouring countries.
Trafficking in women and girls must be view ed w ithin the context of transborder
and in-country movements and migrations that are increasingly undertaken today for a
multiplicity of reasons, including the reconfiguration of economies and slates as a result
of globalization, displacement and dispossession of marginalized populations, search for
sustainable livelihoods, armed conflict, the transformation of political boundaries, search
for more challenging and fulfilling futures, and a human aspiration lo explore the world.
The relatively limited access of women and girls to the public w orld and to safe channels
for mobility, as well as their lack of legal and social protection intensify their
vulnerability to harm in the process of migration.
Trafficking is a harm that women and girls, and indeed persons, may encounter in
the course of their migration. While all persons, including the young, have a fundamental
right to freedom of movement and mobility, trafficking however, is a particularly
coercive and violent form of movement, which must be prevented since it is predicated
on the use of force, abuse, violence, deception and exploitation. It is important to
understand that trafficking is a harm and becomes a crime because it reflects elements of
abuse and rights violation along the continuum of migration. These abuses are not
inherent lo the migration process per se and it is perfectly possible to envisage and.
indeed undertake, a journey which may be devoid of coercion and abuse, free from harm
and therefore, safe. Neither is trafficking the only or most common form of violation
which women and girls experience in the course of their journeys across and within
borders. Depending on the extent of their marginalized status, migrant women face
aggravated harms at several points in the course of their mobility, including sexual
harassment and sexual violence; swindling and mugging; conning and other forms of
deception; and disease and ill-health.
The clutch of vulnerabilities faced by a young girl is forever dynamic and is
constructed by a combination of several social, economic and cultural factors. As a
trafficked person she is vulnerable lo several harms, including persecution from the state

if she is illegal or lacks citizenship rights, abuse at work if it is coercive, poor living
conditions, and health risks. It is also through this clutch of vulnerabilities that trafficked
women and girls are at a greater risk of contracting the HIV and other STIs as they may
not be in a position to control the nature of their sexual relations and hence their sexual
health.
In order to belter understand the inter-linkages between gender, migration and
trafficking, the following factors need to be noted:

•

Greater Connectivity to the world via the media and increased awareness
provides an impetus for young w omen and girls to migrate for a \ ariely of reasons
including personal factors such as, intimate liaisons, escape from abusive and
dysfunctional family arrangements, or merely to explore the world.
Supply and demand factors: The present feminization of migration is spawned
by two simultaneous and interconnected processes which are generated by
globalization: (i) the marginalization of socio-economically and culturally
disadvantaged communities which has heaped greater disadvantage on already
discriminated categories such as women and girls, resulting thus in an increased
exclusion of w omen from the economic resource base. This has led to w omen and
girls seeking out more \Table and sustainable means of livelihoods, and (ii) a
gendered labour recruitment due to a demand for female labour. This demand is
fielded by the global growth of the service sector relying on various forms of
reproductive labour requiring personalized services, including but not limited to
domestic work, sexual services, care of the elderly and sick, and intimate
arrangements such as marriage.
Gender as a category: Until recently, in research and policy interventions on
migration there has been a virtual absence of gender as an analytical category.
This exclusion was based on the assumption that women are too traditional and
culture-bound to migrate independently and when they do migrate it is only as
associational migrants of family units.
Migration and Empowerment: Voluntary migration has been recognized by
gender and development experts as an indicator of women's empowerment. It is
argued that women are traditionally and notionally assigned the sphere of the
private and domestic realm and excluded from the public world of travel and
trades due to their historical disadvantage arising out of the sexual division of
labour. In the context of this notional confinement, w hen w omen seek to move to
better their existing situation then this is to be \ iew ed an act of exercising their
agency. It has also been acknowledged that exposure and increased ability to
negotiate structures of power in the public world amounts to women's
empowerment. Therefore, increased consensual mobility has been recognized as a
measure of women's empow erment. Mobility in the public w orld of travel and
work is seen to enhance women's aw areness and negotiating skills.
Consent, deception or non-consent: Notwithstanding the conceptual linkage
between empowerment and migration, in reality the manner in which migration
occurs determines whether a woman or a girl will feel empowered or victimized
at the end of this process. In other words, if she migrates consensually within or
across borders into a situation of w ork or personal arrangement of w hich she had
know ledge of and consented to. then she has succeeded in exercising her choice
and right to freedom of mobility with a positive outcome. If. on the other hand,
her need or wish to migrate is facilitated in abusive and violative ways through
the use of coercion or deception where in the entire chain of events from
4

recruitment and transport to the end purpose is exploitative then the woman
discovers herself to be trafficked. Trafficking is the process of transforming an
agent into a victim within the context of migration. 'The equation between
tra fficking and migration is such that all trafficked women and girls are migrants
but all migrants are not trafficked.
Just as the current phenomenon of mobility is feminised so too some of the more
serious risks related to mobility are feminised. And hence, alongside the feminisalion ol
migration we also notice the feminisalion of trafficking. It is noteworthy that the image
invoked by the term 'trafficking' is that of a young woman, a young girl or child but
seldom that of an adult mam men are invariably referred to as migrants, undocumented
workers or smuggled aliens. If freedom of mobility and migration is a right and
trafficking is a harm and obstacle in the realization of that right then a key strategy for
creating an enabling environment for women and girls must be to make their journeys
harm-free and safe.

The Migrant-Mobility Regime
In recent years, avenues for regular, legal and safe migration have decreased
worldwide, due to restrictive migration and immigration policies of countries of transit
and destination. This has given rise to a growing market for clandestine migration
services under, what this paper refers to as the migrant-mobility regime The migranlmobiliK regime is a system which emanates out of the need for marginalized social
groups to migrate on the one hand and the demand for cheap, exploitable labour at sites
of origin, on the other. Irregular labour services, smuggling, facilitation of illegal
migration, provision of false passports and visa permits, underground travel operations,
and trafficking are some of the numerous activities subsumed under the expanding
continuum of clandestine migration services. The migrant-mobility regime is not an
aberration or a 'rogue' regime. It may be the “villain but at the same time is an integral
player in the plot to generate increased surplus accumulation, in tandem with the regular
labour-importation system.
In the playing field of global economics, migrations do not just happen: the\ are
produced. And they do not simply involve a random cluster of countries of destination,
sites of employment or mobile groups of labour; these are all patterned . Countries of
origin and destination stand to gain in significant economic ways from migration,
including from clandestine migrant-mobility. Cash remittances and transfer of skills,
when computed, register phenomenal increases over the recent years. It is estimated that
recorded remittances have increased from two billion to seventy billion today, in a matter
of two decades8. It is also widely acknow ledged that a majority of the remittances from
migrants do not flow through regular channels of the economy and are therefore largely
invisible. In fact few sending and receiving countries have data on the economic and non
economic impact of migration. Micro studies from various parts of the global South,
including the Asia-Pacific region reveal that the remittances of women migrants travel
back through informal and underground conduits9, and sustain household, community
and sometimes even local and national economies.

For a detailed critical analysis see also, Saskia Sassen, Globalization and its Discontent, the New Press,
New York. 1998
S Supra note 5, at p. 1
9 There are equivalents of the famous 'hawala' system in all regions of the world. I he hawala system,
emanating out of India, is a massive and efficiently organised system within the underground parallel
economy which specialises in money transfers within and across borders.

The Clutch of vulnerabilities: From Agents to Victims
In order to fully grasp the integral link between gendered migration and
trafficking as well as other related harms, it is necessary the untie the clutch of
vulnerabilities faced by young girls and w omen. Some of these \ ulnerabilities arise out ol
structural disadvantages that girls and women might face as members ol specific social
groups which are marginalized. Yet other vulnerabilities are specifically gendered and
patterned on norms of sexuality, femininity and gender. The complex clutch ol
vulnerabilities is socially constructed in juxtaposition with the construction ol
disadvantage, which in turn is woven through several identities, including gender,
sexuality, class, ethnicity, religion and others which carry social value. Comprehending
this critical and dynamic interplay of intersectionalities is v ital to untying the clutch ol
vulnerabilities. At the veiy outset we learn that no single, unilateral approach, be it
gender, class or ethnicity, w ill suffice to address the issue of v ulnerabilily of girls and
women. The complex w eb of vulnerabilities must be understood and addressed through a
complex intersectionality perspective which ultimately aspires to the remedy of social
justice.
Principal elements of gendered v ulnerabilities which render girls and women
amenable to migration and exposure to subsequent human rights v iolations are:

•
•
•
•

•

•
•
•

Insecurity of food and lix elihood. and the growing economic reliance of households
on earnings of w omen and girls:
The erosion of social capital and the break down of traditional societies:
Increased need to migrate for work and a growth in the feminisation of migration as
well as female-headed households:
Lack of access to information on mobility and travel, employment, reproductive
health and rights:
Increasing transnationalization of young women's labour in sectors which do not
comply with any labour or human rights standards, and often rely on exploitative
labour, forced labour, and slavery-like conditions of work:
Rapid increase in closure of regular avenues of migration and immigration through
stringent policies on the part of countries of transit and destination.
Absence of safe channels of migration and a rapid consolidation of the clandestine
migrant-mobility regime:
Non-recognition on basis of lack of citizenship of the right of migrants to residence,
labour protection, health provisions, human rights, and other legal protections.

The Ultimate Vulnerability: From Migrants to Criminals

It is necessary to enumerate certain \ ital economic tacts which are integral to the
sustenance of the global economy today .
a. Growing and persistent demand on the part of capital lor an increased rate ot
profit which can only be fulfilled by depressing the wages of labour and
lowering cost of production.
b. Need for abundant supply of low wage labour to sustain the economy ol global
metropolises.
c. Demand for a vast feminized, menial workforce of sexualised, racialized service
providers involving intimate and personalized services.
d. Shrinking supply of a local workforce especially in the global North, which is
w illing to accept low-waged, unregulated, menial service-provision jobs.

e. Growing demand for a supply of migrant women who are sufficient!}
disadvantaged and vulnerable to accept undervalued, underpaid, unskilled jobs
which are unprotected, unregulated and invisible.
In view of these economic facts which have been amply detailed by several
economists and analysts10, disadvantaged migrant women const Hute the "ideal"
workforce from (he standpoint of capital and are integral to sustaining the current
structure of the economy.
The category of the "ideal worker" which young migrant woman from the global
South represents can be made more "ideal" by deepening her vulnerability and hence
exploitability, still further. This is done by foregrounding her citizenship status in the
countiy of destination. If her status as a migrant is illegal, then her social and economic
options are severely constrained. Illegality is the ultimate vulnerability which incarcerates
voung migrant women into situations of forced labour and slavery-like conditions.
Since a large majority of migrant women and girls may not have or want the
option of "returning home" they continue on in their countiy of destination as illegal
migrants, and are identified in the lexicon of immigration services as illegal aliens. From
then on they are defined a criminals and trespassers by law enforcement agencies.
Rendered stateless and status-less these migrants maybe "jettisoned as useless workers"
and evicted at will. This is the final moment in the social construction of their
vulnerability, the moment when they are made into criminals .

In the construction of the identity of the migrant woman as criminals destination
countries plav a kev role. This identity is carefully fashioned through (a) overground
legislative measures stipulated by immigration departments, as well as by (b)
underground extra-legal means devised by the clandestine migrant-mobility regime.
Passports and legal identity documents are routinely appropriated by brokers, employers
and sometimes even agents of the state. The move to divest a migrant of her passport is a
critical step in securing her ultimate vulnerability and in endorsing her identity as an
illegal alien. Rendered stateless, she is stripped of all legal rights and becomes a persona
non grata, and hence, a trespasser and a criminal.

A Strategic Approach for Safe Migration and Citizenship
A strategic framework for enhanced understanding and consolidated action on issues
of feminisation of migration, trafficking and related harms is grounded in the
understanding that trafficking is not merely a problem of law and order but a
development issue, and is integrally grounded in the context of migration. Any effective
action for the protection of migrants and prevention and care and support ol those
10 Some writings on this issue are, Lin Lean Lim and Nana Oishi, “International Labour Migration and
asian Women: Distinct Characteristics and Policy Concerns’, in The Asia Pacific Migration Journal, vol.
5, No. 1. 1996: Geertje Lycklama a Nijholt, 'The Changing International Division of Labour and Domestic
Workers", in Noeleen Heyzer, et al (eds). The Trade in Domestic Workers, Asia and Pacific
Development Centre, Kuala Lumpur, 1992; B.S Bolaria and Rosemary Bolaria, International Labour
Migrations, Oxford University Press, 1997, M. Abella, “Contemporary Labour Migrations from Asia:
Policies and Perspectives of Sending Countries”, in Kritz et al., (eds), International Migration Systems:
A Global Approach. Clarendon Press, Oxford, 1992; Oregon Albo, The World Economy, Market
Impcratix’cs and Alternatives”, in Monthly Review, vol. 48, no.7, 1996; Daiva Stasiulis and Abigail Bakan,
■•Structural Adjustment, Citizenship, and Foreign Domestic Labour: The Canadian Case", in Isabella
Bakker. Rethinking Restructuring: Gentler and Change in Canada, Univ, ol Foronto Press, 1996.

11 Istavan Meszaros, Beyond Capital, Monthly Review Press, 1995.
12 For a detailed discussion see Jyoti Sanghera, Poverty, Patriarchy and Prostitution. Ph D thesis.
University of California, Berkeley, Chs. 9-10.

affected by trafficking and related harms, must be informed by an interseclionality
perspective and based on a development, gender and rights protective approach.
Recognizing the key elements of sustainable livelihood and migration as x ital needs
of those affected by trafficking, a rights protective strategy w ould be based on:
• Promoting ax enues for sustainable livelihoods and safe health for women and girls in
their communities and al sites of origin.
• Promoting the rights of migrants to safe, health} and secure mobility and
transportation.
• Promoting the rights of w omen and adolescents (over 16 \ ears of age) to emplox menl
w hich is safe and free of health hazards, exploitation, coercion and abuse.
• Promoting the prox ision of such care and support serx ices to women and girls
affected by trafficking and related harms, which do not stigmatize, discriminate and
recriminalize but rather support their right to a decent and safe livelihood, aulonomx.
and bodily integrity.
As discussed above, trans-border migrations and feminisalion of migration are
embedded in larger geopolitical and transnational economic dynamics, and vet the site of
enforcement of restrictive immigration regulations is always the indi\ idual border-crosser
at the border as though it is she who is responsible for the "problem" and indeed the
"scourge" of transnational migration. The current rules in most states to penalize,
criminalize and deport migrants as a response to the grow ing "problem" of transnational
migration and trafficking reflects a striking povert\ of imagination and analysis. Any
half-serious study on migration rex eals that the onus for the recent spate in all forms of
migrations cannot be on the individual woman or man who moves; it is systemic
Therefore closing doors to keep indi\ iduai migrants out. deporting or incarcerating
another handful is merely a facile and unthought-out response. The powerful economic
engine which drives transborder and feminized migration is almost completely absent in
responses based upon the barrier-method to deter migrant trespassers who are viewed as
the aggressors. Both sending and receiving countries merely step out of the narrative and
present themselves as the passive and aggrieved parlies.
Given the benefits accruing from the migration of women and young girls to both
countries of origin and destination, there is a pressing need for multilateral approaches to
trans-border migration. Sending and receiving countries need to recognise the ongoing
contribution of migrant women and girls to their economic health, and locale them as
partners in development, not as aggressors, tresspassers or criminals. Such a bold shift in
the retelling of the narrative of migration and its feminisalion will not only be closer to
the truth but will assist in formulating multi-lateral policies to right the wrongs. Such
responses are necessary in order to protect the rights of all migrants, including women
and girls; curtail the power and profit of the clandestine migrant-mobility regime; and to
maximize the contribution of migrant w omen and girls to sending and receix ing countries
as w ell as to their households, and to prevent trafficking.
Some noteworthy inilialix es hax e been taken in the Asia-pacific region to address the
specific harm of trafficking in the course of migration. These are:

The SAAR.C (South Asian Association for Regional Cooperation) Convention on
Preventing and Combating Trafficking in Women and Children for Prostitution
January 2002
The Asian Regional Initiative Against Trafficking (AR1AT) Regional Action Plan
Against Trafficking in Persons. Especially Women and Children. March 2000

Thailand's Memorandum of Understanding (MOU) on the common guidelines for
Agencies Concerned with Cases where women and Children are Victims of
Human Trafficking (B E 2542). June 1999

The above initiatives together with the International Principles and Guidelines on
Human Rights and Human Trafficking recently finalised by the Office of the United
Nations Commissioner for Human Rights (April 2002). do relied a grow ing commitment
on the part of states in the Asia-Pacific region and the international community to address
the crime of trafficking and its feminisalion. But the feminisation of migration is not a
crime, even though some of the most common slate responses lend to see it as such.
There is an urgent need to shift thinking and critically analyse the gamut of stale
responses in order to develop new ones which are more in harmony with forces of
transnational economics, national needs, development imperatives, and the goals of
gender/child rights and social justice.
Violations of human rights are both a cause and a consequence of trafficking in persons.
Accordingly, it is essential that the protection of all human rights must be at the centre of any
measures being taken to prevent and end trafficking. Anti-trafficking measures shall not
adversely affect human rights and dignity of all persons and, in particular, the rights of those
who have been trafficked, migrants, internally displaced person, refugees and asylum seekers.

Draft Guidelines and Principles for the Implementation of (he Protocol to Prevent. Suppress and
Punish Trafficking in Persons, especially Women and Children. Supplementing the UN
Convention Against Transnational Organised Crime (2000)

One international instrument which will strengthen the rights of migrant
communities is the UN Convention on the Protection of the Rights of All Migrant
Workers and members of Their Families. This Com ention was opened up for signature in
December 1990. and more than a decade later it is still short of ratifications and cannot
enter into force, yet. However, it needs to be pointed out that the term 'migrants is much
broader than 'migrant workers', and indeed, a majority of female migrants as well as
minors who travel independently are clustered in sites of labour in the informal sector
which may not be even defined as 'work'. Certainly prostitution, begging, torced
marriage and other sites which contribute to commercial sexual exploitation fall within
the purview of labour defined as 'non-work’. How do w e extend human rights protection
to these migrants who are exploited for their labour but are deemed 'non-workers 9 The
sphere of righls-protection needs to be expanded to incorporate the concept ot "human
rights of all migrants '. As a result important categories of migrants, such as victims of
trafficking, undocumented workers, contract workers, and all those working in non
recognised sectors of w ork including sex workers should receive protection1
Rights protective responses on safe migration
Anv rights-based response to safe migration must rest on the three non-negoliable
human rights guidelines - participation and representation al every' level of migrant
and trafficked women in developing programmes for their empowerment: and the
principle of non-discrimination must lie al the very centre of any strategy
1 •' See also Piyasiri Wickramasekara, " Migrant Workers in Asia and the Pacific: Issues in Human Rights
and the Principle of Non-Discrimination'. report presented at the Asian-Pacific Regional Seminar of
Experts on Migrants and Trafficking in Persons with Particular Reference to Women and Children,
Bangkok, September 2000
9

Comprehensive Policies: Develop more coherent national policies regarding
trans-border and in-country migration which are based upon a comprehensive
understanding of the socio-political and market forces which drive migration and
the feminisation of migration. These policies need to be realistic and veer away
from responses which penalise and criminalize migrant women and girls.
Access to Information: Sending countries and stakeholders within these must
urgently consider developing programmes which provide sound and easily
accessible information on safe channels for legal migration, the possible harms of
illegal migration including trafficking, and information on ser\ ices in destination
countries and cities on travel, translation, job placement, legal rights, health, and
housing. Information must also be provided on women's groups, human rights
organisations, legal aid services, various governmental serxices and counselling
services.
Simplify Procedures: Sending countries relying on overseas migration and
remittances must simplify procedures to facilitate the safe mobility of migrants
including young women. Considering that the literacy and exposure levels of
migrant women are often low, assistance must be extended to them to expedite
procurement of passports, visas and all necessary travel and employment
documents.
Regulate Labour Recruitment and Travel Agencies: Agencies involved in
labour recruitment and transportation of migrants must be regulated in efficient
ways. Procedures for accountability as well as those which ensure safe living and
working conditions must be developed and monitored. This w ould go a long way
in preventing all kinds of harms and abuses, including trafficking.
Harmonize Policies in Relation to Demand: Receiving countries should assess
the demand for migrant women's labour in the various sectors and proceed to
harmonize their immigration, migration and labour policies in commensuralion
with demand. In furtherance of this, a serious review of existing immigration law s
and policies must be undertaken along with policies dealing w ith migrants
Building a Data-base: It is imperative and urgent that a sound and rigorous
evidence base be built by countries of origin and destination on transborder
migration as well as on in-country migration. This data must be disaggregated on
basis of gender, age, region, etc., and must pertain to the demand sectors, supply,
and volume of remittances. Currently, the ex idence base on transborder migration
including on female migrants is too xveak to inform sound policies on migration.
There is a severe paucity of data on the causes and consequences of feminisation
of migration in all regions, partly because of its clandestine nature and partly
because migration has not constituted a priority issue.
Promoting multi and bilateral dialogue There is an urgency to step up dialogue
between countries within and across regions to address issues of feministion of
migration. Such dialogues would be facilitated by a strong ex idence base yielding
information on the linkage between pox erly and feminisaton of migration: the
impact of in-migration on wages, housing, health and education: and on the forms
and extent of human rights x iolations of w omen and girls.
Enforcement of minimum national employment labour standards This
involves enactment and enforcement of clear national minimum standards for the
protection of migrant xxomen workers, both national and foreign ILO
Conventions on such aspects as occupational health and safetx. against forced
labour and child labour in hazardous conditions, and on discrimination should
prox ide the international norms for national legislation. A. necessary complement

is monitoring and inspection especially in areas of irregular employment, in order
to prevent trafficking, forced labour, slaven-like practices and exploitation of
children,
9. Anti-trafficking measures: While difference in understanding and approach on
certain dimensions of feminisation of migration may occur between sending and
receiving gox ernmenls. yet agreement and joint action must be aimed for on the
issue of trafficking, w hich is one of the worst human rights violation of migrant
women and girls. International instruments must be implemented, and regional as
well as national policies, legislations and action plans based upon the human
rights framework must be formulated and implemented effectively. This includes
adopting and implementing the UN Convention against Transnational Organized
Crime and its Protocol on Prevent. Suppress and Punish Trafficking in Persons,
especially Women and Children (2()()0).
10. Racism, xenophobia ami discrimination: Recognising that racism,
discrimination and xenophobia may both be a cause and a consequence of
migration and trafficking, states of the region must effectively enforce the
protections against these which are enshrined in the constitutions of most
countries of the Asia-Pacific region. These protections must be incorporated into
domestic legislation, policy, practice and jurisprudence.
11. Security of food and livelihoods: Acknow ledging that among the root causes of
migration is the drive to seek out secure livelihoods, states as well as non state
actors must step up their responses to create alternative forms of sustainable
livelihoods for women and young people. This would include skills training,
partnerships with new players such as the corporate sector, and creation of quotas,
bursaries and incentives for women and girls. Pro-active and intensified schemes
for expanding and strengthening sustainable forms of livelihoods need to be
urgently developed.
12. Combating Poverty: While the rate of absolute poverty has declined globally and
the number of very poor people fell by 200 million betw een 1980 to 1998. the
magnitude of inequality has increased. The average income in the richest 20
countries is now 37 times that in the poorest 20 countries. The ratio has doubled
in the past 40 years14. This is a cause for increased migration from the Global
South to the North. Stales of the Asia-Pacific region as well as non-state actors
should collaborate actively in working towards the realisation of the Millennium
Development Goals (1990-2015), which seek to eradicate hunger and poverty by
halve during this period; achieve universal primary education; promote gender
equality and empower women; ensure environmental sustainability, reverse the
trend of HIV/AIDS and develop global partnerships for development.
13. Monitoring objectives for gender empowerment: Given the increase in
feminisation of migration in the region, special focus must be given to gender
vulnerability and discrimination, particularly to the multiple jeopardy that arises
when gender, class, race, ethnicity, religion and cultural identity intersect. Treaty
bodies as well as regional task forces (CEDAW, CRC, CERD) must pay special
attention to this area in their reports. Detailed studies should be undertaken into
the human rights violations of female migrants and trafficked w omen and girls.
14. Focus on Adolescent Girls: Considering that adolescent girls are the most
vulnerable to harms, including trafficking in the process of migration, special
programmes for life-skills training which equip them to access viable
11 The World Development Report 2003, The World Bank, p. 2.

employment education, reproductive health information and awareness about
their rights must be developed and implemented in the out-migration areas as well
as in cities where migrants are concentrated. Safe migration initiatives must be
specially designed for adolescent girls.
15. Greater sensitization: Sensitization and capacity building programmes based
upon a gender and rights approach for educators, social welfare personnel,
members of judiciary and police, border security personnel must be undertaken to
sensitize them to deal with migrants and trafficked women and girls . Greater
involvement of civil society organisations in awareness-raising, out-reach and
evaluation of government policies should be sought.
16. Strategic Approach, states. NCOS, and CBOS must develop and harmonize thenstrategic approaches to addressing issues of trafficking and other harms w hile
providing support to women and girls desirous of migrating internally and across
borders. This strategies must be consistent with development. Gender and rights
based approaches, and must be transparently articulated through national plans,
policies and laws.
Conclusion
The writing on the wall is clear. Migration is a necessarx and grow ing feature of
the global economy; it benefits both countries of origin and destination in vital economic
ways. If there is one key aspect which will stand out in this century according to all major
Development Reports as well as observations by scholars and demographers, it is the
massive expansion of mobile populations - women, men and children - both within and
across countries. Paradoxically, most states have not accepted this reality. Some sending
countries in the Asia-pacific region, such as the Philippines, Thailand, and Sri Lanka
have developed departure and training programmes for their prospective women migrants
in order to enable their journeys and alternative livelihoods to be safe. How ever, there is
hardly any country of destination which has formulated policies and programmes to
protect the rights of in-migrating women and girls. There may be NCOS in the receiving
countries that provide information and services to migrants but unfortunately, none of the
governments of receiving countries have policies other than punitive towards migrants. Il
has been observed that no Asian countiy operates an immigration policy that fax ours
settlement; all have exclusionist policies in this arena. Sometimes these exclusionist
policies are even race-driven 5.
Ignoring the issue of gendered migration and furthermore, not to foreground it.
implies that a significant dimension of the new globalized world and the violation of
rights of mobile w omen arising thereof will be left unattended. This we can least al ford to
do especially as more than half of all migrants are women and young girls who are
travelling in their own right as independent migrants. Bereft of citizenship, nationality
and livelihoods, migrant women are also the ones who have the least rights, and no
platform to stand on in order to ask for their rights. They have no entitlement even over
the physical ground they stand upon and can legally be evicted at any moment
Organisations and governments which advocates for rights of future citizens and
residents of this planet through good governance would be lagging veiy many' steps
behind if they do not immediately and urgently place the future of women migrants at the
very centre of their advocacy project.
|A See Ronald Skeldon, Discriminaiion against Migrants in the Asian Region: General Trends. Priorities
and Obstacles'. Asian-Pacific Regional Seminar of Experts on Migrants and Trafficking in Persons
with Particular Reference to Women and Children, Bangkok, September 2000.

Asia with an overwhelming proportion of the w orld's population, has the largest
proportion of migrants. These mobile women and youth are the most vulnerable to
HIV/AIDS. worst forms of labour, abysmal lack of housing and education, sexual
\ iolence. sale, and trafficking. Feminisation of migration and migrants are not issues the
Asia-Pacific region can afford to ignore as these also constitute the potential core of
heightening contradictions, conflict, and destabilisation in the future.

£>| S - 2- I- . G

Mukts-Paaeii Declaration
On the occasion of 2nd SAARC Peoples
Forum the participants adopted the
Mukti Paani declaration

We, the peoples from 5outh Asia region, where nearly one quarter
of the world population lives, have gathered here in Katmandu from 18
to 21 December to build solidarity between our people in order to
collectively defend our (1) Rights to Livelihood and Food Sovereignty,
(2) Rights of Movement and Personal Security and (5) Right for Selfdetermination. We are expressing our commitment to continue our
struggle to achieve these goals and we are defending the seine rights,
of all the people of the world whose rights are being systematically’
violated.
We deplore and denounce the way in which 'globalization' is being
imposed and pushed which indeed means globalization of exploitation,
violence, militarization, destruction of our livelihood and communities,
hom*ogenization of culture and above all consolidating the rule of the
multinational corporations through Bretton Wood institutions like WTO,
World Bank and IMF. While our rights to livelihood, movement and selfdetermination are being systematically violated the Tights' of commodity;
capital and multinational corporations are instead being established. This
is not acceptable to us.

We are deeply concerned that our governments have written off
their sovereignty over the economic sphere of the State and reduced
the State into a policing
agent in order to defend
corporations and capital so
that they can continue to
accumulate and privatize
S'
>■ '
World resources, exploit us
and destroy our livelihoods.
In the process people are
being increasingly disposable
and few rich are controlling
the wealth of the world. It is
horrifying for us to realize
that the word 'citizen1 has lost
all meaning and 5tate has
no power to defend and —

Hl i

protect their citizens, except mediating exploitation and policing the

people.
It is not acceptable to us that white movement of capital and
commodities are ensured by the State the movement of the people is
being controlled by armed border patron, racist immigration policies of
the northern countries and other coercive means. The movement of
people is being curtailed in the name of controlling infections diseases,
□articularly HIV/AIDS and by various moralizing and patriarchal controls
over the movement of women. State must be responsible to ensure
secure and safe movements of all their citizens who seek livelihood
options within or outside their countries.

■

We are very concerned and
oppose proposed US Bill on trafficking
to be placed before the Senate
shortly. Through this racist and
discriminatory bill United States of
America will impose non
humanitarian sanctions against the
countries of origin who are unable
to control trafficking problem and
thereby play a policing role which is
Young camel jockeys; Azam and Ashiq
absolutely undesirable. It will further
refuse redress and assistance to
trafficked women who are entering U5A from selective places of or'g|nWe denounce this bill as racist and discriminatory that this will further
deteriorate the situation of trafficked women who have already suffered
violence. We also think it is a shame for USA that it is one of the two
countries of the world that has not ratified CRC and CEDAW It is a Joke
to us when US claims itself as champion of "human rights . We deplore
the fact that the real purpose of the US bill is to set up more stringent
immigration control in order to make US border more impermeable to
undesirable immigrants as well as to penalize and criminalize them for
entering USA for livelihood options.
We are deeply concerned about the people, particularly women and
children, who are displaced from their homes and immediate environments
and are increasingly thrown into insecure and vulnerable situation due
to war and violence of the State. We refuse to accept the term "refugee
for these people because under this terminological guise the people are
forced to go back to the same place of violence and States use this as
a strategy to control their population.

r-'

We reject the idea that biotechnology and genetic engineering or
any adventurous manipulation of genes, dictated by corporate profit and
greed, can increase food production. Rather than demonstrating any
positive promise genetic engineering is ensuring monopoly market of
herbicides, chemicals and other patented products of the companies
and increasing risks for health and biological pollution. Technology driven
by the greed of corporate profit is eroding local and indigenous knowledge
systems that has been historically proved to be efficient, sustainable,
diverse and grounded on the collective community ethics and
responsibility. To stop our communities from disintegration we demand
that our science and technology policy is based on our historical
knowledge, skills and ethics.

We reject any technology that is against our moral, ethical and cultural
values but concentrate power and wealth in multinationals and accelerates
economic disparity and social injustice. Adventurous genetic manipulation
to control life, nature and economy Is not acceptable to us. While our
farmers are already producing surplus food and grains rotting in the
storehouses it is bizarre and ridiculous to claim that we need biotechnology
and genetic engineering for more food production. There are ample
evidences that South Asia produces more food than the population
growth rate in the region. With good planning ensuring access of the
poor through efficient distribution policies, our region is absolutely
capable to deal with the food and malnutrition problem. We demand
that our governments pay full attention to distribution strategies based
on cooperation and collective action. They should not be fooled by
adventurous, unsustainable and risky technologies in order to solve the
problem of hunger and malnutrition.

We, the peoples of the member countries of 5AARC are deeply
concerned about the failure of the political leaders of our countries to
keep up with the objectives and spirit of 5AARC as promised by the
5AARC Charter. The 5AARC leaders agreed during its inception that the
primary objective of the association will be to improve the "quality of
life" of the peoples of the region irrespective of the difference in political
systems, religion or culture in order to foster socio-economic cooperation.
The Colombo Declaration of the 10th 5AARC Summit clearly declares
that Heads of State or Government will remain committed to "promote
mutual trust and understanding". They have also recognized the fact
that "the aim of promoting peace, stability and amity and accelerated
socio-economic cooperation may best be achieved by fostering good
neighborly relations, relieving tensions and building confidence". On the
basis of such realization and understanding they 'agreed that a process
20

■

of informal political consultations would prove useful1 to resolve the
differences, conflicts and tensions between them. The promise was to
continue the 5AARC Summits. We feel that our leaders have betrayed
the peoples of the region and failed to keep up with the promise and
declaration they themselves formulated. We, the peoples of the South
Asia region therefore demand that 10th 5AARC Summit is held
immediately and without any excuse.

We also like to reiterate that the excuse given for not holding the llth
5AARC summit is against 5AARC Charter and spirit. Therefore, such
excuses are not congenial for the spirit of cooperation, sense of unity
and therefore are directly against the interest of the peoples of the
region.

Against violent globalization that has made us uprooted from our
livelihood sources, and consequently made our body and soul into
commodities in the market, we are committing ourselves to work for
globalization of human relation for collective prosperity based on equity,
care, diversity and sustainability in order to enhance our capacity to end
all forms of exploitation and violence.

CRC Article 35
"Member States shall take all appropriate measures at the
national, bilateral, and multilateral levels to prevent
kidnapping, sale or trade of children for whatever purpose
and under whatever form".

lift

A-

gg
On the occasion of
South Asia Consultation
LHRLA desigend a
brochure on child
trafficking

CA^S^H,

Ill
21

Willem van Schendel

SAR WATCH
Vol. 2 No. 2 December 2000

Repatriates? Infiltrators?
Trafficked tinmans?
Cross-border migrants in Bengal
Much has been written on the Partition of British India
and the creation of the states of Pakistan and India in 1947. A
major theme in these writings is the creation of the
international border between the two countries. What is
remarkable about these writings is how limited their scope is.
Almost all deal exclusively with the high politics leading up
to the territorial division; and they are peppered with the
names of certain middle-aged men: Louis Mountbatten,
Jawaharlal Nehru, Mohammad Ali Jinnah and, above all,
Cyril Radcliffe. They also tend to be written from partisan
positions, attempting to demonstrate how national interest British, Indian, Pakistani - was served or betrayed by the
fateful territorial decisions of the final days of colonial rule,
< blaming individuals, parties or alliances for the outcome.
. x.id finally, these writings rarely address developments at the
border after 1947. The border remains a mere symbol of
partition, nationhood, and uprootedness - it has not become a
subject of serious inquiry.

As a result, hardly anything is known about the border as
a historical reality. How did the ‘Radcliffe line,’ made public
in Delhi on 16 August 1947, turn into a social fact with a
huge impact on the lives of millions of people in the second
half of the twentieth century? How was it established,
maintained, challenged and subverted? How could certain
people turn it to their economic, political or social advantage?
How did it affect social transformations in the borderland on
either side? These are important questions for anyone wishing
to understand the ways in which South Asian states
developed, the extent to which South Asian economies
became bounded by borders, and how national identities
became internalised.

This paper presents a section of an ongoing study into
the Bengal borderland. It looks at the eastern Partition which
created an ‘East Pakistan’ separated by a 4,000 km border
from India and Burma. The larger study examines how the
states went about identifying the border on the ground.

Repatriates? Infiltrators? Trafficked Humans?^
demarcating it. and resolving border disputes. It also looks at
how they policed the border and sought to establish control
over the borderland population. Equally important are the
ways in which borderlanders defied, ignored and subveiled
the border, and how they used it to escape stale retribution in
various ways. A third theme is how trade across the border
became entangled in networks of illegality and corruption.
This paper takes up another subtheme: the movement of
people across the border. It is an important theme, not only
because of the number of people involved and the economic
significance of cross-border population movements, but also
because these movements have become a major irritant
between Bangladesh and India and are likely to keep the
relationship between these stales volatile well into the
twenty-first century.

‘Coming home’
When the new border came into existence in 1947,
people were found to move back and forth across it. Some of
these movements followed well-established practices, others
were new. The complexity of population movement across
the Bengal border has not been analysed. Instead, our under
standing has been hostage to a few dramatic narratives which
conceal as much as they reveal. Here I give very brief
outlines of these dominant views before suggesting a more
nuanced approach to major cross-border population
movements since 1947.
In the master narrative of Partition, the cruelty and
violence of nation-building is epitomised by the intense
suffering of millions of uprooted people who had to cross the
border in order to save their lives. The conceptual model has
always been the Punjab, where population exchange in 1947
was swift, massive, ruthless and almost complete: it has
become the touchstone of Partition migration.1 A second case
which has received considerable attention is the movement of
Bengali Hindus from East Bengal to West Bengal. This
movement was less intensely dramatic because it started later,
extended over a much longer time, and was less complete.2
In both India and Pakistan, Partition migration has been
studied and interpreted overwhelmingly within nationalist

')Uth Asian Refugee Watch

Repatriates? Infiltrators? Trafficked Humans? _

frameworks. Attention was focused firmly on immigrants,
who were seen as sons and daughters of the nation coming
home, to the almost complete exclusion of emigrants, who
were seen as abandoning the nation. In this view, the tragedy
of the immigrants was that they were members of a nation
whose territory had suddenly become con fined between new
borders and who found themselves excluded from that
territory. Their trek across the border - the legal spatial
delimitation of the nation - was a homecoming: they joined
the nation to which they belonged and in which they had full
rights. Their material loss, traumatic uprooting and suffering
on the way were all sacrifices to the nation, and obliged the
nation to take care of them.

But gradually the mood changed. Later immigrants
found it more difficult to establish their national credentials,
and their citizen's rights were increasingly challenged.4 This
erosion of immigration rights reflected a stronger
territorialisation of national identities in the region. Those
who had spent years on the other side of the border were seen
as having acquired a measure of membership of that nation,
making inclusion in their nation of immigration problematic.
The erosion of immigration rights also reflected a history of
conflicts over resources, especially land, between local
populations and newcomers.5 Those who footed the bill for
the ‘homecoming’ were not so much the spokesmen for the
nation as those people, often in the borderland, upon whom
the immigrants descended.

Moreover, the communal (Muslim/non-Muslim) basis
for the creation of Pakistan and India was reinforced by
experiences after 1947, as relations turned bitter and both
state elites used communal symbols in their quest to establish
and maintain power. Pakistan had been a communal entity
from the start and non-Muslim immigration remained small.
But in India, which claimed to be a homeland for all.
including Muslims, Muslim immigrants were not welcome
and,
increasingly,
Hindu
immigration
from East
Pakistan/Bangladesh was resented.

The old spirit of welcoming immigrants into the national
fold never died, and it would flare up whenever refugees
arrived in the wake of riots.6 But gradually it was nudged
aside by a new approach. In East Bengal, immigration issues

dropped from the public agenda as Muslim immigration
tapered off sharply after the birth of Bangladesh. But in India
a new discourse gained popularity as migration from
Bangladesh, of both Hindus and Muslims, continued. This
was the discourse of infiltration.

'Infiltration’
The view that immigration was not a homecoming first
developed in Assam and Tripura. Here many inhabitants sav.
post-Partition immigrants not primarily as fellow Indians
being cast out of Pakistan and in need of help but as Bengalis
moving into non-Bengali areas and taking over.3 In Tripura
local protests took organised form right from 1947 when
Seng-krak. the first anti-refugee and anti-Bengali political
union, was established.9 Il orchestrated clashes with
immigrants and kidnappings when ‘refugee colonies' were set
up and 'tribal' land was given to Bengali newcomers. The
immigrants became an important vote bank and soc
Bengalis began to control Tripura politics, calling fort*,
further protests by the local population. Major confrontations
took place in 1953 and 1954 and these focused increasing!',
on the ownership of land. In an attempt to defuse the tension
and return some lands which immigrants had occupied
unlawfully, the alienation of ‘tribal' lands was made more
difficult by law.11

The language of infiltration first surfaced in official
discourse when, in 1962. the Indian government in
parliamentary debates identified immigrants in Tripura and
Assam as infiltrators and proceeded to expel them.12 It was
also used in 1964, when.
about 2 lakh [200.000] people belonging to linguistic
and religious minorities were physically seized by the
police and left at the border without any kind of
judicial process. The government had to stop the
operation of the scheme after large-scale public
protest and was convinced that the Foreigners' Act.
1946 was not applicable in Eastern India.13

In the same year, the Indian government started ar.
international propaganda campaign on the tc pic o*
'infiltration' from East Pakistan. And since then, it bar.
become commonplace in Indian political debates to talk abou'.

South Asian Refugee Watch

Repatriates? Infiltrators? Trafficked Humans?\

infiltration.14 The term became widespread in the northeast
during the Assam movement, started in 1979. which spoke to
Assamese fears of ‘being swamped by foreign nationals’ as a
result of ‘misplaced notions of national commitment' and the
failure of Indian laws to ‘prevent infiltration from
Bangladesh.'" The Assam movement criticised an Indian law

of 1950 which openly encouraged free entry into Assam of
Hindus who were victims of disturbances in East Bengal.
Prafulla Mahanta, the leader of the Assam movement, wrote
with irony: ‘In secular India, the Hindu East Pakistanis were
permitted to settle as refugees and the Muslim Pakistanis
were thrown out.'16

Since then the discourse of infiltration has been
elaborated in two ways. In public debates in northeast India,
there have been attempts to strengthen the insidious
connotations of the term ‘infiltration’ by using the hyperbole
of ‘demographic attack.’ In the words of a politician in North
Bengal,
the threat [of deliberate, large-scale and sustained
infiltration by Bangladesh residents] is there: it is so
profound that it may affect a demographic change in
Indian areas around Bangladesh so much so that they
may one day cease to be Indian territory. The idea of
such demographic aggression against India has been
there since 1958, but it has been put into practice with
intensity after the emergence of Bangladesh as a
nation.17
In a report to the President of India in 1998, the
Governor of Assam saw a sinister design behind what he
called ‘demographic invasion’: to create a Greater
Bangladesh, providing Lebensraum for Bangladeshis by
‘severing the entire land mass of the North-East, with all its
rich resources, from the rest of the country.’18 In reaction to
such allegations, Bengalis in North-East India tried to create
organisations to protect their interests.

There was a second way in which the discourse of
mfiltration was elaborated. This was done by politicians in
other parts of India who detected illegal immigrants from
Bangladesh and sought to deport them. In 1992-93, in an
action code-named Operation Pushback, authorities in New
Delhi and Bombay rounded up hundreds of suspected
Bangladeshis and shipped them to the border with

Bangladesh. Bangladesh refused to take them back, and the
Indian government was forced to abandon the operation.
Further deportations followed in 1994. 1997 and 2()()(). In
1998. police officers in Bombay arrested ‘infiltrators’ and
escorted them to the West Bengal-Bangladesh border to hand
them over to the border guards.20 Speaking of the deportation
of ‘Bangladeshi infiltrators' in the Maharashtra assembly, the
Deputy Chief Minister said: ‘This is a question of Indianness.
nationalism and patriotism,' and he linked immigration from
Bangladesh with ‘a well-organised conspiracy to infiltrate ISI
agents into the country.'-1

The discourse of infiltration was developed by local
politicians in northeast India in the 1940s and 1950s to deny
citizen’s rights, and particularly land rights, to immigrants
from East Pakistan. In the 1960s it surfaced in Indian
government statements in connection with the first mass
expulsions from northeastern India. In the 1980s, it was taken
up by Hindu fundamentalist politicians in other parts of India
and by the 1990s it had become a core argument in national
debates in India which sought to link immigration from
Bangladesh with the planned subversion of India. The duty of
any Indian patriot was not to welcome immigrants as
repatriates, but to deport them as foreign agents out to
destabilise India. Islamise pails of it, and ultimately annex
them to Bangladesh.
In East Pakistan, and later Bangladesh, successive
governments developed a bizarre counter-discourse: they
simply denied that any of their citizens migrated to India at
all.22 For example, in August 1998 the Prime Minister of
Bangladesh stated: ‘We do not accept that there is any
Bangladeshi national living in India. So the question of
deporting any Bangladeshi by the Indian Government does
not arise.’ As Indian border guards tried to push back what
they named ‘Bangladeshi infiltrators,' Bangladeshi border
guards tried to foil the ‘push-in' of what they considered to be
‘Indian citizens.'23 During Operation Pushback in India
(which Bangladesh branded as ‘Operation Push-In').

The deportation process suffered a severe setback in
September 1992 when 132 deportees were sent to the
border. The [Border Security Force] tonsured their
heads, stripped them and burnt their belongings. The
event blew up into a diplomatic row when

South Asian Refugee Watch

Repatriates? Infiltrators? Trafficked Humans?]

Bangladesh accused India of trying to push out West
Bengal Muslims.24

not

impossible

(hat

future

Bangladeshi

intellectuals will discover migrants to India as cultural heroes,

From the point of view of the Bangladesh state, a porous

people who despite enormous odds were able to survive in

border was clearly a welcome device to export jobs. No

that huge society, creating new cultural and social forms of

attempts were made to keep Bangladeshi labour migrants
from crossing into India but their forced return was

time, the Bangladeshi discourse on migration to India is

vehemently

opposed.

This

created

great

problems

for

■transnational' Bangladeshiness in the process.-0 Till that

likely to be marked by denial, disdain and disinformation.

Bangladesh as a modern stale. Happy to use its border to

disown its mobile citizens. Bangladesh sought to protect the
integrity of its border in other respects - unauthorised trade

Bengalis on the move

(smuggling) and unauthorised entry (Rohingya refugees from

The. creation of the border affected a well-established

Burma. Indian border police, J umma rebels from hideouts in

population flow. The deltaic region of Bengal had long

India being cases in point). The ensuing ambiguity regarding
the territorial integrity of the nation-state became one of the

main problems of contemporary statecraft in Bangladesh.

supported dense agricultural populations whose numbers
were kept fairly stable by high mortality due to epidemic

disease and natural calamities. In the nineteenth century, this

Intellectuals in Bangladesh were equally unconcerned

population began to expand and in eastern and central parts of

with claiming migrants to India as expatriate Bangladeshis.25

the della increasing landlessness led to a stream of out-

Contrasting

sharply

migrants looking for land in less densely populated parts of

Bangladeshi

migrants to the North, there

deafening

silence

with

about

the
the

of successful

heroisation
ingenuity,

has

Bengal. In this endeavour, they were often encouraged ’

and

both the colonial authorities and landlords who were keen iw

been

creativity

resilience of the much larger groups of Bangladeshi migrants

expand their tax base. It was in this period that cultivators

to India, some of whom clearly also ‘made good.’ There was

established themselves in the Sundarban wilds in the south,

a serious problem in acknowledging these migrants as

the Barind area in the north, and on chors, (silt banks) in the

Bangladeshis because of the older tradition of seeing them as

major rivers of Bengal. Others moved into sparsely-settled

repatriates, and therefore as traitors to the nation, who opted
for the rival nation of India.

the densely-settled west there was little scope for expansion.

By now, however, millions of Bangladeshis in India are
truly transnational in three ways. First, they are not accepted
as Indian citizens and live the shadow existence of illegal
immigrants worldwide, a floating underclass who are in India
but not of it. Second, their motives for crossing the border
have long stopped being related to nationalist ideologies.

Instead they join many migrants worldwide in pursuing the
good life which is denied them back home - in terms of a

decent income, freedom from oppressive social control, and
prospects for a better future. And third, like their counterparts
all over the world, they think transnationally when they remit

money and make occasional visits back home. Unlike the
early ‘repatriates,’ they often retain contacts with Bangladesh

through transnational networks of increasing complexity.

non-Bengali speaking regions to the north, east and south - in
They followed the course of the Brahmaputra into the Assam

valley and they settled in northern Arakan and Tripura.- As
the population continued to grow and the economy of Bengal

stagnated, would-be settlers found it harder to find productive
and safe land in Bengal. They moved onto islands and chors
in the Bay of Bengal which were dangerously exposed to
hurricanes and tidal bores, and they pushed further into areas

where local populations increasingly began to resist Bengali
immigration.-8 This was the demographic scenario on which
the Partition border impinged.

The creation of the border had two effects. First, tl
fairly unobtrusive movement of settlers out of Bengal
suddenly became international migration. When it was
declared illegal to move without papers, the movement
continued underground.29 Second, the throes of state
formation in East Bengal led to additional out-migration after

\outh Asian Refugee Watch

Repatriates? Infiltrators? Trafficked Humans?

1947, often in waves. Although the Indian discourse of
homecoming identified these as political migrants
(repatriates, refugees, displaced persons) and ignored (he
longer-term trend, the distinction between ‘economic’ and
political settlers was often of little importance to those on
whose land they settled. The border gave resisters to migrant
settlement a new argument (hat the state could hardly ignore,
and the discourse of infiltration was constructed around that
argument: no state could allow foreign nationals to cross the
border illegally and simply occupy land and avail themselves
of the services provided by that state. This formal argument
gained power when it could no longer be maintained that
immigration
from Bangladesh was overwhelmingly
‘homecoming’ migration by East Bengal Hindus. The
discovery that many, if not most, immigrants from
Bangladesh were Muslims coincided with the emergence of
political Hinduism (or Hindu fundamentalism) in India which
was based on the tenet that Hindu India was under threat.30 It
was through this political movement that the focus on
mgladeshi ‘infiltration’ became a national issue. In the
Indian debate on ‘infiltration,’ questions of citizenship
dovetailed with rising communal sensibilities.

Indian authorities took various positions in this debate,
and these shifted under the influence of continuing migration
from Bangladesh.31 The Assam government switched from
the homecoming thesis to the infiltration thesis after violent
anti-Bengali disturbances in the early 1980s.32 Authorities in
Delhi and Bombay did the same after Hindu fundamentalist
parties came to power there. Only the West Bengal
government stuck to the homecoming line till 1999, when it,
too, caved in and adopted the language of infiltration.33

The emergence of the Indian discourse of infiltration,
however, brought an end to this balance. As migration from
East Bengal to India came to be seen as undesirable,
measures were taken to contain it. Such measures were not
taken on the East Bengal side of the border but their effects
were noticeable on both sides. Three measures were of
particular importance: border fencing, detection and
identification, and deportation.

1) A fence around the border
Very short stretches of border, especially near customs
posts, had been fenced from the late 1940s. ’5 In the 1960s. the
Indian states bordering on East Pakistan proposed to the
Delhi government to ‘erect a wire fencing all along the land
borders primarily to prevent infiltration into these Slates by
Pakistani Muslims,’ but Delhi had not acted upon it.
Especially politicians in Assam had been pushing for a fence
along the entire border but not until 1985 were they able to
place this issue on the national agenda.37 In 1986 the Indian
government approved the Indo-Bangladesh Border Roads &
Fence Project ‘with a view to preventing infiltration by
Bangladesh nationals.’38 Progress was very uneven and it was
slow. According to Indian press reports in 1998, ‘the total
border fencing is about 190 km in West Bengal, 20 km in
Assam and almost non-existent in Tripura and Mizoram.’''

These permutations were of great importance to the
borderland. In the early days, both India and Pakistan
welcomed immigrants and demanded that they be allowed to
pass the border unmolested. A newspaper cartoon published
in India in 1952 expresses indignation at the humiliations to
’ ich Pakistan customs officials subjected East Bengali
...ndus migrating to India. The two countries were keen to
ensure that migrants from India to Pakistan and from Pakistan
to India were treated in exactly the same way.34 This led to
parallel and fairly uniform arrangements in the borderland.

The border fence caused great offence in Bangladesh
‘because it humiliates and belittles us before the world.' 1
According to existing agreements between the two states,
nothing can be constructed within 150 metres of the border
without the approval of both governments, so where the fence
came up it created a 150-metre wide belt of no man’s land on
the Indian side. When in 1999 the West Bengal government
changed its mind about immigration and decided to contain
‘infiltration’ by fencing its border with Bangladesh, it found
that no less than 450 villages were located within 150 metres
of the border and would therefore lie in the fenced-off no
man’s land.41 In parts of Meghalaya where a border fence had
come up, cultivators on the Indian side reported that there
was an insufficient number of gates to allow them to work
their fields; as a result, their counterparts from Bangladesh

\South Asian Refugee Watch

Repatriates? Infiltrators? Trafficked Humans?

had taken over the 150-metre strip of Indian territory.
cultivating right up to the fence.42

The social destruction which a border fence would bring
to these villages may be deduced from a sketch of two of
them:
Every time Nazir Rahman Bhuia moves from one part
of his house to another, he crosses an international
boundary. For the India-Bangladesh border at marker
number 2033 runs right through his home in a village
set in lush green countryside in the eastern Indian
state of Tripura ... the village has two names now Motinagar on the Indian side, Dhajanagar on the
Bangladeshi. I he Indian village has electricity, the
Bangladeshi has none. Both are inhabited by Muslims
... Lite goes on as usual, even when border guards
show up occasionally. The villagers meet each other,
celebrate marriages and bury the dead together. “We
feel strange about the border running through the
village like this, but we’ve adjusted to it,” says Bhuia.

A group wedding fwas] celebrated in a West Bengal
village - three brides and two grooms were from
India, three grooms and two brides were from
Bangladesh. Bengalis live on both sides of the border.
The marriages were solemnized in the village
council office. The people have never recognized
these border pillars that were suddenly erected,” adds
the [Border Security Force] officer, who is
responsible for policing a big part of the zanily
zigzagging frontier.43
In Assam, politicians were dissatisfied not only with the
very slow progress of the fencing of the Indo-Bangladesh
border, but also with the quality of the fence. A report by the
Governor of Assam argued that the fence should be ‘of the
same height as along Punjab’s border with Pakistan,’ and that
observation towers, speedboats and floating border outposts
were necessary.

A description of the Punjab border fence gives an idea of
what the governor had in mind:
It is a formidable barrier, erected well inside Indian
territory ... at a cost of $85,000 a kilometer. It
consists of two 3-m high barbed wire fences with
tazor sharp concertina wire running in between. It
also has what border policemen call cobras: five

electricity wires fixed at different heights from the
ground. At night the cobras come alive, along with
powerful sodium vapor lamps that illuminate the
fencing ... Recently, one ... itinerant worker was
electrocuted near Wagah when he tried to crawl
across during a brief power shutdown - standby
generators came on automatically, roasting him inside
the concertina.44
In 1998. India was reported to consider erecting a 150km electrified fence on the Bangladesh border, ‘charged with
a low, non-fatal voltage, immigration officials said.’45 But
despite the rhetoric, in the twentieth century the technocratic
dream of sealing the Indo-Bangladesh border by means of
fences, floodlights and motorised border patrols did not
materialise. The cost of construction and maintenance would
have been high, the political fallout for India's relationship
with Bangladesh considerable, and the efficacy of the fence
doubtful. Occasionally, parallels were drawn with the most
high-tech border sealing in the world, at the US-Mexican
border, and the ways in which Mexican migrants were able
circumvent it. Clearly, as in the USA, the de fachimmigration policy of the Indian government was not to make
the Indo-Bangladesh border impermeable to the passage of
‘illegal’ entrants, for reasons to which I will return shortly.46
In places where fences did come up, however,
borderland society was not bisected. Borderlanders who
wished to negotiate the border simply became more
dependent on the mediation of local border guards and
customs officials, cut holes in the fence, or crossed over in a
fenceless section. There was no evidence to show that
Bangladeshi migration to India was slowed down by the
border fence; crossing the fenced border remained ‘as easy as
slicing butter with a knife’

2) Detection and identification

A second line of defence against ‘infiltrators’ from
Bangladesh was identifying culprits and sending them back t
the Bangladesh side of the border. This was much more
difficult than it seemed. First of all, migrants usually travelled
without identity papers (although there was a sizeable group
of Bangladeshis who entered India on visaed passports and

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Repatriates? Infiltrators? Trafficked Humans'

never returned). Second, there was little to distinguish
newcomers from residents. They spoke the same language,
might dress in Indian-made clothes smuggled into
Bangladesh, and blended in very easily. Even if they spoke an
East Bengal regional dialect, there were many established
Indian citizens in the borderland who originated from the
same regions. Third, there was always confusion about the
cut-off point between ‘homecoming’ and ‘infiltration’
because local politicians, the government in Delhi and the
Bangladesh government used different definitions. An
agreement between the prime ministers of India and
Bangladesh (the Indira-Mujib Pact of 1972) ‘tacitly provided
that Bangladesh would not be held responsible for persons
who had illegally migrated to India before the birth of the
new Republic prior to March 25, 1971,’ and therefore the
year 1971 was officially considered the beginning of
‘infiltration.’47
Identification of Bangladeshi immigrants was further
hampered by the fact that Indian borderlanders often
protected them. Earlier immigrants offered newcomers shelter
and support, employers were keen to exploit cheap labour and
politicians were interested in expanding their electorate.
Making use of the imperfect registration of Indian citizens
and ample opportunities for forgery, many immigrants
secured an ‘Indian’ identity by acquiring a ration card, a
fraudulent birth certificate, or school certificate, by enrolling
as voters and - ultimate proof of Indian citizenship - by
availing themselves of the Election Commission’s identity
card. And for those with money and connections it was not
difficult to ‘manage’ a passport. As a result, administrative
measures to detect immigrants failed dismally.

figure of 10 million, and the Indian government put the
number ‘unofficially’ al 12-18 million, of which some 5
million might have settled in West Bengal.51

Identity cards. Other administrative measures had proved to
be as ineffectual. Border guards often found it impossible to
identify persons without some form of identification:

“How can we stop infiltration?” said Mr Balbir Singh
Sahal, the [BSF] Sector Commander [at the West
Bengal border, Nadia district), “We do not understand
Bengali. These people speak the same language, wear
similar clothes and look no different. It is impossible
to distinguish between a Bangladeshi and an Indian.
Also, many live in houses adjacent to each other.
Indians should be
issued
identity cards
immediately."'2

Plans lo issue identity cards to Indian citizens, especially
in ‘sensitive' border areas, were discussed for years, and
floated in 1989. 1994. 1997 and 1999.53 Such drives did
nothing to reduce immigration. On the contrary, a report from
the fenced border at Dhubri (Assam) indicated that Indian
citizens encouraged immigration because they earned money
by conducting Bangladeshis through the border: they rented
out their passports, identity cards and residential certificates
to them.54 Even in the absence of such actions, identity card
schemes appeared to be doomed from the start. Not only were
they very expensive and labour intensive, but in the absence
of a reliable national citizens’ register it was impossible to
keep such schemes up-to-date. Most importantly, they were
vulnerable to fraud:
An Indian reporter approaching some fresh
Bangladeshi immigrants waiting for a train at New
Cooch Behar railway station found that, as soon as he
questioned them, they whipped out certificates issued
by the chief of a gram panchayat (local council),
showing them to be Indians. Although everyone was
aware that one of a ‘mushrooming tribe of agents’
had procured these for them, no Indian state official
was willing, or perhaps able, to check the veracity of
these certificates.5

Laws. By the late 1990s, the Indian government was seriously
revising the Foreigners’ Act, 1946, and a controversy was
raging over the proposed repeal of the special anti-infiltration
act for Assam, the Illegal Migrants (Determination by
Tribunals) Act of 1983, because it had failed to facilitate the
deportation of Bangladeshis from Assam.49 According to one
source, since 1983 about 300,000 people were screened under
this act, but only 25,000 were tried by tribunals, and a mere
1,500 were deported as illegal immigrants.50 The total number
of post-1971 immigrants from Bangladesh to India is
unknown; Indian politicians and journalists usually quote a

In the same vein. Bangladeshis happily voted in Indian
elections (as Indian borderlanders also did in Bangladeshi
elections) because they could register as voters.56 Before

Repatridtes? Infiltrators? Trafficked Humans^

South Asian Refugee Watch
elections, there would be enormous publicity about the
cleaning up of the electoral rolls in the Indian border districts,
but illegal immigrants with political patronage and armed
with voter’s identity cards could not be sent away from the
polling booth.57
Clearly, it was impossible for the Indian state to handle
the immigration ol Bangladeshis administratively. Ils main
weakness was that it could not implement the laws and
schemes that it devised because its registration of citizens was
inadequate, it employed too few border guards, it could not
trust those guards and other state personnel to put the interest
of the state before their own interest, and it failed to check
Indian citizens who encouraged illegal immigration and
registration. Il was no surprise that the state explored other
means to rid itself of unwanted Bangladeshis: deportation.

3) Deportation
From their inception as separate states, both India and
Pakistan practised the removal of unwanted individuals from
their territories. There were several forms. Those who were
considered a threat to the state could be extemed, fugitives
from the law could be extradited, and so could, from 1952,
those who arrived without valid passports and visas. By far
the most important form of removal in terms of numbers was
the expulsion of minorities; local slate representatives often
played a role in this.
lhe deportation of people on the ground of their being
■infiltrators’ or ‘foreigners’ first occurred on a large scale in
India in the 1960s.58 In the 1990s deportation once more
became a core issue in India. Public opinion was primed for
these deportations by campaigns depicting Bangladeshi
immigrants as a security risk and a burden on Indian society.

[charity institution) that whoever wants to come and
slay here can freely enter? It is a matter of national
security ... There is too much pressure on the
resources here (in Delhi|. Outsiders should be
removed.’ And lhe Chief Minister of Maharashtra
linked immigrants with subversion when he said, 'we
cannot tolerate this nonsense whether it is a
Bangladeshi or a Pakistani national indulging in law
and order problem.'5,,

Criminalisation, deportation and humiliation went hand
in hand. Police squads would check out neighbourhoods,
identify Bengali-speaking Muslims (who might be Indians
from West Bengal) and herd them together.

Sitting inside his dimly-lit hut in Delhi's Seemapuri,
home to an estimated 50,000 Bangladeshi
immigrants. 50-year-old Altai’ Hussain still
remembers the lime his sons Milon and Haroon were
caught by the authorities in the wake of an anti
Bangladeshi drive by the local BJP Government in
1994. They were paraded on donkeys, had their heads
shaved, put on a train to Calcutta and. finally, forced
back to Bangladesh at gun-point. For nine days,
starving and without any familiar address to call on.
lhe two brothers wandered around, until a Good
Samaritan smuggled them back to Seemapuri/’0

Fourteen-year-old Nanu from Mumbai was rounded
up but had no papers to prove that he was an Indian.
With 14 other Bengali-speaking Muslims, he was
taken to West Bengal by train. ‘After taking us to the
jungle, the police told us to keep on walking and not
look back or else we would be shot.’ Nanu alleged
that, in the jungle, women in his group had been
raped by [Maharashtra] police who were
accompanying them.61
The rough way in which deportations were carried out
led to protests. Maharashtra police also chained the deportees,
and lied their chains to railway coach windows. A senior
member of the West Bengal government commented: ‘The\
are not cattle, to be pushed back under the cover of darkn
I hey should be treated like human beings.’62

When waterlogging persisted in parts of Mumbai for
three days, the Shiv Sena mayor blamed the illegal
Bangladeshi population for the mess. “Their filth
blocked' up the gutters.” he said. In Delhi, the BJP
added to its following by generating antipathy
towards Bangladeshi immigrants. As civic amenities
came under strain, the hapless Bangladeshi immigrant
became a convenient scapegoat. The president of the
Delhi BJP argued: ‘Is our country a dharanishala

The deportations were a disaster for the deportees
because the Bangladesh border guards refused to accept them
as Bangladesh citizens. As a result, they would wander about

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Repatriates? Infiltrators? Trafficked Humans?

the borderland till they found the means to return to their
places of residence, or they ended up in West Bengal jails
which soon ran out ol capacity to accommodate them.63 Not
deterred by Bangladesh’s attitude, the government in Delhi
devised two new ways of identifying and isolating
immigrants. In 1998 it was reported to be contemplating
setting up detention camps near the Indo-Bangladesh border
‘to ensure the success of its “push-back” scheme of illegal
immigrants.' In these camps (dubbed Bangladesh Transfer
Facilitation Centres) immigrants would be Fingerprinted,
photographed, and so on, and held till such time as
Bangladesh would accept them as its nationals.64 In 1999 the
government in Delhi sanctioned the setting up of a 3,500man-strong Prevention of Infiltration Force (PIF) which it
saw as ‘a second line of defence against infiltration' and
which would be deployed at some distance from the Indo
Bangladesh border.65

Bangladeshi diaspora
None of the government measures taken in India were
effective in disrupting the flow of Bangladeshi migrants
across the border. Border fencing, identity cards, deportation
drives and border detention camps were no doubt important
rhetorical devices in Indian national politics but their impact
on Bangladeshi immigration was immaterial. The same can
be said about the violent campaigns of intimidation in Assam
and Tripura in which many Bangladeshi immigrants, or their
descendents, died.

The period since 1971 was one in which Bangladesh
society rapidly developed global links. One result was a
diasporic spread of Bangladeshis all over the world. The
settler migration of earlier days continued but new flows of
labour migration developed and emigration out of Bangladesh
grew explosively as the country’s oversaturated labour
markets were completely unable to accommodate growing
numbers of labourers. Many Bangladeshis left from Dhaka
airport, either as short-term labour migrants to the Gulf states
and Southeast Asia, or as legal or illegal migrants to the
highly-industrialised societies of the North.66 Some boarded
ships at the ports of Chittagong and Chalna. But the majority

continued to cross the land border into India or Burma in their
quest for a better life.

They were not always headed for Indian or Burmese
destinations, though. Some Bangladeshi migrants used Burma
as a corridor to employment in Malaysia. Singapore. Thailand
and Japan, and many Bangladeshi migrants used India as a
corridor to employment in Pakistan and the Middle East. The
term ‘exfiltration’ was coined in the Indian press to describe
the movement of Bangladeshis from India to Pakistan.67 In
the 1990s it was estimated that there were about a million
Bangladeshis in the Pakistani city of Karachi alone.68 The
heavy barbed-wiring of parts of the Indo-Pakistan border led
Bangladeshis to opt for the most dangerous routes. One was
through the hot, parched wasteland of the Thar desert and the
Rann of Kutch. Here one group of nearly 40 Bangladeshi
migrants, mostly women and children, died of thirst in the
early 1990s.69 Another route was through the unfenced border
(or, more precisely, line of demarcation) between Indian-held
and Pakistan-held Kashmir:
Well organised brokers charge money for
accompanying them from their native places to ...
West Bengal and to places near the international
border in Jammu and Kashmir. Throughout their
journey, they are accompanied by different brokers,
who leave them near the border for crossing over to
Pakistan.’ If Pakistan-bound Bangladeshis were
apprehended by the Kashmir police, they were not
booked or produced before a court. Instead, according
to senior police officers, ‘the best way to get rid of
them is to huddle them into a Calcutta-bound train
without ticket.’ Homeward bound Bangladeshis
returning from Pakistan, however, were arrested
under the law of the land. Some of these infiltrators,
after completing their jail terms, remained lodged in
police lock-ups for repatriation for many years.70
The search for a better life was no longer oriented
primarily towards finding a plot of land. Increasingly.
Bangladeshi immigrants in India and beyond were looking
for cash incomes. ‘In Calcutta and Delhi, they appear to have
carved out a niche for themselves as domestic helps,
construction labourers and ragpickers. In Mumbai, they are
crucial as weavers and zari workers.'71 Even among those
who stayed in the borderland, wage earners became more

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Repatriates? Infiltrators? Trafficked Humans?

important. Many of the rickshaw-pullers and day labourers in
Indian border towns such as Agartala (Tripura), Silchar
(Assam), or Siliguri (West Bengal) were Bangladeshis.
According to one report, 10,000 rickshaw-pullers in Siliguri
came from Bangladesh illegally.72

The Bangladeshi diaspora took many shapes and
involved many different groups. Some migrants bravely set
out on their own. others took the assistance of relatives and
friends, and yet others put their fate in the hands of agents.73
And then there were those who were forced into migration.
The cross-border trafficking of human beings came to be
noticed from the 1980s but may have existed much longer.74
At the border, the distinction between migration-byconsent and trafficking was not always clear. For example,
groups of Bangladeshi women being ferried across the
Ganges to India in the 1980s thought they might get a factory
job in Calcutta, or a husband in Bihar.75 Such groups were
often taken by train to Calcutta, accompanied by local women
who might themselves be migrants. ‘A Bangladeshi woman
settler who is now residing in Guma [24-Parganas, India],
told the survey team that her principal vocation was
trafficking in women. She accompanies a group of women
every evening by train from Guma to Calcutta.’76 Often it was
only after the women reached their final destinations (in
India, Pakistan, the Gulf states or Southeast Asia) that they
realised they had been tricked: often they were sold to
brothels.77
In the case of many women and children, however, it
was not consent or enticement but force or sale which
brought them to the border. Kidnapping was common,
especially of young children, even babies, but some parents
sold their children; in this way, about 15,000 children were
believed to cross the border every year.78 Young girls were
sought after as domestics and especially as sex workers. 79
Boys aged between 2 and 12 were in high demand in the Gulf
states as jockeys in camel races.80 Young girls were said to
‘command a high price as they are likely to be free from
HIV/AIDS.' and.

In West Bengal, children used as jockeys in camel
races are the most expensive, followed by those used
for prostitution, while those pushed into begging or

used as labourers cost the least. In Bangladesh, the
prices are said to be very low, with the average
ranging between Rs. 1,000 and Rs.5,000.81
As these migrants passed through the borderland, they
might experience special exploitation but also protection. On
the one hand, border police of both countries would charge
women money for crossing the border.8- If the money was not
given, sexual assault was a possibility. ‘Some women had
their first experience of “trading” their bodies when they were
raped by the police al the border for failing to pay the money
they would need to buy their way into India.’83 On the other
hand, borderlanders have been known to resist trafficking in
women and children. In northern Bangladesh, an old woman
was beaten to death by a mob charging her with having
abducted children, and train passengers on routes from the
border to Calcutta attacked or detained people they suspected
of being traffickers and their victims.84

Human trafficking was doubtless the most exploitative
and humiliating form that the Bangladeshi diaspora took. B
most emigrants who passed the borderland were not being
trafficked; they were labour migrants in search of a good life
rather than human chattels. The volume of Bangladeshi
emigration shows clearly that there was a strong and
sustained demand in India and beyond for the cheap labour
provided by Bangladeshis. If there were indeed some 10
million illegal Bangladeshis in India, there were obviously
millions of Indians keen to employ them. And yet, in Indian
discussions about ‘infiltration.’ the contributions which these
millions of Bangladeshi workers obviously made to the
Indian economy went largely unnoticed. As Indian politicians
built careers on ‘infiltrant bashing’ and stressed the costs of
these illegal immigrants in terms of law enforcement and
state services, they were supported by many who themselves
employed cheap Bangladeshi domestic, agricultural or
industrial labour. ‘Infiltrant bashing’ served not only as a
vote-getter, it also kept Bangladeshi labour immigrants
stigmatised and vulnerable, and therefore cheap and pliable.

Emigration and the borderland
In 1947 a border was imposed on a region whose
population dynamics were expansionary. For several decades

«r

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the official discourse in India ignored this, as the official
discourse in Bangladesh continues to do. Most of the
population expansion took place over land and the border
turned into a whistle-stop on the outward journey of East
Bengali migrants. As Indian political discourse increasingly
conceived of the border as a war zone - an area where the
nation was vulnerable to hostile invasion
crossing the
border began to require more circ*mspection in certain
sections where surveillance was stepped up.

There is no evidence to suggest, however, that
emigration was effectively hampered. On the contrary, new
forms of assistance and exploitation sprung up on both sides
of the border. Labour contractors, cross-border guides,
providers of documents, border guards and many others could
now earn better money off migrants. As the state sought to
regulate migration but was clearly unwilling to invest
sufficient energy and resources in reaching that goal, it
created opportunities for organising cross-border migration
rackets and for a more effective fleecing of migrants. In some
sections of the borderland unassisted crossing remained as
easy as ever, but where surveillance had increased, migrants
became more and more dependent on the services of
borderland brokers.85 These brokers could well have positions
in the state which they used to their own advantage. In 1993,
a journalist visiting Cooch Behar observed,

Solutions cannot be expected from more rigorous border
surveillance by the Indian state or from the ostrich policy
adopted by successive Bangladeshi governments. The Indian
discourse of infiltration points ominously to demonising
cross-border migrants and a future of anti-Bangladeshi
pogroms. The Bangladeshi discourse of denial is no more
than a short-term diplomatic device and fails completely to
address central issues of citizenship. By seeking to
criminalise the Bangladeshi diaspora and turn it into a
numbers game, politicians in both countries gamble with the
life chances of individual migrants.
What we need is a much belter understanding of crossborder population movements which takes account of the
perspectives of the migrants themselves. We are likely to find
that individual migrants have individual reasons to leave or
enter Bangladesh. Analysis should take place at the level of
the living strategies of individual people fleeing
environmental degradation, intense economic exploitation,
political harassment, stifling family relations, or a future
which they fear holds no promise. Their contributions to the
Indian economy as well as to that of Bangladesh need to be
made visible, as do the patterns of circular migration in which
many of them are involved, and the cross-border networks of
support in which migration is embedded.

I found Congress and CPI(M) politicians joining
hands to bring Bangladeshis in Matador vans from
the border and then putting them on to the TeeslaTorsa Express bound for the Nizamuddin railway
station in Delhi.86

The borderland brokers took advantage of two sets of
circ*mstances which originated outside the borderland. The
first was the forces which continued to compel inhabitants of
Bangladesh to seek a better life abroad. The Bangladeshi
diaspora will show no signs of slowing down as long as
scarcity and instability continue to predominate in the
Bangladesh economy, thwarting the life chances of millions.
Second, the discourse of infiltration which Indian politicians
developed in their quest for state power had the effect of
increasing the stakes and making the role of cross-border
migration brokers ever more lucrative.

The author is Professor of Modern Asian
History at the University f Amsterdam, the
Netherlands

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South Asian Refugee Watch
Notes and References:

1 See e.g. Disturbances in the Punjab, 1947 (Islamabad: National
Documentation Centre, 1995); Ritu Menon and Kamla Bhasin,
Borders S: Boundaries: Women in India's Partition (New Delhi:
Kali for Women, 1998).
2 See e.g. Kami B. Pakrasi. The Uprooted: A Sociological Study of
the Refugees of West Bengal. India (Calcutta: Editions Indian,
1971): Prafulla K. Chakrabarti, The Marginal Men: The Refugees
and the Left Political Syndrome in West Bengal (Calcutta: Naya
Udyog, 1999 (2nd cd.)).
' Menon and Bhasin, Borders & Boundaries (1998) is one of the
first studies to try and overcome this bias by looking at women
refugees crossing the Punjab border in both directions.

4 Thus in 1964 a policy was introduced under which no direct
rehabilitation was to be given to the ‘new migrants’ from East
Pakistan in West Bengal, i.e. people who had arrived in India after 1
January 1964. Report of the Committee of Review on Educational
Facilities for New Migrants from East Pakistan to West Bengal
(Calcutta: West Bengal Ministry of Labour, Employment and
Rehabilitation, 1968), in Prafulla Chakrabarti Papers, 1ISH*.
5 On raids by West Bengal landlords on immigrant East Bengal
squatters, see Chakrabarti , The Marginal Men (1999), 82-83.
Similar conflicts between in East Bengal, see petitions by locals
against immigrants from West Bengal and Assam in the Rangpur
border area, and against ‘a gang of Kabulies' who squatted in
Parbatipur, Dinajpur (*87, *229).

sharecroppers, and Bengali Hindus as professionals and clerks. In
the 1870s. 36r7t of the population had been ‘non-tribal’ (i.e. mostly
Bengali), a figure that rose to 48% in 1931.63% in 1951, and 7191
in 1971. Gayatri Bhatlacharyya, Refugee Rehabilitation and Its
Impact on Tripura's Economy (New Delhi/Guwahati: Omsons
Publications. 1988). 93.

9 Seng-krak was soon outlawed. It was followed by a host of
successors, e.g. Paharia Union (1951). Adibasi Samili (1952).
Tripura Rajya Adibsi Sangha (1953). Adibasi Samsad (1954). East
India Tribal Union (1956). Tripura Upajali Juba Samili (TUJS:
1967). Seng-krak (revived in 1967). Tripura Sena (c. 1968), Barki
Halam (1974). Tripura National Volunteer Force (TNVF; 1979).
and Army of Tripura Peoples’ Liberation Organisation (ATPLO;
1980). After 1980. when widespread violence engulfed the slate,
many new organisations cropped up (e.g. All Tripura Tribal Force
(ATTP, c.1985). For details, see S.R. Bhattacharjee, Tribal
Insurgency in Tripura: .4 Study in Exploration of Causes (New
Delhi: Inter-India Publications. 1989), 127-134. Cf. Panjoubam
Tarapot, Insurgency Movement in North-Eastern India (Delhi:
Vikas, 1996). 174-180.

10 In 1948, the Tripura government for the first time released almost
800 km2 of tribal reserve land ‘for increasing land revenue
economic growth, and particularly for refugee rehabilitatk
Bhattacharyya, Refugee Rehabilitation (1988). 17-20.

In 1947 the local population of Tripura consisted of many
linguistic and religious groups. The majority religion was
Hinduism. They are usually referred to as ‘tribal,’ a term which has
meaning only in connection with the legal category of ‘scheduled
tribes' in the Constitution of India. The Maharajas of Tripura had
begun attracting Bengali Muslims as agricultural labourers and

Government of Tripura. Law Department, The Tripura Land
Revenue and Land Reforms Act, I960. For significant amendments
in 1974 and 1975. see Bhattacharyya, Refugee Rehabilitation
(1988), 98-100. See also S.R. Bhattacharjee, Tribal Insurgency in
Tripura: A Study in Exploration of Causes (New Delhi: Inter-India
Publications, 1989). 114-117.
12 Parliamentary debates on the issue had been going on since May
1961. In August 1962, the Home Minister, L.B. Shastri. informed
the lower house that about 45.000 Muslims had ‘infiltrated’ into
Tripura; his deputy reported 250.000 to 300.000 ‘infiltrators’ in
Assam over the preceding 10 years and similar ‘infiltrations' were
alleged to have taken place in Manipur and West Bengal. By late
1962, according to Indian sources, some 50,000 Muslims from
Assam and some 16.000 from Tripura had been evicted. Pakistan
refused to identify them as Pakistani inflitrarors: instead it
described these deportees as Indian Muslims and complained about
the Indian action. Il set up an equiry committee which reported that
almost all deportees were Indian citizens. It also held that over
520,000 Muslims were evicted from India up to mid-1965 (Jha.
Indo-Pak Relations (1972), 271-286). In 1962, the Assam Pradesh
Congress Committee adopted a resolution stating that it was ‘of
confirmed opinion that the infiltration of Pakistani nationals withe,
valid travel documents into Assam is likely to endanger the security
of the country’ (Prafulla Kumar Mahanta, The Tussle Between the
Citizens and Foreigners in Assam (New Delhi: Vikas. 1986), 82).
From mid-1962. ‘India started deporting from Assam and Tripura

6 Over the years, a veritable jungle of legal and political
nomenclature would develop to refer to cross-border migrants in
India and Pakistan. Here we do not concern ourselves with the
niceties of distinguishing refugees, evacuees, mohajirs, repatriates,
displaced persons, bastutyagi, bastuhara, asroyprarthi, shoronarthi,
etc. Not only were these differences of little or no concern in the
border areas, but definitions also differed between India and
Pakistan. For example, in the Pakistan (Protection of Evacuee
Property) Ordinance, 1948, refugees from Pakistan to India were
considered to be ‘evacuees’ and those fleeing the other way
‘refugees.’ What Pakistan called an evacuee, India would call a
refugee.
It did not disappear completely. In June 1979, following riots in
West Bengal, 20,000 Indian Muslims were reported to have entered
Bangladesh. Azizul Haque, ‘Bangladesh 1979: Cry for a Sovereign
Parliament,' Asian Survey, 20:2 (1980), 228; cf. The Bangladesh
Observer (7.4 June 1979).
8

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Repatriates? Infiltrators? Trafficked Humans?

persons whom it called Pakistani infiltrators.' Jha, Indo-Pakistan
Relations (1972), 242 (italics added).

’ ‘Joint Communique by the Home Ministers of India & Pakistan,
April 11. 1964,’ in: Selected Indo-Pakistan Agreements (New
Delhi: Ministry of External Affairs, 1970), 30; Anindita Dasgupta.
Thinking with the head: Foreign nationals in Assam,’ The Daily
Star (6 May 1999).

Influx - infdtratie uit Oost-Pakistan (’s-Gravenhage: Information
Service of India, Ambassade van India, 1964). ). In July 1965, the
Chief Minister of Assam claimed that over one million ‘illegal
Pakistani infiltrators’ had entered Eastern India between 1951 and
1961, and provided an uncannily precise breakdown - 220.961 in
Assam, 459,494 in West Bengal, 297,852 in Bihar, and 55,403 in
Tripura. ‘Assam Expels More Than Half of 220,000 Infiltrators,'
The Statesman (28 July 1965); cf. ‘126,000 infiltrators still in
Assam,’ The Statesman (15 December 1965)..
15 The title of a book by the leader of this movement and later Chief
Minister of Assam. Prafulla Mahanta, emphasises the point: The
Tussle Between the Citizens and Foreigners in Assam (1986; quotes
are from 86. 89. 116). He dedicated this book ‘to the law-abiding
and Constitution-following citizens of India residing in Assam who
have waged a relentless tussle against the invasion of illegal
foreigners masquerading as minorities playing to the designs of the
political tricksters and economic exploiters.’ For a description of
widespread anti-Bengali agitations in Assam in 1960-61 driving
about 45,000 refugees into Jalpaiguri, Cooch Bchar and Darjeeling
districts, see Saroj Chakrabarty, With Dr. B.C. Roy and Other Chief
Ministers (A Record upto 1962) (Calcutta: Benson’s, 1974), 450460, 488-490.
16 Mahanta, The Tussle (1986), 94. The act in question is the
Immigrants (Expulsion from Assam) Act, 1950. For analyses of the
Assam movement, see Monirul Hussain, The Assam Movement:
Class. Ideology and Identity (Delhi: Manak Publications, 1993);
Dilip Kumar Chattopadhyay, History of the Assamese Movement
Since 1947 (Calcutta: Minerva, 1990).
17 Quoted in Anil Maheshwari, ‘The face behind the mask,’ The
Hindustan Times - Sunday Magazine (15 August 1998).
18 S.K. Sinha, ‘Illegal Immigration into Assam,’ quoted in Arun
Chanda, ‘Assam Governor asks Centre to seal Bangladesh border,’
Rediff on the Net (13 February 1999); cf. Samudra Gupta Kashyap,
‘Diminishing Assam Border? Governor writes to President,' Indian
Express (17 December 1998); ‘Bangla's “demographic attack” must
be stopped: Thakre,’ Assam Tribune (20 June 1999). Such ideas
were not new: they were expressed by the Speaker of the Lok Sabha
(Indian Lower House of Parliament) as early as 1961. Jha, Indo-Pak
Relations (1972), 273.
19 Ajoy Bose, ‘Nation in migration,' Time (11 August 1997);
Anindita Ramaswamy, ‘BJP’s Oust Bangladeshi drive hots up,'
Indian Express (16 September 1998); ‘Delhi police not up to “find
and evict” task,' The Times of India (10 June 2000); Brajesh

Upadhyay, ‘Police find the going tough in drive against
Bangladeshis,' The Times of India (22 June 2000). Deportations
have also been reported from Uttar Pradesh: ‘UP police in N Bengal
to send back 225 Bangladeshis,' The Statesman (7 October 1999).
For an early use of the term ‘physically pushing out,' by the Indian
Home Minister in 1963, see Jha, Indo-Pak Relations (1972). 279.
20 The government of Maharashtra claimed that it deported over
8.000 Bangladeshi ‘infiltrators’ between 1982 and mid-1998. In a
twist to the drama, many of the deported claimed to be Muslims
from West Bengal, and sympathisers tried to free them when trains
reached railway stations in West Bengal, leading to exchanges of
fire between Maharashtra and local policemen. The government of
West Bengal also opposed the move. Rajasthan and Gujarat also
deported suspected Bangladeshis. ‘Joshi to deport Bangladeshis
from Mumbai,’ The Daily Star (13 October 1997); ‘Bengal protests
Maharashtra’s action,' The Hindu (25 July 1998); ‘Maharashtra to
fight stay on deportation of ‘‘Bangladeshis,’" Rediff on the Net (27
July 1927); Dev Raj, ‘Rights-India: Deportation of “Bangladeshis ’
targets Muslims,' Inter Press Service (3 August 1998); Udayan
Namboodiri, ‘Illegal Immigrants: Political Pawns,’ India Today (10
August 1998); Kalyan Chaudhuri, ‘Protest in West Bengal,’ and R.
Padmanabhan, ‘The deportation drive,’ Frontline (15-28 August
1998); ‘India acts against alleged Bangladeshi infiltrators.’ BFC
News (4 February 1999).
21 ISI (Inter-Service Intelligence) is Pakistan’s foreign intelligence
agency. Indian politicians and journalists often suggest that
Bangladesh, wittingly or unwittingly, is helping Pakistani agents to
enter Indian territory. ‘Deportations of illegally residing aliens will
continue, says Munde,’ Times of India (10 April 1999).
22 In 1964, Pakistani Foreign Minister Z.A. Bhutto stated: ‘It is
inconceivable that hundreds of thousands of Muslims ... would
surrender the safety and security of their homeland in Pakistan to
migrate with their women and children to the uncertainty and perils
awaiting them in a hostile land beyond the border’ (Jha. Indo-Pak
Relations (1972), 276-277). But until 1982, ‘while denying largescale out-migration, Bangladesh at least took back infiltrators
handed over by the Indian BSF. But after 1982, they refused
pointblank.’ Partha S. Ghosh, Cooperation and Conflict in South
Asia (Delhi: Manohar, 1995), 84. In 2000, Sheikh Hasina Wazed.
then the Prime Minister of Bangladesh, echoed Bhutto’s statemem
when she declared on television: ‘Why should Bangladeshis go to
India?’ [. 11 June 2000 #396]

Ironically, in Bangladesh itself a parallel discourse of infiltration
was developing at the same time. Here it was directed against the
Rohingyas, cross-border migrants from Arakan (Burma) who
sought refugee status. At least 100,000 of them, who were not
housed in camps, were considered illegal, uncleared or residual
refugees, or merely ‘arrivals.’ In 1999, at least 1,700 of them were
in Bangladeshi jails on the charge of illegal border crossing. A
Bangladeshi army officer expressed a much more genera! sentiment
in government circles when he said: ‘If caught, we are pushing the

1
1

South Asian Refugee Watch

Repatriates? Infiltrators? Trafficked Humans?

infiltrators back or sending them to jails.’ The State of the World's
Refugees: A Humanitarian Agenda (Oxford: UNHCR/Oxford
University Press, 1997). 254; '25 Rohingyas languishing in
Chandpur jail,' The New Nation (27 October 1999); ‘More
Rohingyas infiltrating,' The New Nation (31 May 2000); ‘Situation
of Rohingya refugees in Bangladesh,' The Newsletter Monthly News and Analysis of the Arakan Rohingya National Organisation,
Arakan (Burma), 2:2 (February 2000); Mohammad Nurul Islam,
‘70.000 Rohingya refugees waiting for enrolment as voters,'The
Independent (13 May 2000).
‘4 Partha Ghosh, ‘Illegal immigration from Bangladesh - II,' The
Hindu (12 August 1998); cf. ‘Presence of illegal Bangladeshis
denied,' The Hindu (3 August 1998); ‘Bangladesh terms India’s
claim illogical," The Hindu (22 August 1998); ‘Push-in bid along
border in Tetulia foiled. The Daily Star (19 August 1998); ‘Envoy
summoned: Delhi urged to take steps to slop push-in attempts,’ The
Daily Star (26 Augusi 1998); ‘Dhaka not cooperating on
deportation issue,' Hindustan Times (18 October 1998).

32 These massacres left more than 3,000 dead and over 400.000
homeless. Mohan Ram, ‘Eyeball to eyeball: The issues that
triggered the massacres in Assam Stale in February remain
unresolved, and both sides are standing firm.’ Far Kasreni
Economic Review, 120:20 (19 May 1983). 29.

33 Arup Chanda. ‘Basu asks Hasina to curb infiltration.' Rediff on
the Net (29 January 1999).

34 There were several agreements on the treatment of out-migrants,
e.g. the Agreement between the Government of India and the
Government of Pakistan dated the Sth April 1950 (Nehru-I.iaquai
Agreement).
35 E.g. in Hili (a border crossing in Dinajpur/West Dinajpur) a fence
put up by Pakistan in 1955 ‘with a view to preventing the free
movement of smugglers, both Indian and Pakistani’ elicited a
protest from India (*505).

36 ‘Borders will remain sealed,’ The Statesman
1965). Emphasis added.

For example, see a recent research paper on international
migration from Bangladesh which gives details on the number of
Bangladeshis in the UK, Japan, the Middle East, etc., but
completely ignores the much larger emigration to India. Raisul
Awal Mahmood, ‘Emigration Dynamics in Bangladesh,’
International Migration, 33:3/4 (1995), 699-726.
■6 As Mexican intellectuals did with Chicanos (Mexicans in the
USA) in the late 1970s. See e.g. Michael Kearney,
‘Transnationalism in California and Mexico at the end of empire,’
in: Thomas M. Wilson and Hastings Donnan, Border Identities:
Nation and State at International Frontiers (Cambridge: Cambridge
University Press, 1998), 117-141.
2 Sajal Nag, Roots of Ethnic Conflict: Nationality' Question in
North-East India (Delhi: Manohar, 1990).

See Willem van Schendel and Aminul Haque Faraizi, Rural
Labourers in Bengal, 1880 to 1980 (Rotterdam: Comparative Asian
Studies Programme, Erasmus University Rotterdam, 1984), 48-57;
Willem van Schendel, ‘Self-Rescue and Survival: The Rural Poor in
Bangladesh,’ South Asia, 9:1 (1986). 41-59.

Passports and visas were introduced in 1952.
30 In 1991. a question was put before the West Bengal Assembly
whether the Bharatiya Janata Party (BJP)’s campaign plank of a
large-scale influx of Muslims had any factual basis. In his response,
the Chief Minister of West Bengal presented figures to show that of
the 39,000 persons caught trying to enter India in the first half of
1991, 28,000 were Muslims. ‘Basu opposes ration cards for
infiltrators,’ The Statesman (2 August 1991).
See Ashok Swain, The Environmental Trap: The Ganges River
Diversion. Bangladeshi Migration and Conflicts in India (Uppsala:
Uppsala University, Department of Peace and Conflict Research,
1996).

(26 September

37 By means of the Assam Accord between the Indian government
and the leaders of the Assam movement. Earlier, in the 1960s, they
had not been able to push Delhi beyond sanctioning 180 additional
police watch-posts on the Assam-East Bengal border and erectbarbed-wire fences in selected places. Another suggestion at i.
time, ‘to clear a stretch of territory all along the border between
Assam and East Pakistan so that the security forces of the State and
the Centre might gain the mobility needed to prevent fresh
infiltrations,’ was never implemented. In the 1990s, the Indian
government even went so far as to float a plan to settle ‘the families
of ex-servicemen and retired Indian soldiers’ as a 10-km wide
human belt along the borders; this plan was torpedoed by several
border states. Jha, Indo-Pak Relations (1972), 280. 283; cf.
‘Evacuation of border people, Union Plan makes little progress,’
The Statesman (14 April 1965); Sanat K. Chakraborty, ‘Human belt
to control cross-border migration,’ The Northeast Daily (23
November 1999).
This project, budgeted at Rs. 3.7 billion in 1986 (revised to Rs.8.3
billion in 1992 and Rs. 10.5 billion in 1998), involved the
construction of 900 km of border fence, 2,800 km of border roads
and 24 km of bridges along the Indo-Bangladesh border in the
states of West Bengal, Assam, Meghalaya, Tripura and Mizoram.
Twelve years later, according to government sources, 800 km of
fence, 2,100 km of roads and 17 km of bridges had been completed,
and the project was supposed to be completed by March 2001
(Bangladeshi sources reported that only 541 km had been fenced^
In mid-1999, the government gave a new date of completion. 20(
Embassy of India (Washington D.C.), Union Home Secretary chairs
o high level empowered committee (www/indianembassy.org/,
1998); ‘Border incidents: BDR, BSF to hold meeting from Oct 24,’
The Daily Star (12 October 1999); ‘Centre to complete border
fencing by 2007,’ Assam Tribune (20 August 1999).

57
J
•iW?

■

South Asian Refugee Watch

39 Udayan Namboodiri, ‘Illegal Immigrants: Political Pawns,’ India
Today (10 August 1998). In 1997 the Home Minister of Tripura said:
‘There were repeated communications between the Centre and the
State over the question of fencing the border with Bangladesh. In
1995-96, a stretch of 490 km was considered for fencing. This was
duly communicated to us. But till date the budgetary provisions have
not been cleared by the Centre.' Rakesh Sinha, ‘Strife-worn Tripura
banking on Gujral Government to come to its rescue,’ The Indian
Express (19 May 1997). As for Mizoram, as late as 1999 the fencing
of its border with Bangladesh was still no more than ‘under active
consideration by the Home Ministry,’ according to the Prime Minister
of India. ‘Plan to stop influx in NE soon: PM,’ Assam Tribune (23
May 1999).

40 President Ershad, quoted in Ghosh, Cooperation and Conflict in
South Asia (1995), 85. Some Bangladeshi soldiers were killed and
injured when they attempted to dismantle a fence which Indians
were erecting along the border in Assam. Salamat Ali. ‘Trouble
flares up on Bangladesh border,’ Far Eastern Economic Review,
124:18(3 May 1984), 12.

41 ‘Bengal to take up border fencing,’ Rediff on the Net (5 January
1999) . The harmful effects of the fence on West Bengal border
villagers were also brought up in the Indian parliament in 1996. Lok
Sabha Debates, Session II, Budget (17 July 1996). On the IndiaPakistan border, where 450 km were fenced, 380 fencing gates were
made, of which 280 were operational in the late 1990s. To facilitate
farming in the no man’s land, a Border Security Force (BSF)
spokesman explained, these gates would be opened one hour after
sunrise and closed at 6 p.m. ‘No cause for alarm over Indo-Pak border
fencing gaps: BSF,’ Rediff on the Net (7 March 1998). For a similar
arrangement at the fenced stretch of border at Dhubri (Assam), see
‘Breaching the frontiers effortlessly,’ The Hindu (15 April 1998).
Villages in 24-Parganas, West Bengal, challenged the building of the
fence in the Calcutta High Court which ‘ordered the local authorities
to find a solution’ [Ganguly, 19 September 1999 #397], Groups of
cattle smugglers were also reported to try to disrupt the construction of
the fence, attacking BSF personnel in Maida with sophisticated
weapons . ‘Cattle smugglers attack BSF,’ The Statesman (27 June
2000) .
42 B.G. Verghese, India's Northeast Resurgent: Ethnicity,
Insurgency, Governance, Development (Delhi: Konark, 1996), 203;
cf. ‘Indo-Bangla border in Karimganj only in name,’ Assam Tribune
(31 August 1999); R. Dutta Choudhury, ‘Dhubri border farmers live
in India, till in Bangla,’ The Assam Tribune (17 April 2000).
43 Maseeh Rahman, 'Separated at Birth.' Time (11 August 1997).
44 Rahman, ‘Separated at Birth.’ Cf. Nirmalya Banerjee, ‘Stop
influx from Bangladesh, says Assam governor,’ Times of India (10
January 1999).
^Asiaweek (17 July 1998).
46 Cf. Kearney, ‘Transnationalism in California and Mexico.’

Repatriates? Infiltrators? Trafficked Human,

47 B.G. Verghese, India's Northeast Resurgent: Ethnicitv.
Insurgency. Governance. Development (Delhi: Konark Publishers.
1996) , 39. This was also the cut-off point enshrined in the Illegal
Migrants (Determination by Tribunals) Act of 1983. Under this act
the government of India agreed to detect and deport foreign
nationals who entered Assam after that dale (Mahanta, The Tussle
(1986), 109). In 2000. however, an accord between the government
in Delhi, the stale government of Assam, and the major political
party pushed that date back to 1951, causing a storm of protest and
further confusion (*1951 to be cut-off year for indigenous peoples:
AASU, The Sentinel (12 April 2000); ‘Indigenous definition sparks
row in Assam,’ The Northeast Daily (17 April 2000); ‘Definition of
indigenous people in '51 census report,' The Assam Tribune (3 May
2000)). For a brief overview of immigration legislation, see
‘Assam's problem of foreign infiltration.' Oriental Times, 2:9-10
(7-21 July 1999).
48 There was also a category of borderlanders who were genuinely
unclear about their ‘national' identity. In numerous villages ‘the
international border cuts right through the homes of villagers,
putting them into a dilemma regarding their nationality.’ ‘IndoBangla border in Karimganj only in name,' The Assam Tribune (31
August 1999).
49 ‘Centre may repeal Migrants Act,’ Indian Express (12 August
1997) ; ‘Proposed amendment of Foreigners Act: Advani seeks indepth study by Law panel,' The Hindustan Times (7 January 1999);
Utpal Bordoloi, ‘Cabinet to consider repeal of Illegal Migrants Act
soon.' Deccan Herald (17 January 1999).
:’0 Dasgupta, ‘Thinking with the head,’ The Daily Star (6 May
1999). According to an Assamese M.P., however, between 1996
and 1999 about 250,000 Bengalis and Nepalis were singled out as
foreign nationals under the act. The Assam government sought
court permission for their deportation but the courts identified only
4,000 of them as foreigners. According to the governor of Assam.
9,600 persons had been identified as foreigners since 1983. ‘Move
to annul IMDT Act: Fresh Plot to deport Bengalees from Assam.The New Nation (25 February 1999); Kashyap, ‘Diminishing Assam
Border?’ Indian Express (16 December 1998).
51 ‘Centre, 5 states to file affidavits on immigrants,’ Assam Tribune
(13 July 1999); ‘Problem of infiltration worse in Bengal: Joshi.’
Hindustan Times (2 August 1998); Namboodiri, ‘Illegal
immigrants’; ‘1.5 crore Bangla aliens in country,’ The Assam
Tribune (12 May 2000).

Aloke Banerjee, ‘Where two nations slip into each other,’ The
Statesman (29 May 1993).
As early as 1964, the Indian Home Minister proposed issuing
identity cards to all inhabitants of the border areas of Assam. Jha.
Indo-Pak Relations (1972), 280. George lype, ‘To weed out illegal
immigrants, government plans to issue I-cards for Indians and
foreign nationals,'Rediff on the Net (13 June 1997). For the failure
of a similar identity card project started in 1989 on the Pakistan

Repatriates? Infiltrators? Trafficked Humans?

South Asian Refugee Watch

border, see Mihir Mislry, ‘Thin dividing line raises identity issues,’
Times of India (19 June 1999).
54 ‘Breaching the frontiers effortlessly,' The Hindu (15 April 1998);
cf. Anil Maheshwari, ‘The face behind the mask,' Sunday (15
August 1998). Another technique, allegedly practiced in Karimganj
district (Assam), was for Bangladeshi women to cross the border
and give birth in India, thereby automatically conferring Indian
citizenship on their babies. ‘Citizenship by labour!' The Sentinel (5
April 1997).
” Maheshwari, ‘The face' (1998).
56 See e.g. the description of Nabinnagar village, straddling the
border the Nadia/Kushtia border, in Banerjee. ‘Where two nations'
(1993).
57 Chandan Nandy, ‘Voter passport for infiltrators,' The Telei’iaph
(30 August 1999).
58 In early 1964. ‘special officers with a judicial background were
appointed to scrutinize cases of Pakistani infiltrators' and later that
year statutory tribunals were introduced under the Foreigners'
(Tribunals) Order 1964. Employing a term from the anti-colonial
movement, the Indian authorities referred to the orders they served
on suspected infiltrators as Quit India notices. ‘Assam Expels More
Than Half of 220,000 Infiltrators,' The Statesman (28 July 1965).

59 Namboodiri, ‘Illegal immigrants’ (1998); Ramaswamy, ‘BJP's
Oust Bangladesh drive hots up’ (1998); ‘Joshi to deport
Bangladeshis from Mumbai,’ The Daily Star (13 October 1997).
West Bengal Chief Minister Jyoti Basu stated that illegal settlers
from across the border were ‘a major headache for many Indian
cities.’ Chanda, ‘Basu asks Hasina’ (1999).
60 Namboodiri, ‘Illegal immigrants.’
61

‘Bengalipura reels under fear of midnight knock,' Hindustan
Times (30 July 1998).

62 Maheshwari, ‘The face.'
63 According to West Bengal's Home Minister. ‘Bengal to lake up
border fencing,’ Rediff on the Net (5 January 1999); ‘Beyond the
courtesies,’ The New Nation (26 November 1998).
64 ‘Dhaka not cooperating on deportation issue,’ Hindustan Times
(18 October 1999).
65 At the same time the All-Assam Students' Union demanded that
people living in the no-man’s land be ‘cleared' and relocated, that
Indian border guards be authorised to shoot on sight anyone found
in the no-man’s land, and that patriotic Assamese youths be
recruited into a ‘second line of border forces.’ ‘Centre to complete
border fencing by 2007,' Assam Tribune (20 August 1999);
‘Mizoram for infiltration prevention force,’ Assam Tribune (5 July
1999); ‘AASU for strict surveillance along border.' The Telegraph
(26 August 1999); ‘Border fencing work not satisfactory: AASU,’
Assam Tribune (26 August 1999); ‘Centre tells State Govt:
Strengthen second line of defence along border,’ Assam Tribune (1
June 2000).

66 See e.g. Katy Gardner. Global Migrants, Local Lives: Travel and
Transformation in Rural Bangladesh (Oxford: Clarendon Press.
1995); ‘The Little Bangladeshes.' Indian Express (6 August 1998);
‘Bangladeshi youths struggling for a livelihood in Italy.' Daily Star
(26 July 1999).
67 The complex migration patterns across South Asian borders are
little studied. For example, large numbers of Rohingya Muslims
from Arakan (Burma) arc known to have migrated through
Bangladesh and India to Pakistan, and from there to the Gulf
countries, where over 200.000 were thought to reside in the 1990s.
Bertil Lintner, ‘Distant exile: Rohingyas seek new life in Middle
East,' Ear Eastern Economic Review. 156:4 (28 January 1993), 23.
On Bengali migration through India to Pakistan, see Arun Sharma,
‘Bangla infiltrators go scot-free, courtesy J&K police,' Indian
Express (1 1 June 1998). According to the Indian government, over
3.800 Bangladeshis were apprehended at the India-Pakistan border
between 1997 and 2000. ‘Lok Sabha told: 3846 Bangladeshis held
along Indo-Pak border,’ The Daily Star (26 April 2000). Cf. S.K.
Ghosh, Unquiet Border (New Delhi: Ashish Publishing House.
1993), 100.
68 As well as 200,000 Burmese, many of whom were Muslim
Rohingyas from Arakan who crossed three borders to rea ’
Karachi. Sumit Ghoshal, ‘Barrier to cross-border flesh tri.
sought,' Indian Express (16 May 1997).
69 Maseeh Rahman, ‘Separated at birth,' Time (11 August 1997).

70 Sharma. ‘Bangla infiltrators go scot-free' (1998); cf. ‘48 Bangla
nationals held on Indo-Pak border.' Hindustan Times (18 February
1999); Sanghamitra Chakraborty. ‘Agents take Bangladeshis for a
ride - to Pakistan and detainment,’ Times of India (3 May 1998).

71 Namboodiri. ‘Illegal immigrants’; cf. Padmanabhan, ‘The
deportation drive.'
72 Maheshwari, ‘The face'; ‘The Little Bangladeshes' (1998); cf.
S.K. Ghosh, Unquiet Border (New Delhi: Ashish Publishing House.
1993). 36.
73 In the late 1990s. Bangladeshi migrants had to pay agents about
US$100 to get to Pakistan and about $4,500 to get to Europe.
Chakraborty, ‘Agents’ (1998); ‘Bangladeshi youths struggling'
(1999).
74

Cases of trafficking of children within East Bengal were not
unknown. In 1949, in reply to an Assembly question, it was
revealed that young boys, kidnapped from eastern districts of East
Bengal, were sold to ‘ghatu hunters’ from Sylhet who turned them
into ghatus (dancing boys) (*281; cf. East Pakistan Distrirr
Gazetteers: Sylhet (Dacca: Government Press. 197)), 114).
73 Fieldnotes 1988.* Cf. Kalpana’s testimony in Carolyn
Sleightholme and Indrani Sinha. Guilty without Trial: Women in the
Sex Trade in Calcutta (Calcutta: Stree, 1996/New Brunswick, N.J.:
Rutgers University Press. 1997), 18-19, cf. 34-51; and women’s
testimonies in Vorasakdi Mahatdhanobol (ed. by p*rnpimon

South Asian Refugee Watch

______________

Trichot), Chinese Women in the Thai Sex Trade (Bangkok: Institute
of Asian Studies, Chulalongkorn University, 1998); Red Light
Traffic: The Trade in Nepali Girls (Kathmandu: ABC/Nepal, 1996).
7(1 ‘Border crime on the rise in West Bengal,’ The Statesman (15
April 1992). Numerous newspaper reports attest to the fact that
women played a prominent role as agents in the trafficking of
women and children from Bangladesh.
77 According to the Bangladesh National Women Lawyers
Association, about 500 Bangladesh women were illegally
transported to Pakistan every day in early 1999. A Pakistani lawyers
group estimated that there were over 200,000 undocumented
Bangladeshi women in Pakistan in 1998. Nadeem Qadir, ‘Experts
warn of rising child prostitution in Bangladesh,’ Daily News (3
February 1999); Asian Migration News (15 January 1998)..
'8 E.g. ‘Child traffickers held with 2 babies,’ The Independent (8
July 1999); ‘Trafficking in children on the rise in Nilphamari,’ The
Independent (19 July 1999); P.T. Jyoti Datta, ‘Bid to check child
trafficking through Indo-Bangla border,’ Business Line (1 June
1999). Children of Muslim Rohingyas (refugees from Burma in
Bangladesh), were thought to be especially targeted by child
traffickers. Asian Migration News (15 October 1998).
79 ’27,000 Bangladeshis trapped in Indian brothels,’ Dawn (8 April
1998). According to a United Nations report, around 300,000
Bangladeshi children were sold to Indian brothels in the mid-1990s.
The Daily Star (15 December 1998).

Repatriates? Infiltrators? Trafficked Humans?

1999); ‘One caught while trafficking girl child. The New Nation (24
April 1999).
85 Faruque Ahmed, ‘Dalals charge Rs 200 to 500 to facilitate illegal
entry of people from Bangladesh to India: “Infiltration business"
along Indo-Bangla border in Dhubri.' The Northeast Daily (23
February 2000). Ghosh singles out Muslim organisations in India as
helping 'infiltration' from Bangladesh ‘rather than safeguarding
national interest.’ He gives no evidence to support his claim. Ghosh.
Unquiet Border, IS, 20.
86 ‘The Little Bangladeshes’ (1998).

Despite the outlawing of this notorious practice in 1993.
Bangladesh Human Rights Practices, 1995 (Washington, D.C.:
United States Department of State, 1996); ‘Court overload traps
“camel boys” in home,’ South China Morning Post (14 August
1998); ‘Rescued Bangladesh boys return home,' The Hindu (20
February 1998).
81 I.e. between about $25 and $125. ‘27,000 Bangladeshis trapped'
(1998); Sanghamitra Chakraborty, ‘Repatriated Bangla children
may never see their real families again,’ Times of India (19 April
1998).
82 At the Benapol-Bongaon border crossing ‘local auto-rickshaw
drivers, handling agents and small hotel-keepers reported that men
accompanying girls and women across the border [were] a common
sight, and that these men did not even bother with forged
documents, they handed over the money quite openly as they came
across the border.' Sleightholme and Sinha, Guilty without Trial,
42.
83 Shib Sankar Chakroborty, ‘Special Report to Dhaka: Report to
Bangladeshi High Commission on Trafficking of Women,’ Amrita
Bazar Patrika (9 April 1989), cited in Sleightholme and Sinha,
Guilty without Trial, 42.
84 ‘Trafficking in children on the rise in Nilphamari' (1999);
‘Bangla touts arrested,' The Telegraph (13 May 1999); ‘8 Bangla
guardians held for child trafficking,’ The Telegraph (27 April

"7'
/
c-i;

s -'Z-L.S

Towards the Construction of an Empowered Subject: A Human Rights Analysis of AntiTrafficking Legal Interventions and Trends in South Asia

By Jyoti Sanghera
Senior Associate, Centre for Feminist Legal Research, New Delhi
The pain in your shoulder comes
You say. from the damp; and this is also the reason
for the stain on the wall ofyour flat.
So tell us where the damp comes from?
Bertold Brechl

L Introduction and Context
This simple and precise Brechtian query' serves as a directive to all engaged in
social enquiry and justice to go to 'the heart of the matter . And what is the heart ol
the matter in regards to the issue of trafficking of persons1 in South Asia?
An attempt to address the problem of trafficking in South Asia or anywhere
else consists of three dimensions. The first is related to the efforts ol the criminal
justice system to apprehend, prosecute and penalize traffickers; the second is
concerned with providing redress to trafficked persons by way' of care and support as
well as viable and sustainable livelihood options which will further the process of
reintegration; and the third dimension involves prevention of trafficking at source by
addressing its root causes.
This paper is presented in the spirit of a broad stocktaking exercise of the anti
trafficking strategies and initiatives in South Asia from an integrated perspective of
human rights, gender and development. Given the overall theme of this session,
greater emphasis will be placed on critically analyzing the core of legislative and
policy directions, which inform the criminal justice system in the region. The
fundamental query determining this analytical perspective is: To what extent are anti
trafficking measures in South Asia leading to the empowerment of affected persons
In other words, what is the impact of these measures in terms of the construction of an
empowered subject?
Il is argued that notwithstanding the gains secured as a result of anti
trafficking interventions in the region over the past years, certain major gaps remain".
In fact, either by' omission or on account of an inadequate understanding of the issues,
not only are some of these gaps being reinforced but may actually be having an
impact which is quite contrary to the stated objectives of most stake-holders in the
anti-trafficking arena In regards to certain interventions, particularly in the overall
arena of legislative reform in the region, we are actually witnessing the creation of a
disempowered subject rather (han an empowered one. This is happening through an
inadvertent and often subtle erosion of the basic constitutional and human rights of
the trafficked person in an ostensible attempt to actually protect her from abuse and
1 While it is my view that any legislation or instrument on the issue of trafficking should be gender
neutral, the paper will focus primarily on the trafficking of women as well as children simply because
these two categories are consistently clubbed together in all major anti-trafficking initiatives and
interventions in South Asia. This analysis will also focus primarily on Nepal, Bangladesh mid India.
2 There is no denying that several noteworthy gains have been made in the struggle to address the
trafficking of women and girls in South Asian countries, least ol all the high profile that this issue has
come to acquire in the arena of social justice work. This analytical critique is ottered in the spirit ol
engaging in collective thinking with fellow travelers for the puqiose of 'moving on and beyond on a
serious and pressing social issue.

harm. Such an impact, which is contradictory to and at cross-purposes with the
objectives of the anti-trafficking initiatives, needs to be rigorously examined. Such an
impact also demonstrates a limited understanding as well as application of the human
rights framework on the part of various anti-trafficking advocates and policy makers.
II. Persisting Problems
Some of the major problems which continue to impede a deeper and thorough
understanding of the issue of trafficking are:
> Absence of a commonly accepted definition of trafficking;
/ Serious lack of conceptual clarity resulting in confusion between migration
and trafficking, and trafficking and prostitution;
> Understanding and interx enlions on trafficking are limited only to prostitution,
and seldom expand to include other purposes such as forced labour, forced
marriage and servitude:
/ Serious paucity of comprehensive data, and lack of a rigorous methodology
for gathering reliable quantitative and qualitative data on trafficking:
'r Persistent conflation of women and children in anti-trafficking strategies, law s
and interventions;
> Partial knowledge of the clutch of vulnerabilities faced by marginalized
women arid girls, particularly of the manner in which these vulnerabilities
intersect, resulting in harms such as trafficking;
> Limited knowledge of the interconnection between various hanns, such as
trafficking and HIV/AIDS:
> Limited experience with translating human rights into reality and
operationalising them via programs. Even lesser experience with juggling
competing rights, and anticipating their impact in advance.
> Limited deployment of strategies which maximize effective involvement,
participation and ownership of affected communities;
> Striking absence of human rights principles in the ever increasing drastic
provisions included in laws which have been drafted for the prevention of
trafficking.
H.l. The Definition Impasse
Until very recently, there was no comprehensive international definition of
trafficking whose basic tenets were acceptable to state parties and key players.
Finally, the impasse appears to have been broken^at least formally.________________
Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or
receipt of persons, by means of the threat or use offorce or other forms of coercion, of
abduction, offraud, ofdeception, ofthe abuse ofpower or ofa position ofvtdnerability, or of
the giving or receiving ofpayments or benefits to achieve consent ofa person having control
over another person, for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution ofothers or other forms ofsexual exploitation
{interpretative note (64)}', forced labour or services, slavery or practices similar to slavery,
servitude or the removal of organs.
_ ___________________________

3 Interpretive note (64): "'the travaux prcparatoires should indicate that the Protocol addresses the
exploitation of prostitution of others and other forms of sexual exploitation only in the context of
trafficking in persons. The terms ‘exploitation of the prostitution of others1 or ‘other forms of sexual
exploitation' are not defined in the Protocol, which is therefore without prejudice to how States Parties
address prostitution in their respective domestic laws”. UN Crime Commission Documents and the
Protocol on Trafficking can be located at: <http://\\'ww.unciin.org/Dociunents/Convcntions/dcatoc/
final documents/indcx.htm>
Copyright with Jyoti Sanghc.ru, July 2001

UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children, Supplementing the UN Convention against Transnational Organized
Crime, Novemher 2000.
A commonly agreed upon definition is now contained in the f/N Protocol to
Prevent. Suppress and Punish Trafficking in Persons. Especially Women and
Children. Supplementing the IJN Convention against Transnational Organized Crime
which was adopted by the General Assembly in November 2000 and opened for
signature the following month. Eighty-one countries have signed the Protocol, to date.
Since the UN definition is very recent its impact will only be realized once it begins to
be applied and tested.
Similarly, only recently has the international community recognised the need
to expand the definition of trafficking to include purposes other than prostitution, such
as. forced labour, forced marriage and slaverv’-like practices1. This is also reflected in
the new UN Protocol on trafficking. As well, an acknowledgement of the key
understanding that trafficking is a problem of human rights violation and not of law
and order or public morality related to prostitution, is also of recent origin. The UN
Office of the High Commissioner of Human Rights, The UN Special Rapporteur on
Violence Against Women, UNICEF, the 1LO and the IOM have all adopted
definitions of trafficking which are more inclusive and based upon an understanding
of the human rights framework.
This is a welcome step as the first hurdle, namely, of naming the problem,
appears to have been finally crossed. This first step is further reinforced by the
Victims of Trafficking and Violence Protection Act of 2000, passed by the US
Congress. The US State Department has recently- released its first report on trafficking
Severe Forms of trafficking in Persons defined as:
(a) Sex trafficking in which commercial sex act is induced by force, fraud, or coercion, or in
which the person induced to perform such act has not attained 18 years of age; or (b) the
recruitment, harboring, transportation, provision, or obtaining of a person for labour or
services, through the use of force, fraud or coercion for the purpose oj subjection to
involuntary servitude, peonage, debt bondage, or slavery.
Victims of Trafficking and Violence Protection Act 2000, The United States of America
which evaluates the performance of 82 countries, placing each country’ in one of three
tiers based upon its domestic efforts to meet the US Act’s minimum standards for the
elimination of trafficking*. Countries, which fully comply with the Acts minimum
standards to combat trafficking, have the privilege of appearing in tier one. All of the
major South Asian countries, which have a trafficking problem, with the exception ol
Pakistan, feature in tier two; Pakistan has been placed in tier three. Tier two consists
of countries whose governments are making “significant efforts to bring themselves
into compliance’' with the minimum standards stipulated in the Act, and Tier three
includes 23 countries who are deemed to be lagging behind in complying with the
minimum standards to address the problem of trafficking. If these countries are still in
Tier three in the year 2003 Report, they may be subject to certain sanctions, which
would include non-humanitarian, non-trade related assistance. The minimum
standards spelt out involve prohibiting trafficking, proscribing punishments
4 See the Beijing Platform for Action, 1995, Strategic Objective D3 130 (b), which states trafficking
in women and girls for prostitution and other forms of commercialized sex, forced marriages and
forced labour".
The US report on trafficking in persons was released on July 12, 2001. This report as well related
press briefings and other information arc available online at: http://www.slatc.gOv/g/inl/rls/tiprpt/2001

commensurate with the crime and providing a range of protective services for the
affected persons. Notably, the US has sifted the countries examined into categories
but stayed clear of placing itself in any of tiers.
Considering this important development and shift towards newer, relatively
more widely acceptable and inclusive definitions of trafficking could it be assumed
that some of the endemic problems related to a lack of clarity inherent thus far in the
concept of trafficking would be eradicated9 In other words, have the principal
persisting problems, namely, conflation of trafficking with migration on the one hand
and with prostitution on the other been adequately addressed? Have appropriate and
sound ground principles been laid down to ensure that at no event are the human
rights of trafficked women and girls compromised? Considering that adults are
accorded greater agency and consensual participation in a range of activities in
comparison to under-age persons, have the categories of women and children been
separated in these documents? Have adequate monitoring mechanisms been
established to ensure that laws spawned or supported by these guiding templates do
not deviate from fundamental human rights principles?
It is crucial to examine both the UN Protocol on Trafficking and the US Act,
however briefly6, from the standpoint of the questions raised because these two
documents do indeed provide a framework, an impetus, and a template for anti
trafficking legislative and policy initiatives to the global community. They also cany
the power to elicit if not demand accountability from nation states. The implications
contained in these two o\ erarching documents for strategic interventions within the
context of South Asia will be discussed subsequently

11.2. The Equation Impasse
While the definition impasse has been touched upon, at least in theory, by the
US Act and the UN Protocol through more inclusive definitions of trafficking, no
methodological guidelines are included for making clear distinctions between
trafficking and migration or trafficking and prostitution. It is doubtful therefore, that
the equation impasse (trafficking=migration; trafficking=prostitulion) will be
overcome or even addressed in any substantial manner.
The US State Department's recent report on trafficking has already been
criticized by the Women's Rights Division of Human Rights Watch (HRW) for
concentrating primarily on trafficking for “sexual exploitation” to the exclusion of
trafficking into other forms of forced labour. HRW states that the report “confirms
what human rights activists and experts on trafficking already know: that
governments around the world treat victims of trafficking as undocumented migrants,
criminals, or both. Governments should be offering protection to these victims, not
hitting them with prosecutions.”7 The US Act views trafficking as a problem of
'migration, economics, labour, public health and human rights'8. Among its seven
criteria for “serious and sustained efforts to eliminate trafficking”, this Act ascertains
whether governments "monitor immigration and emigration patterns for evidence of
trafficking, and whether law enforcement agencies respond appropriately".9 In terms
0 For a detailed discussion of the UN Protocol and the US Act sec Patna Kapur; "Tricks and the Law:
Legal Regulation of Trafficking, Sex Work and Migration", paper presented at this current conference.
Human Rights Watch's response to the US trafficking report can be accessed at the follow ing site:
hltp://www’.hrw.org/press/2001 /O7/tra Hick-0712.htm
8 Victims of Trafficking and Violence Protection Act of 2000, H.R. 3244. 106th Cong. S. 102 (a). For a
detailed discussion of the US Act see Ratna Kapur. Supra note 6.
US Detriment, Trafficking in Persons report, Supra note 5 at 7.

of monitoring mechanisms of protection measures for women and girls affected by
trafficking, the US report has been criticized for glossing over the problems of state
complicity and corruption.10
The trafficking Protocol Supplementing the IfN Convention against
Transnational Organized Crime presents similar problems of lack of clarity in the
actual translation of the definition of trafficking into programmatic interventions. The
definition of trafficking fails to distinguish between trafficking and smuggling,
implying that trafficked persons would receive the same treatment as illegal migrants.
It foregrounds prostitution, albeit with and interpretive note, among the sites of
trafficking and considers the consent of the 'victims’ irrelevant. Importantly, the
Protocol does not require State parlies to provide any redress measures or services to
trafficked persons.
Both these documents have also failed to make a distinction between the
trafficking of women and children. This again is highly regrettable. In commenting
upon the SAARC Draft Convention which reflects identical problems as the two
documents discussed above, the UN Special Rapporteur on Violence against Women
in a recent report slates. "The legal regime surrounding women should be based on a
framework of rights and the concept of coercion when it comes to trafficking. The
legal regime w ith children must be completely different”.11 The issue of consent for
children w ith regards to certain arena of work including sex w ork is irrelevant. This is
in accordance with the Convention on the Rights of the Child (CRC), whereas treating
women like children or in accordance with similar norms infantiliz.es women and
denies them both their right to autonomy and to make decisions. "Some women may
have been trafficked while they were under age. In such a case a woman should be
"entitled to a legal remedy for any harm she may have endured as a child, whether it
is in the form of child sexual abuse, slave labour, or coerced work while still a minor.
Providing such remedies is different from setting up a legal regime that treats all
women like children”.12
The UN Convention with its Trafficking Protocol and the US Act, both
products of this new millennium, have apparently not been able to surmount the
conceptual impasse of equating disparate categories; trafficking with migration and
prostitution. This is indeed unfortunate. Once again, measures to curb trafficking will
be mired by the same confusions and lack of focus. This in turn implies that data on
trafficking might continue to churn up figures of 'victims' of trafficking which are
either astronomical since all migrants will be counted as trafficked persons, or
unreliable on account of merely being a function of the fancy of the particular
researcher.

10 Human Rights Watch, Supra note 7.
11 Radhika Coomarasvvamy. Addendum, Mission to Bangladesh, Nepal and India on the issue of
trafficking of women and girls (28 october-15 Noxember 2000), Integration of I luman Rights of
w omen and the Oender Perspective: Violence against Women, Report of the Special Rapporteur on
Violence against women, its causes and consequences, in accordance with the Commission on Human
Rights resolution 2000/45: G1-. 01-10865 (E)
Sec Jyoti Sanghera and Ratna Kapur, Report on Trafficking in Nepal: Policy Analysis - An
assessment of laws and Policies for the Prevention and control of trafficking in Nepal, al 24
(Sponsored by the population Council. New Delhi and the Asia foundation, Ncjxtl)

HL At the heart of the Mailer...
If the direction of legal reform to curb the trafficking of women and girls in
the international arena while ostensibly appearing to be promising, has failed to root
out persisting malaise and confusions, what are the actual ground realities in South
Asia9 What lies at the heart of the matter in relation to the problem of trafficking in
South Asia?
III, 1, The New Movers and Shakers
In the contemporary7 reality of south Asia, women and increasingly young
girls, are the new migrants and the new movers and shakers. Traditional as well as
ongoing male out migration for employment, together with increasing insecurity of
food and sustainable livelihoods, has pushed women and girls into assuming key roles
as income earners for their families. Therefore, increasingly larger numbers of
women, girls and young people are migrating in search of gainful emplox ment to
labour markets in urban centres of their own or neighbouring countries. Limited
access to the public world and safe channels for mobility, as well as the lack of
recourse measures and legal and social protection for women and minors intensify
their vulnerability to various harms in the process of migration, including trafficking.
In recent years, the emerging profile of a trafficked person is one of a young
female migrant. Regular, legal and safe migration possibilities have decreased the
world over due to restrictive migration and immigration policies of countries of transit
and destination. This has given rise to a growing market for irregular migration
services. Trafficking is an outcome of the need for people to migrate on the one hand
and the grow th of services in the migration market on the other, including exploitative
and violative practices.____________________________________________________
"Women move and are moved, with or without their consent. for a variety ofreasons.
Trafficking in women must be comprehended within the continuum of women s
migrations. All persons, including women, have a fundamental right to freedom of
movement and mobility, and this right must not be compromised. Trafficking in
women however, is a coercive form of movement, which must be prohibited since it
involves the use offorce, abuse, violence, deception and exploitation. These abuses
are not inherent to the migration process f1'

In order to understand the interlinkages between migration and trafficking, some
fundamental factors need to be grasped14. It cannot be overstated that this linkage is
critical to any policy, legal or other programmatic intervention on trafficking. It is
precisely an erroneous understanding of this connection, which is responsible for
ineffective and faulty legislation and programmes.
Until recently, in research and policy inten entions on migration there was a
virtual absence of gender as an analytical category. This exclusion of '"women" was
based on the assumption that women are too traditional and culture-bound to migrate
or that they migrate only as family followers or associational migrants for family
reunification. With the changing face of migration and its gendered contour, w omen
are moving not only as members of families but as independent persons for a variety7
of reasons. Acting voluntarily to migrate has been recently recognized as a measure
and indicator of women 's empowerment by gender and development experts and the

See Jyoti Sanghera and Kama Kapur, Supra note 12, at 7.
11 For a detailed discussion see Jyoti Sanghera, From Risks to Rights: Migration, trafficking of
Women and Girls, and their Vulnerability to HIV/AIDS in South Asia, A Regional Strategic
Framework, at 4. UNDP Regional Project on South and Southwest Asia, New Delhi, 2000

World Bank. It is argued that women are traditionally and notional!)- assigned the
sphere of the prix ate and domestic realm and excluded from the public world of travel
and trades due to their historical disadvantage arising out of the sexual division of
labour In the context of this notional confinement, when women seek to move to
belter their existing situation then this is to be viewed as an exercise of agency. It has
also been acknowledged that exposure and increased ability to negotiate structures of
power in the public world amounts to women's empowerment through enhancing
their awareness and negotiating skills.
The conditions under which migration occurs determines whether a woman or girl
will feel empowered or victimized at the end of this process. If she migrates
consensually within or across borders into a situation of work or personal arrangement
of which she had full know ledge, then she has succeeded in exercising her agency and
right to freedom of mobility w ith a positive outcome. If, on the other hand, a woman's
need or w ish to migrate is facilitated through the use of coercion, abuse or deception
and the entire chain of e\ ents. from recruitment and transport to the end purpose, is
exploitative then the woman has been trafficked. As states elsewhere by the author,
“trafficking is the process of transforming an agent into a victim w ilhin the context of
migration. It is an outcome of migration and one of its most heinous form. The
equation between trafficking and migration is such that all trafficked women and girls
are migrants as well but all migrants are not trafficked”.1:1

III. 2. Migrants and V agrants - How Many of Them?
There is a persistent panic over the growing menace of trafficking in South
Asia which has reportedly claimed hundred of thousands of‘innocent victims' each
year: their numbers are supposed to be ever increasing.__________________________
“The root causes ofmigration and trafficking greatly overlap. The lack ofrights afforded to
women senses as the primary causative factor at the root of both women 's migrations and
trafficking in women. While such rights inevitably find expression in constitutions, laws and
policies, women nevertheless continue to be denied full citizenship because governments fail
to protect and promote the rights of women (...) By failure to protect and promote women 's
civil political, economic and social rights, governments create situations in which trafficking
flourishes
UN Special Rapporteur on Violence against Women, February 200016

And yet, the statistics doing the rounds for several years have remained
unchanged. The figure of 5000-7000 Nepali girls trafficked into India each year, and
150,000-200,000 of them in Indian brothels has remained unaltered over the past 15
years.17 When trafficking is conflated with migration and prostitution, then it logically
follows that the number of women and girls confined to the sex industiy or the
number of female migrants will also be counted as the ‘victims' of trafficking. And
considering the fact that due to several structural and socio-economic causes the

15 See Jyoti Sanghera, Supra note 14, at 5.
10 Economic and Social Council, Integration of Human Rights of Women and the Gender Perspective:
Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences. Ms
Radhika Coomaraswamy, on trafficking in women, in accordance with Commission on 1 tuman Rights
resolution 1997/44. E/CN. 4/2000/68, February 2000, al para 50.
1 The article which first published these statistics was written by Dr. l.S. Gilada ol the Indian Health
Association in Mumbai, and was presented at a workshop in 1986. Subsequently, a version of this piece
was published in the Times of India, January 2, 1989. These figures have since then been recycled by
innumerable reports and articles on trafficking in Nepal.

phenomena of migration is growing in South Asia18, the inherent logic of equating
migration with trafficking and prostitution will automatically lead to the conclusion
that trafficking too is on the increase. This fallacious logic continues to impede the
development of a sound methodology, which will enable researchers to ascertain the
reality of trafficking through rigorous and reliable data. The practice of resorting to
and recycling numbers generated by unsound methods or speculation has proved
detrimental to the anti-trafficking agenda. It is in this field that indicators and tangible
variable are most urgently needed.

IV. Regimes of Disempowerment: When Law is Part of the Problem
” Courts, laws and law enforcers cannot and do not protect us from harm - on
the contrary', we need to be protected from the law ". This was the response to me. a
few years ago. of a trafficked w oman w ho had been detained and held in custody on
charges of prostitution and illegal migration. The principal impetus driving anti
trafficking legislation and policies is to identify and assist only the ''innocent victim".
A trafficked woman who has been part of the sex trade, albeit under duress, and w ho
has crossed borders of her own volition is not considered as an innocent victim, and
therefore, is not worthy of assistance. Her assistance-worthiness will have to be
established and the onus to do so is on the trafficked person. Such are the provisions
or tendencies contained in a majority of anti-trafficking legislation and acts, including
the US Act and the UN Protocol on Trafficking.
Increased aw areness of trafficking, heightened global discourse around it. and
indeed, pressure from international and local communities in recent years have led
most South Asian governments to consider legislation to address the problem. There
is also a regional instrument, The SAARC Draft Convention on Trafficking1 , awaiting
finalization at the perpetually postponed SAARC Summit. On a mission in OctoberNovember 2000, to Bangladesh, Nepal and India to review the progress on the
prevention of trafficking, the UN Special Rapporteur on Violence against Women
lauded the political will of the go\ emments to address this problem but was “deeply
concerned'" that the laws on the anvil were "unduly harsh and violated basic principles
of human rights law”. 0
The UN Special Rapporteur lauded the Plan of Action of the Nepalese
government as being a comprehensive policy document on trafficking but came down
very heavily on the current draft of the Traffic in Human Beings (Offences and
Penalties) Act 1999 prepared by the Ministry' of Women and Social Welfare.
Labeling it “draconian", the UN Special Rapporteur concluded that, "the bill appears
to have been drafted from a law and order perspective without consideration for the
human rights either of the perpetrator or of the victim". Expressing dismay at the
criminalization of prostitution in the Draft for "the first time in Nepal”, the UN
Special Rapporteur states:
..modern legislations have all advocated that prostitution not be
criminalized and that only the exploitation in prostitution should be
criminalized. This is because experience has shown that
ls There is no serious or rigorous study of the sex industry in any of the South Asian countries.
Therefore, the assumption by some activists of the expansion of the sex industry is not supported by
any evidence-based analysis. However, activists and advocates in some areas may report a growth in a
particular red light area whereas those working in other areas have also reported reduction
|0 For detailed discussion of the SAARC Convention, see Jyoti Sanghera and Ratna Kapur, Supra note
1 2 at 26, mid Ratna Kapur, Supra note 6 at 4.
'() Supra note 1 1 al para 38.

criminalization of prostitution results in the double victimization of the
woman concerned, as she. and not the traffickers, becomes the main
target of police action. This provision is a major step backwards for
Nepal and will create great hardship for the women concerned.21

The Nepalese Draft aimed at eradicating trafficking is further flawed because it
undermines its own main objective bv attempting to address a host of issues in one
general law. including rape, child sexual abuse, p*rnography, prostitution and trafficking.
This bill foregrounds a moralistic approach over the protection and promotion of the
human rights of trafficked persons bv strong emphasis on safeguarding the "interest of
general public’' and maintaining "good conduct". This new bill also gives special
powers to the police to arrest, detain, search and seize. Expressing concern the UN
Special Rapporteur holds that given the measure of impunity with which police forces
every where act. this law would result in the "harassment of innocent people as well as
victims” on account of its provisions for preventive detention, shifting the burden of
proof on the accused, and the pow er to arrest w ithout warrants2'.
Bangladesh too is on the path of legislating "'draconian laws” with the application
of the death penalty for a range of crimes against w omen including trafficking, rape, acid
throwing, burning and dowry violence. These provisions are contained in the Suppression
of Violence against Women and Children Act 2000. Other laws such as the Suppression
of Immoral Trafficking Act of 1993, which provides severe penalties for forcing women
and children into prostitution, and the Women and Children Oppression Act of 1995. are
relevant for our purposes. However, all of these laws club women and children together,
grant immense powers to the police, and advocate very stiff penalties. The positive fall
out of these stringent measures is that, according to government reports, there are fewer
delays in trying cases related to women due to the provisions for special tribunals. The
tribunals also provide for safe custody of the women during the trial period. However,
since the introduction of the new laws w ith their drastic penalty of death, there have been
very few convictions. The US report on trafficking found that only three traffickers were
convicted in Bangladesh in the year 2000 under all the combined laws.24 Under the
Oppression Act of 1995, 7,000 cases were registered and only 21 convictions obtained.
On account of the severe penalties prescribed, judges are hesitant to convict on grounds
of inconclusive evidence and traffickers are usually charged for lesser crimes such as
illegal border crossing.
The major legal framework addressing trafficking in India is the Immoral Traffic
Prevention Act of 1986 (ITPA). This Act is based on the 1949 UN Convention w'herein
prostitution is not illegal in India but soliciting and exploiting prostitution are considered
offences. ITPA was recently amended to shift the presumption of guilt onto the accused
for minors in brothels found to be sexually abused after medical examination. The
government is further seeking to amend or replace ITPA in order to increase penalties for
traffickers and extend victim assistance. ITPA is supplemented by provisions of the
Indian Penal Code, 1860, which includes offences such as. abduction, wrongful
confinement, slavery and forced labour, and sexual offences. In addition, the Juvenile
Justice Act of 1986 is also relevant to the issue of trafficking. ITPA provides for the
appointment of a special police officer of a high rank to oversee and take forward anti21 Supra note 11, al para 39.
" For a detailed analysis of this draft hill as well as all other relevant legislation and policies in Nepal,
see Jyoti Sanghera and Ratna Kapur, Supra note 12.
■' Supra note 1 1, at para 40.
■' Supra note 5, al 30.

trafficking initiatives on the part of the government nationwide. However, until the end
of last year no such officer had been appointed.
The National Commission on Women (NCW) has been spearheading several
efforts to replace 1TPA with a more comprehensive and effective anti-trafficking
legislation in India.23 An analysis re\ eals that the same trends which characterize the anti
trafficking laws and policies in Nepal and Bangladesh are dominant in the main
legislative drafts under consideration by the NCW in India including, criminalization of
prostitution, alteration of evidentiaiy procedures, allocation of sweeping powers to the
police to search and arrest, and stringent mandator)' punishments for traffickers. The only
creative and affirming draft amongst those under consideration is the one prepared by the
National Law School in Bangalore in 1993, which aims at empowering sex workers and
strengthening their rights in order to protect them from harm.26
In her recent review of anti-trafficking legislation in India, the UN Special
Rapporteur on Violence Against Women found the human rights implications of these
laws “very disturbing" since most of the drafts, according to her, contain the "same
negative features". Advocating the adoption of the National Law School draft which
focuses on the human rights empowerment of sex workers and makes a clear distinction
between volunlaiy and forced prostitution, the UN Special Rapporteur maintains that,
"unless something like this can be adopted. PITA, with some amendments, should remain
as the principal legal framework for combating trafficking”.27 In addition to the
legislative measures already in place or potential ones, the Department of Women and
Child Development within the Ministry of Human Resource Development of the
Government of India commissioned a Committee on Prostitution. Child Prostitutes and
Children ofProstitutes to prepare a Plan of Action. This Plan of Action, 1996, contained
some innovative and comprehensi\e recommendations on reintegration, education of
children of prostitutes, housing, health and skills training. However, it also advocated the
removal of children from their mothers to "more healthy” environments, leading thus to a
clear violation of the right to family.

IV. 1. Common Trends: indicators of Disempowernient
There are several common trends, which mark anti-trafficking legislation and
policies in Nepal, Bangladesh and India: the three key South Asian countries discussed in
this paper. These trends are characterized by a laudable spirit of zealousness to root-out
the problem of trafficking as a social evil. They are also characterized however, by an
ostensible disregard for the basic human rights of the very ‘victims’ of trafficking they
purport to protect and assist. In order to fully comprehend this contradiction and tension,
it is useful to highlight the common trends and briefly discuss their implications.
1. Draconian measures: There is a general and unmistakable move to draft
increasing!}- more draconian laws on trafficking with stiller penalties. The 21
convictions in Bangladesh in the year 2000 for crimes against women, and the 55
percent acquittal rate in Nepal for trafficking offences28 despite enthusiastic anti
trafficking measures to curb the reportedly escalating crime of trafficking proves
that more punitive laws may not be the solution. More stringent laws in fact, are a
deterrent to registering cases against traffickers and may lead to acquittal due to a
reservation on the part of judges to hand out stringent punishments such as life
For a discussion of some of the main drafts sec Jagori, Voices: Debates, Positions and Laws, 2001.
New Delhi, Section D.
20 Supra note 25, at section D3.
2 Supra note 1 1, at para 117.
■8 Supra note 5, at 30 and 61; Supra note I 1, at para 23.

('opyright with Jyoti Sanghera, July 2001

imprisonment or death penalty, given the imperfect investigation and evidentiary
procedures. These low conviction rales leave the perpetrators of the crime at large
sending out a message that traffickers can "get away with the crime".
J
Empowerment of the police: The new anti-trafficking legislation in South Asian
countries places far greater power in the hands of law enforcement authorities,
including the police, to search, apprehend, seize, prosecute and penalize. This is a
dangerous trend. For any one with some experience with anti-trafficking activities
in the region, police and border security personnel, barring exceptions, are more
often than not partners in the crime. They are also fairly notorious for their
corruption. Therefore, greater powers to law enforcers combined with their
disposition for corruption, does not make for an empowering strategy for human
rights promotion of the 'victims'. Existing high-handed practices on the part of
border security forces and local police personnel have not endeared them to the
common people, especially disadvantaged groups. Women, particularly those
associated with the sex industry, are especially wary of approaching police
authorities on account of the harassment and victimization suffered by them at the
hands of the former. Therefore, making the police more powerful and placing
increasingly arbitrary' and punitive instruments al its behest is not read as an
empowering sign by the women affected by trafficking since law enforcement
authorities are seen more as a hostile rather than a friendly entity.
3. Guilty until proven innocent: Even though Nepal, Bangladesh and India are
signatories to the International Covenant on Civil and Political Rights (ICCPR)
which provides that anyone "charged with a criminal offense shall have the right
to be presumed innocent until proved guilty according to law”, the current legal
initiatives either in place or under discussion in the three countries contravene this
basic human right. The proposed or existing anti-trafficking laws shift the burden
of proof onto the defendant to prwe his/her innocence. This has even more severe
implications for women who seek to escape the sex industry, given the new shift
to criminalize prostitution in all these anti-trafficking law's. Women who have
been forced into prostitution will be deemed guilty of the crime of prostitution
until they can prove that they were trafficked and are hence 'innocent victims'.
This is an extremely disturbing and disempowering trend.
4. A mixed bag of offences: an analysis of the recent legal initiatives demonstrates
an effort to club several offences, especially sexual offences, under one general
anti-trafficking law. In India IPC 1860, the new anti-trafficking draft bill in Nepal
as well as the various relevant legal instruments in Bangladesh deal
simultaneously with issues of rape, p*rnography, child sexual abuse, prostitution,
abduction, wrongful confinement, battering and trafficking. This clubbing
together of several disparate offences under one general anti-trafficking
legislation using the force of criminal law, dilutes the very purpose for which
these new laws are being redrafted. There is also no move in these drafts to adhere
to a minimum human rights standard either for the defendant or the victim. In
fact, trafficking must primarily be considered and treated as a human rights
violation and redress measures must be formulated from the perspective of human
rights rather than being clubbed together with a number of other crimes.
5. Disempowerment through restriction of mobility: Anti-trafficking legal
measures place the onus of protection from harm on the women by advocating
and promulgating provisions to curtail their mobility. The operating principle
underlying such elTorts is the patriarchal belief that women can only be safe if
they slay confined within familiar and protected environments. In both Nepal and

Bangladesh, abuse of women domestic maids especially in the Middle East is
sought to be addressed by banning women and girls from seeking employment
overseas. In Nepal, the Foreign Employment Act of 1985, the Foreign
Employment Order issued by the Ministry of Labour, and the Passport Order,
which is arbitrarily implemented, all restrict the mobility of single women seeking
to move and work across the border29. Nepali women require permission from
their male guardians or sanction from village councils to exercise their right to
mobility. These measures violate women's freedom to movement and reinforce
their dependence on male relatives. Commenting on these measures the UN
Special Rapporteur states, “to force women to remain against their will in
communities where they were unhappy is a violation of their basic rights." Such
measures "cannot be the answer to trafficking.... What are not needed are
draconian attempts to block natural migration routes and social mobility”.'°
6. Criminalizing and infantilizing women: The most striking, disturbing and
unacceptable move to disempower women emerges from provisions contained
within all the anti-trafficking laws to firstly, treat women and children alike and
secondly, to equate trafficking with prostitution and then to criminalize
prostitution. What are the human rights implications of these two distinct moves?
If trafficking is equal to prostitution and no distinction is made between
forced and voluntary prostitution, then all trafficked women and girls are confined
only to the prostitution trade. It follows then that all trafficked women are also
prostitutes. By criminalizing prostitution anti-trafficking laws in Nepal.
Bangladesh and India will, by the inherent logic of the argument, end up
criminalizing the prostitute as well for engaging in a criminal activity. A
trafficked woman's criminal status will overshadow her victim status and the onus
to prove her innocence and victimhood will be entirely on her. This is already
evident for instance in India from the manner in which ITPA is implemented.
Clearly, only those sections, which relate to soliciting for prostitution, are invoked
and therefore only women are picked up by the police on charges of prostitution.
The proposed Nepal bill criminalizes prostitution in Nepal for the first time. The
definition of prostitution under this bill is very broad and includes the use of the
human body to “engage in sexual acts in return for anything”. Such a definition
would logically and ironically also include sex for marriage. '1 Deemed a criminal
by law and law enforcers, a woman trafficked into prostitution will find it difficult
to come forward to seek redress from violence and abuse; nor will she assist the
state to apprehend traffickers by testifying against them for fear of being punished
for engaging in prostitution. Under normal circ*mstances, women trafficked into
the sex industry need strong confidence-building measures to come out and report
their abuse. Now that there is a move to criminalize prostitution, those very
victims who need the most assistance will recede still farther away from the law.
Criminalization of prostitution in an anti-trafficking legislation is unmistakably
the most distinct indicator of disempowerment of trafficked women
Why are women and children clubbed together in anti-trafficking
legislation when in all other instances including labour laws, great care is being
taken to separate child labour from adults? The Convention on the Right of the
Child is a clear statement on the ideological, strategic, and operational need to
make distinctions between children and adults. This distinction is based on the
For a more detailed discussion of these measures sec Supra note 12, at 24.
'° Supra note 11, at para 26.
'' For more details see Supra note 1 2, at 22.

principle that the development of children as human beings is a process and is not
complete so long as they are minors. Children are deemed 'innocent' of the 'w ile
wavs' of the world and can be preyed upon as ‘victims* with relatively greater
ease. They need special protection and assistance in making decisions. Therefore,
it is believed that minors cannot be expected to act in their own best interest, as
their ability to exercise full agency is not yet entirely developed.
But women are adults with a full right to all their freedoms, including the
freedom to exercise their agency and to seek a livelihood. Why then are they
treated as children in anti-trafficking laws? The fact that a woman may have been
trafficked as a minor in the past does not justify her continued treatment as a child
past the age of majority, just as a child-bride ceases to be a child-bride at age
twentx -fi\ e.

IV.2. Criminalizing Agency and Autonomy to Construct the Innocent Victim
This paper argues that in the arena of dominant anti-trafficking legal
trends and interventions there is an ideological imperative to infantilize adult women so
that they may be more easily cast into the mould of the ‘innocent victim' w orthy of being
saved, rescued and assisted. It is true that even adults could be 'innocent' and 'victims',
and indeed are in many arenas but when it comes to trafficking the logic appears to be
somew hat different. According to the dominant thinking of law and policy makers as well
as some other stakeholders, when trafficking is nothing more than prostitution then a
woman who has 'fallen' into prostitution, albeit under coercion, ceases to be innocent'.
And if she happened to practice the trade then she is no more a 'pure victim? According
to this dominant thinking, the only way a trafficked woman's 'innocence' and 'pure
victim' status has some possibility of being restored so that she may become worthy of
assistance, is to treat her like a child. This effectively means that she is denied the right to
exercise her autonomy and agency, and she is considered unfit to act in her own best
interest. Therefore, if under whatever circ*mstances, she did exercise the 'autonomy' to
practice sex work then it is assumed that she did not know what her best interest was. Her
autonomy to have engaged in sex work is criminalized along with criminalization of
prostitution. And hence, the construction of an "innocent victim'’ of trafficking according
to the dominant protection model adopted by law and policy makers in South Asia
necessarily entails the criminalization of autonomy and agency because trafficking is
conceptually seen as co-terminus wdth prostitution. The construction of this innocent
victim implies simultaneously the construction of a disempow ered subject.
V. Conciusioii
"Legislation io combat trafficking should be considered, but only ifit complies with internatiot
human rights standards and does not violate the rights of women. Nothing should be done
prevent the freedom ofmovement ofadult women. No law or regulation should place them at I
mercy of the men in their families or in the villages. Their autonomy must be respected".
UN Special Rapporteur on Violence Against Women, November 200032
According to the current template upon which anti-trafficking legal interventions
and initiatives are based, persons affected by trafficking, especially women and girls are
not only disempowered but often criminalized and further victimized. While certain
positive welfare measures for care and support are included in some of the action plans,
yet at the ven- heart of the matter what is visible is not an empowering or rightsSupra note 11. at para 157

protective approach. In part, this problem arises from a genuine lack of clarity and
confusion on the issue: but at the \-ery deep core there lies a moralistic bias which
obfuscates the issue and prevents the formulation of strategies which w ill genuinely place
the interest of the persons affected by trafficking al the center, and promote their right to
mobility, to livelihood and to their autonomy. So persistent and singular is the conflation
of trafficking with prostitution that measures for the prevention of trafficking to all other
sites and for all other purposes are more or less ignored in most of the anti-trafficking
laws in the region. This conflation stems again, it seems, from a moralistic preoccupation
with prostitution. In the recent past, anti-trafficking advocates in the region have been
repeatedly drawing the attention of agencies of the governments to the need to address
trafficking for other purposes as well but thus far. little concrete measures have been
considered.
It seems clear that there needs to be a paradigm shift in the approach to trafficking
of women and girls. The paradigm must shift from a moralistic or traditional protection
model under the umbrella of criminal law to a genuine human rights model. The new
thinking must include at its heart a commitment to create empowered subjects for only
then will the victims of trafficking cease to multiply and move from \ ictim hood to being
acknowledged as autonomous human beings capable of acting in their own best interest

Questions and Answers which come to mind regarding the HIV7 theory of AIDS

Question A

Answer

Q 1. How is infection with HIV diagnosed?

A 1' By an antibody test. Several proteins, claimed to HIV proteins by HIV experts, are positioned on a
narrow cellulose strip, which then is reacted with the patient's blood. If there is a reaction, the reacting
proteins appear as a series of horizontal bands. The number and combination of bands necessary to
proclaim the patient is infected \ aries from country to country and even from laboratory to laboratory
(see attached Table 1).
Q 2. What is the proof that the proteins claimed to be HIV7 are indeed HIV7?
A 2. None. In 1983 Luc Montagnier and his team1, and in 1984 Robert Gallo and his team2, claimed to
have proven the existence of HIV proteins by purifying the virus particles That is, by obtaining the
particles separated/isolated from everything else. In 1997 Montagnier admitted that he had not purilied
(isolated) HIV and in his view neither did Gallo'. By this time there was ample evidence that HIV
proteins were proteins of normal cells. The fact that these proteins are cellular proteins found in all of us
was proven beyond reasonable doubt in 1997 by some of the best HIV experts4.
Q 3. Why do these cellular proteins react with antibodies, which are present in patient sera? (Blood)

A 3. Because people who are in the AIDS risk groups such as gay men, haemophiliacs, drug users as well as
people who are infected with different non-HIV agents including mycobacteria have antibodies to their
own proteins, that is, auto-antibodies^ 6'7.
Even if they were unquestionably HIV proteins it doesn't
follow the reacting antibodies are also HIV. That's because antibodies meant for one thing regularly
latch on to proteins belonging to other things. Sometimes they latch on even harder to other things. So
these reacting antibodies could be antibodies that appeared in response to something else. For example,
it’s been proven that antibodies which appeal’ in response to mycobacterial (such as leprosy and TB)
infection and fungal organisms, which between them infect 90% of AI DS patients, react with the proteins
in the HIV antibody test8. In fact AIDS patients are full of antibodies and react with just about anything
you can think of, even laboratory' chemicals5. But no one says AIDS patients are infected with laboratory'
chemicals.
Q 4. Does this mean that a positive antibody test does not prove HIV infection?
A 4. Yes. In fact the manufacturers of the antibody test are telling us exactly this. For example, Abbott
Laboratories in their packet inserts state: "’At present there is no recognized standard for establishing the
presence or absence of HIV-1 antibody in human blood". 910

Q 5. Why then is everybody with a positive antibody test told that they are infected with HIV7,
especially when such news is so devastating for both patient and his or her family?
A 5.
The HIV experts have never given a valid reason
everything in terms of HIV they cannot see the alternatives

Perhaps they are so focussed in explaining

Is there a way to determine if anyone who has a positive antibody test is indeed infected with
HIV?

Q 6.

A 6.

Yes. It can be done by determining what relationship exists between a positive antibody and the
presence of HIV itself That is, by simultaneously performing an HIV antibody test and HIV isolation/

purification. This has never been done and could not be done so far because HIV isolaiion/purification
has not been achieved.11
Although many claims have been made for HIV isolation the correct
procedure has never been followed. What the experts call HIV isolation is not distinct from the HIV
antibod} test. In fact it's an HIV antibody lest "done backwards". The difference is that instead of the
patient supplying the antibodies (in their blood), and the lest manufacturers the proteins (in tiie test kit):
in the 'HIV isolation" procedure the protein are present in the cell culture and the test manufacturers
suppl} the antibodies.121' Or rather just one commercially manufactured antibod} So all that s
different is the source of the reagents. The purported HIV isolation is still a reaction betw een a protein
and an antibodv. And that's an antibody test.

()7. If HIV has not been isolated then what is the proof for its existence?
A 7. There is no proof. It may or may not exist.
Q 8. What are the pictures purporting to show HIV particles?

A 8.

The vast majority of these pictures originate from cell cultures which have been exposed to numerous
1 2"
In such cultures these types of particles are commonplace and the HIV experts are fully
chemicals.
As far as the pictures taken from fresh human tissue are concerned, it is sufficient lo
aw are of this.11
mention that particles identical to that called HIV are found as frequently in people who don I ha\e
AIDS and are not al risk of getting AIDS as in those who have AIDS.14 HIV is said to be a specific
kind of virus, a retrovirus. Yet all the pictures published so far of "HIV” particles, no particle has boll
main characteristics of retroviruses, that is. a diameter of 100 lo 120 nm and spikes on their surface.

Q9. 5f there is no proof for the existence of HIV. then what are mothers transmitting to their babies?

A 9. Mothers with "HIV'' antibodies have babies that also are found to have “HIV" antibodies. In fact, at
birth all their babies ha\ e <UHIV” antibodies but these are the mother’s, not the baby’s antibodies. They get
into to the baby by crossing the placenta not long before birth. By approximately 2 years of age, only
about 15% are left with such antibodies and these are said to be babies who have been infected. That's
what trie experts lead us to believe and they say those 15% now have their own antibodies, which the)
made because HIV took hold in that proportion of babies. They're not the mother’s antibodies because by
then they've all disappeared. But their conclusion creates a veiy large problem. And it's this: Sure it's
true that in the babies the mothers aruibodies gradual!} disappear. That's because the babies metabolise
them. Not just the "HIV’* variety of antibodies but all the different varieties of antibodies mothers pass to
their children before they are born. In fact the disappearance of mother's antibodies is why babies are most
susceptible lo infections around 3-4 months of age because by this time nearly all the mother's antibodies
have gone but the baby still hasn’t built up enough of its owm. Before the AIDS era it was known that all
of the mother's antibodies disappear by nine months of age. And we mean all. Al nine months they re
zero.16 And there’s no way the body can selectively get rid of the "HIV’' variety. The biochemical
machinery’ can’t say "You’re a measles antibody. Til get rid of you but you’re an HIV antibod} I 11 keep
you twice as long”. To the body ait antibody molecule is just another protein (antibodies are all proteins by
the way). But the way the "HIV" variety is lost after birth reveals something that doesn't fit. And it's this:
If you follow the disappearance of the "HIV" antibodies from birth, it drops from 100% at birth to 75% at
9 months. Then to about 15% al 22 months, which the experts say, is the proof that 15% of babies are
infected by their mothers. This means that 60% of children lose the "HIV antibodies and test negative in
an antibody test between 9 and 22 months. So what are the antibodies, which have been lost9 Where did
the}’ come from? They can't be the mother's because they ve all been metabolised by 9 months. The}’
can't be caused by HIV infecting the babies because, according to the experts, if that happens, the
antibodies remain for life. So how do you explain it9 You can only explain it by saying they're not HIV
antibodies at all but other antibodies that ieacted in the lest But if that's true for 66% it could be true for
all the babies including the 15% left w ith antibodies at 22 months. And if the tests are false in the babies
the\ are also false in their mothers .And their fathers.17

Q 10. Since the HIV experts admit that the antibody test cannot be used in babies what methods do
they use to prove mother-to-child transmission of HIV?
A 10. Two methods are used, namely death and a test that detects “HIV R.NA" or "HIV DNA' known as the
PCR. When a baby is born to an HIV positive mother, if that baby dies before they can use an antibody test,
the baby is said to have died from AIDS caused by HIV transmitted from the mother. PCR is used in many
of the studies, which attempt to prove mother-to-child transmission. This test has at least as many drawbacks
as the antibody test. For example, a PCR test can revert from a positive to a negative for which the HIV
experts have no explanation. Also the specificity of the PCR has never been determined accurately. Even
the DNA-PCR, which is said to be more specific than the RNA-PCR, varies from 0 to 100%. 18 For babies,
the RNA-PCR is used in an attempt to prove mother-to-child transmission of HIV. However, according to
the manufacturer (Roche) of this test. "The Amplicor HIV-1 [RNA| Monitor test is not intended to be used as
a screening test for HIV-1 or as a diagnostic test to confirm the presence of HIV-1 infection”.
And that
means in anyone. According to the latest CDC AIDS definition. "In adults, adolescents, and children infected
by other than perinatal exposure, plasma viral RNA nucleic acid tests [PCR] should NOT be used in lieu of
licensed HIV screening tests (e.g., repeatedly reactive enzy me immunoassay)". 20 But surely a test that can
NOT be used to prove infection of adults, adolescents and even children (for example, by blood transfusion)
will also be invalid to prove mother-to-child transmission of HIV. After all, the experts tell us if s all the
same virus.

Q 11. But doesn’t AZT and nevirapine reduce mother-to-child transmission of HIV?

All. There is no proof for this. Most of the studies which claim proof that AZT reduce transmission are not
randomised, or double-blind and do not have controls.17 Even the best of them, the ACTG076 has so many
drawbacks that no valid conclusions can be drawn.21 As far as nevirapine is concerned, so far there has been
only one study, H1VNET012.22 Given its design, execution and analysis, it is impossible to draw any valid
conclusions.23 Since all the HIV experts claim that AZT and nevirapine reduce mother-to-child transmission
of HIV by reducing viral load, and since neither AZT nor nevirapine have any effect on viral load, then it
follows these drugs cannot decrease mother-to-child transmission of HIV.17’ 2’' No matter what the reported
findings from these studies are, no physician or government can make decisions regarding the use of these
drugs for reducing mother-to-child transmission of HIV unless and until the tests used to prove infection are
guaranteed to be HIV specific. Including by the manufacturers.
Q 12. Is HIV sexually transmitted?
A 12. No. Regarding AIDS since 1982, and regarding “HIV” since 1984, evidence existed from studies in
gay men that a positive test and AIDS is limited to the passive partner. The active partner does not get
“HTV” or AIDS.24,25,26 Not from sex. So we have the spectacle of an infectious disease going one way.
From active to passive partner. Like pregnancy. But that’s impossible because microbes rely on
person-to-person contact to spread. If they don’t spread they’re dead.

Q 13. What about heterosexual transmission of HIV?
A 13. The heterosexual transmission of HIV was one of the main predictions of the HIV theory of AIDS.
Now, in the 3rd decade of AIDS, data from the largest, longest based design and executed prospective
study in heterosexuals clearly proves there is no heterosexual transmission in North America, Europe
and Australia.27

Q 14. Then how is it possible for HIV be transmitted heterosexually in Africa?
A 14. Unless HIV discriminates between people on the basis of race or colour, it is not possible. In fact, the
best available data proves that “HIV” is no more heterosexually transmitted in Africa than in either North
America, Europe or Australia.
In table 2 the evidence from the best two non-prospective studies
performed in the USA and in Africa are presented.27 28 Take a look at this table. See how long it takes
for an “infected” man or woman, having sex every7 three days, no holidays, to “infect” their partner.
Contrast this with gonorrhoea where you'd be infected in a week.

Q 15. Why then do such a high percentage of Africans (for example, 10% of South Africans) test
positive but this is not seen in the rest of the world?
A 15.

Firstly, there is no proof that 10% of South Africans test positive for HIV. This figure has been
derived as follows: Pregnant women are tested with the ELISA antibody test. (HIV experts accept that
the ELISA antibody test is non-specific in all individuals especially pregnant women). The findings for
pregnant women are then extrapolated to the general population.29 That is. it is assumed that since 10%
of pregnant women lest positive, then 10% of the whole population test positive. This high percentage
of positive tests is not even found in the crowded South African prisons where the reported ’ HIV
infection" is approximately 2.3%.29 Secondly, due to poverty. South Africans frequently suffer from
infectious diseases, which lead to the appearance of antibodies that will give a positive ' HIV" antibody
test.

Q 16. But how can AIDS in Africa be explained? Isn’t AIDS a new disease?

A 16. AIDS stands for Acquired Immune Deficiency (AID) Syndrome (S). AID is nothing new. nor is it
caused by a single factor such as HIV. Some of the best expens of TIIV/AIDS" in Africa such as Plot.
Clumeck. Essex, Quinn were aware of this and admit that immune deficiency in Africa has existed for a
considerable time and this has not been due to HIV. "Tuberculosis, protein calorie malnutrition, and
various parasitic diseases can all be associated with depression of cellular immunity”.30
"A w ide range
of prevalent [in Africa] protozoal and helminthic infections have been reported to indue
immunodeficiency”/"1
"Africans are frequently exposed, due to hygienic conditions and other factors, to
a wide variety of viruses, including CMV, EBV. hepatitis B virus, and HSV. all of which are known to
modulate the immune system...Furthermore, the Africans in the present study are at an additional risk for
immunologic alterations since they are frequently afflicted with a wide variety of diseases, such as malaria,
trypanosomiasis, and filariasis, that are also known to have a major effect on the immune system"
[CMV=cytomegalovirus; EBV=Epstein--Barr virus; HSV=herpes simplex virus]."2

If AIDS in Africa is the same condition with the same cause as anywhere else in the world then AIDS in
Africa and AIDS in the West should be identical. This is not the case and what is called AIDS in Africa is
almost unrecognisably different from AIDS in the West, so much so that if African patients suddenly
switched continents, very’ few Africans would remain AIDS cases. This is due to the existence of multiple
AIDS definitions, one for Africa (the Bangui definition which separately lists adults and children), one for
adults in North America, Europe and Australia, one for children in these countries and one for Latin
America. None of the definitions of AIDS includes a new disease. All the diseases existed long before
the AIDS era. In fact, the African definition (the Bangui definition) does not require a specific disease
diagnosis but consists largely of symptoms such as weight loss, diarrhoea, cough and fever. " For example,
an African with diarrhoea, fever and persistent cough for longer than one month is, by definition, an AIDS’
case. The symptoms listed in the Bangui definition are common and non-specific manifestations of man\
diseases, which are endemic in Africa and were so long before the AIDS era. This is accepted by some of
the best-known experts on AIDS in Africa such as Mann, Fauci, Essex. For example, "...recognition of
paediatric AIDS is particularly difficult in Kinshasha |Zaire], since many children have severe infant and
childhood diseases with similar manifestations (eg, weight loss, chronic diarrhoea)". "4 "Well, of course it
|the Bangui definition of AIDS| wall be less reliable (than that used in non-Third-World countries). One
typical example is what we call 'slim disease'. It's a wasting syndrome seen in Africa. Now that wouldn't
fall under any categorization of AIDS by the standard empiric definition, but nevertheless, (slim disease) is
being considered AIDS in Africa". "3 Also "malnutrition and general lack of medical services contributed
to diarrhoea, tuberculosis, and other common African diseases that signify AIDS". "6 The diseases most
frequently reported as signifying AIDS in Africa are Kaposi's sarcoma and TB. In fact, 90% of AIDS
cases in developing countries are TB cases."7 Kaposi's sarcoma existed in Africa in high frequency long
before the AIDS era. Its cause wzas proven to be not an infectious agent.At the beginning of the AIDS
era Kaposi's sarcoma was one of the main reasons for the introduction of the HIV theory of AIDS. The
overwhelming evidence which accumulated forced all the HIV experts to admit that HIV is not the cause of
this disease. "s Yet even today an African with Kaposi's sarcoma is an AIDS patient even if not tested for

HIV. ” Up to 1987 TB was not considered to be an AIDS indicator disease. The 1987 CDC definition of
AIDS considered extra-pulmonary TB but not pulmonary7 TB as indicating AIDS. '9 Thus, from 1987 to
1993 there were two causes of TB. One for extra-pulmonary’ TB (HIV) and another for pulmonary TB.
According to the 1993 definition of AIDS, both pulmonary’ and extra-pulmonary’ TB are AIDS indicator
diseases.40 Since 1993. if an African patient (Australian TB patients are not tested for HIV) has TB and a
negative antibody’ test, then the patient has TB and is treated accordingly. A patient with TB and a positive
antibody test is not a TB patient but an AIDS patient and is treated accordingly. Although ample evidence
exists which shows:
(i)
that the antibodies which appear as a result of infection w ith the mycobacterial organism which causes
TB react with the proteins in the "HIV" antibody test. That is a patient with TB w7ould test positive for HIV
e\ en if not infected with such a virus:7
(ii)
other things being equal, "AIDS" patients gel better with anti-TB drugs just as fast as "non-AIDS" TB
patients:41

(iii)
TB is not a new disease and existed in Africa long before the AIDS era. The only thing, which is new,
is an antibody test, which, so far nobody has shown to prove HIV infection. The notion that since 1993 a high
percentage of TB cases in Africa are caused by HIV implies that all the traditional causes of TB in Africa
vanished overnight in 1993 to make a way for a new cause. ’'HIV".
In other words, although the best known researchers of African AIDS clearly accepted that both AID and
the AID syndrome (S) existed in Africa long before the AIDS era, and that they were caused by agents
other than HIV. the same researchers expect the world to accept that in Africa there is a new disease.
AIDS, caused by a new virus. HIV.

Q.17
With AIDS representing over 35 diseases all traceable to a single HIV, what treatment
must be given?

A.17
Modem medicine never had had any genuine antiretroviral drug, or antiviral drug for that
matter. Modern medicine's “treatment’' of heart attack, high blood pressure, diabetes, cancer, stroke for
arthritis is always been symptom -oriented, without in any way understanding the cause / course / cure of
any of the foregoing maladies. Granting that there is HIV end that it causes AIDS, all that the five star
health care should do is to treat whatsoever the manifest illness, without wanting to attack the alleged root
cause, namely, the HIV, for any treatment of HIV itself is illogical, counter productive, and even lethal.
Q.18

What is the real nature of antiviral drugs?

A. 18
In reality, there is no antiviral drug. AZT was synthesized as a hope against cancer, but its
sheer toxicity forced its withdrawal. Now it is the same cell poison wearing the new ART garb. A thorn
by any other name pricks as deep. AZT and all other ART drugs are indiscriminate cell poisons that
devastate the body and the galaxy of side effects get ascribed to HIV AIDS. A flash back in to the history
of syphilis is relevant here. In the 16th century’, mercury’ therapy of syphilis came to the fore with much the
same bravado as ART against HIV today. And it was Jean Femel who pointed out in 1579 that “ nearly all
the late symptoms of syphilis were really due to mercury’ poisoning.” HIV is no problem. ART/HAART
are big problems however.
Q.19

What is the epistemology of HIV AIDS?

A. 19
Epistemology is recently recognised science that evaluates any knowledge to scientifically
declare its scope & limitations. It is of interest to note that whereas medical men know an oceanic lot on
cancer cell, coronary artery or the carotid, they can do nothing to control'these entities.
The summaiy intellectual bankruptcy' of the HIV AIDS establishment on the virus itself, the sheer
unreliability of all the tests and the blindly toxic nature of all therapies allows one to epistemologically
declare that HIV AIDS is a dogma but no science.

Joseph Hixson has written an account of the greatest scientific scandal of the 20th century perpetrated
at the famous SKI. Newyork. (Hixson, Ji The Patchwork Mouse, Anchor press, Newyork, 1976). Two
statements from his book are relevant here.
a) “The American Public known to the rest of the world as the originator of fads and fetishes, suffers
from time to time with a preoccupation over a single disease.
"I
have some advice for young researchers in biology. Stay out of cancer reasearch because it s full of
b)
money and just about out of science."
HIV -AIDS is an enemy that the USA has invented. The establishment now find it hard to dismount
the tiger it has created. HIV AIDS is an obsession, a lot of money but no science nor sense.
Q.20

How would you reread HIV AIDS?

A.20

Highly Imagined Virus and Allopathy Induced Deficiency Syndromes

Q.21

Can HIV AIDS be prevented?

A.21 When the virus itself is in the realm of imagination, how do we avoid it? Harvey Cushing, the famed
American neurosurgeon, complained in the early part of the 20111 century that prevention is an over work ed
term. In the current medical scene, prevention is the predictable refuge of the therapeutically impotent,
intellectually bankrupt and epistemologically arrogant modem medicine. HIV AIDS prevention is no
exception.

Eleni Papadopulos-Eleopulos Biophysicist. Department of Medical Physics, Royal Perth Hospital, Perth.

Western Australia
Valendar F. Turner Consultant Emergency Physician, Department of Emergency Medicine, Royal Perth
Hospital, Perth, Western Australia

John M Papadimitriou Professor of Pathology, University of Western Australia, Perth, Western Australia
Helman Alfonso Department of Research, Universidad Metropolitana Barranquilla, Colombia
Barry A. P. Page Physicist, Department of Medical Physics, Royal Perth Hospital, Perth, Western Australia

David Causer Physicist, Department of Medical Physics, Royal Perth Hospital, Perth, Western Australia
Sam Mhlongo Head & Chief Family Practitioner, Faipily Medicine & Primary Health Care, Medical University

of South Africa, Johannesberg, South Africa
Todd Miller Assistant Scientist, Department of Molecular and Cellular Pharmacology, University of Miarrr
School of Medicine, Florida, United States of America

Christian Fiala Gynaecologist, Department of Obstetrics and Gynaecology, General Public Hospital,
Korneuburg, Austria

Anthony Brink Advocate of the High Court of South Africa
Neville Hodgkinson Science Writer, Oxford, England

Mann Kothari Consultant Oncologist and Naturopathist. 14/B, S.V.Rd.. Santacruz(W), Mumbai 400 054,
INDIA.

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15. Layne SP, Merges MJ, Dembo M, et al. (1992). Factors underlying spontaneous inactivation and
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21. Connor EM, Sperling RS, Gelber R, et al. (1994). Reduction of maternal-infant transmission of human
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076 Study Group. Aew England Journal ofMedicine 331:1173-80.
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compared with zidovudine for prevention of mother-to-child transmission of HIV-1 in Kampala, Uganda:
HIVNET 012 randomised trial. Lancet 354.795-802.

23. Nevirapine Presentation: SLIDES ( pdf file) and AUDIO STREAM (Real Media)

24. Marmor M, et al (1982) Risk Factors for Kaposi’s Sarcoma in hom*osexual Men. Lancet i: 1083-1086.
25. Kingsley LA, et al (1987) Risk Factors for Seroconversion to Human Immunodeficiency Virus among
Male hom*osexuals. Lancet i: 345-348.
26. Caceres CF, van Griensven GJP (1994) Male hom*osexual transmission of HIV-1. AIDS 8:1051-1061.
27. Padian NS, Shiboski SC, Glass SO, Vittinghoff E. (1997). Heterosexual transmission of human
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Epidemiology 146:350-357.
28. Gray RH, Wawer MJ, Brookmeyer R, et al. (2001). Probability of HIV-1 transmission per coital act in

monogamous heterosexual, HIV-1 discordant couples in Rakai, Uganda. Lancet 357:1149-1 153.

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heterosexual population in Zaire. Lancet ii: 65-69.
31. Clumeck N, Robert-Guroff M, Van De Perre P, et al. (1985). Seroepidemiological studies ofHTVL-IIl

antibod} prevalence among selected groups of heterosexual Africans. Journal of the American Medical

A ssocia tion 254:2599-2602.

32. Quinn, T.C. Piot, P. McCormick, J.B. Feinsod, F.M. Taelman, H. Kapita, B. Stevens, W. & Fauci,
A.S. 1987 Serologic and immunologic studies in patients with AIDS in North America and Africa. Journal

of the American Medical Association 257:2617-2621.

33. World Health Organisation (1986). Acquired immunodeficiency Syndrome (AIDS) WHO/CDC case

definition for AIDS. Weekly Epidemiology Record 61:69-76.
34. Mann, J.M. Francis, H. Quinn, T. Asila, P.K. Bosenge, N. Nzilambi, N. Bila, K. Tamfum, M. Ruti,

K. Piot, P. McCormick, J. <& Curran, J.W. (1986). Surveillance for AIDS in a central African city

Journal of the American Medical Association 255:3255-3259.
35. Fauci A.

AIDS Alert, January’ 1987.

36. Essex M. New Scientist, 1811' February 1988.
37. Horton R. (1998) The I2lh World AIDS Conference: a cautionary tale Lancet 352:122.

38. Papadopulos-Eleopulos E. Turner VF. Papadimitriou JM. (1992). Kaposi's sarcoma and HJV. Medical
Hypotheses 39:22-9.
39. CDC (1987). Revision of the CDC surveillance case definition for acquired immunodeficiency syndrome.
JAMA 258:1143-1154.

40. CDC (1993). Revised Classification System for HIV Infection and Expanded Surveillance Case
Definition for AIDS Among Adolescents and Adults. MMWR 41:1-19.

41. Pitchenik AE, Cole C, Russell BW, Fischl MA, Spira TJ, Snider DE, Jr. (1984) Tuberculosis,

atypical mycobacteriosis, and the acquired immunodeficiency syndrome among Haitian and non-Haitian
patients in south Florida. Annals of Internal Medicine 101:641-5.

Table 1 Criteria defining a positive HIV Western blot

I 1
J p 160
p:20
OR
p4i

J pl 20
"p41

Jp53 ;

Jp32 I
jp55 5

i ‘i s
§

r'5

1p39 J
jp24 \

i ?

p '• 60 •'
P-20
OF.
p4':

p24

I <
! 8
!

J Pl 8

AFR=AFR1CA:‘ AUS=AUSTRALIA; 2 FDA=US FOOD AND DRUG ADMINISTRATION;' RCX=US
RED CROSS;3 CDC=US CENTER FOR DISEASE CONTROL;3 CON=US CONSORTIUM FOR
RETROVIRUS SEROLOGY STANDARDIZATION;3 GER=GERMANY; UK=UNITED KINGDOM:
FRA=FRANCE; MACS= US MULTICENTER AIDS COHORT STUDY 1983-1992. * Bands not in
electrophoretic order

NOTES:

“The Association of Public Health Laboratories now recommends that patients who have minimal
positive results on the WB, eg p24 and gpl60 only, or gp41 and gpl 60 only, be told that these patterns

have been seen in persons who are not infected with HIV and that follow-up testing is required to

determine actual infective status”.
II.

In Februaiy 1993 the US Food and Drug Administration relaxed their criteria in order to “reduce th

number of HIV-1 seroindeterminate Western blot interpretations”, that is, to increase the number of

HIV positive individuals."
1.

WHO. (1990). Acquired Immunodeficiency Syndrome (AIDS). Proposed criteria for interpreting
results from Western blot assays for HIV-1, HIV-2 and HTLV-I/HTLV-II. Weekly Epidemiological

Record 65:281-298.
2.

Healy DS, Maskill WJ. Howard TS, et al. (1992). HIV-1 Western blot: development and assessment
of testing to resolve indeterminate reactivity. AIDS 6:629-633.

Lundberg GD. (1988). Serological Diagnosis of Human Immunodeficiency Virus Infection by

Western Blot Testing. Journal of the American Medical Association 260:674-679. (Data presented in

this paper reveal that when the FDA criteria are used to interpret the HIV Western blot less than 50%

of US AIDS patients are HIV positive whereas 10% of persons not at risk of AIDS are also positive).
4.

Mylonakis E. Paliou M, Greenbough TC, Flaningan TP, Letvm NL, Rich JD Report ol a false
positive HIV test result and the potential use of additional tests m establishing HIV serostatus.

Archives of Internal Medicine 2000;! 60:2386-8.
Kleinman S, Busch MP, Hall L, et al. (1998). False-positive HIV-1 test results in a low -risk screen,ng
setting of voluntary blood donation. Journal of the American Medical Association 280:1080-1083

Number of years to attain 50% and 95% probabilities transmission of HIV assuming sexual
Table 2.
contact once every three days

STUDY

USA
Uganda

Years for 50% Years for 95%
DiRECTldNOF Per contact
PROBABII.ITY PROBABILITY
TRANSMISSION PROBABILITY
6.3............ 3
M to F
.. 0’0b01125ZZ..
F to M
27.4......... .....
6.3...........
30.6609...........
M to F ________
19.5"
4A
0.0013
F to M

0 00^ZZZZ

51 3Z1

2713..... Z
222’ZZI.....

■ptS

I
I

c- I 0

Introduction
Jagori has been working on the issues of trafficking, migration and rights of sex workers for
over six years. In our work so far, we have consistently come across serious problems in the
availability
of data orl ^1C ab°ve issues, which render intervention eithpr
•it Oiand- reliability■' -8nd
ZhT
un,nformed [n an effort to begin addressing this gap, Ja J,rl
ie suppotl of UNIFEM, initiated an action-research project on Migration Trafficking
OOO; 200U
10 be ^ned out over' the ne’xt two years

A prehmmary pilot Study was conducted over the last five months m the selected d-.'ricts -f
Rajasthtm and Gujarat. The phot study mvofved State-level constdtatio^ a
informal meet.ngs m the states wtth NGOs and other stakeholders and fieio visits to areas
of ZoSetw^NCO 'derland lhe,CiOnlinant !rcnds a”d
share the concert
project wnh NGOs working m the region. (See Append/x ! for de lads)
a'way"nt Is msm^ I
"T'
10 bcS' «0 ab°Ut the study m
'ay mat is insightful, accurate and useful to all of us It was critm-d ih^i
, . r/. r
extstmg gapS ,n da!i% understand ,he issues of conccrn an(j
,
~ and stratums'th-g
woulo opt.nnze the scope and ut.hty of the study w.th the active i
&
involvement of groups and
experts vvorkmg m the area. I hrougli this process, partner groups
; and resource persons for
the project were also identified.

In addHion, an extensile survey of literature was undertaken to gaum: the gaps and rmssino

our o^ZXSr1"'^ 7th

7' ““

t0 'V0'nen

S"’" “d

m,arall0n- t0 enhami

"*l>u,s

res'!>rcl’

limitino i
tr“H'y,nS- 1 fowever. mcreasingly we found that such a framework was too
NGO t d'fl ° Un S,and' anWZe and en888e ful,y -ll> ;'!I
emergm., "sues Jg

hinted at
XXs
T"
“ a,’d
10 CXPlore- wb^
as well as within our XhX
n'SC0UrSe On ,tran,ckinS- fissions with them
discourse
'
PU US (C CCt °n lhe debalcs surrounding the trafficking

I\
S.'

I
[■

Over the phot study we felt that it was critical as a first step to focus on movement per se
that ts nugratton tn ttself, and explore its causes and implications for women'in
particular. Only through such a ‘lens’ would we be able to locate the elements of
raffic..ing in the process - such as coercion, deceit, abuse and slavery-like practices
Using this approach enabled a more acute awareness of the needs for women to move in
search of work, and the concomitant vulnerabilities inherent in the process of their
movement. In the context of human rights, while the notion of illegal migration is
redundant in the case of internal migration, the issue of violations of rights of migrant
workers is increasingly relevant. The concept of rights as citizens needs to be invoked
and used as a tool to address these violations. This also needs to be built into the
trafficking discourse, in the context of trafficking within borders.

As the UN Special. Rapporteur on Violence against Women Radhika Coomaraswamy’s
notes in her Report of her Mission to Bangladesh, Nepal and India: “Trafficking of girls
and women often follow the same route as legitimate migration... 'traffickersfish in the
stream of mtgratian
The focus of inquiry and the report itself has been on unraveling
and understanding these very streams of migration.

Following the pilot study, we are further convinced of the relevance of the project the oapS
in migration research it has the potential to f
fill’’ _.J
and the 1links it builds, and the need to address
the—issues
the
project
raises.
The
pilot
study
has
been
w xi i----------------------- r‘
---- 1 a learning experience for the Jagori
t
re<uu. Vv o uiaaK uhh-CM for enabling the pilot study and our colleagues and friends working
in. the
. two states,- and the communities
------------- 3 we had the opportunity to interact with for sharing
their work and their lives with us.
I

I
’■ I i

■

Looking Ahead
Some Concerns

already well-researched those in n^d r
sense of the areas and issues
l. has also ™dT„ rinse ™ “d ofattrnron and the links which need to be made,

concepts we were working with and nd
C'rt“" Prel™!nary assumptions and
examine our own posh ons a^a Lnini , 8 “ P™i“y ,°‘’k »f >“'?“■ “
as reuvsn positions as a feminist group on ongoing debates.

L The Trafficking Discourse: A Limiting Framework

discourse.

a>scourSe on trafficking, as well as exposing the limitations of the

*Tst c.lrSslffiSmn8 en“|J”'a,es ’ ’«™>y of violations over a lime period In
is over. We found in *^0^“
totZs trSkh^-T’P'ri°d
mZale^w'tharweOffr’r°n%bUl

•“ “ Il'=

trafficking has occumed only then his'„’„e“This .mT"’,”' "fi k"°"' ",al

addressing the ser.es ofvutaer.bilities or ytowj

SXS “;“Xm i±:ttirt"8 "aS-b""

““

it across borders

is more useful in the context of
'
migrat'0'1' The trafficking discourse therefore
case of trafficking w.thm horde sTr^
" nOt aPP11Cable
applicability of this concept therefore is "• °ne h^V0
°ther °r between districts. The
traffickmg cannot be eZtLelv an f d "T 3 Y
We f‘nd that the conceP'
within borders without breaking £t0 the COntext of lnte™l migration or trafficking

™^rsta„di„gthem“;^^ftZ,rn 'n,°
iutaa laX dumber XZ'r^tcJ^V'wh.cl6

™
W°man haS left

migrate and then face elements of traffirt-W°meni
trafficked’ or t0 which women
forced, slavery-like practices and so on Th
abuse’ coerc|on, sexual exploitation,
I actices and so on. The latter may be a more useful way at lookmg

at the phenomenon, and may enable effective intervention, than
trying to identify
something as a case of trafficking or not.

tlroiTofn1! IhtVe
US t0 re-examine our understanding of trafficking. We arc in the
1 ocess of 1 elaborating a more useful concept of the ‘elements of trafficking’ and
) xp onng t ie continuum of violations and circ*mstances between voluntary migration
on one end and trafficking at another extreme.
'
"itgration

2. Rights and Vulnerabilities: A Critical Perspective
As much as trafficking as a framework proved limiting, the rights and vulnerabilities
pproach proved to be an enabling and highly incisive perspective and tool of analysis
us approach needs to be the dominant perspective in the project, as it includes the
dtessal of violations within trafficking and aims at addressing the circ*mstances which
precede elements of trafficking. Moreover, it is neither judgemental nor implicated in a
moral discourse and most importantly, it enables a woman-centred approach P
j. Changing Focus: Women and Movement

H 'S a fact that women are moving today, on their own and with their families for the
. -e of livelihood. There is indeed a feminization of poverty and of migration- women’s
imgiation has increasingly become a prominent feature of globalization. The debate in
bouth Asian context on women and migration has however limited itself to trafficking
for sexual exploitafon. This has meant that tiie wide spectrum of sites of work to which
and circ*mstances in which, women are migrating are left out. Also the Stale Inokc at tlle

rSZthCtlmi Wh° T1

Pr°teCted fr°m trafficki"g; such Protection often becomes

search of
n T"
Wome"’s riShts- In Particular, the right of women to move in
t • , i VC 110°d °Ptlons or f°r any other reason has increasingly been targeted as
un nes tave seen the stopping or regulating of women’s movement as a means of
howeveI1IdebItTt^n8'
V0‘T °f W°men nli8rating OU1 of choice in the region,
owever debated the notion may be, must be heard in order to ensure that this women’s
light to move is not violated.

4. Specific Concerns: Rajasthan and Gujarat
We needed to understand the economic, social and political structures of the two States of
in Jlrticulf^
°Ur exPerience has raised some concerns on the following issues

.p/ m
^h'eS arC 511,1 ver>' "’’i’ortant in Rajasthan; with a limited amount of
leshuffhng, the structure remains intact and operational. It also plays an imponant role tn
identity toimation and occupational determination. Rajasthan has a strong feudal history
w uch has retained its hold over communities. The sanctity of traditional male/ female
ro es and notions of shame and honour, particularly related to manhood, Rajput valour
and so on are very strong. Poverty and rural breakdown along with factors like little
industrialization and infrastructural neglect has meant that Rajasthan’s economy is
particularly vulnerable. All this has led to a palpable environment of conflict, in which
communities are competing for the little resources available, particularly water and work

Gujarat, on the other hand is a highly industrialized State which is faced with a different
set of problems. It is a site of tremendous in-migration, but still has insidious notions of
the insider/outsider which mean that often migrants rights are easily violated. The
vulnerability of tribal communities in Gujarat is a key concern, and the resulting regional
disparities between.tribal and non tribal areas. Industrialization and simultaneous closure
of small and big textile mills is also a dominant problem. Finally the issue of
displacement due to large dams has shown specific repefcussions in Gujarat which need
to be linked to the project.
Recommenda tions

1. Conceptual reevaluation of the trafficking discourse
Conceptual breakthroughs need to be made in the existing trafficking discourse, which
has stagnated and tended to revolve around legalization of sex work, repatriation and
rehabilitation.
6
Reevaluate the usefulness of the existing definition of trafficking in this context; in
case of internal migration.
Redefine trafficking to focus on the elements of trafficking
Separate trafficking and migration, and initiate a new discourse on women and
movement in South Asia to expand the existing discourse which limits this aspect in
South Asia to trafficking
Understand and explore the continuum of violations and circ*mstances between
voluntary migration and trafficking, in which the majority of the cases fall.
C

2. Prioritize the case of the informal sector
The unorganized or informal sector has to be better understood and addressed, as much of
migration and even trafficking takes place within the informal sector. This sector poses
specific vulnerabilities in terms of being a non regulated site of work and therefore
increases vulnerability to exploitation.
f
« Engage in issues of labour rights and look at ways of organizing this sector with a
strong gender component and focus on women’s issues.
® Find ways of addressing sexual harassment at the work place in this context- within
this explore how to include (migrant) women workers in the process as another
specific situation.
• Look at the private sphere of work in the informal sector - domestic work and the
rights of domestic workers, as another particular vulnerability, being in the private
space as well as being a woman-centred site of work.
3. Understand networks of recruitment, movement and support
Our pilot study shows that women rarely move alone; women do need agents/ networks
to move, which makes them more vulnerable to abuse, coercion and deceit.
* Identify structures of support and reference, particularly agents and their influence,
outreach and contacts when people migrate.
• Understand, map and follow networks of recruitment, agents, and movement.
® Examine support structures and networks that migrant women/ families create in the
absence of traditional kin and community structures.

I<5

d En^at^e with and involve local structures of authority
•n most\ongmnCy|1S d"CC.[l:' 'ClalCd l° thc structures of authority, which arc i

usually rigid

'• *

if.„y

cri,icai -—*

"ltl‘ca,ors of empowerment related to women’s movement
n s migration IS not always a negative step. We must look at
women and their
movement w.th an understanding that it
"
opens
up
spaces for mobility and change and
imbpZramnfo°iinTiSti"S S°C'al St1n,Ctures- To accommodate and explore this notionf i
it is
Pc
k movement with empowerment and disempowerment
• Evolve relevant indicators of empowerment in the process of
movement; link
movement for work, vulnerabilities and violation and so on with
empowerment
and
disempowerment along a continuum, and at different levels.
amHI “l-W‘ly'S
Wl.’ich W0!llc'i experience movement, particularly in positive wavs
d
impact tins has on the way they look at themselves and their work
c

ocate women s role m imgration decision making, and factors influencing this

fo foe ca^or"’i'57"71' <UUl dc"U>Cra<ic n^'rs mldress migrants ’ problems
the case of internal m.graticn and displacement, often a migrant is seen as an ‘outsider’

'■

- "■ -

"Sl“S’ Wl'ile
nMi0"
™i«ra,i“ irredunda,,, i„
"Wt'O", <l>e issue of violations of rights of migrant workers is
o

XXS’ ” be t’U'" i",°

,raffiCtin8 d'SOO“r“-"»

of "kicking

7 Address missm^ links in migration research
andrmaTedS|tO|be|nlOre COntribulio"s '« niigration research from a feminist perspective

™ tr

v' ™“s lss”s l;l1“’s sh“M b'

giation, particularly on women, sites of work and vulnerabilities.

A. Huitd linkages between movements and issues
equ'allv 'im
COm',lex nature of the issues and the fact that it needs an
ZS’s nXneentreS‘7SC’ 'l u C^'l'Ca, t0 Create l"lkageS and alliances b«weS
10 food security m
"
Z
' rn0Vemer,tS’ right ,0 information movement, right
between these pconl
’ 8f®ater nioblllzation and explicit linkages and alliances
ucLwccn tncsc peoples movements need to be made.

1!
J

II i i,1

The Future of the Migration Project

d“reM d“““ ">’• ” “«>
and continuous drought need to he a ma*iro
information 0„ drangSX •Xm
Sone' h

'"ol as globalisation, matkettsation
ST """ ™
dM’lkd

What are the new challenges neonlr ’ h' F i ' 'C
10w IS affecting women’s lives,
negotiating these'’Has there bee
Particular y women, are facing and how are they
work, self?
ere 66611
recon^ction or recasting of notions - of migration,

movements that women undertake whether
V'°1CnCe' abuSe ln many of
women negotiate these and how ran th lether In familles< grouPS or individually. How do
with groups and work in collaboration vXlnhp15
W111 be necessajy t0 Iink «P
- Project can fit mto the
--

'•

THE HEXUS OF VULHERABSLITY
Prevention of Trafficking of Women and Giris
and HIV/AIDS in South Asia
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UNDP HIV & Development Programme
South & South West Asia

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anoMsraoj

THE NEXUS OF VULNERABILITY
Prevention of Trafficking ofWomen and Girls and IIIV/AIDS in South Asia

WHY LINK HIV/AIDS, TRAFFICKING AND GENDER?
ender, age and transmission via sex are key factors also influence women’s vulnerability to
vJ elements in tlie recent dramatic increase of the trafficking (STOP, Maiti Nepal, BNWLA).
HIV epidemic in South Asia. Increasingly, a majority
of the HIV infected people are women in their prime The phenomenon of human trafficking has increased
reproductive age with many below 18 years of age, significantly globally and in the South Asian countries
and the key route of
over the past decade though
transmission of the “Women of all ages are more likely than men to the illegal and clandestine
infection is predominantly become infected with HIV during unprotected nature of trafficking makes
through unprotected, vagin*l intercourse. This vulnerability is it exceedingly difficult to
unsafe sexual intercourse. especially marked in girls whose genital tract is establish accurate figures of
In South Asia, women are
still not fully mature. Compounding their the numbers of people
now reported to constitute biological vulnerability, women often have a trafficked. Globalisation,
tip to 35 percent of new lower status in society at large and in sexual professionalisation of
HIV infections (UNAIDS relations in particular. This gender vulnerability, traffickers’ syndicates,
2000). A complex web of again, is particularly acute for young girls”.
modem transportation, sex
socio-cultural and macroReport on the Global HTV/AIDS tourism, feminisation of
economic factors affect ;
Epidemic, UNAIDS, June 2000 poverty, trade of human
women s vulnerability to I______ ______ _______
organs and the changing
HIV, including poverty, migration, urbanisation, nature of prostitution, have all worked towards
gender inequalities compounded by women’s lack of increased demand and supply of people, especially
autonomy, abuse within and outside families, young women. These women are especially vulnerable
insufficient access to health care services, violence to HIV/A1DS as a sizeable number find themselves
and ethnicity. (UNIFEM 1998a). Significantly, these in brothels and other situations of physical abuse.
❖ South Asia is the region in the world where women’s life expectancy is least favourable

compared to that of men. It is less than men in two countries and almost the same in several
others, in contrast to most regions of the world, where women’s life expectancy exceeds that
of men. (Sivard, 1995).
Compared to demographic expectations, there are an estimated 60 million “missing women’’ in
South Asia, primarily due to discriminatory child care practices, which kill by neglect, linked to
lack of access to health care and education for girls. (UNICEF, 2000).

❖ The Census of India 2001 recorded 933 females per 1000 males in India. In the 0 to 6 age group
there is an alarming decline from 945 girls per 1000 boys in 1991 to 927 girls per 1000 boys in
2001. (Registrar General and Census Commissioner of India, Census 2001Report). This decline
reveals marked preference for sons leading to neglect of the girl child and practices of female
foeticide and infanticide.

❖ India, Nepal and Bangladesh's Gender Empowerment Measure (GEM) which reflects women’s
access to political, economic and social opportunities is among the lowest in the developing world.

Not all women are trafficked for prostitution. Many
are trafficked into domestic labour, agricultural and
factory work but are also vulnerable to sexual and
physical exploitation and abuse. The majority of
trafficked women, however, find themselves in
brothels where they have little or no control over their
bodies and lives. They are stripped of every right to
negotiate safe sex. Coercion, alien environment, fear
of deportation and other factors keep them from
seeking any kind of help. These conditions make
them increasingly vulnerable to HIV/AIDS.

They are not only severely limited in their ability to
make their own decisions about sexual relations and
practices but, according to a wide range of statistics,
discrimination in general, and sexual violence against
women in specific, are endemic and growing in South
Asia, as shown in the box.
Moving beyond the narrow epidemiological profile
of the HIV/AIDS epidemic within the subcontinent
and examining the broader socio-economic and
development causes, an integral connection is evident
between HIV/AIDS, gender and trafficking through
the nexus of vulnerability and sexual violence.
Trafficked women and girls represent the most
vulnerable category as far as sexual violence is

concerned. HIV/AIDS, trafficking and gender are
thus linked in the following ways:• Factors such as women’s labour, sexuality and
sexual behaviour and social disadvantage, which
determine the context of sexual violence and
trafficking of women and girls are also the factors
which are associated with the increased
vulnerability of women and girls to HIV/AIDS.
Specifically, these relate to gender-related social
and economic disempowerment, and unequal
access to all the indicators of development
including health and education.
• Trafficking is pail of a pattern of migration within
and across countries, which removes migrants from
die protection of their communities and severs diem
from their systems of social support. These factors
are recognised as heightening xailnerability to HTV/I
AIDS.

• Caught in the web of trafficking and sexual abuse,
those affected face an increased risk of HIV' AIDS
on account of lack of control over their working
and living conditions, including sexual relations.

❖ According to the National Crime Records Board of India, a total of 1,31,338 crimes against I
women were reported in the year 1998. These crimes include reported cases of rape, abduction,
dowry deaths, tortures, molestation and trafficking. It is widely accepted that these crimes are
significandy under-reported, and on the increase.
❖ The UNFPA State of the World Population, 2000 Repon declared Bangladesh second highest

in die world in incidence of violence against women.
❖ A women’s group in Bangladesh has publicised data showing that more women die of bums,

suicide, and injury dian from pregnancy and child birth.(N. Huq, 1997).
❖ One study from Nepal reports that more than 50% of all victims of rape are girls under die age

of 16, most of whom are raped by relatives. (Pradhan, 1996, cited in Sheikh, 1997). A survey in
domestic violence found that 13% of the respondents knew about at least one case of child
sexual abuse. (Saathi, 1997a, pp. 9-10).

In Sri Lanka 60% of women interviewed in a sample survey responded that they have been
subjected to domestic violence during the period of co-habitadon. (Coomaraswamy, 1994b, p.21)

• Common societal responses to those affected by
HIV/AIDS as well trafficking are strongly impacted
by stigmatisation, discrimination and further
marginalisation. These responses in turn
undermine the basic rights and freedoms of the
affected individuals, including the right to mobility
and residence, the right to essential services, right
to confidentiality, right to free association, and
sexual and reproductive rights.
One crucial form of violence is trafficking

Trafficking is by and large a gendered phenomenon,
although it is true tliat trafficking of men and certainly
boys is also taking place within and from the region.
Evidence from major government and NGO sources
indicates that the incidence of trafficking of women
and girls over the past decade has escalated
considerably; that the majority of trafficking in India,
both trans-border and in-country, happens for the
purpose of prostitution and over 60 percent of those
trafficked into prostitution are adolescent girls in the
age-group of 12-16 years.
__
These sources also indicate that victims of
trafficking, particularly adolescent girls are
extremely vulnerable to HIV/AIDS on
account of their powerlessness to control
their working conditions, sexual relations
and sexual health. The following data attest
to the vulnerability of particularly young
trafficked girls to sexual exploitation and
abuse:

• Of the 2 million women in commercial
sex work in India, 25-30 percent are below
the age of 18 years.(National Commission
of Women, India).
• 5,000 to 10,000 girls and women are
trafficked to India every year. (STOPIndia, Maiti Nepal-Nepal, NNGAT,
Nepal).

There was an average drop in the age of
girls trafficked from Nepal to India from

between 14 and 16 in the 1980s to between 10
and 14 in 1994. (Human Rights Watch, 1995).

• Incidence of HIV prevalence among sex workers
in Kamathipura, the largest red light district in
Mumbai, India ranges from 65-70 percent, and
more than 50 percent of the sex workers suffer
from more than 2 STDs.

• Large numbers of young Nepalese girls are
trafficked to work as Female Sex Workers (FSW)
in Indian cities, and large numbers of young
Nepalese males working in India frequent FSW
there and within Nepal. Thus, in addition to the
increasing number of HIV infections occurring
among persons with high HIV-risk behaviours in
Nepal, there are also increasing numbers of
Nepalese FSW and young male Nepalese workers
who have been infected with HIV in India, and
who have or will be returning to Nepal. (WHO
Regional Office for South-East Asia, 2001).

Definitions ofTrafficking
Trafficking has been defined by the UN General
Assembly statement of1994 as:
“The illicit and clandestine movements of persons across
national borders, largely from developing countries and some
countries with economies in transition, with the end goal of
forcing women and girl children into sexually or economically
oppressive and exploitative situations for profit of recmiters,
traffickers, and crime syndicates as well as other illegal activities
related to trafficking, such as forced domestic labour, false
marriages, clandestine employment and false adoption”.
The UN Protocol to Prevent, Suppress and Punish
Trafficking in Persons, especiallyWomen and Children,
2000 defines trafficking as:
“the recruitment, transportation, transfer, harbouring or
i receipt of persons, by means of a 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
I of giving or receiving of payments or benefits to achieve
i the consent of a person having control over another person
| for the puipose of exploitation.”
'--------------------------- -----------------------------------------------

• In one study in Sri Lanka 45% of female sex
workers had experienced multiple STDs, and 70%
of male patients at STD clinics had reported
frequenting sex workers. (UNGASS 2000). The
prevalence of STD makes them more vulnerable
to HIV/AIDS.

© Under-age sex workers are at an infinitely higher
risk of contracting HIV/AIDS on account of; (1)
male feai of AIDS which is erroneously leading to
a greater demand from clients for younger sexual
! partners, (2) common currency of the myth that
I sex with virgins selves as an antidote and cure to
i men afflicted by STDs and HTV, and (3) young girls
have a biological vulnerability due to their
I immature genital tract. The possibility of HIV
ti ansmission may be facilitated by damage to the
genital area.

• Available evidence shows that sexual exploitation
and abuse of trafficked women and girls is resulting
in life threatening conditions such as pregnancy at
very young age, maternal mortality, STDs and HTV/
AIDS.

The proportion of HIV infections, which is
y or _______
7, to sexual
attributable, directly
indirectly,
violence, is unknown. Nonetheless existing
evidence on gender and sexual inequality, together
1! ”with data on the
’ distribution of HIV among
I specific groups and locations, and available
information on the nature and scale of sexual
violence (particularly against women and girls),
suggests that it is likely to be significant.
Peter Gordon and Kate Crehan, “Dying of
Sadness: Gender, Sexual Violence and the HTV
Epidemic”, UNDP/SEPED Conference
Paper Series

‘ ‘/ge’ SayS Sanghera> adding, “women’s bodies are both goods and services at the same
anJsl-wZT
t
'b6 SayS’1S
WS through forced labour
ana slavery-like practices.

EXPLORING FACTORS UNDERLYIN’ G VULNERABILITY
Poverty and lack of livelihood options, exacerbated
by other socio-economic variables such as gender
discrimination, ethnicity and caste and cultural
sanctions, underlie vulnerability to both trafficking
and HIV/AIDS.

Social and economic conditk >ns
Vulnerability to trafficking and HIV/AIDS is rooted
in structural social and economic inequalities,
including poverty and lack of livelihood options
exacerbated by socio-economic variables such as

Selected Indices for South Asia Nations

Countries

Sri Lanka
India
Nepal
Bangladesh

HDI as percent
ofhighest value
in region
1995
1998
94
90
47
49

100
99
75
63

Gender-related
Development
index (GDI)
1998
1995

0.727
0.720
0.449
0.441

0.700
0.668
0.327
0.342

Gender
Empowerment
Measure (GEM)
1998

Human Poverty
Index (HP percent)

1995

1998
20.3
25.4
51.3
43.6

0.286
0.341

0.309

20.6

0.305

46.5

Source: Human Development Report - 2000

ethnicity and caste, and unequal gender relations that
limit the ability of young women to protect
themselves. Women from impoverished families are
generally less educated than their male counterparts,
lack economic opportunities and access to productive
resource and have limited access to sexual and
reproductive health information. A woman’s
biological vulnerability to HIV is compounded by
these social and gender-related inequities.

Discrimination within the family is also closely related
to composition of the household, the number of
earning members, the liabilities that the household
has and consumption patterns. A review made by
Lloyd in 1994 suggests close correlation between sizes
of household and importance given to child’s
education, especially the girl child’s education.
Studies in Tamil Nadu and Maharashtra in India have
shown that poor families with a large number of
children discriminate against girls in order to send
boys to school. The socio-economic trends which
severely limit the access of women and children to
education, proper nutrition, and health care, etc.
heighten their vulnerability to being trafficked

(STOP, 2001), while their vulnerability to HIV
infection is compounded under such circ*mstances
of impoverishment (Salvi 1995, Friedman 1995).

Women’s powerlessness finds further expression
within the gender divisions of labour. Existing power
asymmetries are visible when examining women’s
labour-market roles that have tended to be limited to
unskilled, manual and ancillary work. This intensifies
towards their low social status. The table
demonstrates that following the implementation of
structural adjustment programmes (SAPs) in India in
1991 (Singh 1998) rural women were recorded as
being fess economically active than before. Women
workers formed buffers for the changing labour
market situation and were thus given unskilled work
and low wages. Moreover, studies have shown that
women put in many more hours of physical labour
than men (Acharya, Bennet, 1991; Asia Foundation
2001). Of the 1,269 respondents in an Asia
Foundation study, 87 percent reported being engaged
in agricultural work, yet their role was perceived as
pertaining to the household and as having little
economic value.

Work Participation Rates and Indices ofUnderemployment in India (in percent)

Status
Rural Paritcipation rate
Index of Underemployment
Urban Participation rate
Index of Underemployment

1987-88
51.7
0.6
49.6
3.0

Males______
1993-94
53.8
5.1
51.3
2.9

Source: National Sample Sun ey Organisation. 1997; Tables 6.1, 6.8, 7.2

Females
198788

~241
5.9
11.8
7.6

199394
23.4
18.0
12.1
13.7

According to members of the DMSC in India, some
women admitted that they “preferred” coming into
sex work rather than having to live like “slaves” in
their own villages (DMSC 2001).

Ghosh (1999) argues that the emphasis on market
relationships has tended to “undervalue everything
which is not calculable, unpaid housework for
example.” inueeci,
Indeed, the
impact of liberali
liberalisation
cxaiiipic.
me^mpactor
sation in a
patiiarchal region has had startling gender-specific
consequences, such as: a) reduced access to basic
needs (food, clothing and shelter); b) to education
and skill formation (which would have otherwise
allowed women to move out of low-skill, lowproductivity jobs); c) to requirements for
reproduction, such as health care and child care; d)
to productive employment outside the home and
i ecognition of household work, and significantly, e)
reduced access to control over the allocation of
resources, both socially and within the household
(Ghosh, 1999).
11 1

/ '

—----------------------------------

---------------------- —

In India changes in economic policy and conditions
have resulted in increased urbanisation and fewer job
opportunities for women in the formal sector
(Upadhyay 2000). Such conditions increase poverty
for women in particular and forces them into the
informal sector. Newer technologies of production
have failed to *trickle-down to rural households. This
is because the new technologies required
complementary conditions like skill training, a reliable
power supply, etc. for their effective implementation,
but studies indicate that there appeared to be little
effort by the state to create such circ*mstances (Singh
1998).

or have marginaHand holdings. The vast majority of
thepojDulatibhTiving inand around trafficking prone
areas like Sindhupolchowk district of Nepal, Jessore
district of Bangladesh, Nayagarh district of Orissa
in India or the urban slums of Delhi and Calcutta in
India do not possess land ownership titles and live a
hand to mouth existence. About 7 percent of these
households still do not have access to two square
meals. The approximate monthly family income is Rs.
400-500 ($ 9-11). A majority of the adults are
illiterate with the rate of female illiteracy being higher
than male. There is ample evidence that poor families
in the above mentioned regions in India, Bangladesh
and Nepal, send children to work in order to augment
household income and also as a safeguard against the
uncertainties they face such as the loss of job, the
occurrence of a natural calamity like flood, cyclone,
drought, famine, failed harvest or prolonged ill health
etc. The death of a family member, family breakdov
;and’ such
' other
‘ problems can be disrupting for poor
households with low income and no savings and who
are not in a position to borrow for want of collateral,
or have become caught in a debt trap.

CARE-Bangladesh has studied the linkages between
debt and the sexual vulnerability of women.
Borrowing is largely controlled by micro-credit
schemes of banks. The banks offer loans to most of
the villagers on compound interest rates ranging from
12-20 percent. Loans are recovered through agents
employed by the banks. Agents who are granted
commissions on loan recovery will go to any extent
to get this commission. These can be highly
exploitative situations and for most families, taking
loans is a vicious cycle. When families are unable to
pay back loans, they borrow again from a different
source in order to repay the previous loan. Studies
Thus agriculture remains the mainstay for survival in have indicated that this deficit-induced debt gives
much of the region, with a cyclical pattern between rise to mortgaging and sale of assets, and that the
poverty and landlessness. NGOs have found 90 servicing of debt is increasingly linked to sexual
percent of children and women who have been" exploitation faced by women ( CARE-Bangladesh
trafficked to be from families which are either landless 2001).

iiK

___
Inadequate ftxxl
grain prcxluction

Health related expenses

Marriage

Borrowing—on high rates of interest I

____________________________ I

Such dependencies set off complex socio-economic
dynamics at the community level. For instance, in
Nepal, in the terairegion, the Best, or the moneylender
wields considerable power. The Besi is also known
to demand sexual favours from the young daughters
of his clients as a part of debt seivicing, while being
fully aware that their economic deprivation prevents
them from refusing him. Studies also find that it is
not uncommon for /feAto be involved in trafficking
nexuses. (WOREC 2001, Shakti Samuha, 2001).

Migration.
Often migration of one or more family members in
search of livelihood is the only recourse. Particularly
for the poorest groups of people with little or no
choice in life, and with little or no land holdings,
migration can be essential for survival. In a study
conducted in 714 households across two districts
(Doti and Achcham) in Nepal, 94 percent of the
households perceived poverty and lack of
employment opportunities as important reasons to
go to India for work. The study showed that at least
49 percent of the families in Doti district had one
member in India. Another study in Nepal, found that
as much as 25 per cent of the rural population

1 1 Bigha is approximately 0.0“ I lectare
- 10 Ropani = 0.5 I lectare

sourced a quarter of the household income from
remittances (NNGAT, 1999).

In a situational analysis conducted by WOREC to
understand the context of trafficking, a majority of
families studied indicated that migration was clearly
linked to “landlessness or near landlessness”. Of the
families from the terai region with at least one
migrating member, 61 percent had only upto
1 bigha' of land and 17 percent were landless.
Amongst the hill population. 62 percent reported
“10 ropani2 or less ’'of land (WOREC 2001). With a
decline in agricultural production many families have
migrated from the hills and mountains and settled in
the plains despite a decline in agricultural production
most families in the WOREC analysis define their
primary occupation to be agriculture. 82 percent of
respondents in the study (n= 1846) reported
agriculture to l)e the primary7 occupation followed by
wage labour at 7 percent.
However, WOREC’s findings across 5 districts in
Nepal suggest that although the primary reason stated
is economic the factors contributing to the decision
to migrate are complex.

Perceived reasons for migration as tabulated by WOREC (2001) are.o

Reasons

No. of Families (in percent)
N=1796

| In search of a better life
j Insufficient Food
| Lack of employment in the village
' Lack of land for cultivation
Gender Discrimination
Social Discrimination

48
37
28
19
16
02

Family pressures play a significant role in women’s
migration decisions. At the same time for some
women migration can provide an escape route from
limitations imposed by traditional societies and abuse
and violence at home.
False promises of marriage and a better life in the
city, fuelled by the impact of media, particularly
television and popular films, and abuse by other
family members, are important pull and push
factors that influence decisions to “run away"
from home. In the post liberalisation scenario,
moie and more girls and women are moving out
of their homes in search of better opportunities in
South Asia. South Asia’s traditional and cultural
fabric has undergone a rapid change due to m(xlem
consumerism. Now every thing has a price and the
marketplace can determine this price, including die
price of women and girls. (STOP 2001).

11 le freedom to move for personal safety or fulfilment,
•including livelihood opportunities, is an iimportant
freedom and can be a survival strategy. But the key
consideration here is how safe the mobility is and
whether the migrants, particularly the women, are
aware of the need for ensuring this safety.
Consultations across the region have shown clearly
that the expectations of migrants are generally
mismatched \\ ith the realities of the experiences thev
face in their place of destination. ( UNDP 2001). A
climate in which migrant labourers are viewed as

economic tools with little regard to the conditions in
which they live and work, their health, safety and,
indeed, humanity, creates conditions in which women
migrant workers become particularly vulnerable to
sexual exploitation and abuse from employers,
middlemen or even other migrants and can be
trafficked.
In WOREC’s study, at least 50 percent of the
migrants did not know either the nature of job they
were getting into or the address in the destination.
At least 48 percent reported not lx?ing paid the wages
due to them. 19 percent reported heavy physical
labour and 17 percent reported physical abuse and
13 percent sexual harassment. While the study does
not specify how many of these respondents were
women it is definitely an indication of the nature of
problems which migrants face. These issues need
particular attention given that there is increasing
evidence that women do get trafficked from the sites
where they migrate for work (Asia Foundation, 1999)
The risk is compounded by the fact that majority of
the female migrants go unrecorded as they work
largely in the informal sector.

Many of the women who migrate from Bangladesh
or Nepal to India are duped by traffickers who lure
them with the promise of good jobs and then sell
them to brothels. If these women seek redressal or
protection from rhe authorities, they may lx? subjected
to an insensitive pushback policy3. Cultural and
linguistic barrier also heighten their lack of access to

I notficiul <lcpi)iT;iiion in w liich these women are pushed back into their country of < >rigin al the b< jrder.

the services that exist. This ensures their silence and
their increased powerlessness over their bodies and
their lives. Analysis by CARE-Bangladesh of
trafficking in Shatkhira and Jessore districts of
Bangladesh has also shown that most of the women
who migrate to India without valid documents or are
trafficked end up in sex work, and that those who
work in households as domestic labour or in factories
in Kolkata or Mumbai in India are often sexually
abused (CARE- Bangladesh 2001).

Mobility and migration do not necessarily lead to
trafficking or HIV infection but they can create
conditions which makes migrating women and

children more vulnerable. Women who start out as
hopeful migrants without sufficient information,
guidance or protective systems can thus find
themselves trafficked into different kinds of bonded
labour including sex work within or outside the region.
Even women who start out as legitimate migrants
with documents and promises of jobs can find
themselves cheated or sold along the way where
effective and powerful traffickers operate. What
happens to these women does not remove the
legitimacy of their desire to exercise the freedom of
mobility in search of livelihood opportunities, but
only illustrates the urgent need for measures
guaranteeing their safer migration <UNDP 2001).

Factors Influencing Trafficking
iemes

BHBni

1.1 Individual

' Motivation, attitude, Knowledge, Kick of self-esteem, Patriarchal order
Practices, Occupation, Family, I of family, low level of literacy and
| Sense of Control.
! awareness, absolutely no sense of
control.

2. Socio-Cultural

Social support, gender ethnicity, ; Gender discrimination, favouring the
culture, religion, advertising, i male child, religious & cultural
1 historical events.
sanctions to such practices.

3- Economic

Income levels, cost of service, i No right to property, low productivity
Pressure to work, commercial of land, basic survival pressure,
pressures.
I feminisation of poverty and
i feminisation of migration.

4. | Environmental

Hazards, distances, food I Alienation and isolation due to
availability, transport, water.
migration.

I
5. Political

Sources of power and influence,
advocacy groups and vested
interests.

Trafficking is part of an organised
netvx'ork backed by police, politicians
and other influential sections of
society.

6.1 Policy

Health promoting policies,
legislations, incentives or
I punishments, taxation and
implementation.

Although policies exist, it is at the
level of implementation that there are
a lot of limitations.

7.1 Existing
I Services

I Access, scope, appropriateness, 1 Existing services are rudimentary and
, quality.
; have limited accessibility and scope
for the victims.

adapted from Hawe et.ul

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•

^My name is Pupa. My family is very very poor.
We come from a very backward village in 24 Paigana
District. Every one in our village looks down upon
us because we are low caste. My mother and my two
brothers and sisters work in the landlord’s field. When
I was about 12-13 years old I was working in the
field one day when the landlord’s son and his four
friends accosted me and dragged me to a dilapidated
building and raped me. When I looked for justice,
the village panchayat5 said that I was concocting
stones to malign the landlord’s son. I was ordered to
leave the village. One of our neighbours’ sons who
lived in Calcutta agreed to help me. He offered a job
in a lawyer’s house. My mother agreed to send me
with him. He brought me to Delhi instead and sold
me to a brothel. My mother still thinks I work as a
domestic help. Many girls in the brothel are from my
caste and belong to my district and have the same
stories to tell.
(Asdoaimeiitedby STOP, 2001)
experience with reintegration processes shows that a
Lambada (low caste )girl from Andhra Pradesh or a
Nolia (fisherman community)or a Haddi (sweeper
community) girl from Orissa in India may be more
easily accepted back and her trafficked status does
not necessarily lead to her stigmatisation or rejection.
However, if she is a Brahmin or a Kshatriya girl,
chances of her reintegration to her family is almost
impossible. Most women and girls from high caste
who have been rescued from brothel-based
prostitution by STOP are usually rejected by their
families.

The HIV Vulnerability ofTrafficked Children and
Women
The nexus between iDeing trafficked for prostitution
and vulnerability to HIV infection is a particularly
strong one. According to Hannum (1997) some
100,000 to 200,000 Nepali girls and women work in
brothels in India, many in Mumbai. HIV infection is
as high as 72 per cent in the brothels of Mumbai, the

s Council

majority in girls under 18 years of age (Salunke, et
al, 1998). Of the 331 HIV positive cases documented
in Nepal by October 1995, 134 of them were
returned sex workers (Hannum, 1997). A s^idy of
sex workers in Nepal’s plains, the ‘terai; found 4 per
cent of sex workers with HIV, of which 17 per cent
had worked in India. Informal surveys across the
region have also found that sex workers are highest
at risk to HIV in the first six months of their work probably because customers perceive new sex workers
to be low risk as well as due to their relative lack of
experience and skill to negotiate condom use. One
common myth in South Asia that remains is that sex
with a virgin girl serves as a cure to HIV infection
and STDs. Consequently, the demand for young girls
in the brothels of Mumbai is high.

A trafficked child or woman has greater chances of
contracting HIV/AIDS because she is placed in the
most vulnerable of situations with absolutely no
control over her ‘choices’. STOP in a focus group
discussion with 57 rescued trafficked children and
women found that 98 percent of the participants had
never initiated condom use although they had some
awareness about safe sex measures. It is unrealistic
to expect these women and children to bargain and
negotiate condom use. In fact their health was the
last item in their list of priorities.

Knowledge or awareness of the disease alone does
nothing to change the basic power structure in the
trade. The trafficked woman or child has no control
over her body or life. That is precisely why she is
there and why she is in demand. 90 percent of the
women and children who have been rescued by STOP
report having about 4-5 customers on a weekday and
12-18 customers per day on the weekends, with
condom use almost unheard of. Access to much
needed healthcare is almost non-existent. A very high
percentage of women and children suffer from STDs
which make them more vulnerable to contracting
HIV/AIDS. Children who are prefen'ed by the client
to ‘cure’ HIV/AIDS and STDs are ironically more
vulnerable to contracting it.

rhe clients don’t like condoms and the gharwali (madam) tells me to do what he says. If I refuse, the
client can choose any other girl and the gharwali will beat me with rods, so I always do what he says. ?
An account ofa rescuedNepali childaboutsafesexpiactices
(fir»nSIOPsfc)ciesgmupnKeting)

Prostitution is often driven into
the shadows making it hard to
reach vulnerable people with
HIV/AIDS prevention resources
and healthcare. Health services
that they can access fall into 3
categories viz. private medical
practitioners, unregistered and
unqualified medical practi
tioners6 and government
hospitals and ancillary health
care.

Ironically, the second category is
preferred to doctors and
Girls rescued from red light areas of Delhi by STOP
paramedical staff, whose attitude
towards these women and
AIDS presents these women with another dilemma children is experienced as demeaning. In addition to
in their sexual relationships. Safe sex, in particular the weak overall infrastructure, the health system is
the use ol condoms, is incompatible with pregnancy, largely insensitive or at best indifferent to the needs
Most of the women believe that survival in later life of sex workers. Government mobile medical units
de]?ends on bearing children. Balancing fertility' against often refuse to even step into the brothel. STOP’S
HIV prevention presents a quandary for these women, research has shown that almost 40 percent of women

Kohinoor of village Moliammadpur, Bangladesh
was sold by one of her relatives to a Mumbai
brothel. She was tortured by the brothel owner
(Malkin) and on an average had to entertain 6 to 7
customers daily. Although there was availability of
condoms at the brothel, the rate of use of condom
was veiy low. Kohinoor’s perception was that only
| 5% of the customers used them. She said that there
was no health care for the girls when they fell ill.
i (As documented by CARE- Bangladesh 2001).

and children who have been rescued from die brodiels
have tested positive for HIV, with the possibility diat
others may be in the window period. In the regions
of the world hardest hit by HIV/AIDS, where public
health care budgets are severely stretched, HIV
positive women have less access to health care than
men, less free time to access what is available and
fewer resources to spend on it. The situation is even
worse for women and children in brothels.
Describing the situation in a red light area in Delhi,
India, STOP reports that women do not have access
to the money they earn. After paying off their "dues”

" Tfee are kx-al community -Doctont' usually unqualified and ttnregtstered. who by vinue ofthetr stx-ittl ^nditrg and actessibiliw rttlter than
nedtol expem.se and expenenee become popular with the people. Health programs are now being designed to build 1cap dt es^t X
Dtxtors owing to their popularity in the communities where they operate.
rapacities ot me sc

to the madams and the pimps, the sex workers are
given their share of the income in the form of
“tokens” with the amount due to them written down.
The amount is accumulated and given to the girls
after a period of “three years” on the excuse that they
will be free to go back home after that if they have
earned enough to pay all their dues. They are thus in
no position to pay for health care.

This ostracism and rejection of women and
girls who return to their communities is
compounded if they are found to be HIV
positive. Even in communities which are
more tolerant to trafficked returnees, when'
it comes to HIV status the reaction is more
or less similar. It is immediately labelled
as a “whor*’s disease”.

about AIDS being spread through sex workers is so
strong that they are denied proper medical aid and
are also segregated when placed in rescue/welfare
homes/jails. Immediately after being picked up in a
raid they are sometime forcibly or without consent
tested for HIV/AIDS as was the case in Hyderabad
and Allahabad in India in 1997. Women were dumped
in jails and later in protective homes in sub-human

I come from a tribal village of coastal Orissa. I had eloped
with a boy who brought me here and sold me to a brothel.
After 2 years, I was rescued and sent back to my village. My
family readily accepted me. However, when it was discovered
that 1 had AIDS they turned against me. I knew very little
about AIDS and my parents knew even less. I moved away
from my family and now live in a AIDS hospice in Andhra
Pradesh.
(As documented bySIOP 2001).

Illis perception creates a complex situation
for trafficking prevention programmes, and
has resulted in a hesitancy to address the increased
risk of HIV infection as a result of trafficking at the
community intervention levels, from fear of
increasing the stigma associated both with returned
victims as well as other migrant labour. Over the last
few years, Nepali girls and women returning from India
have almost invariably been characterised as “earners
of AIDS”, whether or not they actually are.
(Rajbhandari, WOREC, Kathmandu, 1998).
Low literacy rates, low awareness and patriarchal
notions perpetuate these attitudes. If the HIV status
of a trafficked returnee comes to the notice of the
police they may be subjected to physical torture,
enforced medical examinations, public exposure often
in media which results in their being stigmatised for
the rest of their life. The lack of sensitivity is also
prevalent among medical practitioners. The hype

conditions only to be tested and later shunned when
they tested positive. Some women escaped, others
were pushed into the streets only to look for new red
light areas because other means of survival was not
open to them (JWP 2000).
Even if trafficked returnees can avoid such treatment,
they have very little options for survival. There is
very little support from developmental policy or
practice, whether governmental or non-govemmental.
Few rehabilitation centres exist which can provide
them with food, shelter, psychological treatment, legal
support and training in basic literacy and skilled
development. Many young HIV positive girls and
women, lacking adequate support structures, return
to making money through sex work thereby
facilitating the continuing transmission of HIV
infection.

Sahana, 19 year old Nepali woman, earned her family the equivalent of 50 pounds when she was
sold at age 12 to a brothel in India. It also earned her 10 customers a day and HIV. She no longer
works as a prostitute. Tills is not because she lias been rescued from prostitution or because she
i has found a happier livelihood, but because she Is going to die. She was ejected from her caged
brothel in Mumbai because she had become too thin to attract the clients, and the brothel owner
thought she was a bad advertisem*nt for business. (Louise Brown, 2000).

IT-

South Asia Court of Women on the Violence of
Trafficking and HIV/AIDS
August 11-13, 2003
Dhaka, Bangladesh

An Overview
Asian Women’s Human Rights Council (AWHRC) in partnership with UNDP Regional HIV and
Development Programme for South and North East Asia and UBINIG, Bangladesh is organising the
South Asia Court of Women on the Violence of Trafficking and HIV/AIDS from August 11-13,
2003 in Dhaka, Bangladesh. The Court is being organised in association with Oxfam GB, in Nepal
and AATWIN, Nepal; IMADR, Sri Lanka; LHRLA, Pakistan and Vimochana, Bangalore.
lhe South Asia Court of Women, through personal testimonies of violence and of resistance,
analyses of expert witnesses and inspiring vision statements of a jury of women and men of wisdom,
will seek to understand the increasing violence and vulnerability associated with trafficking in women
and children and HIV/ AIDS in the context of the current patterns of globalisation and governance
that are leading to the destruction, and devaluation of livelihoods and life systems of entire
communities of people in the global south; the increasing restriction on mobility due to concerns of
national security; the absolute erosion of all notions of rights or dignity for the survivors of the
violence of trafficking and HIV/AIDS. In this context therefore it is important to relook at the issue
of trafficking not merely as a cross border law and order problem linked to women and morality,
citizenship concerns, repatriation and rehabilitation but draw out its critical linkages with issues
related to gender, migration and poverty, asylum and refugee seekers, conflict and the contemporary

discourse on terrorism - in fact the new global world order.

Through the holding of the Court we would attempt to:
1.

Provide a forum for women from different countries of South Asia to share, reflect and have
a deeper understanding of roots of the violence and vulnerability faced by women affected
by trafficking in women and children and HIV/AIDS.

Recognise and build upon the strengths and survival strategies of affected women towards
challenging and transforming discriminatory social and legal policies and evolving a notion
of rights rooted in their realities.

Evaluate and assess the policy frameworks that arc being evolved to address the issues at

national, regional and international levels.
4.

Strengtlien regional and national networking among individuals and groups on tills issue in
order to work for more effective action and advocacy at various levels.

AWHRC: It's Concerns ReJa ted to Tmflicking
Trafficking of women and children in Asia has been one of the earliest and primary concerns of
AWHRC ever since we had the first Asian Conference on Iraffic in Women in December 1991 in

Seoul Korea. Several programme including workshops. Courts of Women, Fact Finding Missions
publications, lobbying and advocacy have been held in different parts of Asia in collaboration with
groups like Gabriela, Philippines; Foundation for Women, Thailand; Global Alliance Against
Trafficking in Women (GAATW); Migrante International; Oxfam (Nepal); Sangram, SANLAA1
(India) and RESISTANCE, UBINIG (Bangladesh). We have, over the years, lobbied at various fora
including
Group on Contemporary Forms of Slavery and the UN Crime
including SAARC,
SAARC, the
the UN
UN Working
Working Group
Commission.
The attempt has been to broaden the scope, notion and definition for trafficking, thereby separating
it not only from prostitution but also migration. Any move to combat trafficking must not
criminalise either woman's right to mobility or her reality of adopting prostitution as a livelihood
option. What should be of greater concern are the lack of consent, forms of coercion, abuse an
deception and consequentiy therefore it is the trafficker and trafficking networks that should be die
focus of penalisation. The other major area of concern is that the interests of trafficked women an
the need to provide them support and security must take precedence over the citizenship concerns o
member states regarding the legal identity of the women.

AWHRC while working on the issue of trafficking, has also been attempting to relook at the issue of
prostitution through the life experiences and realities of women in prostitution - at issues relate to
self worth and dignity, at their right to life a life free of violence, abuse and stigmatisation.

It is in this context that AWT IRC has been emphasising a human rights approach as far as both
women in prostitution and victims of trafficking are concerned. Therefore, the attempt to evolve and
lobby for a Human Rights Standard in the policies related to prostitution and trafficking.
While this we feel is important in terms of strategies and addressing State agencies, we also feel the
need to look more critically at the conceptual limitations of the Rights framework that fails to
contextualise die larger contemporary realities within which trafficking and prostitution are totaUy
located. A universal and therefore a decultured, impersonal, amoral framework that anaesthetises the
pain of poverty in those developing worlds where not only has the violence of trafficking been in ac
legitimised but which are also witnessing die increasing brutalisation of prostitution. This increasing
bmtalisation cannot be separated fom the New Economic Order that seeks to industrialise

transnationalise and commercialise the phenomenon on an unprecedented scale. Hie violence ot
trafficking can not be separated from the total impoverishment of the entire societies that constitute
either the resources base for wealthier nations or end up as waste by products of a highly
industrialised or corporate world; a world in which die disparities between die nch and die poor are
horrifyingly stark; a world in which human relationships have gained a cold contractual, impersonal
quality and die complex fabric of human impulses have been reduced to die unldimensional desire ot
ati individual-rw/to and ruthless in his desire for self fulfillment

It is in this nebulous terrain that we seek a framework of dignity and self worth while evolving a
language of rights, justice and empowerment for women- be it those who are victims o traf ic nng or
those who choose prostitution as a livelihood- a way of life.

It is these concerns that we seek to bring forward through the South Asia Court^^of A'omen agauisi
Trafficking in Women; a Court that is part of a process initiated by AWHRC and El lallei
International a sister organisation located in Tunis; a process that not only seeks to create a new
space and a new politics for women but also one dial offers a valuable input into local, national and
international campaigns against different forms of violence against women.

The Courts of Women: An Alternative Political Space
AWHRC and El Taller in partnership with organisations in different regions with Corinne Kumar as
the International Coordinator have been organizing several Courts of Women focusing on issues
specific to the regions. Apart from seven Courts of Women held in Asia, the others include
Mahkammet El Nissa, the Arab Courts of Women, organised in collaboration with networks and
organisations in the region focusing on violence against women in the Arab world, Nga Wahine
Pacifica,(Pacific Court of Women)organised along with the Maori Women’s Network focusing on
issues related to the nuclearisation of the Pacific and land rights; the Mahakama Wa Mama Wa Africa
(Africa Court of Women), the World Court of Women Against War, For Peace and the World Court
of Women Against Racism, all organised in Africa in collaboration with several groups and networks
like the Institute for Black Research, University of Natal, tire University of Western Cape, Womens
support Network, Cape Town; the Durban social Forum; The International Court of Women on
Violence of the Economic Blockade and its effects on women and children orgamsed by El Taller
with the Federation of Cuban Women and the Institute of Philosophy in Cuba; The Indigenous and
Refugee Women’s Human Rights Court organised in Sydney, Australia with the Centre for Refugee

Research, ANCORW and the Aboriginal Research and Resource Centre

While the Courts are deeply symbolic and an attempt to define a new space for women; a new
politics, as a forum for human rights education they have been an extremely sensitive and powerful
media to reveal the interconnections between the various forms of personal and public violence
against women in different societies. Violence that has been increasing and esc::alating; a violence that
has become brutal.
The Courts of Women challenging the dominant ways to knowledge seek to weave together the
objective reality (through analyses of the issue) with the subjective testimonies of the women, the
personal with the political; the logical with the lyrical (through video testimonies, artistic images and
poetry) urging us to discern fresh insights, to find a new political imagination.
Tlie Courts of Women attempt to write counter hegemonic histories by creating a space where we
can listen with care to the voices of the women speaking in their own centre. And in re-wnting
history the Courts of Women not only hear of the need to extend the dominant human rights
discourse from the experience and perspectives of women; they speak too of a new generation of

women's human rights.
As part of this process of the Courts and our ongoing involvements with the issue, the South Asia
Court of Women on Trafficking and HIV/AIDS will seek to deepen our understanding of the issues
in the context of the new violent global order and while holding them accountable, will call upon die
states and governments to make appropriate economic, social and legal provisions to protect die
rights of die women victimised by trafficking and those affected by HIV / AIDS.

The South Asia Court of Women on the Violence of Trafficking and HIV/AIDS
This Court that is being held from 11-13 August 2003 in Dhaka, Bangladesh will comprise of three
events:

A onc-day series of roundtable discussions on the day preceding the court, on August 11,
2003, on critical, cutting edge issues related to the core themes that will provide the context

for receiving the text and testimonies of the Court.
b.

The Court itself on August 12, 2003, tliat will hear the testimonies of women survivors and
resistors to the violence of trafficking and IIIV AIDS; that will view a deeper nuanced

a series of poetic visuals; that will listen to the voices of
understanding of the issues through :
i and men chosen for their experience and sensitivity to
wisdom spoken by a jury of women
the issues involved.
The follow up meeting following the court on August 13, 2003 the third day, which will

discuss the concrete way to go forward taking the primary issues that emerge bo i rom

roundtables and the Court.
The Court will seek to involve a wide range of participants, including women who are survivors of
trafficking, activists, and networks working on the issue, trade union representatives, media

representatives, students, academia, policy makers and representatives from various government
agencies from the region. Leading human rights activists and other influential people from the region
have been invited to be part of the jury.
Issues Before the Court

Specifically, the personal and analytical testimonies from the different countries of South Asia
including Bangladesh, Nepal, Pakistan, Sri Lanka, Afghanistan, and India will be heard in five

sessions.
Redefining Issues: The different faces of trafficking: As of now since most national and
regional legislations and conventions fail to provide a clear definition of trafficking, its
scope, notion and definition need to be broadened. The existing unclarity results in the
application of such laws only to women trafficked into prostitution and this too most often
framed within a moralistic framework. The Immoral Trafficking Prevention Act in India for
instance under which women trafficked into prostitution are criminalised while the
traffickers themselves are allowed to go free. The testimonies during this session will attempt
not only to draw out the different faces of trafficking like forced marriage, camel jockeying,
forced adoption, forced labour, domestic work and prostitution but will also attempt to
define the differences even while redrawing it’s links with prostitution, migration and

HIV/AIDS.

Migration and Movement: Globalisation and Human Insecurity: The impact of
globalisation is being felt at various levels including the realm of economics, culture,
economics, governance models and even knowledge systems. What is clear is that this new
global world order is creating new institutional frameworks for marginalisation and
exploitation like poverty, migration, tire tourism industry’, within which is die violence of
trafficking being legitimised. It is clear diat trafficking of women and children is direcdy
related to die disintegration of die rural communides and extreme insecurity of livelihoods
that leads to displacement, migration and the vulnerability of those who are forced to
migrate in search of livelihood options. The testimonies in this session hightightmg the dun
line between trafficking and migration will reveal the links between trafficking and the
garment industry, tourism, child labour and commercialisation of the Devadasi system, in the
backdrop of migration and impoverishment. It will also look at the implications of the U.S.
Trafficking Victims Act 2000 dial is using the issue of trafficking like diat of human lights
and child labour, as a way of controlling trade and migration and refusing redress and
assistance to trafficked women, further adding to the vicitmisation of the

trafficked/migrant/refugee woman.

Borders and Boundaries: Wars and Inhuman Security- Wars and conflict situations
engender situations of extreme vulnerability and insecurity in which women are directly usee
and abused, forced to migrate and in the process trafficked. What have also been observec

are also phenomena like the trafficking of refhgees at borders or setting up of brothels
around military camps. Post September 11 developments have further complicated the issue
by not only conflating trafficking with migration but also by bringing it within the global nets
cast in pursuit of the war against terror. The recent legal responses to cross border movements
that are sought to be controUed in the name of trafficking are informed by this hostile
antagonistic fear of the other vsho is threatening the security/economy of the nation. In this
context the Court will hear testimonies from Sri Lanka, Kashmir, Bangladesh, Burma and
the North East, each a site of much violence engendered both by the State and from within
civil society.

Victunisinrr the Victim: Human Rights Abuse: Institutions of the State like the police,
judiciary and health system, that are supposed to ensure the rights of the citizens to justice,
redress or care are in fact the greatest violators of the rights of the people, particularly the
poor and the ’vulnerable. Incarceration of illegal immigrants most of who fall prey to
traffickers who lure them to foreign lands through false promises; prosecution of the
trafficked by discriminatory national legislations; exploitation and abuse of women in
prostitution by the police in police stations; forced testing of trafficked women or women in
prostitution for HIV / AIDS at detention centres on the borders; forced repatriation of the
trafficked women to homes where they may be facing conditions of violence, discrimination
or stigmatization; irrelevant rehabilitation policies for survivors of trafficking ...Apart,
therefore, from looking at the larger context within which violence is escalating, the Court
will also attempt to evaluate policy frameworks and legal mechanisms that are violating the
human rights of the trafficked.

Recrafting Destinies: Voices of Resistance: This session will listen to testimonies from
women and groups of women who have been trafficked and have learnt to assert themselves
beyond their victimhood carving out their life choices. For it is these women who in the
dailiness of their lives have seen much violence, exploitation, marginahsatton ant
stigmatisation, in whom suffering has forged the strength to be survivors with the sharpest
insights - be it on the double standards of morality in society, die violent underpinnings o
trafficking networks or even die hollowness of state sponsored rights. It will also hear voices
that are attempting to respond to trafficking not so much through challenging only laws and
policies but by recrafting societies that affirm human dignity and survival modes evolved
from the most marginalised communities.

Roundtables

On the day preceding the Court will be organised a series of roundtable discussions around the basic
themes listed above. The discussions will however attempt to also take up more critical edge issues as
for instance redrawing the framework for understanding the different approaches to trafficking an
prostitution; the alternative thinking that is there on the HIV/AIDS issue that exp ores how the
AIDS paradigm has been constructed, with particular reference to die medical estabhshment and
pharmaceutical companies which have had an overwhelming control over the scientific information
produced and disseminated publicly about AIDS; an assessment of the legal and policy frameworks
that have been evolved at the national, regional and international levels and an evaluation of the
possibilities and limitations of the human rights framework that has been adopted to address the
issues- drawing out the implications of the far reaching transformations in the macro context and the
dominant discourse of poliucs and knowledge systems that is creating conditions of extreme
vulnerability at various levels for a majority of the peoples and communities the world over.
Specifically the Roundtables will be organised around the following themes:

Bey’ond the Borders-. Globalisation, Militarisation and Human Vulnerabilities
Human Rights and Inhuman Wrongs-. Legal Regulation of Trafficking and Transborder Issues
Refocusing Issues’. Media Representation of Trafficking and HIV /AIDS
Integrating Trafficking Human Rights and HIH/HIDS: Some Debates and Dilemmas

1.
2.
3.
4.
5.

A Burst ofTight-. Celebrating Survival and Resistance

Some of the resource persons who have been invited for the roundtable discussions include Martin
Khor, Malaysia; Kalpana Sharma, Times of India; Secretaries of Women and Child from Bangladesh,
Nepal and India; Shah Hussain Imam, Daily Dawn Bangladesh; Kinley Dorji, Bhutan; Bishaka Dutta,
Point of View, Bombay; Meena Ghosh, NACO; Lawyer’s Collective, India; Asma Bokhan, Pakistan
AIDS Programme; Anwar Fazal Malaysia; Renu Rajbhandari, National Human Rights Commission,
Nepal; Khadija Haq, Pakistan; Nimalka Fernando, IMADR, Srilanka; Rukmini Rao Deccan
Development Society, India Dr. Manu Kothari, surgeon, anatomist critical thinker, KEM, Bombay;
and Joan Shenton, Meditel Productions, author of “Positively False”, UK.

Jury and Special Guests
The Jury who has been invited include Ms. Zanele Mbeki social activist, first lady South Africa;
Gayatri Spivak, Academic and Cultural Studies, USA; Justice Sujata Manohar, NHRC, India; Dr. I am
Rajput, Women's Studies, India; Salma Sobhan Lawyer and Human Rights Activist, Nepal; Fanal
Gauhar, actress and Human Rights Activist, Pakistan; Abdoullah Janeh, Ghana; Gopal Siwakou
Human
Chinten, Lawyer and Human Rights Activist, Nepal; Mary Robinson, UN Commissioner for Ifo
—cn

Rights.
The Special guests who have been invited for the Court include the SAARC Secretary’ General, Ms.
Nane Annan and the Queen of Bhutan.

Participants from India
The participating organisations from India who will be presenting testimonies and be resource at the
roundtable discussions include Sangram, VAMP, Sangh Maharashtra; DMSC, Sanhap Calcutta;
Deccan Development Society, Gramya Hyderabad; Samraksha, Sangama, DISC, Vimochana
Bangalore; Lawyers Collective, Point of View, Dr. Manu Kothari, Bombay.

Testimonies from Kashmir have been gathered on video by Sonia Jabbar, journalist and filmmaker,
New Delhi.

National Preparatory Workshops
National preparatory workshops are being organised in different countries towards the South Asia
Court of Women in Pakistan, Sn Lanka, Bangladesh, Nepal and India. Through these preparatory
workshops, we would attempt to share and reflect on the central concerns of the Court with a wide
range of groups within the region working on these issues, including those who are not participating
in the Court, towards enriching the deliberations in Dhaka.

The National Preparatory workshop in India is being organised in collaboration with Vimochana in
Bangalore on 19-20 July, 2003; in Colombo by International Movement against Discrimination and
Racism. IMADR on 26-27 July, 2003; bv Lawyers for Human Rights and Legal Aid, LI IRLA, on
August 1-2, 2003 in Karachi and b? AATVHN and Oxfam GB Nepal in Kathmandu on August 3,

2003.

E/CN.4/2001/73/Add.2
page 43
Ms. Bharati Silawal-Giri. Assistant Resident Representative (Programme), Gender Equality and
Social Development Unit, UNDP
Ms. Tania Karpalschof, Gender Programme Officer, UNDP
Mr. Michel Dupoizat. Representative. UNHCR
Mr. J Musoke. UNFPA Representative

Rupandehi district

Mr. Gupta Bahadur Shrestha. Deputy Superintendent of Police
District officials
Maiti Nepal transit home
INDIA
New Delhi

Mr. Lalit Mansingh, Foreign Secretary, Ministry of External Affairs (MEA)
Mr. A. Gopinathan, Joint Secretary (UNE). Ministry of External Affairs
Mr. Sunu Lai. Director <UNE). Ministry of External Affairs
Dr. Neeru Chadha. Legal Officer. Ministry of External Affairs
Mr. B.K. Chaturvedi. Secretary. Department for Women and Child Development (DWCD),
Ministry of Human Resource Development

Mr. Rajmal Banger. Deputy Secretary (GC), Department for Women and Child Dev elopmenl
Ms. Vibha Parthasarthi. Chairperson. National Commission for Women
Mr. Kamal Pande. Home Secretary
Mr. Arun Jaitlev. Minister of Law and Justice and Company Affairs
Mr. Soli J. Sorabjee, Attorney-General of India
Ms. Sumitra Mahajan* Minister of State for Human Resource Development
Mr. Justice J.S. Verma. Chairman. National Human Rights Commission
Mr. Ajai Raj Sharma. Commissioner of Police. Delhi
Smt. Sunita Sabharvval, Superintendant. Central Jail. 1 ihar
Mahila Dakshata Samiti
Ms. Vimla Vohra, Member-in-charge. BAPNU GHAR. All India Women's Conference (AlWC)
Satya Ravi Shakti Shalini
Ms. Madha Joshi. Joint Women's Programme
Ms. Ranjana Kumari
Ms. Sushila Kanshik
Dr. Syeda Sitmad
Ms. Akida Siv adasa. Media Adv ocacy Group
Dr. Jyoti Sanghera
Mr. Nair

Ms. Brenda Gael McSvv eeney. United Nations Resident Representativ e
Mr. Richard Conroy. Senior Deputy Resident Representative. UNDP
Ms. Son am Yangchen Rana. UNDP
Ms. PadwaSelli. Consultant UNICEF
UNIFEM

f
•Wr

E/CN.4/2001/73/Add.2
page 44

Mumbai
Hon. Chief Minister. Maharashtra State
Chief Secretary'. Maharashtra Stale
Adv. Nirmala Samant Prabhavalkar, Chairperson. Maharashtra State Commission for Women
Smt. T.F.Thekkekara, Hon. Member Secretary, Maharashtra State Commission for Women
Shri. A.N. Borade. Officer, Maharashtra State Commission for Women
MAVIM. the corporation for economic development of women
Ms. S. Sridevi Goel, Deputy Inspector-General of Police. Maharashtra
Police Station, Kamathipura
St. Catherine's Home. Andheri
Asha Sadan, Umarkhadi
Prerana Trust. Kamathipura
Mr. Ratnakar Khaire. NGO Adviser. Mumbai District AIDS Control Society
Mr. B.Vijay, Hon. Secretary, Shape Up India
Go\ emment Observation/Remand Home. Umarkhadi
Ms. Jyoti Mhapsekar, President. Stree Mukti Sanghatana
Mr. Jhilam Roy Chowduiy, Research Assistant, Committed Communities Development Trust
Ms. Vipula Kadri, Save the Children India
Calcutta

Ms. Rinchen Tempo. Director of Social Welfare. Department for Women and Child
Development West Bengal
Ms. Manjula Gupta, Principal Secretary, Dep^ailment lor Women and Child Development.
West Bengal

I CDS Project
Liluah Government Home
Ms. Indrani Sinha. Secretary ? SANLAP
Durbar Mahila Samanwaya Committee

UNITED
NATIONS

E
Economic and Social
Council

Distr.
GENERAL

E/CN.4/2001/73/Add.2
6 February 2001

Original: ENGLISH

COMMISSION ON HUMAN RIGHTS
Fifty-seventh session
Item 12 (a) of the provisional agenda
INTEGRATION OF THE HUMAN RIGHTS OF WOMEN
AND THE GENDER PERSPECTIVE

VIOLENCE AG AINST WOMEN

Report of the Special Rapporteur on violence against women, its causes
and consequences, Ms. Radhika Coomaraswamy, in accordance with
Commission on Human Rights resolution 2000/45
Addend uni

Mission to Bangladesh, Nepal and India on the issue of trafficking
of women and girls (28 October-15 November 2000)*

* The executix e summan- of this mission report is being circulated in all official languages.
The report itself is contained in the annex to the executive summary and is being circulated in the
language of submission only.

GE.01-10865 (E)

E/CN.4/2001/73/Add.2
page 4

there should be legal and psychological counselling and help for the women to plan their future.
Proven NGOs should manage such homes with government monitoring and supervision.
Governments of the region must work towards facilitating the voluntary’ return, if that is
appropriate, of trafficking victims who are foreign nationals rather than detaining them for long
periods in government homes.
All the countries of the region should have training for their police forces on how to
combat violence against women in general as well as trafficking in particular. The training
should consist of awareness raising on the issue as well as development of investigative skills so
that crimes of violence against women are investigated and prosecuted with proper evidence.
The Special Rapporteur suggests that the countries of the region draw on international expertise
present at the Office of the High Commissioner for Human Rights and the United Nations Office
for Drug Control and Crime Prevention/Centre for International Crime Prevention in Vienna.

Corruption in the police seems to be a significant problem in all the countries of the
region, especially in the area of trafficking. There should be a clear directive from the top of the
■police hierarchy that such behaviour will not be tolerated and police officers who engage in such
activity' should face severe consequences.
There should be seminars and workshops with judges in the region to increase their
awareness on issues relating to violence against women as well as to issues related to trafficking.
There are a number of such programmes already in existence and they should be encouraged

The human rights commissions in all the countries of the region should make trafficking
a special focus of their work.
Witness protection schemes should be set up for women victims so that they will testify
against their trailickers. Such schemes should assist the police in presenting e\ idence before the
-courts and would help to achieve a higher rale of conviction.
There should be a concerted effort to deal with the problem of H1V/A1DS in the region.
Sufficient resources should be allocated to deal with the problem. Special centres should be set
up in the red light districts to assist sex workers. International standards on "voluntariness ‘ with
regard to testing and confidentiality should guide the campaign on AIDS. Gender training for
the medical profession should be provided to ensure that women receive non-judgemental,
confidential treatment.
Prevention programmes should exist in all three of the countries visited. Prevention
should take the form of aw areness raising through the media, through the education system and
through social mobilizers in the villages. Prevention should not rely on social surveillance and
neighbour spying on neighbour as such surveillance can be subject to a great deal of abuse.

Extensive support should be given to NGOs working in this field. The NGOs working
with the children of the sex workers should be given special encouragement along with those
who work with the victims of trafficking. A partnership between Government and NGOs
working in this field is essential if the problem of trafficking is to be dealt with in the South
Asian region.

E/CN.4/2001/73/Add.2
page 5

Annex

REPORT OF THE SPECIAL RAPPORTEUR ON VIOLENCE AGAINST
WOMEN, ITS CAUSES AND CONSEQUENCES, ON HER MISSION TO
BANGLADESH, NEPAL AND INDIA ON THE ISSUE OF TRAFFICKING
OF WOMEN AND GIRLS (28 OCTOBER-15 NOVEMBER 2000)

CONTENTS

Paragraphs

Page

1-10

I I

GENERAL BACKGROUND TO THE PROBLEM OF
TRAFFICKING IN SOUTH ASIA

12-21

HI.

GENERAL FINDINGS

22-53

IV.

BANGLADESH

54-78

NEPAL

79- 107

VI.

INDIA

108 - 150

VII.

RECOMMENDATIONS

151 - 168

Introduction
I

II.

CONCEPTUAL CLARITY: DEFINITION OF
TRAFFICKING

Appendix: List of selected persons/organizations with whom the Special Rapporteur
met during her mission.

E/CN.4/2001/73/Add.2
page 6

Introduction
At the invitation of the Governments of Bangladesh, Nepal and India, the Special
apporteur on violence against women, its causes and consequences visited Dhaka.
Kathmandu, Bhairahw'a in Rupandehi district, Delhi, Bombay and Calcutta from 28 October
to k November 2000 to study the issue of trafficking in women and girls in the region

The present report is intended as a case study to complement the Special Rapporteur's
previous report on trafficking in women, women's migration and violence against women
submitted to the Commission on Human Rights at its fifty-fifth session (E/CN.4/2000/68).
3.
The Special Rapporteur chose South Asia because of the number of reports of trafficking
in the region which she has received over the years, and also because of several existing

programmes and initiatives to tackle the problem, both at the national and regional levels bv
Governments, non-governmental and Unfted Nations organizations and the South Asia
Association for Regional Cooperation (SAARC), which is preparing to adopt a Convention for
Preventing and Combating Trafficking in Women and Children for Prostitution.

4.
The Special Rapporteur would like to express her sincere appreciation for the cooperation
and assistance extended to her by all three Governments, which enabled her to meet with
representatives of all relevant sectors of society and to obtain the necessary information and
ocumentation to be able to report to the Commission on Human Rights in an objective and
impartial manner The Special Rapporteur wishes to thank State authorities in all three countries
Tor their availability, particularly during the weekends, and cooperation with the visit In this
context, the Special Rapporteur would like to acknowledge the willingness of all the
Governments to undertake efforts to combat trafficking in the region. Although the problem has
been recognized, practical action is still in its initial stages.
During her visit to Dhaka she met with high-level government representatives at several
minis nes. the Acting Inspector General of Police; non-governmental organizations; academics;
and United Nations and international agencies.

6.
During her visit to Kathmandu the Special Rapporteur met with high-level government
representatives at several ministries; district officials in Bhairahwa, Rupandehi district on the
Voider with India; the Parliamentary -Human Rights Committee; the Attomex-General; tire
cing Inspector General of Police; the Secretary-General of the SAARC secretariat
non-governmental organizations; academics; and United Nations and international agencies
7.
During her visit to India the Special Rapporteur n)?t wj|h high-level government
ffiph?61?11'65 relevan,t ™nlstries; the National Commission for Women; the National Human
Rights Commission and the Attorney General. She also met wfth state authorities m
orouns^s
H
WeSl BenSai Sta‘e; ",th non-g°vemmental organizations and women's
groups, as well as academics.

8.
The Special Rapporteur heard testimonies from victims of trafficking in all three
countnes and sex workers in Bombay The Special Rapporteur would like to thank the manx
. oung girls and women who individually gave their testimonies to her. She recognizes that the

E/CN.4/2001/73/Add.2
page?

retelling of their stories is a painful experience and that they had to overcome many obstacles to
communicate with her. The Special Rapporteur appreciates their courage and their candour and
would like to express her gratitude for the trust and confidence they displayed in a mechanism of
the United Nations Commission on Human Rights.
9.

The Special Rapporteur would also like to express her gratitude for the efficient
cooperation and support proxided by the United Nations Development Programme Resident
Representative in Bangladesh, Mr. Shamim Hamid: in Nepal, Mr. Henning Karcher; and in
India. Ms Brenda Gael McSweeney, as well as their staff, in ensuring a substantive^’ and
logistically successful visit.
10.

A list of selected persons is annexed to the present report.

I. CONCEPTUAL CLARITY: DEFINITION OF TRAFFICKING
11.
Throughout the visit the Special Rapporteur noted the need for conceptual clarity and
would like to recall at the outset of this report that she; uses the following definition of
trafficking:

Trafficking in persons means:
(1)
The recruitment, transportation, purchase, sale, transfer, harbouring or
receipt of persons: by threat or use of violence, abduction, force, fraud, deception or
coercion (including the abuse of authority'), or debt bondage
for the purpose of
(2)
Placing or holding such person, whether for pay or not, in forced labour or
slaveiy -like practices, in a community other than the one in which such persons lived at
the time of the original act described in (l).a

IL GENERAL BACKGROUND TO THE PROBLEM
OF TRAFFICKING IN SOUTH ASIA
12.
Chamoli lived near the birthplace of the Buddha in Nepal. When she was 16, she met a
young man and fell in love with him. He promised to many’ her but insisted that she come awa\’
with him to India. So one day she ran away with the boyfriend and crossed the border to India
on foot. From there she and her boyfriend took a train to the Indian city of Poona. Once thev
had reached Poona. Chamoli was taken to a house where there was an older Nepali ladv and
many young girls. The lady gave her boyfriend some money and then he told her that he was
going for a moment. He never came back. Chamoli suddenly realized that she had been sold
into prostitution. She refused to accept her new trade. She was repeatedly beaten. She was not
given any food. When she screamed in defiance, knives and chilli powder were held to her
genital area. Finally exhausted and worn down, she agreed to provide sexual sen ices. After a
few weeks, she was sold to a larger brothel in Bombay. There she was given a cubicle that
consisted of one small wooden bed surrounded by a curtain. She lived and worked from this
space. She served about 10 clients every' night of the week, even when she was menstruating.

E/CN.4/2001/73/Add.2
page 8

Often the police raided the place but she was hidden below floorboards. Once she hid behind a
curtain and watched as the police began their raid. The Madame of the house took out some
money and paid the police and they immediately went away. Finally, the police raided the
brothel with some Nepalese NGO activists and Chamoli was rescued. Chamoli was taken to a
government home near Bombay. She was kept in a large room with 40 other women. The
sanitary conditions and the food were worse than in the brothel. She did absolutely nothing for
seven months and was kept in confinement within the home ‘Tor her own protection”. She°was
not allowed to leave the home or engage in any trade or vocation. After seven months she was
flown to Nepal by an NGO called Maili Nepal. She was treated well by the NGO wTo reunited
her with her family. By that time she began to have dizzy spells, diarrhoea and constant
\ omiting. The doctors of the NGO diagnosed her as having AIDS and they began treating her
accordingly. When the Special Rapporteur met her she was extremely thin and very ill.^She
pleaded with the Rapporteur to help other Nepalese girls avoid this fate that had befallen her
She was 18 years old.
13.
In an industrial suburb near Bombay, NGO activists took the Special Rapporteur to meet
some sex workers during the day w hen lhey had to time to speak to her. Many of these women
were from traditional devadasi families. Their families had given them to the village -temple for
sex w ork but after a while lhey left the temple and went to w ork in the city. A group of women
met with the Special Rapporteur al her request. She spoke to them of the possibility of setting up
a rehabilitation centre near the suburb so that the women could get medical check-ups and learn
another trade and find alternative avenues of employment. The women were visibly upset by the
Special Rapporteur s suggestion. They informed the Special Rapporteur that they were very
happy in their work and that they earned and saved enough money to keep their children and
their parents back in the village. They had no intention of changing their trade. They informed
the Special Rapporteur that she and other middle class women were safe and comfortable
because of the sex w orkers and their trade. If the Special Rapporteur wanted to assist them, she
could help them with programmes to prevent AIDS or programmes to educate their children.
How ex er. lhey felt that they w ere not in need of rehabilitation.
14.
Trafficking
Trail icking of girls and women appears to have become a thriving industry in the
countries of South Asia. However, hard data are not available with regard to the actual numbers
involved in sex work or being trafficked across borders. NGO activists in Bangladesh estimate
that 10.000-15,000 girls and women are trafficked across the border to India per vear Nepalese
NGOs estimate that between 5,000 and 10.000 girls a year are trafficked from Nepal to India
every year. No survey has been done in any of these countries to ascertain their actual numbers,
lhey are trafficked for a variety of purposes: the primary purpose of trafficking in the region is
or forced prostitution, but girls, boys and women are also trafficked for domestic service, organ
harvesting, forced begging, forced labour in sweatshops, work as camel jockeys or for forced
marriage. Traffickers use deception, fraud, intimidation, drugs and violence to lake vulnerable
people across borders and are reimbursed for their sen ices. They work alone, in small gangs, or
as part of an organized crime sy ndicate.

15.
Trafficking of girls and women often follows the same routes as legitimate migration. As
one commentator told the Special Rapporteur, "traffickers fish in the stream of migration”. This
makes trafficking a difficult crime to detect. Given the large movements of populations across
open borders such as exist between India and Nepal, traffickers often merge with the general

E/CN.4/2001/73/Add.2
page 9

population. In addition, traffickers often exploit the desire on the part of girls and women to
migrate to escape poverty and discrimination at home. Therefore, without understanding the
causes and patterns of migration, any strategy to eradicate trafficking is bound to fail.

16.
Forced prostitution remains the primary’ goal of traffickers in women and girls into India.
The actual number of women in sex work in India is difficult to assess. A survey sponsored by
the Central Social Welfare Board of India in 1991 in six metropolitan cities indicated that the
population of women and children in sex work is between 70,000 and 1 million. Thirty per cent
of them are below 18 years old. Nearly 40 per cent began sex work when they were under 18.
Seventy per cent of them are illiterate. Strangely, only 43 per cent wanted to be rescued: the
majority did not mind remaining as sex workers as they saw few other options.1’
17.
NGO estimates of sex work are, however, much greater. The Indian Association for the
Rescue of Fallen Women estimated in 1992 that there are 8 million brothel workers in India and
another 7.5 million call girls.c The average age of recruitment in the 1990s was between 10
and 14d years old. Half of this population may be infected with HIV/Aidse (other commentators
estimate the rate of HIV infection at 70 per cent)/
18.
The traffickers are usually young men and middle-aged women w ho travel back and forth
from home countries to receiving countries. They are often referred to in the Nepali trade as
"dalals" or c'didis". They sell girls to brothels for 15.000-40.000 Indian rupees (USS 500-1.333).
Tragically, many of the traffickers are older w omen, themselves in forced prostitution try ing to
escape abuse and bondage. In some parts of Nepal and Bangladesh family members sell young
girls to traffickers. In the past, in Nepal, it was the districts around Kathmandu that traditionally
gave their daughters for concubinage or sex work. Today, however, the sale of children takes
place in all parts of Nepal and Bangladesh. Sometimes a child can be bought for as little as
Rs 200 (USS 4.00).g

19.
All commentators agree that there has been a recent growth in trafficking. This has
paralleled an increase in undocumented migration within the region. Women and girls are
trafficked both w ithin South Asia and from South Asia to other regions. They also agree that in
the present context of globalization and migration, fewer victims are being kidnapped or
abducted. In fact, an overwhelming majority are being trafficked through deception and false
promises and are therefore “active participants" in their own trafficking, at least at the beginning
of the process which includes recruitment and transportation. This dimension adds to the
difficulty of detecting or controlling trafficking.h

The causes of trafficking are manifold and remain of great concern tor the sending
countries of the region. In her discussions with the women as w ell as with activists, the Special
Rapporteur noted that poverty w as a major factor and that many of these women w ere either sold
into prostitution or left their homes to escape poverty. However, it was also pointed out that the
poorest areas of Nepal w ere not the areas from which w omen are being trafficked. Other factors
contributing to trafficking were traditional practices in certain villages and among certain castes
whereby young girls were sold into concubinage for feudal lords or into prostitution. Social
discrimination against women was also responsible for women leaving home. Lack of access to
inheritance, land and employment and the practice of polygamy made women easy prey for
traffickers who exploit their desire to migrate. Child marriage and unilateial divorce also make

20.

E/CN.4/2001/73/Add.2
page 10

women extremely vulnerable to the whims of male partners. This discrimination was often given
as the reason why women did not wish to return to their homes once they had been rescued.
They were afraid of the stigma, but they also did not want to return to the same lives that they
had sought to escape. In addition, all commentators point to the fact that members of lower
castes and ethnic minorities appear to be disproportionately represented in the sex worker
population.
21.
The conditions of prostitution in some of the brothels in Bombay and Calcutta appeared
to resemble slavery-like practices. Most of the young girls the Special Rapporteur spoke to were
being held against their will, were tortured, degraded, beaten severely, and were repeatedlv
assaulted on the lower half of their bodies. They were deprived of food and water until they
submitted. Once they agreed to provide sexual services the stories diverge. Some women from
more well-to-do brothels spoke about a collegial atmosphere, good food and good clothes and
enough earnings to feed their loved ones. The majority, however, told of servicing more than 10
clients a night, of unsanitary and slavery-like conditions, of being afraid to move around freelv
because of the fear of violence from the Madame and young male bouncers who kept them in
clieck. The Special Rapporteur herself witnessed the truth of this when she made an
unannounced visit to the red light district in Bombay. One of the girls from the brothels ran
towards the Special Rapporteur's entourage. Immediately, very tough looking young men
surrounded the entourage in an extremely threatening manner. The girl extricated herself from
the group and went back into the brothel.
111. GENERAL FINDINGS

22.
Throughout her mission to Bangladesh, Nepal and India, the Special Rapporteur was
satisfied to note that the Governments appeared to be seriously committed to the eradication of
the trafficking of women and children across national borders. However, despite a formal
commitment, effective institutions, laws and policies aimed at eradicating trafficking were still
not in place. In addition, effective implementation of existing provisions and policies that are
directed at combating trafficking was also lacking. The Special Rapporteur found that many of
the campaigns and programmes were donor driven or under NGO leadership. The Governments
of the region had not been aggressive or proactive in their commitment to eradicate trafficking in
the past. However, owing to a greater awareness of the problem, government programmes to
-combat trafficking have gathered a certain momentum in the last few vears.
23.
The lack of effective implementation of laws and policies aimed at ending trafficking is
reflected in the low conviction rates for perpetrators of crimes of violence against women. In
Bangladesh, according to figures provided by the police, of about 7,000 cases of violence against
women registered during the past year there were only 21 convictions, while 2.000 cases were
being processed. The perpetrators on the rest - the vast majority - of the cases were set free. The
same was true of Nepal: the police figures show that of about 150 cases of trafficking offences
during the past year, 55 per cent resulted in acquittals.
24.
The most urgent need in terms of the trafficking of women and girls from Nepal and
Bangladesh to India is the collection of data so as to ascertain the true scope of the problem
-Estimates of the number of women trafficked vary from 10,000 a year to 25,000. The estimated
number of sex workers varies from 1 million to 8 million. The Government of India informed

E/CN.4/2001/73/Add.2
page 11

the Special Rapporteur that it will conduct a comprehensive national survey on trafficking and
prostitution in the coming year. The Special Rapporteur welcome^ such an effort and calls on
the Governments of Nepal and Bangladesh to do the same. Unless we know the numbers,
trafficking patterns and trafficking routes, it will be impossible to deal with the problem of
trafficking in the South Asian region.
25.
In discussing trafficking in the South Asian region, it is important to retain a measure of
conceptual clarity so that there can be a targeted response to the problem. The Special
Rapporteur is particularly concerned w ith the lack of conceptual clarity reflected in the draft
SAARC convention, especially in light of the international negotiations on the definition of
trafficking. In this context, it is important to recognize the conceptual difference between
trafficking and prostitution. Trafficking of people across boundaries is for a variety of purposes
and not only for prostitution. The Special Rapporteur is aw are of women, boys and girls being
trafficked for forced labour, forced marriage and to work as camel jockeys to various parts of
South Asia as well as to other regions. In addition, it is important to maintain conceptual clarity'
in separating the regimes that operate for women and those that operate for children. Women are
adults and should be treated as such in laws, poheies and programmes. Children may need
additional special measures to prevent them from being victims of trafficking. Finally,
trafficking must be conceptually separated from migration. For many countries trafficking is
considered an immigration problem and the campaign against trafficking is linked to the desire
to close borders to people from other countries. Trafficking should be dealt with not as an
immigration problem requiring exclusionary laws and practices, but as a human rights issue.
The struggle to prevent trafficking should not be made an excuse for racist or exclusionary
immigration practices anywhere in the world.

26.
Conceptual clarity with regard to trafficking is the only way we can prevent the
enactment of laws and programmes to prevent trafficking that violate other human rights of
women. While the Special Rapporteur welcomed the enthusiasm to fight trafficking she found in
South Asia, she was disturbed by the fact that many of the laws and policies appeared draconian
and seemed to violate other human rights of women. For example. Nepal and Bangladesh have
reacted to the abuse of w omen domestic servants working in the Middle East by banning women
and girls from going to the Middle East for domestic service. In Nepal, measures are being taken
to require all unmarried girls to receive the permission of their father or brother to get a passport,
or that the village councils sanction the decision of w'omen to leave their communities. These
measures violate women's freedom of movement and make them completely dependent on the
men in their family and in the village. Many of the victims intend ewed by the Special
Rapporteur w ere very clear - they had left home because of poverty and discrimination. To force
these women to remain against their will in communities where they are unhappy is a violation
of their basic rights. For example, some of the women told the Special Rapporteur that they had
left their communities because their husbands took other wdves. To force these women to remain
in their communities cannot be the answ er to the problem of trafficking. What is needed is a
targeted effort to capture the trafficker and pre\ ent trafficking so that the vulnerability^ of the
women is not exploited. What are not needed are draconian attempts to block the natural
migration routes and social mobility.

27.
The discrimination against women that is prevalent in South Asia runs parallel to an
ideology that asserts that w omen are vulnerable, like children, and need protection. The Special

E/CN.4/2001/73/Add.2
page 12
Rapporteur was told that some of the more drastic measures taken to curtail women’s freedom of
movement are in their interest and for their “protection”. The notion of protection is perhaps
most problematic when it comes to the practice of “protective custody”. In India, when women
victims of trafficking are rescued they are often sent to a government home for protective
custody until their cases are heard or until they are sent back home. In many cases they' languish
for many years in these homes, forgotten by everyone. Protective custody is only marginally
better than being in prison. Women are confined to the vicinity of the homes. The conditions in
the home the Special Rapporteur visited were substandard, and the women there seemed deeply
unhappy. Protective custody as practised in South Asia is a serious violation of women's rights
and it is important that Governments of the region re-examine this concept, as well as the
conditions in the government homes where women are kept.

28.
The Special Rapporteur's visit to Bangladesh, Nepal and India took place at a time when
the SAARC countries were debating how to tackle the trafficking issue. One of the aims of the
Special Rapporteur's visit was to suggest new strategies for anti-trafficking work in the region,
to recommend possible partnerships among players and the mechanisms for coordination of
regional activities and. furthermore, to encourage Stales to develop an effective regional
convention on trafficking, in tine with current international legal developments and in particular
the protocol to the United Nations Convention against Transnational Organized Crime which
w as agreed this y ear and opened for signature in December 2000.
29.
Regional cooperation among SAARC countries is absolutely essential if trafficking in
w omen and girls is to be eradicated in the South Asian region. The countries of the region ha\ e
accepted this and the Special Rapporteur recognizes and welcomes the fact that the first regional
treaty to be concluded under the auspices of SAARC is a regional convention on trafficking.
Prior to the tenth SAARC summit, held in July 1998, the Foreign Ministers of the SAARC
countries had adopted a draft SAARC convention for preventing and combating trafficking in
women and children for prostitution. For political reasons a subsequent summit could not be
held and the convention has therefore not been formally adopted. The Special Rapporteur was
pleased to note that all the Ministers for Foreign Affairs of the region were absolutely committed
to ensuring that the SAARC convention is adopted as soon as possible. The Secretary-General
of SAARC has also played a pioneering role in this regard.
30.
Though the Special Rapporteur, along with many others, welcomes the SAARC
convention as a sign of regional commitment to the eradication of trafficking, she has some
reservations with regard to the content of the convention. She has communicated with all the
Ministers for Foreign Affairs and the Secretary-General of SAARC on this subject. In
August 1999 the Special Rapporteur wrote to all the Heads of State of the SAARC countries to
congratulate them for having taken the initiative to develop a regional instrument to address the
urgent problem of trafficking in women and children. She drew their attention to efforts to
develop new international law on trafficking in persons. The Special Rapporteur has reviewed
the SAAR convention closely and proposed a number of observations and recommendations
which she sent to all SAARC Heads of State.

31.
The Special Rapporteur is especially' concerned that the convention lacks conceptual
clarity on important issues and is not in conformity with the new international legal standard on
trafficking in persons as set out in the protocol to the new United Nations Convention on

E/CN.4/2001/73/Add,2
page 13
Transnational Organized Crime. She encouraged SAARC Heads of State to ensure that the
provisions of the SAARC convention do not conflict with existing international human rights
law' and the provisions of the protocol in particular so that there is one standard for international
action. The SAARC convention does not distinguish between women and children. The legal
regime surrounding women should be based on a framework of rights and the concept of
coercion when it comes to trafficking. The legal regime with regard to children must be
completely different. The draft convention also does not explicitly recognize that trafficking
could be for other purposes than for prostitution. By concentrating on the end result and not on
the process of trafficking and abuse, for whatever purpose, the convention does not recognize
trafficking as a distinct and unique crime regardless of a nexus with prostitution. In not
recognizing this distinction it is not in keeping with current international standards as set out in
recent international conventions and instruments. In addition, the convention does not
distinguish between movements and migrations that are legitimate and consensual and those that
are coerced. This w ill result in a great deal of abuse and the violation of women's freedom of
movement in a context of constant movement of people across national and local borders. In
addition, the convention brings into play the concept of ^protective custody” after rescue and
rehabilitation without stipulating that any stay in a government home should be voluntary. The
need to ensure women's economic and social rights within this context is also not examined.

32.
During her visit to Nepal, the Secretaiy-General of SAARC told the Special Rapporteur
that the com ention had in theory been agreed upon by all States parties and that there would be a
meeting early in 2001 to sign it. He conveyed the importance of regional cooperation on the
trafficking issue and concern that if the current text were to be reopened for discussion, given the
current political tensions an agreement would probably not be reached. He stated for the record
that there would be an amendment conference in one year's time when the definition and other
parts of the convention could be brought into line with recent international legal developments.

33.
In discussions on the SAARC com ention with all three Governments all indicated that
they w ere not opposed to looking at the provisions of the new protocol to see w hat could be
included in the SAARC convention. They agreed that they should not have a convention which
is weaker than the new international standard, but nonetheless did raise concerns that if the
convention were reopened it might not be possible to get a new consensus, as the initial text had
been a compromise.
34.
The Special Rapporteur hopes that her concerns, and the concerns of many others who
have been involved in these issues, including the United Nations High Commissioner for Human
Rights, will be taken into consideration by the States parties to the SAARC convention. The
Special Rapporteur welcomes this initiative and the candour with which the issue of eradicating
trafficking has been broached by the member Governments.
35.
A regional convention in and of itself cannot solve the problem of trafficking in
South Asia. It must be supplemented with a regional monitoring mechanism as well as regional
cooperation among law enforcement officials. Among the mechanisms of cooperation that
should be considered is a regional task force involving high-level officials from all the SAARC
countries. In addition, there should be national and state-level nodal agencies that closelv
network w ith one another, and focal points in ministries of women, children, home, law and
health that also network with one another. In addition to coordination among the executive

E/CN.4/2001/73/Add.2
page 14

branches in the different Governments, many felt that the human rights commissions in these
countries should also appoint special rapporteurs who would look into the specific problem of
trafficking.
36.
At the national level, it must be realized that ad hoc, piecemeal efforts will not result in
effective action against trafficking. In this regard, the Nepalese Plan of Action with regard to
trafficking is a useful model for other countries in the region. The Plan of Action envisions
action being taken in the field of legal reform, awareness raising, rescue and rehabilitation as
well as health. This coordinated effort is, at least in theory-, a very laudable step; however, the
Special Rapporteur feels that it is important to go beyond the words on paper. Implementing the
Plan w ill require concerted, proactive programmes and mechanisms on the part of Governments.
Unless such action is taken the Plan will not have any real effect on efforts to eradicate
trafficking.
37.
The struggle to eradicate trafficking in the South Asian region has two components. The
first concern the efforts of the criminal justice system to prevent, prosecute and punish
traffickers; the second involves social welfare for the women who want to be rescued and
provided with alternative avenues of making a living. The social welfare component also
includes health policies and activities around the problem of HIV/AIDS among women who
have been trafficked for prostitution.

38.
In recent times, because of increased awareness, most of the countries of the region are
contemplating legislation to combat trafficking, it is extremely laudable that political will is now
being translated into legislation. However, the Special Rapporteur, as a mechanism of the
Commission on Human Rights, is deeply- concerned that the legislation is unduly harsh and
violates basic principles of human rights law-.
39.
An example of draconian legislation that presents serious human rights problems is the
current draft Traffic in Human Beings (Offences and Penalties) Act 1999 prepared by the
Nepalese Ministry of Women and Social Welfare. The bill appears to have been drafted from a
law and order perspectiy e without consideration for the human rights either of the perpetrator or
of the victim. First of all. the draft criminalizes prostitution for the first time in Nepal.
Internationa! standards as set by the 1949 Cony ention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others as yvell as more modern legislation
have all advocated that prostitution not be criminalized and that only the exploitation the
prostitution should be criminalized. This is because experience has shoyvn that criminalization
ot prostitution results in the double victimization of the yvoman concerned as she. and not the
traffickers, becomes the main target of police action. This provision is a major step backyy aids
for Nepal and will create great hardship for the yy omen concerned.
40.
In addition, the new legislation giy es special powers to the police to arrest, detain, search
and seize. Many of these provisions are direct violations of the International Covenant on Civil
and Political Rights. The power to arrest and search without warrants, preventiy e detention and.
most troubling, the shifting of the burden of proof so that the accused has to proy e that he is
innocent are all \ iolalions ol international standards of human rights. This layv w ill result in a
great deal of harassment of innocent people as yvell as of the y ictims. Police forces anywhere in
the w orld can act with a certain measure of impunity. The purpose of human rights standards is

E/CN.4/2001/73/Add.2
page 15
to ensure that this impunity does not result in the harassment of innocent individuals. A law that
allows so much scope for abuse is extremely problematic for those who wish to fight violence
against women as a human rights issue. It is also a dangerous precedent for any criminal justice
system.

41.
Other countries of the region are also contemplating new anti-trafficking legislation. The
Special Rapporteur sincerely hopes that any new legislation will be enacted from a human rights
perspective and not purely as a law and order issue. In this context, experience from around the
world may prove to be informative. Such experience seems to suggest that anti-trafficking
legislation should be targeted: it should focus on trafficking and the punishment of traffickers,
and not on the victims. It should concentrate on the problem of trafficking of minors and it
should contain a comprehensive social welfare component based on respect for the economic and
social rights ol the trafficked woman. Such assistance should be voluntary, it should involve a
significant health component and involve the empowerment of the women through skills
training.
42.
The police forces of the respective countries of the SAARC region are the most important
institutions in the struggle to eradicate trafficking. At the moment there are ad hoc, informal
attempts al cooperation among them. A more formal long-term arrangement for sharing
information and joint operations against trafficking may prove to be essential in the present
context. A joint task force of all the police departments of the SAARC countries max be a step
in this direction.
43.
Empowering the police to deal with trafficking may not be veiy successful unless there
are appropriate guidelines and training procedures in place. The police response to the question
ol trafficking varied in the Special Rapporteur's interviews. Some police officers were venenthusiastic; others were pioneers in the field. However, some were indifferent and uninterested
m new procedures or processes. The Special Rapporteur was concerned that even the
enthusiastic police officers would in their zeal to fight trafficking infringe on the rights of
women victims. For this reason, it was suggested that a handbook be prepared for the police
forces ol the region, in regional languages, to raise their awareness about the problem and to give
them detailed instructions on how to handle cases involving traffickers. It would include
procedures on how to deal with traffickers, brothel owners, pimps and. of course, the victims
ihemselves. If such a handbook w ere prepared in consultation with the women s groups of the
region, it might be a major step forward in making the police forces of the region more
responsive to the problems of trafficking.
44.
Police corruption in the trafficking process was an issue that was constantly raised by
women's groups and women victims of trafficking. One of the victims described how. having
escaped from a brothel in Calcutta, she went to complain to the police. The police called the
brothel owner, who paid the police a substantial sum in front of the girl. She w as taken back to
the brothel and beaten till she was nearly senseless. She still suffers from injuries resulting from
that episode. Other victims said that many policemen were clients of the brothels and on good
terms with the traffickers, owners and pimps. Victims and women's groups in all three countries
recounted many cases of police corruption and man\- felt it w as endemic, something that w as
taken for granted. Unless direction comes from the top that such behaviour will not be tolerated.

E/CN.4/2001/73/Add,2
page 16
and unless there are punitive sanctions against policemen who indulge in such behaviour it is
unlikely that the police will play the proactive role that is expected of them
45
Even if the police in the region act with fortitude, if the judiciaiy is insensitive to the
problems of women, effective action against trafficking cannot be taken. The 21 convictions for
violence against women in Bangladesh and the 55 percent acquittal rate in Nepal with regard to
trafficking cases raise serious questions about how the rule of law operates in South Asia with
regard to trafficking. The police and some women's groups blame the judiciary for this state of
allairs. saying that judges are very lenient because thev are insensitive to sender issues The
judiciary and other women s groups put the blame on the police, saving that the investisation of
crime is so weak and the evidence produced so minimal that judges have no other option but to
acquit the suspects. Training in investigation of trafficking crimes for all the police forces of the
region is essential and may be possible with international technical assistance. In addition it is
extremely important tnat the judiciaries in the region be involved in workshops and programmes
that raise their awareness about the problem of gender and v iolence against women in thensocieties. A gender-sensitive judiciary is absolutely essential if victims of sexual violence are to
receive justice ui South Asia.

6.
In her discussions with women victims and NGOs as well as officials, the Special
apporteur received a mixed picture about the judiciary’s role in fighting trafficking especiallv
in India as a receiving country. The apex court of India, the Supreme Court, has been a pioneer
both nationally and intemationally in vindicating the rights of w omen. Its judgements in cases of
sexual harassment and trafficking have been far-reaching, requiring maximum accountabihlv on
the part ot Stale and non-State actors w ho violate the human rights of women. How ever, at the
magistrate level the situation is far more mixed. Some judges are extremelv sensitive and trv to
niake the best possible judgement for the victims. Some are less caring and have sent women
and girls to jail or for prolonged periods of protective custody. As a general rule the Indian
courts send rescued girls back to Nepal or Bangladesh, through NGOs like Maili Nepal and the
Sn? r
‘i0,i W!,Omen LaWyfirS Associalion (BNWLA), or thev send them to sov eminent
homes. Bev ond that there is ven- little activism or inquirv. Very little action is taken bv the
police or the judiciary against the traffickers and those who are initially responsible for the
\ lolation ol the rights ot these women.
47.
With regard to the evidentiary procedures invok ed in trafficking cases, the women and
&irls who are victims of the trafficking are the primary witnesses against the perpetrators In
vd^inn'0 'm8 °|r§anize<1ucn?e’ they are extrem«)>- vulnerable and m fear for their lives. In
addition, n Nepal, once thev leave the police station after filing their complaint, thev are often
C'
a reSU,“' th,e neW traffickmg bi" allows as evidence their statement'before the
judge dunng the initial trial stages; the victims do not have to be present in court In some
countries in Europe, the witnesses must be present in court but thev are kept incoenito with
vntten questions sent to them to answer. The defendant, however, does not see the vvatnesses

bv X'stX^Zl § ?S Orgamfd C['me-

elab°rate Witness Prolect,on schemes Pa‘d

b> the State and the witnesses often change their identity and move to a different location In
adopting such procedures, the need to get hard evidence in trafficking cases must be balanced bv
evenfrr8 131 e"SUre the defendant a fair trial 1,1 lhls sense, the witness protection proeramme
e'en f H is the most expensive, is also the most fair. The countries of the region should inquire
this possibihtv and. with the help of women's groups and NGOs. counsel and provide

E/CN.4/2001/73/Add.2
page 17
protection for women and girl victims so that they can appear in the witness box without fear.
The Special Rapporteur wishes to emphasize that the provision of witness protection should be
voluntary and at the request of the individual concerned.

48.
The problem of trafficking has a social welfare component that is integral to the
understanding of the phenomenon. The socio-economic factors contributing to trafficking
require that the problem be understood within the context of the socio-economic rights of
women. If one adopts this perspective different issues emerge that require the attention of the
Slate.
49.
The Special Rapporteur found that women and girls leave Nepal and Bangladesh in such
large numbers because of a lack of economic opportunities at home and because they suffer from
a great deal of social discrimination. Many of these women belong to lower caste groups or
ethnic minorities. In addition, the inheritance laws, land laws and employment regimes in these
countries appear to discriminate against women. Many women and girls leave home because
husbands have taken second and third wives. Girls often run away from home because ol
stepmothers or because they feel they are not wanted or because there is abuse. The need to
alleviate poverty is recognized as an important way to fight all forms of human exploitation,
including trafficking. However, in addition, States must feel compelled to take measures that
give dignity and equality to women and girls. Inheritance laws, personal laws and socially
discriminatory attitudes should be reformed in order to give women an equal chance in then
society and prevent them from becoming easy prey to traffickers. Their desperation to leave
their home countries, recounted in one testimony after another, often makes women complicit in
their own trafficking, at least in the initial stages. The Special Rapporteur recorded only a very
few' cases that involved abduction Most of the cases involved young girls and women who
wanted to leave in search of a better life than the one they had at home. Providing women w ith
income-earning opportunities and avenues for economic independence is one strategy that should
be adopted to prevent trafficking. The removal of discriminatory legislation and discriminatory
practices is also essential if the root causes of trafficking are to be tackled. Unless the sending
countries understand that most of the women leave because of unhappy conditions in the home,
the}' will not take the measures that are necessary to prevent trafficking while respecting the
human rights of the individual w omen.

50.
The social welfare component is also an important factor in the main receiving counliy* in
the region, India. While the young girls and women remain sex workers they are in danger of
contracting HIV/AIDS and other sexually transmitted disease. Though many recent initiatives
have begun with regard to AIDS in Indian cities, a greater effort is needed to seriously combat
the problem. According to unofficial estimates, between 60 per cent and 70 per cent of sex
workers contract HIV/AIDS. In all the countries there were very few medical facilities available
for AIDS patients. AIDS education among the sex workers is also minimal owing to the
ambiguous legal position of these women. Unless more attention is focused on the health of the
sex worker, her basic rights to life and to health will be greatly undermined.
51.
Even if the sex worker is rescued, she is faced with innumerable problems. She is often
kept in a government home while she waits to be released. Though she has done nothing wrong
and is seen by the law as a victim, her stay in the home is by court order and is not voluntary.
This ‘‘protective custody” is a serious infringement of the human rights of the w omen concerned.

E/CN.4/2001/73/Add.2
page 18

In one case, a woman, her sister and daughter who had been trafficked to Calcutta from
Bangladesh remained in a government home for four years, despite interventions bv the
Bangladeshi Consulate and NGOs. Meanwhile, the trafficker who was accused in the case was
out on bail with full freedom of movement. For this reason many women and girls do not want
to be rescued. On 16 February' 2000 a Bombay High Court judge, acting on information
received, ordered a round-up of young girls working in prostitution; 469 girls w'ere rounded up.
Most ol them did not want to go home, nor did they want to stay in government homes. This
created serious difficulties for the officials concerned. Unless the social welfare facilities exist
lor rescue, young girls and women will be reluctant to leave oppressive conditions at a brothel
lor what they see as a very uncertain future.
52.
The Special Rapporteur visited a government home in Liluah in Calcutta where man\ of
the women who had been rescued were kept. The conditions in the home resembled a prison.
Surrounded by factories and an outdated drainage system, the health conditions at the home were
very unsatisfactory. The living conditions were not only sparse but extremely gloomv The
trafficked women were kept with mentally ill patients, deaf and dumb women and destitute
women. Records with regard to the women in the home were not properly kept and information
on the women was scanty and not properly taken. All the women the Special Rapporteur spoke
to were deeply unhappy and wanted to be released. There were very few' activities and many
victims we interviewed said they did nothing for the whole day. They had done nothing wrong
and therefore their “protective custody” seemed particularly cruel. Fortunalelv. the National
Commission of Women in India has recognized this problem and brought a public interest case
against the Liluah Home. As a result of this action, there is a court order designating an NGO to
intervene, investigate the home, straighten out the records, help release any of the women w ho
w ish to go and make recommendations with regard to the management of the home.
Women who are rescued should be sent to homes only on a voluntary' basis since they are
not guilty of any crime. In addition, the government home should be a refuge for the yvomen. not
a substitute for jail. The government home should offer programmes to develop -the skills and
talents of women so that they can become empoyvered. both economically and psy chologically .
In contrast to the government home al Liluah. the Special Rapporteur visited many NGO
facilities for girls and yvomen. St Catherine's Home in Bombay and Maiti Nepal in Kathmandu
are examples of successful facilities. The yvomen seemed yvell fed. talkaliy e, lively and full of
activity. Their talents were being brought out and they were being given counselling so that they
could adapt to a new life away from the brothel. Critics argue that these homes are extremely
moralistic and authoritarian towards the girls who have been rescued. The Special Rapporteur
did not f ind any evidence of that and the w omen seemed happy and engaged. Many of them had

y oluniarily liled cases against th^r traffickers. Girls rescuer) by

Nepal assist Maili Nepal

yvith its work at the borders and m their programmes. All NGQs are tM as committed or as
■e ective as these NGOs with regard to taking care of rescued women. However, a government
home with NGO management subject to supervision by goy emment health and social welfare
bodies would be an effective way of moving forward in a context where resources for such
homes are limited.

E/CN.4/2001/73/Add.2
page 19
IV. BANGLADESH

54.
Bangladesh is one of the poorest countries in the world; a large percentage of the vast
population is young and lives below the poverty line. The slow economic growth of the country
coupled with periodic natural disasters have put serious constraints on the ability of the
Government to provide adequate resources for women's programmes and projects. The
United Nations Family Planning Association State of the World Population 2000 report declared
Bangladesh second highest in the w'orld in incidence of violence against w omen. Violence lakes
many forms and includes wife murder for non-payment of dowiy. custodial rape, attacking with
acid and trafficking.
55.
For the most part, women remain in a subordinate position in society. They are often
ignorant of their rights because of continued high illiteracy' rates and unequal educational
opportunities, strong social stigmas and lack of economic means to obtain legal assistance.
NGOs operate programmes to raise women's awareness of their rights and to encourage and
assist them in exercising those rights. Yet, prevailing stereotyped attitudes and practices justified
on social grounds create an environment for the acceptance of violence against women,
especially in the area of trafficking.
56.
There is extensive trafficking from Bangladesh, primarily to India. Pakistan and
destinations within the country, largely for purposes of forced prostitution, although in some
cases for labour servitude. Some children have reportedly been trafficked to the Middle East to
work as camel jockeys. The exact number of women and children trafficked is unknown. NGOs
estimate that several thousand women and children are victims of trafficking each year. Most
trafficked persons, eager to escape the cycle of poverty, are lured by promises of a good job or
marriage. Orphans, runaways and others outside the normal family support system are also
susceptible. The border between Bangladesh and India is porous, especially around Jessore and
Benapole. making illegal border crossings eas\.
Legal Irani ework

57.
Bangladesh is a party to the Convention on the Elimination of All Forms of
Discrimination against Women and has recently signed the Optional Protocol. In the concluding
comments of the Committee on the Elimination of Discrimination against Women (CEDAW)
adopted, following the consideration of the third and fourth periodic reports submitted by
Bangladesh (A/52/38/Rev. 1. paras. 409-464) the Committee, inter alia, expressed its concern
about the Government’s resen alion to article 2 and article 16. paragraph 1 (a) of the Convention.
Article 2 is regarded as a core provision as it concerns implementation of the Convention, while
article 16 is critical for the full enjoyment by women of their rights.
58.
The Special Rapporteur met with representatives of the Ministry of Women and
Children's Affairs (MOWCA). who described the multisectoral action programme being
undertaken to address violence against women, including trafficking in women and girls. The
Law Commission was established by the Government to review existing laws and enact new
ones to safeguard women's rights and to prevent violence against women. The Special
Rapporteur was informed that the Law Commission had been mandated to look into the
implementation of international obligations and may consider lifting the reservation to article 2.

E/CN.4/2001/73/Add.2
page 20

59.
The Government of Bangladesh in seeking to address the problem of violence against
women generally, and trafficking in particular, has promulgated laws that have had negative
repercussions for the victim. The Suppression of Immoral Trafficking Act of 1993 provides for
stringent penalties for women and children forced into prostitution. The Women and Children
Oppression Act of 1995 (Special Provision), a revision of the 1983 Cruelty to Women
Ordinance, presents many of the problems discussed in the prev ious section. It treats women and
children together and introduces the death penalty for those who involve children in trafficking.
New legislation grants even more draconian powers to the police and provides for special
tribunals and evidentiarv procedures, and stiffer penalties.
60.
The Suppression of Violence against Women and Children Act came into force in
February 2000. It is intended to address the need for more effective prosecution of perpetrators
of violence against women and children than existed previously and provides redress for victims
ol various manifestations of violence including trafficking and acid throwing. The Act makes
provision for compensation for the victim from the guilty person/persons. It also contains
provisions for remedial measures for negligence or wilful faults committed by an investigating
officer and for a child bom as a result of rape to be maintained bv the father.
61.
The Government reports that since the introduction of the new lawz the delay in
investigating and trying cases relating to violence against women have greatlv decreased.
Punishments for trafficking and other offences have been made stiffer. Ten special tribunals
ha\ e been set up to expedite the processing of cases. The tribunals can arrange for safe custodv
during the trial period. Previously, prisons were often used to prox ide safe custodv for women
victims of violence. One study conducted by the Bangladesh National Women Lawyers
Association lound that nearly half of the w omen in Dhaka's central jail w ere crime victims being
held in sale custody, rather than criminals. While women may initially consent to this
arrangement, it is difficult for them later to obtain their release, or to gain access to their family
and lawyers. However, under the new Act. women will reported!) be given the choice of going
to a government rehabilitation home or staying with relatives or other priv ate persons.

62.
While recognizing efforts to improve the situation, including the enactment of laws
specifically prohibiting certain forms of discrimination against w omen, and although pleased that
the Government is taking firm action to protect women from violence, the Special Rapporteur is
concerned about the introduction of the new draconian laws and the application of the death
penalty for a whole range of crimes against women including trafficking, rape, acid
throw ing/bummg and down- violence under the new Act. The Special Rapporteur is a
mechanism ol the Commission on Human Rights and she emphasizes that the campaign against
trafficking must be undertaken from a human rights perspective. The Special Rapporteur is also
w orried about the accused's right to due process and a fair trial.
63.
Though the law provides severe penalties for trafficking few perpetrators are punished.
NGOs report that police and local go\ emment officials often either ignore trafficking in women,
are easily bribed to look the other way. or may even be involved. Exact numbers of charges
against traffickers are difficult to obtain and traffickers are usually charged for lesser crimes,
such as crossing the border w ithoul the correct documentation.

E/CN.4/2001/73/Add.2
page 21
64.
Government statistics provided by the Ministry of Home Affairs indicate that out of
7.000 cases registered under sections 5 and 6 of the Oppression Act of 1995, which carry a
maximum sentence of death or life imprisonment, only 21 convictions were obtained. Two
thousand cases are said still to be in the trial process. Clearly, more stringent and punitive laws
are not the answer. Tougher laws ma)’ in fact act as a deterrent to registering cases against
traffickers and may lead judges to acquit defendants rather than impose what they feel to be an
unfair punishment, especially the death penalty. Studies have shown that the majority ol judges
say that a lesser sentence would help the courts to convict, especially since trafficking is a v ery
difficult crime to prove and the evidence presented by the police does not always justify stringent
punishment.
Programmes and policies to combat trafficking

65.
The Ministry of Women and Children's Affairs is the lead ministry for promoting the
equality and development of women. The Ministry7 has made the campaign against trafficking an
important priority and the National Policy for the Advancement of Women, dratted b\ the
Ministry, includes a section on violence against women, including measures to combat
trafficking. Furthermore, a comprehensive three-year project to combat trafficking is to be
implemented by the Ministry7, in association with UNICEF and funded by the Norwegian aid
agency NO RAD.

MOWCA also has a violence against women unit, which monitors incidents of \ iolence
and submits reports to the National Committee on Violence against Women.
66.

The criminal justice system

67.
The Special Rapporteur met with representatives from the Bangladeshi police. Although
there was awareness of the problem of violence against women, they admitted that there was no
police training in handling cases of violence against women in general or trafficking in
particular. The police have received some training on reproductive health. The Special
Rapporteur recommended gender sensitization and human rights training programmes lor the
judiciary, the police and health professionals, particularly those relating to violence against
women which could be provided by the technical cooperation programme of OHCHR. She
encouraged the Government of Bangladesh to request such assistance. OHCHR has informed
the Special Rapporteur that since her visit Bangladesh has requested technical assistance and a
programme is being developed with the Government.
68.
In response to the many cases of trafficking, the Government has recently set up
women’s police units to look into cases of violence against women. If women want protectixe
custody thev can be kept in these units. The unit also follows the individual case, provides legal
support to the victim/survivor and shelter for six months to a year. DFID has also funded a
project to improve access to justice by w omen and the poor.
A special squad of the Criminal Investigation Department (CID) of the police force has
been specially tasked with speedy investigation of cases of violence against women and also
deals with the problem of trafficking. However, the statistics reveal that despite this squad, the
actual number of cases filed in court is extremely small and the evidence produced before judges
69.

E/CN.4/2001/73/Add.2
page 22
inadequate. Again, the Special Rapporteur suggested that technical assistance be requested from
multilateral agencies specializing in human rights protection and combating violence against
women.
Rescue and social welfare
r
rhe Government ol Bangladesh has no special programmes relating to the social welfare
o tial licked w omen. The Ministry lor Foreign Affairs informed the Special Rapporteur that the
Home Minister of Bangladesh had asked the Government of India for a list of all Bangladeshi
women being held in Indian shelters and jails, following reports that women are detained and not
allowed to return home whilst a case is pending before the courts. However, the Special
Rapporteur visiting women in homes and jails in India was informed that the Bangladeshi
diplomatic representation in India was hot very responsive, often taking 'ears to respond to
inquiries and information.

71
Se\eral women s organizations have provided different forms of assistance, including
shelters for the protection of victims of violence. These include the Bangladesh Women
Lawyers Association and Bangladesh Mahila Porshod.

International agencies
72.
Al the time of the Special Rapporteur's visit to Bangladesh USAID was planning to start
a 13-month anthropological study into the problem of trafficking. This would involve looking at
the underlying factors of trafficking, collection of statistical data, setting up of a database and
compiling information about the victim, and a profile of the trafficker. The study will attempt <o
collect comprehensive data on the problem. Since there are no available data on trafficking in
terms ol a comprehensive national study, the Special Rapporteur welcomes this initiative.

The United Nations agencies are all involved in programmes that include some aspect of
the campaign against trafficking. UNICEF and The International Labour Organization have
taken the lead m working with government agencies to combat trafficking. Howe' er, unlike the
agencies in Nepal, the United Nations in Bangladesh does not have a co-ordinated joint effort
involving all the multilateral agencies. Such a joint task force mav be useful in the Ions run in
Bangladesh.
Non-governmental organizations
74.
Most, if not all, the rescue and social welfare work in T
Bangladesh is carried out bv
non-governmental organizations, although the Government does support some local NGd
initiatives to combat trafficking.

ni <
BN^ LA was one <>f the NGOs the Special Rapporteur met with during her visit to
Dhaka. It has been very active in addressing the problem of trafficking. BNWLA conducts
awareness-raising programmes, aimed at alerting persons to the dangers of trafficking through
leaflets, stickers and posters; pro' ides legal assistance to trafficking victims and initiates legal

E/CN.4/2001/73/Add.2
page 23
action against traflickers; works with its counterparts in India to help trafficked girls and women
return to Bangladesh. BNWLA also runs a shelter for trafficked women and children that
provides health care, counselling and training.

76.
The Center for Women and Children (CWCS) has networks to monitor trafficking across
the country; it conducts awareness meetings and has a pilot project to make police aware of the
rights of women and children. Other organizations working in the field are the Bangladesh
Mahila Parisad (BMP) and Ain O Salish. which specialize in advocacy arid lobbying for reform.
Dhaka Ahsania Mission has undertaken a child and trafficking prevention programme
77.
that comprises four components: community awareness, reintegration, rehabilitation and
networking. ATSEC is a national anti-trafficking network formed to link NGOs and government
initiatives, as well as to conduct awareness-raising programmes.

78.
The Special Rapporteur also met the organizations Aparageya Hostel, the Bangladesh
Manabadhikar Sangbadik Forum, Naripokklio, Ain-O-Unnyan Sangstha, Banchete Shekha.
Rajshahi, UBINIG. Bangladesh Retired Police Officers' Welfare Association, CWFD, ADAB.
and Women for Women, all of which are involved in programmes involving trafficking.
V. NEPAL
79.
Trafficking in women and girls remains a serious problem. Nepal is a primary sending
country for the South Asia region, with the main destination being India. International agencies
estimate that 100.000 to 200,000 women from Nepal are currently engaged in exploitative
situations of prostitution in the cities of northern and central India and, increasingly, further
afield in South Asia and the Middle East. Il is also estimated that an additional 5.000-10.000
women and girl children enter these trafficking networks annually.

80.
Landlessness amongst women, unemployment and under employment, intense income
poverty, widespread gender discrimination (both de jure and de lacto), religious and cultural
sanctions for prostitution amongst certain groups and the grow ing acceptance of the inevitability
of migration have all been identified as contributing factors to the increase of trafficking ol
women and children from Nepal. Discrimination with regard to inheritance laws and citizenship
laws is another factor that makes women victims of trafficking. The Special Rapporteur stressed
the need to remove these discriminatory laws and to bring Nepalese law into conformity with
international norms and standards.
81.
The Government of Nepal has identified trafficking as one of its major priorities. To this
effect, supported by donors, the Government adopted in 1999 the National Plan ot Action against
Trafficking in Children and their Commercial Sexual Exploitation. The ILO played a major role
in pushing forw ard this programme.

E/CN.4/2001/73/Add.2
page 24

Legal framework

S™, wT™ “SS cVnatoZrfN.Of AI1 F,>rn’S

1= SS'S
Sffickm^X^raffiri^H^"5^?^
traffickinp in Nenal

Thp

1^ans

‘n6''6 h3Ve been manV ‘e8al ini,ia,i'’es with regard
to

ontrol) Act 1986 is the legislation that currentlv governs

the course of the year Though thp Am
Government of Nepal hopes to enact it during
imenta. i( is deiZpXSiXj- • P^e™ and Is f„!l ofg<)05
oudined her concerns in lhe earlier seclion'o^1
lS j’®rsPecllve- Jllc Special Rapporteur has
criminalization of prostilution ectratemmri.i =eCer 'n<{lnSs These concerns include lhe
draconian pol.ee sXch 2S sXm“X
8 °f
'’"r‘'en <’f Pro°f “d
“sser eXL^au” "ds “a™le^oT.m R *T* “ '.* Ofr““ Of

rX^sXi^^^
. vuui

AM! inese will have some bearing on the trafficking issue.

Programmes and policies to combat trafficking
as taken the lead in a

nun.herTOn„tTes,“pr~X^^^

eager to deal with this problem^ haveTee^w^ffimo wdlhthe C D°nOr
3150
comprehensive strategy Thk twiina u- i j
53
Government to develop a
Nalional Pto o S„ » t “
£ ’<> lh“
» TratilcUng and the
trafficking in Nepal.
Mafficking. Together they set out a detailed plan to combat

approp late poSc.es ^stXTesVrlcTonTnlhe^T

7°

°f

trafficking. The second is the emrimpni r
ano us sectors to deal with the problem of
punish traffickers. The third area is the raisin^of
eglSlal’°n t0 Prevent trafficking and to
the crimmal justice system to help fight traffkkm< ThTfo T"8
popula,lon Wld
educatton and the final area deals wtth\escu^d fehaSitaXn
'S
uJt.at.v^S

"d "en th0US?, °Ut H°WeVer- like S0 “ O‘her

rehabilitation. It is not ven- concerned wlTtheTraffiT5 Sh31*11
educatlon ;u,d rescue
punishment of those who eneaee m thl trS
‘ramcker- >he prosecution of traffickers and the
the Ministry of Women. Children and SociJw if h13”!.- G" en
lhal ’* 'S an initiat‘ve of
Special Rapporteur found that while the MimsST'forV UnderSt‘™dable [n this regard, the
Women. Children and Social Welfare were ven sens.t.ve to thXue^f'affick.S Smsin'

E/CN.4/2001/73/Add.2
page 25

of the Interior was quite ill-informed and seemingly unconcerned with the problem. The Special
Rapporteur feels that unless the Ministries of Law and the Interior are actively included in the
trafficking initiative, the campaign against trafficking is bound to fail.

88.
The Plan is to be implemented through the establishment of a national-level coordination
committee under the Ministry- of Women, Children and Social Welfare. In addition, a National
Task Force on Trafficking consisting of secretaries to all the ministries is to be set up. There is
also to be a district-level task force and a village development committee task force responsible
for programme formulation, follow-up and monitoring.
In all senses the Plan seems
comprehensive. The Special Rapporteur was informed that all the committees had been set up
during the course of 1999/2000. However, when she inquired about them, she was surprised to
learn that they had rarely met or made any decisions. The representatives of the Ministry of
Women. Children and Social Welfare said that it was difficult to get the national-level task force
to meet. When the Special Rapporteur met a district-level committee she was told that the task
force had met twice but that the Chairwoman was too busy to attend. The Special Rapporteur is
therefore concerned about the gap between theory and practice and plan and implementation. In
Nepal, this gap seems enormous. With every good intention, the Gov ernment sets up a policy, a
law or a framework but in practice little is done on the ground. The Special Rapporteur feels that
if the Government is truly committed to the issue, it w ill lessen the gap between national policy
and national practice and seek to implement its promises.
89.
In addition to the above, the Ministry of Labour has established a welfare home for
women affected by trafficking and set up a skills development programme within that home.
The Central Child Welfare Board as well as the district-level boards are being sensitized to look
into the problem of trafficking and the Nepalese Bar Association provides legal support to
w omen w ho are affected by trafficking.
The criminal justice system

90.
The Special Rapporteur was pleased to have a consultation with the Nepalese police and
to meet Mr. G. Thapa, a regional specialist on the problem of trafficking. The Government told
the Special Rapporteur that some members of the police force had participated in a human rights
training/traffieking workshop conducted by UNICEF which, it is reported, will become an
integral part of the police training. Non-governmental organizations, human rights lawy ers.
United Nations agencies, and members of the police force w ill conduct it.
91.
The police have also set up women's units in each police station to investigate
w omen-related crimes, including search, inquiry and investigation. The Special Rapporteur
v isited a border police post and met with officials. In combating trafficking at the border the
police are assisted by the NGO Maili Nepal, which helps identify potential traffickers and their
v ictims. So far the system of identification does not seem to have been abused and has in fact
led to a great deal of assistance. Since some of the Maili Nepal stall were earlier victims of
trafficking, their assistance and knowledge have been inv aluable. The Special Rapporteur was
encouraged that the police al the border posts seemed very aw are of the problem of trafficking
and determined to deal with it

E/CN.4/2001/73/Add.2
page 26
92.
The Nepalese judiciary has a mixed record when it comes to the problem of trafficking.
The Supreme Court, despite some controversial rulings on women’s inheritance rights, has
generally held that Nepal is a signatory7 to the Convention and that international standards apply
throughout the country. However, at the level of the lower judiciary', there is a high rate of
acquittal for traffickers. Members of the judiciary' argue that one of the reasons for these
acquittals is that the police do not present enough evidence and the problem lies in the
investigative power ol the police. For this reason the Special Rapporteur suggested to the
Government that it draw on available international expertise and seek technical assistance from
international bodies to develop investigative skills.

93.
Nepal has a National Human Rights Commission that has recently been set up to deal
with human rights issues though it has not directly dealt with the problem of violence against
women yet. One of the proposals put forward to involve the Commission has been to create a
post ol national rapporteur on trafficking within the National Human Rights Commission.

Rescue and social welfare
94.
As in Bangladesh, rescue and social welfare for victims of trafficking have been left to
NGOs. Several NGOs have rehabilitation and training programmes for victims of trafficking.
Maiti Nepal, for example, has gained an international reputation for its work in this field
However, the Ministry- of Women, Children and Social Welfare has opened a Women's
Self-Reliance and Rehabilitation Centre 45 km from Kathmandu, which is a skills-training centre
for women rescued from being trafficked and for w omen and girls at risk of being trafficked. It
is reported that the centre is unfortunately inaccessible for many women, as it does not accept
women who have children or women who have HIV/AIDS.
95.
One of the major problems facing Nepal is the problem of AIDS resulting from the
trafficking industry. Unfortunately, manv of the w omen taken to India return to Nepal to spend
their last \ears in terrible pain and suffering. According to estimates given to the Special
Rapporteur, there aie 38,000 HIV-positive persons in Nepal. There are worry ing reports that
even medical staff are unaware of how to treat the problem and have only minimal know ledge
about how the disease is transmitted. There also does not seem to be an understanding of
confidentiality requirements and voluntary- testing practices. Some victims recounted lhat
hosprtals had refused to take or treat persons with HIV/AIDS for fear of catching the disease
Cremation of AIDs victims costs more than for people who die of other diseases. Some NGOs
like Maili Nepal and United Nations organizations are working with this problem but far more
has to be done if the v ictims are to be helped.
96.

The Special Rapporteur would encourage Governments when tackling the HIV/AIDS
problem to avoid focusing
” which stereotypes and increase
. - on ’high-risk
~
igroups
can reinforce
the stigmatization ol victims oi trafficking. Focus should instead be on behaviour and all sectors
of society must be informed. In this context the new UNDP Project on AIDS in South and
South-West Asia w ill be helpful.
97.
With regard to prevention, the Government and donors have trained women from the
\ illage district councils as social mobilizers. The Ministry of Labour sponsors job- and

E/CN.4/2001/73/Add.2
page 27

skill-training programmes in several districts thought to be sources of trafficking victims, who
trafficking8^ m°nthS Skl11 lrainmg and sPecial awareness raising with regard to the prevention of

International agencies
>8.
The international agencies working in Nepal have been extremely active on the
rafficking issue, particularly UNICEF, 1LO. OHCHR and UNDP There is a United Nations
nl^’^sency rask Force on Trafficking that is two years old which deals with the problem of
trafficking at the district, national and cross-border levels. There are over 60 programmes and
projects run b\ international agencies on the problem of trafficking.

Tv
1116 !uOSL‘?i,POrlanl reCent inillative t0 come from lhe international agencies is the Joint
mtiative in the Millennium Against Trafficking of Women and Girls in Nepal (JIT), which will
be coordinated by UNDP. The overall objective is to reduce the incidence of trafficking bv
redressing gender inequities and discriminatory' practices that make women and girls vulnerable
o trafficking The strategy uses an umbrella approach that builds on the initiatives of the
United Nations Task Force on Trafficking, allowing donors and United Nations agencies to pool
resources for the implementation of the components envisaged The initiative involves a ’Policy
Advocacy, Beacon which would aim at influencing policy in Nepal at the national level
Among the projects to be inaugurated is one that will look at the problem of structural
discrimination against women and girls in Nepal including the gamut of inheritance and family
laws. The project also advocates the setting up of a national rapporteur for trafficking and
human rights al the Human Rights Commission, the publication of a human rights manual the
collection of national-level data, advocacy in the media and the establishment of - monitorinmechanism on trafficking.
5
100
In addition to policy efforts, there will be activity at the district level which will aim at
developing leadership skills among women and raise awareness with regard to trafficking, health
and legal advocacy. A handbook is being prepared that could be used at the district level There
a , beAan
at building up cross-border cooperation between police. NGOs and media
o icials. A comprehensive strategy' of rescue, rehabilitation and reintegration will be planned
involving the concerned countries in the region.
1 i
'hICOnteXl Or 0HCHR s ongoing project of technical assistance to the Gov emment of
Nepal. OHCHR, m cooperation with the United Nations Task Force on Traffickino. is
developing a pilot anti-trafficking project in two selected districts of Nepal. The core of the
Pr?ke?1 ff'i be lhe establlshmenl of special courts (as provided for in tne Constitution) to deal
with trafficking cases. These courts will be supported bv trained police working from special
women s stations . Criminal justice initiatives against trafficking will also be supplemented bv
a range oi activities aimed at increasing public awareness and civic responsibility. Additional
activ ities will be directed towards supporting the reintegration of trafficked women and girls A
separate project component will be dedicated to activities aimed at fostering cooperation
etween Nepalese and Indian police/border and judicial authorities in order to promote a more
el feet, ve cross-border response to the trafficking problem. This component should work tow ards
the dev elopment of a bilateral treaty on the subject of trafficking.

E/CN.4/2001/73/Add.2
page 28
i
i UNICEF
U^ICjF has
hasplayed
Played a key
key role
roIe in
In advocacy and awareness raising on trafficking It has
developed and conducted training workshops with law enforcement agencies, especially the
police,
police and sponsored legal training, and has set up paralegal committees at the ward village
district council and department district council levels. UNICEF has also provided support for
anytraffick,ng Act The United Nations Development Fund for Women
•n . iimifKV K
3 partner ln JIT through its Regional Programme against Trafficking.
re UNIFEM South Asia regional office has also undertaken a wide range of projects in the
region on violence against women and trafficking.

Non-governmental organizations

KB. Nepal has a yen dynamic NGO sector, both international and local, working to ensure
women's rights, and imany ol these NGOs have specifically addressed the trafficking issue.
NGOs provide various; kinds of programmes including training, support services, advocacy and
awareness raising.
4t- rL'b6 C^nte^ °f NG°S' ,he SpeClal RaPPor,eur would like specially to commend the
" °r ' o
ah1 Nepal an NGO that has made a major difference in the combating of trafficking
and to pay a special tribute to Anuradha Koirala the founder and Head of the organization
Critics of Mam Nepal were of the view that Maiti Nepal dfo not always respect the w ill of the
>vomen concerned and used drastic measures to deal with the problem. These criticisms mav
have some validity but they can easily be dealt with by the organization. However, the overall
work of the organization in rescuing and providing shelter and training for trafficking victims in
supporting children of sex workers and in pioneering work w ith AIDS victims has to be admired
and appreciated.

1 ( > The Special Rapporteur visited a Maili Nepal transit home in Bhirahawa. Maiti Nepal
stalT. some of whom had been trafficked themselves, work on the border in cooperation with the
border guards. They monitor the flow of persons across the border from early morning to night
they see a woman who looks like she may be a potential victim (some 5-16 women a day)
the) stop and talk to her untd they are satisfied that she is clear about her destination and aware
5lal|hoenPr°b em ° Mafficking in India If they think there is a problem, they take her to the police

106. Maiti Nepal also have prevention centres, where they are providing skill training and
awareness raising in the villages for girls/women to offer them alternative wavs of making a
iving In addition Maiti Nepal is setting up a support system for AIDS victims and making
special efforts at health advocacy among the victims.
FaL j rhere are also other important NGOs working on this issue. Among them are the Asia
N unda,'0"; ‘he forum for Women. Law and Development. ABC Nepal. Child-Workers in
pa (C MN). Shakti Samuha, WOREC, the Informal Sector Service Centre (INSEC), the
fT'dTax? n1SulUtJr lor Human
Environment and Development (INHERED). Action
za
^nla' the Alllance ASamst Trafficking in Women and Children in Nepal
(AATW IN) and the National Network Against Girl Trafficking. All of these groups plav a v ital

E/CN.4/2001/73/Add.2
page 29
VI. INDIA

108. India is a source, a transit point for persons trafficked to Pakistan and the Gulf States, and
a destination for trafficked persons. India remains the main receiving co unity in the region of
victims of trafficking. NGOs estimate that more than 12,000, and perhaps as many as 50,000
persons are trafficked into India annually from neighbouring countries.
109. Women and girls are trafficked into India for sex work, for forced labour and for forced
marriage. Forced prostitution remains the primary goals of many of the traffickers. While a
survey by the governmental Social Welfare Board estimates that in 1991. in six metropolitan
cities there were about 1 million women and children engaged in sex work, the Indian
Association for the Rescue of Fallen Women estimates that in 1992 there were 8 million women
and children in sex work.
110. Internal trafficking also occurs from the rural, economically depressed areas to the cities.
According to the Indian Centre for Indigenous and Tribal Peoples (ICITP). more than
40,000 tribal women, mainly from Orissa and Bihar, have been trafficked.
Legal framework
111. The Government of India is signatory to the Convention on the Elimination of All Forms
of Discrimination against Women but has made resen alions to article 16 dealing with family
law and family life. In a famous case, Visakha v. State of Rajasthan, the Supreme Court of India
held that the Convention was an essential part of Indian law. The Indian Constitution
specifically prohibits trafficking, in articu 23, but the term is not defined in detail. It has been
interpreted as a generic definition that applies to the Stale as well as the prix ale sector.

112. The Supreme Court has used the articles in the Constitution that deal with equality,
human dignity, the right to life and trafficking to be activist when it comes to the rights of
women. Of all the judiciaries in the world, the Supreme Court of India has made a name for
ilsell internationally as the one that has championed the cause of women w ithin a constitutional
framework. Whether it is women in a remand home. Air India hostesses, or sexual harassment,
the Supreme Court of India has made pathbreaking decisions.
113. The Supreme Court has delivered two important judgements with regard to the issue of
trafficking. On the issue of child prostitution, in the case of Vishal J eel x^UnionofJndia, the
Supreme Court called on the central and state governments to set up advisory committees to
advise government on matters relating to child prostitution and social w elfare. As a result of this
decision, the Government of India set up a Central Advisoty Committee on Child Prostitution
and stale governments also set up advisory committees.

114. In the second decision, Gaurav Jain v. Union of India, the Supreme Court in 1997
directed the Government to constitute a committee to make an in-depth study of the problem of
prostitution and child prostitutes and to develop strategies for their rescue and rehabilitation. A
Committee on Prostitution. Child Prostitutes and Children of Prostitutes was constituted, headed
by the Secretary. Department of Women and Child Development. Ils report was submitted
in 1998. A copy was presented to the Special Rapporteur.

E/CN.4/2001/73/Add.2
page 30
115. The primary legal framework that deals with the problem of trafficking is the Prevention
of Immoral Traffic Act of 1986 (PITA). This Act is supplemented by provisions of the Indian
Penal Code that are based on the 1949 Convention for the Suppression of the Traffic in Persons
and of the Exploitation of the Prostitution of Others. Prostitution is not illegal in India but
soliciting and exploiting prostitution are offences. The framework for laws are very’ close to
those prescribed by the 1949 Convention. PITA was amended recently and the presumption of
guilt is now on the accused for cases in which children or minors are found in a brothel who have
been determined by medical examination to have been sexually abused. PITA has made stricter
punishment for offences relating to children.

1 16. PITA also provides for the appointment by the Government of a police officer to fight
trafficking nationwide. Such a person had not been appointed when the Special Rapporteur
arrived in India. However, the Secretary of the Home Ministry promised the Special Rapporteur
during the course of her visit that such an officer would be appointed. At a meeting held at the
end of her stay, the Government informed the Special Rapporteur that the order appointing the
officer had been made and that the officer was female and sensitive to gender issues.
117. There are many efforts under way to replace PITA with comprehensive trafficking
prevention legislation. The National Commission on Women is looking into this possibility.
The Special Rapporteur is very’ apprehensive about these initiatives given the experience in the
other SAARC countries. The human rights implications of the new legislation are very
disturbing. Many of the drafts shown to the Special Rapporteur contain the same negative
features that were discussed above in the General Findings section. The texts criminalize
prostitution, give police sweeping search and seizure powers, alter evidentiary requirements and
stipulate mandatory punishments for traffickers. The only innovative bill in this regard is the
one prepared by the National Law School of the University of India, which has strong provisions
to fight trafficking but w hich also respects the right of sex w orkers. Il attempts to organize them
to prevent sexual exploitation and to protect health and hygiene in sexual work. It is the Special
Rapporteur's belief that unless something like this can be adopted, PITA, with some
amendments, should remain as the principal legal framework for combating trafficking.

1 18. According to the report of the Committee on Prostitution. Child Prostitutes and Children
of Prostitutes submitted by the Department of Women and Children pursuant to the Supreme
Court decision, the number of cases involving trafficking has lessened in recent years, especially
during the period 1991-1995. However, given the fact that commentators have indicated to the
Special Rapporteur that trafficking is on the increase, that statement may reflect the fact that
PITA is not fully implemented. In addition, there are regional variations. The states of
Tamil Nadu. Karnataka. Maharasthra and Andhra Pradesh account for 96.5 per cent of the cases.
The question is also raised about which aspect of PITA is being implemented. Government
officials and NGOs claim that 80 per cent of the cases registered under PITA are for soliciting.
So the person who is being arrested is the victim. The number of actual cases of trafficking Hied
against traffickers is marginal. This proves the argument of many women's groups that more
stringent laws and law enforcement may actually result in greater victimization of women and
girls.
119. Other legislation that also has some bearing on trafficking cases, and in particular
protective custody. are the following:

E/CN.4/2001/73/Add.2
page 31

(a)
The Indian Penal Code, 1860, includes offences, among others, relating to
wrongful confinement, kidnapping, abduction, slavery and forced labour, and sexual offences.
Of particular significance are importation of a girl from a foreign country, selling of a minor for
purposes of prostitution, buying a minor for purposes of prostitution, and rape;
(b)
The Juvenile Justice Act 1986 has elaborate provisions for the care, protection,
treatment, education, vocational training, development and rehabilitation of children rescued
from those procuring, inducing and taking persons for the sake of prostitution and detaining
persons in premises where prostitution is carried on. Such children are cov ered under the
definition "neglected juvenile'. Besides the police, any person authorized by the state
government may bring the juvenile before the Juvenile Welfare Board for placement w ith a fit
person or a fit institution, or failing which, in a juvenile home. Voluntary institutions also
function as protective homes under the respective laws. These institutions must function on the
basis of certain minimum standards of care and reformativ e treatment;

(c)
The Foreigners Act. 1946, which regulates the entry, stay and departure from
India of foreigners, is also relevant to the trafficking issue.
120. The governments of Maharasthra and West Bengal, the states that the Special Rapporteur
visited, deal with trafficking under PITA and similar criminal law provisions. In this context, the
Special Rapporteur was encouraged to note the approach of the government of Maharasthra and
its Secretary. Mr. Sharma, who displayed very keen interest in the visit of the Special Rapporteur
and involved her in intensive discussions on the future course of action. At the end of her visit,
the Chief Minister of Maharasthra promised to set up a special team to study the problem of
trafficking and to set up mechanisms to combat trafficking. She was also encouraged to note that
they took up her suggestion that the new law to combat organized crime, the Maharasthra
Organized Crime Act, should also include a protocol on trafficking like its international
counterpart. The government also seemed interested in meeting the social welfare requirements
of the women victims and the team w as asked to look into this matter in detail.

Pro gram ines and policies to combat trafficking
121. The year 2001 has been named Women's Empowerment Year by the Government of
India and a host of activities will take place with regard to the rights of women under the ninth
five-year plan (1997-2002). which has identified the empowerment of women as a strategv for
development.

122. The National Commission for Women (NCW) is the body that takes the lead with regard
to the protection of the rights of women. The Commission's mandate is to safeguard the rights
and interests of women by running legal awareness programmes, looking into complaints
regarding the violation of w omen's rights, examining the non-implementation of laws as w ell as
non-compliance with policy guidelines, providing relief to women by taking up their concerns
with the appropriate authorities, conducting research, undertaking investigations, etc. The NCW
also has the powers of a civil court when investigating any case provided for by the NCW
Act 1990. Combating the trafficking of w omen is one of its main areas of priority•. When the
Special Rapporteur made her visit, the Commission was in the process of engaging in
national-level consultations with a view to amending PITA.
It has been involved in

E/CN.4/2001/73/Add.2
page 32

Zs^"^ Co^iX^X^d’aX10 f1316

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Rapporteur on trafficking. The members of O'piatlve. half-day workshop for the Special
combating trafficking as well as Zr crimes ofvtel.
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from rescue to rehabilitation to education f th h l Welfare component is dealt with in detail.
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mothers to more healthy environments This is 6 C ‘ , ren Prostllules be remot ed from their
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method of preventing and fightin« traffickmo G.veVih "T"15 ’V6’' r" S°C'al surve,ilance 35 a
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127.

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pr»«

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E/CN.4/2001/73/Add.2
page 33

relegated to NGOs and the state governments have not played an active role. The govemmeni of
Maharasthra was very eager to develop a plan and a programme to combat trafficking. The
Special Rapporteur hopes that her visit will be a catalyst for this endeavour as much of the abuse
resulting from trafficking takes place in Bombay and its environs. Bombay is located in
Maharasthra.
129. The National Human Rights Commission was another institution that seemed very'
committed to eradicating trafficking in India as a human rights problem. The Commission has a
good reputation in the country' and is seen as fair and activist with regard to the protection of
human rights. In discussions with the Special Rapporteur, the Commissioners intimated that
the)’ had decided to set up a focal point for trafficking within the Commission. They hope to
deal with the issue as an important aspect of human rights protection in India.

Criminal justice system
130. Trafficking in India cannot be combated without the unstinting support of those who
work in the criminal justice system. Given the international and national attention on trafficking,
the Indian ministries dealing with home affairs and law are slowly beginning to deal with the
problem. Unlike the Ministry of Human Resource Development, these "bastions of patriarchy”
as one NGO activist put it, in all the countries are slower to respond to the crisis. However, the
Secretary, Ministry of Home Affairs in India promised the Special Rapporteur that a special
officer and a unit on trafficking would be established in the Ministry' that would deal with
trafficking at the national level. The Special Rapporteur was informed at the end of the visit that
this had been done.
131. Once there is political commitment, the police forces in India would begin to adapt to the
new reality that trafficking is prohibited and that police corruption in this area must be
eradicated. There appears to be a beginning. A manual for police training in the area of
Irafficking is currently being developed with the help of UNICEF. Such a handbook, translated
in all the regional languages, would be a first step in the process of furthering effective law
enforcement.

132. At the local level, the Special Rapporteur was informed that the Maharasthra police were
also compiling a handbook and working out a gender sensitization programme for the police.
The female officer in charge of the women's unit of the Maharasthra police described in detail
the initiatives taken by the Maharasthra police to combat violence against women. The
programmes seemed comprehensive, with the police playing an active role. She said that similar
programmes would be developed to combat trafficking during the course of the year, in
consultation with the Women and Child Department. The Special Rapporteur offered the
technical services of OHCHR to assist the Maharasthra police in this endeavour. In Calcutta too.
the West Bengal police described in detail strategies and programmes to make the West Bengal
police more gender sensitive. In recent times successful raids had taken place and mans minors
rescued, both in Maharasthra and West Bengal.
133. The victims of trafficking tell another story'. The rescued minors and sex workers the
Special Rapporteur spoke to recounted story after story of corruption in the police forces of
Maharasthra and West Bengal, especially concerning sex workers. Numerous incidents of police

E/CN.4/2001/73/Add.2
page 34
corruption that were witnessed by sex workers were recounted, as described in the General
Findings Section. The Special Rapporteur reiterates that unless that message is received by the
average cop who works in the red light areas and other trafficking routes that corruption will not
be tolerated, there will be impunity for traffickers and the rights of women and children will be
abused.

35 noted earlier, despite the Supreme Court having given very clear direction that
trailicking is a major violation of women's fundamental rights, at the lower levels of the
judiciaiy the picture is again mixed. Some judges in Maharasthra and West Bengal have been
very activist. In February' 1996, the Maharasthran High Court, acting on a newspaper article,
intervened and rescued 469 girls, many of whom were Nepalis. Critics have called some of
these judges publicity seekers but in actual fact, they have done a great deal to further the quality
ol life in India w ith regard to fundamental rights. At the same time the Special Rapporteur heard
ol cases in which judges have been insensitive, sometimes even sending the victims to jail, and
ol long conlmement in government homes pending a hearing of their cases.

Rescue and welfare programmes
135. The approach of state governments to the problem of rescue and social welfare centres
around giving the women shelter in Government-run homes while their lives are sorted out.
lhere are two kinds of home. The first is a Protective Home established by the Government for
women and girls taken in under PITA. There are 80 such homes throughout India. The second
t\pe of home is a Short Stay Home. The Department of Women and Child Development assist
these homes. There are also Juvenile Homes set up under the Juvenile Justice Act. Women
lescued from brothels and from being trafficked may be assigned to any of these homes at the
discretion of the j udges.
136. The Special Rapporteur seriously questions the use of government homes as a means of
rehabilitating victims of trafficking. From what she has seen, there are serious human rights
implications associated with this strategy. Firstly, the women are not in these homes voluntarily
In the home that the Special Rapporteur visited, all the women said they wanted to leave.
Having done nothing wrong, they are kept in homes that are akin to jails. Secondlv. the
conditions in these government homes from all reports are unsatisfactory. The one the Special
Rapporteur visited was gloomy, the conditions barely basic and the women seemed extremely
unhappy and idle. The Special Rapporteur suggests that the Government set up a committee
involving government and NGO officials to review the conditions in these homes and to devise
alternative modes of providing social welfare to women without depriving them of their basic
rights.

I37. The ~Central Social
. Welfare Board also provides financial assistance to NGOs to run
centres and short-stay homes for women .......in need,
Some trafficked victims are sent to these
homes. In addition, financial assistance is g
given to NGOs to run development and care centres
lor the children of the sex workers. These centres
......... j are set up in the red light areas and provide
day care along with educational support programmes and nutritional programmes for the
children.

E/CN.4/2001/73/Add.2
page 35
138. During her visit, the Special Rapporteur visited many homes managed by NCOS.
Some were excellent, model institutions while others resembled the government homes.
St. Catherine’s in Maharasthra stands out as a model home though critics argue that, like at
Maili Nepal, there is a ‘‘moral overdose” given to victims of trafficking. Regardless of this, the
premises were clean, and the women seemed alert and happy and involved in their work with a
wide variety of programmes to keep them occupied.
139. Given the wide range of institutions she visited, the Special Rapporteur would assert that
NGO management with government monitoring provides the best framework for the provision of
social w elfare to women and girl victims of trafficking. In any event, if human rights principles
are to be respected the concept of “protective custody" in India must be reconsidered. Women
and girls should ne\ er be kept in government or NGO homes against their will except in veiy’
exceptional circ*mstances.

International agencies
140. Unlike in the other countries in the region, the United Nations in India does not have an
integrated, coordinated strategy to address trafficking. There is no inter-agency task force.
However, UNIFEM. ILO and UNICEF, amongst others, have some ven- important regional
pjogrammes with regard to trafficking which are also functioning in India.

141. UNAIDS has also formed a Regional Task Force on Trafficking and HIV/AIDS in order
to develop and facilitate regional intenentions. The UNDP Regional Office has been assigned
the role of coordinator of the activities under this initiative. The UNDP project on HIV and
Development in South and South-West Asia was prepared in consultation with UNICEF.
UNIFEM and WHO. The main objective is the empowerment of women and girls to enhance
human security and mitigate factors that create their vulnerability to trafficking and HIV/AIDS.
including social, economic and sexual exploitation and discrimination.

142. UNICEF has played a key role in advocacy and awareness raising on the issue within the
region. Its countn offices have also developed and conducted training workshops with law
enforcement agencies, especially the police, on sensitization, investigation and establishment of
women’s units. It has sponsored research for situation analyses on trafficking in the various
countries and supported skills training, protection and reintegration for children at risk, sunivors
of trafficking and children of sex workers. The Rights Cluster has activities regarding the
trafficking of children and adolescents. The India office has supported both Government and
NGOs in dev el oping and implementing various kinds of activities and programmes on
trafficking, w orking closely w ith the Department of Women and Child Development; it has also
sponsored cross-border police w orkshops on the issue of trafficking.
143. UNIFEM provides technical assistance to the ministries concerned with women and
children in the respective countnes. UNIFEM has undertaken advocacy and sponsored
action-research on trafficking in the region. It has played a leading role in supporting advocacy
on the part of NGOs on the SAARC convention. UNIFEM also provides technical assistance to
the various women's ministries and departments in developing databases and collating
information.

E/CN.4/2001/73/Add.2
page 36
144. The International Programme for the Elimination of Child Labour (ILO/IPEC) supports
NGO prevention programmes, awareness raising, rescue and rehabilitation. Assistance is
provided to projects to develop training packages to sensitize primary schoolteachers in human
rights and child rights, and to establish “prevention camps” in trafficking-prone areas. ILO/IPEC
also supports workshops for legal experts and prosecutors on enforcement and legislation
regarding trafficking. ILO conducts intensive advocacy on the issues of child rights and child
labour and works closely with the ministries of labour and social welfare in the concerned
countries.

145. The International Organization for Migration (IOM) has placed trafficking on its regional
agenda and is concerned with understanding and operationalizing the distinctions between
migration and trafficking. IOM focuses primarily on cross-border trafficking and seeks to
strengthen organizations and programmes which provide support to sunivors of trafficking.
UNFPA. WHO and UNAIDS are also committed to addressing the issue of trafficking through
their principal mandates.

Non-governmental organizations
146. National and international NGOs working in India should be congratulated for raising
awareness and for putting trafficking on the world’s agenda as a high-priority issue. The Special
Rapporteur could only visit a few NGOs during her v isil. It is not possible to mention all the
NGOs working on this issue (a list of selected persons/organizations with whom the Special
Rapporteur met during the mission is contained injhe annex): however, a few NGOs that the
Special Rapporteur v isited deserv e v ery special mention.

147
The most unusual NGO that the Special Rapporteur met was the Durbar Maliila
Samanvy ava Committee (DMSC) and the Usha Collectiv e of Sex Workers in Calcutta. These
are self-help organizations of sex workers that hav e begun to address how to reduce forced entrv
ol women and voluntary or forced entrv of minors into the sex industrv. including through
trafficking. DMSC aims at mass-scale mobilization of sex workers to organize for their rights,
better working and living conditions and freedom from abuse, coercion, violence and
stigmatization. DMSC members hav e made a formal commitment to prevent the forced entrv of
women and the trafficking of minors into the industry. DMSC hopes to monitor this through its
self-regulatory board. If trafficking into the sex industry is to be combated, the support and
active participation ol sex workers is extremely useful. Thev- have the inside information about
the methods employed, the perpetrators, as well as the location of the victims. The women from
foe DMSC that the Special Rapporteur met were committed women who were fighting a difficult
cause with dignitv and fortitude.
148. Prerana in Bombay and Sanlaap in Calcutta are also exceptional NGOs. Prerana has a
project to eliminate second-generation trafficking, of children into sexual exploitation, a night
care centre for the children of the red light districts and a placement programme for the children
ol women sex workers. It is also try ing to get ration cards for sex workers. The activities of
Prerana have evolved through constant consultation and interaction with the beneficiaries. Thev
are aimed at enhancing the capacity and self-reliance of the victims rather than generating new
dependence. Prerana is currently fighting a case under public interest litigation at the Bombav
High Court against the state government of Maharashtra to improve the post-rescue operations.

E/CN.4/2001/73/Add.2
page 37

Sanlaap also provides shelter for women and child victims, health services, legal and
psychological counselling and a whole array of other services. Committed staff supports it and
its success lies in the large number of children and women who come to them for assistance on a
voluntary^ basis. The children and women in their care seemed healthy and happy despite
conditions of poverty.
149. Another NGO that seemed to provide exceptional services given the resource constraints
in the NGO sector was St. Catherine’s Home in Bombay for rescued children, abused children
from brothels, and children with HIV/A1DS. St. Catherine's strives to provide a happy home
environment for the children so they can learn and discover themselves and their potential
through education and vocational training. Clean and friendly. St Catherine's seems, like the
other NGOs mentioned above, a model NGO.
150. There are many NGOs working in the field with great enthusiasm and commitment. As a
general rule, their centres, especially' when they are monitored by the Government, are far
cleaner, healthier, and provide more services than Government-run homes.
However,
government officials in Maharaslhra did say that there were also many NGOs that are financially
corrupt and provide minimum sen ices to the women and girls. NGO management may' be better
for the women and children but government monitoring of standards is also essential if the
victims of trafficking are to be given the necessary social welfare services.
VIE RECOMMENDATIONS

151. The international community must continue to play a proactive role in preventing
trafficking in the South Asian region. More resources should be given to the Governments of
the region to meet this problem of human servitude and forced labour. In this connection, the
Nepalese effort should be replicated in the other SAARC countries. There should be an
Inter-Agency’ Task Force on Trafficking or a Joint Initiative on Trafficking involving all the
international agencies. Cooperation among the agencies is essential if there is to be a
coordinated effort to deal with the problem of trafficking in South Asia.

Regional
152. The countries of the SAARC region should gel together to collect comprehensive data on
trafficking. There should be a central database and a regional sun ey to assess the nature of the
problems, the numbers involved, the profile of the trafficking victim, the profile of the trafficker
and the response of national Governments. The collection of data is absolutely necessary if the
problem is to be dealt with effectively.
153. The adoption of the SAARC Convention on Trafficking should be encouraged. If the
present draft Convention is signed, there should be an amendment conference within a year to
ensure that the definition of trafficking in the SAARC instrument is in conformity with the
international language agreed upon at Vienna for the Convention on Organised Crime Protocol
to Prevent. Suppress and Punish Trafficking in Persons. Especially Women and Children,
supplementing the United Nations Convention on Transnational Organized Crime. In addition.

E/CN.4/2001/73/Add.2
page 38

the social and economic rights of the victims should be respected in the section entitled
"‘Rehabilitation”. A monitoring mechanism should be set up along with a regional fund to help
victims of trafficking once they are rescued.
154. There should be an intergovernmental regional task force on trafficking that will plan and
implement a concerted strategy for the region. This task force could be linked to the women and
child ministries of the respective countries. In addition, there should be an interregional police
task force to fight trafficking, track traffickers and gather jointly intelligence on trafficking rings.

National
155. The Go\ ernments of the region should each have a national plan of action to combat
trafficking. To prevent such a plan from being just a piece of paper, there should be a
monitoring mechanism involving Governments, NGOs and international agencies.

156. There should be a nodal agency entrusted with implementing the plan. In some of the
SAARC countries there is such a nodal agency for drug prevention. Human trafficking is a far
more despicable crime than drug abuse. The establishment of a nodal agency would give the
world a sense that the countries take this issue seriously and that there is political will to
eradicate trafficking.
157. Legislation to combat trafficking should be considered, but only if it complies with
international human rights standards and does not violate the rights of women. Nothing should
be done to prevent the freedom of movement of adult women. No law or regulation should place
them at the mercy of the men in their families or in their \ illages. Their autonomy must be
respected.

158. Governments should refrain from enacting regulations and orders that restrict the free
movement of women under the guise of fighting trafficking. Instead, measures aimed at
educating women about their rights and raising awareness about conditions in receiving
countries should be compulsory. The respective embassies in receiving countries should be
proactive in providing assistance to women and girl victims of trafficking.
159. ‘"Protective Custody” as a means of dealing with victims of trafficking should be
reconsidered. Women who are victims of trafficking have not committed any crime. For this
reason, they should not be detained. Any stay in a government home should be voluntary in
addition, conditions in these homes should be such that the women would want to stay there
voluntarily. There should be programmes to keep women occupied; there should be legal and
psychological counselling and an effort to help the women plan their future. Proven NGOs
should manage such homes with government monitoring and supervision.

160. In cases of trafficking victims who are foreign nationals, the Governments of the region
must work towards facilitating their voluntary return, if that is appropriate, rather than detain
them for long periods in government homes.
161. All the countries of the region should have training for their police forces on how to
combat violence against women in general as well as trafficking. The training should consist of

E/CN.4/2001/73/Add.2
page 39
aw'areness raising on the issue as well as development of investigative skills so that crimes of
violence against women are investigated and prosecuted with proper evidence. The Special
Rapporteur suggests that the countries of the region draw on international expertise present at
OHCHR and the United Nations Office for Drug Control and Crime Prevention in Vienna.

162. Corruption in the police seems a significant problem in all the countries of the region,
especially in the area of trafficking. There should be a clear direction from the top of the police
hierarchy that such behaviour will not be tolerated and police officers who engage in such
activity should face severe consequences.

163. There should be seminars and workshops with judges in lhe region to increase- their
awareness on issues relating to violence against women, as well as to issues related to
trafficking. There are a number of such programmes already in existence and they should be
encouraged.
164. rThe human rights commissions in all the countries of the region should make trafficking
a special focus of their work

165. Witness protection schemes should be set up for women victims so that they will testify
against their traffickers. Such schemes should assist the police in presenting evidence before the
courts and would help to secure a higher rate of con\ iclion

166. There should be a concerted effort to deal with the problem of HIV/A1DS in the region.
region
Resources should be allocated to deal sufficiently with the problem. Special centres should be
set up in the red light districts to assist sex workers. International standards on "\oluntanness"
with regard to testing and confidentiality should guide the campaign. Gender training for the
medical profession should be provided to ensure that women receive non-judgmental.
confidential treatment
167. Prevention programmes should exist in all three countries. Pre\ ention should take the
form of awareness raising through the media, through the education system and through social
mobilizers in the villages. Prevention should not rely on social suneillance and neighbour
spying on neighbour, as such sun eillance can be subject to a great deal of abuse.

168. Extensive support should be given to NGOs working in this field. The NGOs working
with the children of the sex workers should be given special encouragement along with those
who work with the victims of trafficking. A partnership between Government and NGOs
working in this field is essential if the problem of trafficking is to be dealt with in the South
Asian region

Notes
For further information please refer to the Special Rapporteur's report on trafficking in
women, women's migration and violence against women, submitted to the Commission* on
Human Rights at its fifty-fifth session (E/CN.4/2000/68).

E/CN.4/2001/73/Add.2
page 40

LoXTs^l 99fhtS lY^’ RaPe f°r PrOflt Trafficking of Nenali Girls and Women to India’s
c

Ibid.

d Central Welfare Board, Prostitution in Metrogolitan Cities of India, New Delhi, August 1993.

c J?HWaS
caicuna.
r

fiSUre S‘Ven t0 ‘he Special RaPPOrteur by NGO activists working in Bombay and

Human Rights Watch, op. cit, pp. 20-24.

Jyoti Sanghera, Trafficking of Women and Children in South Asia
Taking Stock and Moving
Ahead, for UNICEF and Save the Children Alliance, November 1999.
" Ibid.

E/CN.4/2001/73/Add.2
page 41

Appendix
SELECTED LIST OF PERSONS/ORGANIZATIONS WHOM THE
SPECIAL RAPPORTEUR ON VIOLENCE AGAINST WOMEN
MET DURING HER MISSION

BANGLADESH
Dhaka
Mr. Munshi Faiz Ahmad. Director-General. Ministry for Foreign Affairs
Dr. Ah. Acting Foreign Secretary. Ministry for Foreign Affairs
Mr. Rabab Fatima. Director, Ministry for Foreign Affairs
Mr. Abul Hasan Choxxdury, State Minister for Foreign Affairs
Mr. Reza. Ministry of Home Affairs
Prof. Zinantun Nesa Talukdar. State Minister. Ministry of Women and Children Affairs
Prof. (Dr.) Tehmina Hussain. Secretary. Ministry of Women and Children Affairs
Mr. Abdul Matin Khasru. Minister. Ministry of Law. Justice and Parliamentary Affairs
Mr. Mahmid Al-Faird. Acting Inspector-General of Police
Ms. Shamim Hamid. Principal Officer. Office of the United Nations Resident Coordinator
Ms. Farah Ghuznax i. Programme Officer. UNDP
Ms. Shahida Azfar. UNICEF Representatix e
Ms. Jun Kukila. Senior Programme Coordinator. UNICEF
ILO Representatix e
World Bank Representatix e
UNHCR Representatix e
IOM Representatix e

Mr. Kamal Khairuzzaman. Executive Director. Bangladesh Manabadhikar Sangbadik Forum
Ms. Salma All. Executive Director. Bangladesh National Women Lawvers Association
(BNWLA)
Ms. Shirin Naer. Advocate. Supreme Court of Bangladesh/BNWLA
Ms. Maleka Begum. Gender Specialist and Researcher
Ms. Ruby Ghuznavi. Convenor. Naripokkho
Ms. A\ esha Khanam. GS. Bangladesh Mahila Parishad
Ms. Salma Sobhan. Executive Director. Ain O Saltsh Kendra
Ms. Sigma Huda. Advocate. Chancery Chambers. Ain-O-Unnyan Sangstha
Ms. Angela Gomes, Execulix e Director. Banchte Shekha
Ms. Salima S arwar. Executive Director. ACD. Rajshahi
Ms. Farida Akhter. Executive Director. UBINIG
Mr. Aminul Islam Miah. GS. Bangladesh Retired Police Officers' Welfare Association.
Detectix e Training School
Ms. Selina Shelley. Country Representative a.i. Oxfam
Ms. Mufaxxesa Khan. Executix e Director. CWFD
Ms. Khushi Kabir. Chairperson. AD AB
Pro!' Ishrat Shamim. President. CWCS

E/CN.4/2001/73/Add.2
page 42
Ms. Salma Khan, President. Women for Women
Ms. Lulu Bilkis Khanom, Senior Programme Officer. Dhaka Ahsania Mission
Ms. Naheed Kamal
Ms. Carol Jenkins
Mr. Matthew Friedman
Mr. Rakin Hossain
Aparageva Hostel
NEPAL
Kathmandu

Mr. Ram Chandra Paudel. Deputy Prime Minister
Mr. Mahanth Thakur. Minister of Law
Mr. Arjun Kant Mainali. Section Officer. Ministry for Foreign Affairs
Ministry of Women, Children and Social Welfare
Mr. Badri Bahadur Karki. Attorney-General
Mr. Pradeep SJB Rana. Acting Inspector-General of Police. Chief of Nepal Office
Mr. G.P. Thapa. Deputy Inspector-General of Police. Training Directorate. PHQs
Mr. Jogendra Keshan Ghimire. Secretary . National Human Rights Commission
Ambassador Nihal Rodrigo. SAARC Secretarv-General
Mr. Nick Langton. Representative, the Asia Foundation
Ms. Shtrii Shakti
Ms. Sapana Pradhan-Malla. Advocate. Forum lor Women Law and Development
INHURED
Ms. Anu Radha Koirala. Chairperson. Maili Nepal
Dr. Renu Rajbhandary, Chairperson. WO REC
Ms. Pratima Mudbary. Women for Women Forum
Ms. Saloni Singh. Didi Bahini
Ms. Pramoda Shah. Saathi
Ms. Durga Ghimire. ABC Nepal
Ms. Kamala Hemchuli. Dalit Women's Organisation
Dr. Shanta Thapaliya. LACC
Ms. Tula Rana. Beyond Beijing Committee
Ms. Bandana Rana. Sancharika Samuha
Ms. Madhax i Singh. Coordinator. National New twork Against Girls Trafficking (NNAGT)
Ms. Bagwati. AAZWIN
Ms. Indira Shrestha. President. Strii Shakti
Mr. Yubaraj Sangroula. Chairperson. CeLLRd
Mr. Dilli Chaudary. President. BASE
Mr. Dillip Pariyar, President, SAFE
Ms. Shanti. Shanti Punarsthapana Kendra
Mr. Henning Karcher, United Nations Resident Representative
United Nations Task Force on Trafficking
Informal Inter-Agency Group on Trafficking

y\ s
Global Alliance Against Traffic in Women
Foundation Against Trafficking in Women
International Human Rights Law Group

HUMAN RIGHTS STANDARDS FOR THE TREATMENT OF TRAFFICKED
PERSONS

January 1999
SUMMARY

These Standards are drawn from international human rights instruments and formally
recognized international legal norms. They aim to protect and promote respect for the
human rights of individuals who have been victims of trafficking, including those who
have been subjected to involuntary servitude, forced labour and/or slavery-like practices.
The Standards protect the rights of trafficked persons by providing them with an effective
legal remedy, legal protection, non-discriminatory treatment, and restitution,
compensation and recovery.
Under international law, states have a duty to respect and ensure respect for human rights
law, including the duty to prevent violations, to investigate violations, to take appropriate
action against the violators and to afford remedies and reparation to those who have been
injured as a consequence of such violations.
Accordingly, the Standards adopt the following definition of trafficking and mandate the
following State obligations towards trafficked persons:
Trafficking: All acts and attempted acts involved in the recruitment, transportation
within or across borders, purchase, sale, transfer, receipt or harbouring of a person
involving the use of deception, coercion (including the use or threat of force or the abuse
of authority) or debt bondage for the purpose of placing or holding such person, whether
for pay or not, in involuntary servitude (domestic, sexual or reproductive), in forced or
bonded labour, or in slavery-like conditions, in a community other than the one in which
such person lived at the time of the original deception, coercion or debt bondage.
Principle of Non-Discrimination: States shall not discriminate against trafficked
persons in substantive or procedural law, policy or practice.
Safety and Fair Treatment: States shall recognize that trafficked persons are victims of
serious human rights abuses, protect their rights notwithstanding any irregular
immigration status, and protect them from reprisal and harm.
Access to Justice: The police, prosecutors and court shall ensure that their efforts to
punish traffickers are implemented within a system that respects and safeguards the rights
of the victims to privacy, dignity and safety. An adequate prosecution of traffickers
includes prosecution, where applicable, for rape, sexual and other forms of assault
(including, without limitation, murder, forced pregnancies and abortions), kidnapping,
torture, cruel, inhuman or degrading treatment, slavery or slaveiw-like practices, forced or
compulsory labour, debt bondage, or forced marriage

Access to Private Actions and Reparations: States must ensure that trafficked persons
have a legal right to seek reparations from traffickers as well as assistance in bringing
such actions, if necessary.
Resident Status: States shall provide trafficked persons with temporary residence visas
(including the right to work) during the pendency of any criminal, civil or other legal
actions and shall provide trafficked persons with the right to seek asylum and have the
risk of retaliation considered in any deportation proceedings.
Health and Other Services: States shall provide trafficked persons with adequate health
and other social services during the period of temporary residence.
Repatriation and Reintegration: States shall ensure that trafficked persons are able to
return home safely, if they so wish, and when they are able to do so.
Recovery includes medical and psychological care as well as legal and social services to
ensure the well being of trafficked persons.
State Cooperation: States must work cooperatively in order to ensure full
implementation of these Standards.

Global Alliance Against Traffic in Women
Foundation Against Trafficking in Women
International Human Rights Law Group

HUMAN RIGHTS STANDARDS FOR THE TREATMENT OF TRAFFICKED
PERSONS
January 1999

INTRODUCTION
These Standards are drawn from international human rights instruments and formally
recognized international legal norms. They aim to protect and promote respect for the
human rights of individuals who have been victims of trafficking, including those who
have been subjected to involuntary servitude, forced labour and/or slavery-like practices.
Victims of trafficking are treated as objects or commodities by traffickers who use
coercion, deception or debt bondage to deprive victims of their fundamental freedoms,
such as their ability to control their own bodies and labour. To remedy this injustice and
address the needs of the victims, the Standards adopt a victim-rights perspective. They
protect the rights of trafficked persons by providing them with an effective legal remedy,
legal protection, non-discriminatoiy' treatment, and restitution, compensation and
recovery.
States have a responsibility to provide protections to trafficked persons pursuant to the
Universal Declaration of Human Rights (UDHR) and through ratification or accession to
numerous other international1 and regional instruments. These and other instruments to
which states have acceded or ratified are binding, while non-treaty declarations and
standards adopted by the General Assembly have a strong hortatory nature and establish a
standard by which national practices can be and are measured. International human
rights instruments impose a duty upon states to respect and ensure respect for human
rights law, including the duty to prevent and investigate violations, to take appropriate

action against the violators and to afford remedies and reparation to those who have
'international
Covenant
on
Civil
and
Political
Rights
(ICCPR)
International Covenant on Economic, Cultural and Social Rights (ICESCR)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT)
Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)
Convention on the Rights of the Child (CRC)
Slavery Convention (SC) and the Supplementary Convention on the Abolition of Slavery,
the Slave Trade and Institutions and Practices Similar to Slavery (SCAS)
International Convention on the Protection of the Rights of all Migrant Workers and
Members of Their Families (ICPRMW) (not yet in force)
International Labor Organization Conventions No. 29 Concerning Forced Labour (1LO
No. 29) and No. 105
Concerning Abolition of Forced Labour (ILO No. 105).

been injured as a consequence of such violations. Nonetheless, as yet, few states have
fulfilled their obligation to implement these commitments or to provide adequate human
rights protections to trafficked persons.
The protections called for in these Standards apply to all trafficked persons - women,
men and children. However, it should be noted that trafficking disproportionally affects
women and girls. The overwhelming majority of the persons trafficked to work in
sweatshops and brothels are women and girls due to their inferior and vulnerable status in
most societies. The gendered nature of trafficking derives from the universal and
historical presence of laws, policies, customs and practices that justify and promote the
discriminatory treatment of women and girls and prevent the application of the entire
range of human rights law to women and girls?
The historical linkage of ‘women and children’ has proven problematic in multiple ways.
Linkage often encompasses the treatment of women as if they are children and denies
women the rights attached to adulthood, such as the right to have control over one’s own
life and body. The linkage also serves to emphasize a single role for women as
caretakers for children and to deny the changing nature of women’s role in society, most
notably, women’s increasing role as the sole supporter of dependent family members and,
consequently, as economic migrants in search of work. Nearly half of the migrants today
are women. Consequently, the Standards focus upon the rights and needs of adults and
pay particular attention to the concerns and needs of female victims of trafficking.
The Standards do not contain specific provisions addressing the special status, rights and
needs of the girl child or children generally. Adults, particularly women, have legal
positions and require legal remedies that are not always consistent with the legal
positions and needs of children. The special rights and needs of children should be
protected according to the principles contained in the Convention on the Rights of the
Child.
The second component of the Standards is effective prosecution of traffickers, which
depends upon the cooperation of victims. However, trafficked persons typically fear
authority and are unwilling to trust the police. Traffickers exploit persons who are

trapped in conditions of poverty and subordinated by conditions, practices or beliefs, such
as gender discrimination, gender violence and armed conflict. Their ability to operate
further depends upon the existence of lax or corrupt law enforcement officials and
traffickers themselves are often corrupt officials. Thus, a critical component in the
effective detection, investigation and prosecution of traffickers is the willingness of
trafficked persons to assist in prosecutions. In recognizing and protecting the rights of
trafficked persons, the Standards provide an incentive to trafficked persons to report to
the authorities and act as witnesses.
In furtherance of achieving the full implementation of the rights of trafficked persons, we
urge states to take all necessary measures to adopt and amend laws, where necessary, and
to implement laws and policies extending the universally accepted basic human rights of
all persons to all trafficked persons. At a minimum, those laws and policies should
contain the provisions set out below.

I. DEFINITIONS
States shall adopt and/or implement and periodically review and analyse legislation to
ensure its conformity with the following definitions:
Trafficking: All acts and attempted acts involved in the recruitment, transportation
within or across borders, purchase, sale, transfer, receipt or harbouring of a person

“See Declaration on the Elimination of Violence against Women, General Assembly,
A/RES/48/104 (2/23/94)

(a) Involving the use of deception, coercion (including the use or threat of force or
the abuse of authority) or debt bondage
(b) For the purpose of placing or holding such person, whether for pay or not, in
involuntary servitude (domestic, sexual or reproductive), in forced or bonded labour, or
in slavery-like conditions, in a community other than the one in which such person lived
at the time of the original deception, coercion or debt bondage. '1
Commentary: Trafficking can involve an individual or a chain of individuals starting
with the recruiter and ending with the last person who buys or receives the victim (such
as the owner of the sweatshop) or the person who holds a person in conditions of slavery
or subjects such person to slavery-like practices, forced or bonded labour or other
servitude. Persons are trafficked into a multitude of exploitative or abusive situations,
such as in the garment, agricultural, fisheries, begging, sex and other industries and in
domestic labour as servants or through forced "marriages’ where they held as virtual
prisoners, raped continually by their "husbands’ and often forced to become pregnant for
the purpose of providing their ‘husbands’ with children. Trafficking does not require the
crossing of borders. A large portion of modern trafficking consists of moving persons
from one region to another within one country. The violations and harms suffered by in
country victims are no less than for cross-border victims. For example, the harm suffered
by a person trafficked several thousand kilometers within a country can be as great or
even greater than the harm suffered by a person trafficked a few hundred kilometers
across a border.

The core elements of the act of trafficking are the presence of deception, coercion or debt
bondage and the exploitative or abusive purpose for which the deception, coercion or
debt bondage is employed. Typically the deception involves the working conditions or
the nature of the work to be done. For example, the victim may have agreed to work in
the sex industry but not to be held in slavery-like conditions or to work in a factory but
not in a brothel.
The nature of the labour or services provided as such, including those in the sex
industry4, are irrelevant to the question of whether or not the victim’s human rights are
violated. The trafficker’s use of deceit, coercion, or debt bondage to force the victim to
work in slavery-like or exploitative or abusive conditions deprive the victim of her or his
free will and ability to control her or his body, which constitutes serious violation of the
fundamental rights of all human beings.
The definition reiterates existing international human rights standards prohibiting such
acts. The Slavery Convention, article 1(1), defines slavery as: "the status or condition of
a person over whom any or all of the power attaching to the right of ownership are
exercised." The Supplementary Convention to the Slavery Convention, article 1, calls for
the elimination of the slavery-like conditions in which many trafficked persons find
themselves. It calls for "the complete abolition or abandonment...[of] [djebt bondage.
3See 1CPRMW 68.1.
4The International Labour Organisation has officially recognised that sex work is a form
of labour. The Sex Sector: The economic and social bases of prostitution in Southeast
Asia, ed. by Lin Lean Lim (ILO 1998). Similarly, Anti-Slavery International proposes
the redefinition of prostitution as sex work as a preliminary condition for the enjoyment
by sex workers of their full labour and human rights. Redefining prostitution as sex
work on the international agenda, Anti-Slavery International with the participation of Jo
Doezema (Network of Sex work Projects) (July 1997). These Standards adopt the same
position and argue that the human rights of sex workers can only be realised through the
recognition, application and protection of the same rights and protections to sex workers
that are available to other workers.
That is to say, the status or condition arising from a pledge by a debtor of his personal
services or those of a person under his control as security for a debt, if the value of those
services as reasonably assessed is not applied towards the liquidation of the debt or the
length and nature of those services are not respectively limited and defined", forced
marriages, the transfer of a woman "for value received or otherwise", and delivery of a
child "to another person, whether for reward or not, with a view to the exploitation of the
child or young person or of his labour." Article 6.2 prohibits the act of "induc[ing]
another person to place himself or a person dependent upon him into the servile status
resulting from any of the institutions or practices mentioned in article 1...."
The International Labour Organization also condemns such slavery-like
practices.? Article 2 of ILO No. 29 prohibits the use of forced or compulsory labour.
defined as "all work or service, which is exacted from any person under the menace of
any penalty and for which the said person has not offered himself voluntarily." Also,
article 4 holds that "[t]he competent authority shall not impose or permit the imposition

of forced or compulsory labour for the benefit of private individuals, companies or
associations."
Trafficked Person: A person who is recruited, transported, purchased, sold, transferred,
received or harboured as described in ‘Trafficking’ above, including a child (as defined
by and consistent with the principles in the Convention on the Rights of the Child),
whether the child has consented or not.
Commentary: The definition distinguishes between adults who freely agree to travel
(within or across borders) and who are fully informed about the type and conditions of
work or services they are expected to perform and adults who do not consent at all or
whose apparent, implied or express consent is vitiated by the use of deception, coercion
or debt bondage. It respects the right of adults to make decisions about their lives,
including the decision that working under abusive or exploitative conditions is preferable
to other available options. However, even when migrants know the type of difficult and
even dangerous work they will be required to perform, they often become victims of
trafficking because the traffickers routinely confiscate their passports, hold them in
confinement through coercion, and otherwise deprive them of their freedom of movement
and choice.
In situations where labour conditions are no worse than those expected by the worker and
the worker is not deprived of her or his freedom of movement or choice, the abuser or
exploiter remains criminally liable for other crimes, such as assault, unlawful detention,
and labour abuses and for appropriate administrative and civil offenses. The existence of
consent to work under such conditions does not excuse the abuser or exploiter from being
subjected to the full force of domestic laws that prohibit such practices.
Lastly, the definition recognizes that children need special protection and that ‘consent’
can never be a defence to a charge of trafficking in children.
Trafficker: A person who, or an entity that, intends to commit, is complicitous with, or
acquiesces to, any of the acts described in ‘Trafficking’ above. Commentary: The
definition is intended to punish only those persons or entities that have the requisite
mental element, including persons and entities that intentionally remain ignorant of the
manner in which their acts contribute to the trafficking chain. It excludes

■'ILO No. 105, art. 1, obliges each state party to undertake "to suppress and not make use
of any form of forced or compulsory labour...as a method of mobilising and using labour
for the purposes of economic development." See also, UDHR, art. 4; ICCPR, art. 8.
persons and entities that unwittingly (and without any reason to suspect the existence of
trafficking) become a link in the trafficking chain, such as an innocent taxi driver or hotel
owner.
II. STATE RESPONSIBILITIES
As discussed in the Introduction, all states have obligations to recognize and protect the
human rights of all persons in conformity with the Universal Declaration of Human
Rights and other international human rights instruments. States are obligated to respect
and protect the human rights of the persons within its territorial boundaries, as well as to
enable such persons to realise those rights, which includes the concept that human rights
encompass not only states’ obligations to respect and protect but also their obligation to

provide or make available the means (including information, capacity and structures) to
ensure the realisation of rights possible by each person.
In recognition and furtherance of those obligations, all states should adopt and/or
implement and periodically review and analyse legislation to ensure its conformity with
international human rights standards and its effectiveness in eliminating trafficking and in
protecting all rights of trafficked persons.6 Accordingly, states shall:
Principle of Non-Discrimination
1. Ensure that trafficked persons are not subjected to discriminatory treatment in law or
in practice on account of race, colour, gender, sexual orientation, age, language, religion,
political or other opinion, cultural beliefs or practices, national ethnic or social origin,
property, birth or other status,7 including their status as victims of trafficking or having
worked in the sex industry.
2. Cease enforcing and repeal all measures targeted at preventing or obstructing the
voluntary movement of its citizens or legal residents within the country of residence,' into
or out of the country upon the ground that the citizen or legal resident might become,
might be, or has been a victim of trafficking.9
Commentary: Trafficking of women is typically facilitated by the intersection of
discriminatory practices and beliefs about women from a particular ethnic, racial, class or
other marginalised or disadvantaged group. Anti-trafficking measures must not, in the
name of ‘protecting’ all women from harm, deprive any woman of any of her human
rights, as the principles of non-discrimination and the universality of human rights norms
are fundamental and non-derogatory. States have a duty to ensure that all procedural and
substantive rights are protected, including the right to non-discriminatory application and
interpretation of the law.
6Many of the provisions in these Standards are also contained in The Hague Ministerial
Declaration on European Guidelines for Effective Measures to Prevent and Combat
Trafficking in Women for the Purpose of Sexual Exploitation, 24-26 April 1997. See
also ICPRMW, which contains detailed state obligations towards migrant workers;
Model Strategies and Practical Measures on the Elimination of Violence Against Women
in the Field of Crime Prevention and Criminal Justice, Annex to General Assembly
Resolution A/RES/52/86, para. 9 (2 Feb. 1998), which Model Strategies serve "as a
model for guidelines to be used by Governments in their efforts to address, within the
criminal justice system, the various manifestations of violence against women;...."; and
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA
res. 40/34 (29 Nov. 1985).
7UDHR 2; ICCPR 2.1, 2; ICESCR 2.2, 3; CEDAW 1, 2, 16; CRC 2; ICPRMW 7, 25;
Model Strategies 4, 5, 6(a); Declaration of Basic Principles, ail. 3.
8UDHR 13.1; ICCPR 12.1
9UDHR 13.2; ICCPR 12.2-.4; CEDAW 15.4; ICPRMW 8.

Safety and Fair Treatment
3. Ensure access to:
a. The embassy or consulate of the country in which the trafficked person is a
citizen or, if there is no embassy or consulate, ensure access to a diplomatic

representative of the State that takes charge of the country’s interests or any national or
international authority whose task it is protect such persons,10 and
b. Non-governmental organizations that provide services and/or counselling to
trafficked persons.11
4. Provide protection to trafficked persons and witnesses in a manner that does not
subordinate the safety and integrity of trafficked persons or witnesses to the interests of
the prosecution, including:
a. Before, during and after all criminal, civil or other legal proceedings, measures to
protect trafficked persons from intimidation, threats of reprisals and reprisals from
traffickers and their associates, including reprisals from persons in positions of authority
and, where necessary, provide similar protection to family members and friends of the
trafficked persons.12
b. A change of identity, where necessary.
c. Take into account the need for the safety of the trafficked person, family members
and friends in decisions on the arrest, detention and terms of any form of release of the
trafficker, and notify the trafficked person prior to the release from custody or detention
of persons arrested for, or convicted of trafficking, abusing or exploiting the trafficked
person.13
Provide all trafficked persons, as well as all persons who might be victims of
trafficking (such as illegal migrants held in custody) with information about their
legal rights and the procedures available for claiming compensation, restitution
and recovery as a result of being trafficked. 14

10 Standard Minimum Rules for the Treatment of Prisoners 38; ICPRMW 23.
"Model Strategies 10; Declaration of Basic Principles 14-15.
12Rome Statute of the International Criminal Court (ICC) 57.3, 64.2, 64.6(e), 68;
ICPRMW 16.2; Declaration of Basic Principles 6(d); Model Strategies 6(c), 7(h).
9(h).
1 'See Model Strategies 7(i), 8(c), 9(b).
"’iCPRMW 16.5-.7; Model Strategies 10(a).

6. Not detain, imprison or prosecute any trafficked person for oftences related to being a
victim of trafficking, including for lack of a valid visa (including a work visa),
solicitation, prostitution, illegal stay and/or the use of a false visa or false travel or other
documents; and not hold trafficked persons in a detention centre, jail or prison, at any
time, prior to, during and after all civil, criminal or other legal proceedings."
7. Prohibit public disclosure of the names of persons trafficked into the sex industry
and/or the use, by any person, of a person's history of being trafficked to discriminate or
cause harm to any trafficked person or her or his family or friends in any way
whatsoever, particularly with regard to the right to freedom of travel, marriage, or search
for gainful employment.16
8. Establish, whenever possible, specialised police and prosecutorial units that are
trained to deal with the complexities, gender issues and victim sensitivities involved in
trafficking.'

Commentary: The above provisions, as well as others, are intended to ensure that
trafficked persons are not treated as criminals but as victims of crimes who have suffered
serious human rights abuses. The General Assembly recently called upon states "[t]o
encourage and assist women subjected to violence in lodging and following through on
formal complaints. 18 These provisions seek to meet that goal and constitute one leg of
the stool upon which successful prosecutions sit. Unfortunately, most governments
continue to treat trafficked persons as illegal migrants and criminals, thereby further
victimising the victims.
Practice shows that current policies in the majority of states have the effect of deterring
trafficked persons from reporting to the authorities, as reporting may result in arrest,
detention and/or expulsion. The decision to press charges may have major consequences
for the persons concerned, both in relation to their safety, in the light of the risk of
retaliation against the person or her/his family (especially in cases of organised crime),
and in relation to their future prospects, in the light of the risk of stigmatising exposure,
social exclusion and/or harassment by authorities.
In order to obtain successful prosecutions of traffickers, states must implement policies
and laws to allay the fear most trafficked persons have towards authority and law and
must further provide incentives to encourage trafficked persons to seek help, report to the
authorities and, if they wish, act as witnesses. The names of trafficked persons should
not be recorded in any court or other public documents, nor should they be released to the
press or members of the public, including family members, without the consent of the
trafficked persons.
Access to Justice
,5ICPRMW 16.4.
lbModel Strategies 7(c).
17ICC 42.9; Model Strategies 11(f)
lsModel Strategies 16(b).

9. Take all necessary steps to ensure that all trafficked persons, irrespective of their
immigration status or the legality or illegality of the work they perform (e.g., begging or
sex work) have the right to press criminal charges against traffickers and others who have
exploited or abused them. In the case of a trafficker who has diplomatic immunity, states
shall make a good faith effort to obtain a waiver of immunity or, alternatively, shall expel
the diplomat. States should adopt a mechanism for promptly informing trafficked
persons of their rights to seek this and other forms of redress.19
10. Provide trafficked persons with a competent, qualified translator and legal
representation before and during all criminal, civil, administrative and other proceedings
in which the trafficked person is a witness, complainant, defendant or other party, and
provide free transcripts or copies of all documents and records related to any and such
proceedings, in their own language. Trafficked persons and defendants shall have
different translators and legal representatives If the trafficked person cannot afford to
pay, legal representation and translation shall be provided without cost

11. Recognize that trafficking is often only one of the crimes committed against the
trafficked person.21 In addition to charging defendants with the crime of trafficking, states
should consider bringing charges, for example, of:
a. Rape, sexual and other forms of assault (including, without limitation, murder,
kidnapping."2
forced
pregnancies
and
abortions)
and
treatment.23
b.
Torture,
cruel,
inhuman
or
degrading
c. Slavery or slavery-like practices, involuntary servitude, forced or compulsory
labour/24
d Debt bondage.25
e. Forced marriage, forced abortion, forced pregnancy.26
12. Ensure that trial proceedings are not detrimental or prejudicial to the rights of the
trafficked person and are consistent with the psychological and physical safety of
trafficked persons and witnesses.27 At a minimum, states must ensure that:
a. The burden of proof prior to and during any prosecution of a person alleged to be
guilty of trafficking lies with the prosecution and not with the trafficked person. "s

19 UDHR 8; ICCPR 2.3; ICPRMW 16.2; Declaration of Basic Principles 4-5.
20ICCPR 14.3; ICPRMW 18.3
21 Model Strategies 8a, 9(a)(i).
"2UDHR 3; ICCPR 6; CEDAW 2(f), 6 and Recommendation 19 on Violence Against
Women).
23UDHR 5, ICCPR 7; CAT, all, CRC 37(a); ICPRMW 10.
24UDHR 4; ICCPR 8; SC, all, SCAS, all; 1LO Nos. 29 and 105, all; CRC 32; ICPRMW
11.
25SCAS 1(a).
2SUDHR 16.1-.2; ICESCR 10.1; ICCPR 23; CEDAW 16; SCAS 1(c).
2'Model Strategies 10(d).
~SUDHR 11.1; ICCPR 14.2; ICPRMW 18.2. "The primary responsibility for initiating
prosecutions lies with prosecution authorities and does not rest with women subjected to
violence," Model Strategies 7(b).

b. The prosecutor either calls at least one expert witness on the causes and
consequences of trafficking and the effects of trafficking on victims or consults with such
expert in preparation for the criminal proceedings."9
c. Methods of investigation, detection, gathering and interpretation of evidence
minimise intrusion, do not degrade the victims or reflect gender-bias. For example,
officials shall not use the personal history, the alleged ‘character’ or the current or
previous occupation of the trafficked person against the trafficked person or cite them as
a ground for disqualifying the trafficked person’s complaint or for deciding not to
prosecute the offenders.30
d. Defendants are not permitted to introduce as a defence evidence of the personal
history, alleged ‘character’ or the current or previous occupation (e.g., as a prostitute or
domestic worker) of the trafficked person.31

e. Trafficked persons subjected to, and witnesses of, sexual violence are permitted
to present evidence in camera or by electronic or other special means, after taking into
consideration all of the circ*mstances and hearing the views of the victim or witness.32
f Trafficked persons are informed of their role and the scope, timing and progress
of the proceedings and of the disposition of their cases.33
g. The views and concerns of trafficked persons are allowed to be presented and
considered at appropriate stages of the proceedings where their personal interests are
affected, without prejudice to the accused and consistent with the relevant national
criminal justice system.34
13. Ensure that, if a trafficked person is a defendant in a criminal case:
a. She or he has the opportunity to raise a defense of duress or coercion and the
same evidence is considered as a mitigating factor in sentencing, if convicted.3?
b. In cases involving charges of having committed a crime against a trafficker(s),
including homicide, she or he has an opportunity to plead self-defense and to present
evidence of having been trafficked and the same evidence is considered as a mitigating
factor in sentencing, if convicted.36
c. Trials involving migrant trafficked persons are conducted in accordance with
these
29ICC 42.9.
3(,ICC 21.3, 54.1(b); Model Strategies 7(d) and 8(b).
11 ICC 21.3, 68.1; Model Strategies 7(d).
32ICC 68.2; Model Strategies 7(c).
'3 Declaration of Basic Principles 6(a).
^Declaration of Basic Principles 6(b).
"See ICCPR 14.3(d).
36See ICCPR 14.3(d).

Standards, relevant provisions of Article 5 of the Vienna Convention on Consular
Relations (VCCR) and the articles 16-19 of the ICPRWM. States providing assistance to
their nationals under the VCCR shall act, at all times, in the best interests of and
consistent with the views of, the trafficked person.
Commentary: Action to combat trafficking must be targeted at the offenders and not at
those who are victim of such practices. The victim too often is forced to stand trial
instead of the offender, thus further undermining the victim’s belief in the ability of the
legal system to bring about justice. Anti-trafficking legislation, which is often more
concerned with illegal migration and criminal prosecutions than with the rights and needs
of victims, is often used as an instrument of repression by governments to punish,
criminalise and marginalise trafficked persons and to deny trafficked persons their basic
human rights.
When laws target typically ‘female’ occupations, they are usually overly protective and
prevent women from making the same type of decisions that adult men are able to make
For example, anti-trafficking laws might prohibit women from migrating for work
thereby throwing women into the hands of traffickers. Additionally, many women are
deterred from reporting due to discriminatory treatment of migrant women, especially

women working in the sex industry. Police and prosecutors have exhibited a tendency in
many parts of the world to undermine the credibility of female victims of trafficking and
to categorize women as ‘fallen’ or ‘without virtue', and thereby as not deserving of
respect for their human rights.
Therefore, measures are needed to encourage and assist trafficked persons to report to the
authorities and to act as a witness and to ensure ‘fair treatment’ by the criminal justice
system and the safety and integrity of trafficked persons.
Access to private action and reparations
14. Take all necessary steps to ensure that all trafficked persons, irrespective of their
immigration status or the legality or illegality of the work they perform (e.g., begging or
sex work), have the right to bring a civil or other action against traffickers and others
(including public officials and, when possible, persons having diplomatic immunity) who
may have exploited or abused them, and have access to other legally enforceable forms of
compensation (including lost wages), restitution and recovery for economic, physical and
psychological damages.37 Non-wage compensation, restitution and recovery shall be
proportionate to the gravity of the violations and resulting harm.
15. Confiscate all assets of convicted traffickers and disburse such assets in payment of
all court orders for compensation (such as unpaid wages), restitution and recovery due to
the trafficked person.
16. Ensure that the relevant authorities, upon the request of the trafficked person and/or
her or his legal representative, make available to the requesting party(ies) all documents
and other information in their possession or obtainable by them that is relevant to the
determination of the trafficked person’s claim for monetary damages, including
compensation, restitution and recovery.
Commentary: Trafficking in persons has major economic, emotional, psychological

37ICCPR 2.3; ICC 75; ICPRMW 22.6 and .9, 68.2; Declaration of Basic Principles 8-11;
Model Strategies 10(c); see also. The right to restitution, compensation and rehabilitation
for victims of grave violations of human rights and fundamental freedoms, adopted by the
Economic and Social Council, Report of the Economic and Social Council for the year
1998, A/53/3 para. 202; (Draft) Basic Principles and Guidelines on the Right to
Reparation for Victims of [Gross] Violations of Human Rights and International
Humanitarian Law, Commission on Human Rights, UN (E/CN.4/1997/104, April 1997),
which formed the basis for the Commission’s examination of the matter.

and physical consequences for the victims, their families and friends, which
consequences are not accommodated by criminal investigation and prosecution of the
offender. Adequate assistance and support as well as financial compensation serves not
only to remove or redress the consequences, but also acts as a deterrent to traffickers by
strengthening the position of trafficked persons.
Whereas, the victims of human rights violations have largely remained outside the
spectrum of national and international concern; however, in recent years, the need for
attention to the rights of victims, in particular the right to reparation, has increasingly
been recognised as an essential requirement of justice. This trend is exemplified by the
instruments cited in footnote 34.

Resident Status
17. Prevent immediate expulsion by staying any actions of deportation and provide
resident status (including the right to work) for a period of six months initially, during
which time the trafficked person can decide whether or not to initiate a civil action or to
be a witness in a criminal action against the traffickers.3s If the trafficked person decides
either to initiate a civil action or become a witness in a criminal action, or both, then the
state shall provide the trafficked person with resident status (including the right to work)
for the duration of such cases, including all appeals.
18. Not deport any trafficked person if there are substantial grounds for believing that
such person would be in danger of being subjected to torture. All deportations shall be
carried out in accordance with the law.39
19. Provide trafficked persons with information and an opportunity to apply for
permanent residence under national laws and international treaties. In considering
applications for asylum, a trafficked person shall be permitted to introduce evidence
supporting a claim that repatriation could seriously endanger her or his life, such as a
high risk of reprisal by traffickers or persecution or harassment by the
authorities.40 Guidelines recognising gender-based persecution as grounds for asylum
should be followed.
20. If the state in which a trafficked person claims to be a citizen refuses for whatever
reason to recognize the trafficked person’s claim, consider whether, on the balance of
probabilities, the trafficked person was born in and/or has spent most of her life in that
country. In such event, the country in which the trafficked person is residing (legally or
illegally) must provide the trafficked person with all the rights and privileges granted to
other stateless persons contained in the UN Convention relating to the Status of Stateless
Persons.
Commentary: Many trafficked person refrain from seeking help or reporting to the
authorities for fear of deportation. Although, at first glance, deportation might seem to
represent an escape from the trafficking situation, the reality is more complicated. Often,
the victim has borrowed money to pay for the costs of recruiters. She may be indebted to
her own family and also to the persons who recruited her in the county of origin.
Deportation means returning home with empty hands, debts she will never be
38ICCPR 13; ICPRMW 22.1-.5. Under Dutch law, a suspected or actual victim of
trafficking is entitled to a three-month ‘reflexion period’ in which to decide whether or
not to press criminal charges against the trafficker(s) and act as a witness. If the person
decides to press criminal charges, she or he is entitled to a temporary residence permit for
the duration of criminal proceedings, including appeals. At the same time, she/he is
entitled to benefits (for example, social security, housing, health care, social services,
legal aid, counseling) on an equal basis with nationals. Aliens Circular Ch. Bl7 (1988,
rev. 1993 and 1994), TBV 1996/3. Belgium has adopted similar measures. Ministerial
Circular in Monitor Beige (July 1, 1994; Jan. 13. 1997).
39CAT3.
''’Convention Relating to the Status of Refugees, 1.2.

able to pay off and without any future prospects. If it becomes known that a woman has
been in the sex industry, she risks being ostracized by her family or her community.

Moreover, it is questionable whether or not deportation means an escape from the
criminal circuit. In many cases women return home only to find the traffickers waiting to
take them back immediately. Often, traffickers threaten to inform the victim’s family
about her activities if she does not comply with their demands. Deportation, in many
cases, means that the trafficked person is put at the mercy of the traffickers again, without
protection from the authorities or society. In many cases, trafficked persons not only
have to fear reprisals from their traffickers but also harassment, arrest or detention from
authorities in their own countries.
Providing victims with a stay of deportation, temporary residence during criminal and
civil proceedings and an opportunity to apply for a permanent residence removes the fear
of trafficked persons of immediate deportation. This serves two interests: first, the
trafficked person is able to recover and take back control over her life and, second, it
enables the effective prosecution of traffickers by encouraging victims to report to the
authorities and to act as a witness.
Health and Other Services
21. Promote and support the development of cooperation between trafficked persons, law
enforcement agencies and non-governmental organizations capable of providing
assistance to trafficked persons.41 All persons providing services (health, legal and other)

should receive training to sensitise them to the rights and needs of trafficked persons and
should be provided with guidelines to ensure proper and prompt aid.42
22. Provide, on an equal basis with citizens of the State, adequate, confidential and
affordable medical and psychological care.43
23. Provide strictly confidential testing service for HIV/AIDS and other sexually
transmitted diseases but only if requested by the person being tested. Additionally, any
and all testing must be accompanied with appropriate pre- and post-test counselling and
no punitive or restrictive measures should be taken against any trafficked persons who
tests positive for HIV/AIDS or any other sexually-transmited disease. Testing should be
provided pursuant to the standards contained in the "Report of an International
Consultation on AIDS and Human Rights (UN Centre for Human Rights and World
Health Organisation, Geneva, July 1989).
24. During the period of temporary residence status, provide:44

a) Adequate and safe housing
b) Access to all state-provided health and social services
c) Counselling in the trafficked person’s mother language
d) Adequate financial support
e) Opportunities for employment, education and training
Commentary: In most cases, trafficked persons have no place to stay or means of
earning a livelihood once they have escaped from the trafficker’s control. They may not
speak the local language or have any family or relatives who can take care of them in the
place where they are stranded. Often, they have been subjected to physical
11 Model Strategies 11, 12.

Declaration of Basic Principles 16
131CPR.MW 28: Declaration of Basic Principles 14-15, 16
"Model Strategies I 1(a)

violence, unsafe working conditions (e.g., exposure to chemicals), forced abortions or
unsafe sexual contacts and are in urgent need of medical care. Apart from physical
abuse, they might be severely traumatised by the physical and psychological violence
they have endured and suffer from an array of psychological and psychosomatic
complaints. Moreover, viable employment opportunities are often lacking and/or
damaged as a result of having been trafficked. Adequate support, employment and
educational opportunities enable trafficked victims to regain control over their lives and
to improve their prospects.
Repatriation and Reintegration
25. When and if the trafficked person returns to her or his home country, provide the
funds necessary for the return4'and, where necessary, issue, or provide assistance in the
issuance of, new identity papers.
26. Provide reintegration assistance and support programmes for trafficked persons who
want to return or have returned to their home country or community in order to minimise
the problems they face in reintegrating into their communities. Reintegration assistance
is essential to prevent or overcome difficulties suffered as a result of rejection by families
or communities, inability to find viable employment, and harassment, reprisals or
persecution from the traffickers and/or the authorities. Reintegration programmes should
include education, training for employment opportunities and practical assistance and
should not stigmatise or victimise trafficked persons. All programmes must guarantee
the confidentiality and the privacy of the trafficked person.46

Commentary: In most cases, trafficked persons have been deprived by traffickers of the
financial means to pay for return to their home country or community. Apart from
lacking the financial means, trafficked persons may also lack travel documents as
traffickers characteristically confiscate the passports or identity papers of their victims.
Without money and without papers it is impossible for trafficked persons to return to
their home country or community. This might result in them being held in shelters or
detention centres, often for years and under inhumane circ*mstances.
Trafficked persons who are able to return to their home country or community, either
voluntarily or as a result of deportation, face multiple problems. The absence of adequate
support and opportunities upon their return places them at a heightened risk of repeated
abuse and exploitation, including repeated trafficking. Thus, reintegration services are
essential to ending the cycle of trafficking.
State Cooperation
27. Cooperate through bilateral, regional, interregional and international mechanisms in
the development of strategies and joint actions to prevent trafficking in persons, including
cross-border cooperation in the prosecution of traffickers and the protection of the lives
and rights of trafficked persons.
28. Coordinate the safe and voluntary repatriation of trafficked persons.
29. Provide support to programs, including those undertaken by non-governmental
organizations, for education and campaigns to increase public awareness of the causes
and consequences of trafficking
Commentary: Cooperation between states is absolutely essential if the Standards arc to
be realised. Trafficking is an international crime, requiring multilateral responses. States

must deploy multi-disciplinary and multi-level strategies to combat the sophisticated
networks operating throughout the world. States and non-governmental organisations
must work together to ensure that traffickers are never able to find a ‘safe haven’
anywhere in the world. Without such a concerted and coordinated effort, trafficking will
never be stopped or even minimised.

45ICPRMW 67.1
4<’ICPRMW 67.2.

ptS 2-G.dS

HOPES BELIED
A RIGHTS BASED ANALYSIS OF THE SAARC CONVENTION ON
PREVENTING AND COMBATING TRAFFICKING IN WOMEN AND
CHILDREN FOR PROSTITUTION*

By Jyoti Sanghera
Violations of human rights are both a cause and a consequence of trafficking in persons.
Accordingly, it is essential that the protection of all human rights must be at the centre of any
measures being taken to prevent and end trafficking. Anti-trafficking measures shall not
adversely affect human rights and dignity of all persons and, in particular, the rights of those
who have been trafficked, migrants, internally displaced person, refugees and asylum seekers.

Draft Guidelines and Principles for the Implementation of the Protocol to Prevent. Suppress and
Punish Trafficking in Persons, especially Women and Children, Supplementing the UN
Convention Against Transnational Organised Crime (2000)

Introduction and Background

On January 5, 2002, the long pending fate of the SAARC Convention on Trafficking was
sealed at the Eleventh SAARC Summit in Kathmandu Nepal - it was finally signed by
the duly assigned representatives of the Heads of States of the South Asian Region. The
SAARC Convention on Trafficking thus is the first regional instrument, globally, which
seeks to address the problem of trafficking at the subregional level.
The history of this convention has been long and arduous. At the Ninth Summit of the
South Asian Association for Regional Co-operation (SAARC) held in May 1997, the
member states agreed that the formulation of a regional convention to combat the crime
of trafficking of women and children for the “purpose of prostitution”, should be
explored. This decision was significantly influenced by concerted lobbying on the part of
women’s groups and anti-trafficking organisations from the region. A draft of this
convention was prepared, which focused more on the purpose of trafficking, rather than
on the harms arising from the crime. However, in subsequent discussions, once again
prompted and fuelled by the lobbying efforts of NGOs and women’s groups, the term
“for the purpose of prostitution” was deleted. Prior to the 10th Summit of SAARC held in
July 1998, the Foreign Ministers adopted a draft SAAKC Convention for Preventing and
Combating
Trafficking
in
Women
and
Children
(SAARC
document
SAARC/Summit. 10/CM.20/3). This draft was a significant improvement on the earlier
one, insofar as it did not limit itself to prostitution and hence opened up the possibility of

* This analysis has drawn significantly from a report written jointly by the author with Ratna Kapur, which
is entitled: Trafficking in Nepal: Policy7 Analysis-An Assessment of Laws and Policies for the Prevention
and Control of Trafficking in Nepal, sponsored by the Population Council. New Delhi, an the Asia
Foundation. Nepal. January- 2001.

addressing the human rights violations of trafficked women and children subjected to
exploitation, forced labour and slavery-like-practices in other sites of trafficking.
The SA ARC Convention was expected to be approved at the 11th SAARC summit, which
was scheduled to take place in Kathmandu in November 1999. However, due to tensions
in the region, the summit was postponed to January, 2001. It was considered highly
unlikely that the document would undergo further changes and amendments before being
presented for adoption, and most of the lobbying groups took some consolation from the
tact that the Draft of the Convention was at least not simply confining itself to the
purpose of prostitution. Hence, the surprise and the shock on the part of these groups is
legitimate and understandable - the final SAARC Convention is little more than the first
first unevolved draft. By limiting itself to combating trafficking only for the purpose of
prostitution the finalized version of the SAARC Convention reduces to naught more than
two years of consistent lobbying efforts on the part of non-governmental groups with
their government representatives to make this new regional tool more consistent with the
other international instruments. The SAARC Convention on Trafficking is not only
inconsistent with key human rights instruments such as CEDAW, the International
Covenant on Civil and Political Rights, the Convention on the Rights of the Child, and
recommendations of the Fourth World Conference on Women in Beijing but is also at a
serious variance with the Protocol to Prevent, Suppress, and Punish Trafficking in
Persons, Especially Women and Children, Supplementing the UN Convention Against
Organized Crime, which was opened up for signature in December 2000.
In the foregoing paragraphs, the strengths and limits of the SAARC Convention on
trafficking are analyzed. Admittedly, this Convention will have implications for the entire
South Asian region, as it will constitute the basis for the formulation of domestic
legislation and policies concerning trafficking. Already, in India and Nepal, drafts of anti
trafficking laws are under discussion, which are expected to come up for adoption in their
respective parliaments shortly. An analysis of these proposed as well as existing laws in
the South Asian countries reveals that all of them increasingly veer towards a greater
dependence on the crime-prevention framework through more punitive and draconian
measures rather than fore-grounding human rights principles. On the one hand there is a
recognition that the State parties must repeal or amend domestic policies, programmes
and legislation that discriminates against women and children. However, on the other
hand, the new SAARC Convention as well as the existing and proposed anti-trafficking
laws in the South Asian countries are not based on a rights protective approach to the
issue of trafficking. The SAARC Convention appeals uncritically to the use of the
criminal law and punitive provisions to address the problem of trafficking within the
region.

The Trafficking Problem

The SAARC Convention is aimed specifically at criminalizing the activities of persons
engaged in “moving, selling, or buying of women and children for prostitution within and
outside a country for monetary or other considerations with or without the consent of the
persons subjected to trafficking’ (Article 1(3)). This definition would include a woman
who has moved outside her country, with her consent, on payment of some kind of
consideration. Although it is not presumably the intention of the Convention, this

definition could also implicate a woman who purchases an air ticket to travel outside of
her country. In contrast however, Article 1 (5) defines 'persons subjected to trafficking’
as “women and children victimised or forced into prostitution by traffickers by deception,
threat, coercion, kidnapping, sale, fraudulent marriage, child marriage, or any other
unlawful means.” A comparative analysis of these two provisions (Article 1 (3 and 5))
indicates some ambiguity as to whether consent is relevant at all. Clarification of the
positions of State Parties on this is important in order to evaluate the full implications of
this Convention. However, given the history of this Convention, it is quite certain that
the governments consider consent irrelevant to the issue of trafficking.
The Convention directs States to use the criminal law to deal with the problem of
trafficking. Article III (1) requires State parties to take “effective measures to ensure that
trafficking in any form is an offence under their respective criminal law” and that “such
offences are punishable by appropriate penalties which take into account its grave
nature”. Where the act of trafficking is committed by a person who is in a “custodial
situation or educational institution” the offence, should be considered as an aggravated
offence and a more stringent penalty should be imposed (Article IV (l.f)). Parties to the
Convention are also required to provide for the punishment of any person who “keeps,
maintains, manages or knowingly finances or takes part in the financing of a place used
for the purpose of trafficking and knowingly lets or rents a building or other place for the
purpose of trafficking”( Article Ill (2)). The emphasis on the use of the criminal law treats
trafficking as a crime against the State and a law and order problem.

It is not clear what situation is envisaged by the parties to the Convention in Article
111(2) besides the running of brothels. If a person is kept against his or her will in any
place, this can constitute abduction and/or kidnapping. Laws against such forceful
detainment already exist in the criminal/penal codes of all SAARC countries. If a place is
used as a transient point while a person is being moved, then the issue of consent
becomes extremely relevant. If a person remains in a hotel room or another rented place
with her consent, then no crime is ostensibly committed. If they are abused or harmed
during the period of their stay, or they have been bought or sold, then it is unclear why
the person letting the place or renting the room should be punished, unless he/she knows
that such abuse/sales are occurring. By way of comparison, if a landlord lets a place to a
family and sexual abuse or domestic violence is being committed in that family, the
landlord cannot be held to have committed a crime by letting his/her place to such a
family. If he/she knows that such abuse is taking place and fails to report it, then there
may be grounds for prosecution under certain provisions in the exiting domestic penal
codes.
State parties are required by the SAARC Convention to grant each other wide mutual
legal assistance in regard to “investigations, inquiries, trials and other proceedings”,
including with respect to evidence, the provision of information, search and seizure and
service of documents, and offences in connection with the convention will be extraditable
offences (Article VI (l.a-h)).
State parties are also obliged to sensitize their respective law enforcement agencies and
the judiciary with regard to the subject of the Convention. Bilateral mechanisms to

implement the Convention are encouraged, and States parties are obliged to exchange on
a regular basis, information relating to agencies, institutions and individuals who are
involved in trafficking in the region, including the methods and routes that they employ
(Article VIII (2,5))

The SAARC Convention does not improve upon the already existing, flawed domestic
laws which deal with the issue of trafficking in the various countries of the region.
Importantly, it ignores the issue of consent, or at least considers consent or lack of it as
irrelevant. Excluding the relevance of consent in the definition of the offence of
trafficking can result in a serious violation of the rights of persons who are willing to be
transported across borders and pay for such assistance. As such, the SAARC Convention
on Trafficking fails to draw a distinction between legitimate or consensual mobility and
coerced movement. Significantly, this is contrary to the Protocol on Trafficking
Supplementing the UN Convention Against Transnational Organized Crime. The UN
Protocol, though not perfect, has seriously attempted to address the issue of free and
forced mobility by making a clear conceptual and operational distinction between
trafficking and smuggling. And hence, the UN Convention Against Transnational
Organized Crime is Supplemented by two separate Protocols - the one on Trafficking
and the other on Smuggling. As such, trafficking or movement under coercion or
deception is dealt with separately from agent facilitated consensual movement under this
new UN Convention. The focus of an anti-trafficking measure or legislation should be on
the specific illegalities or crimes that may be committed during the course of trafficking
or migration. If a person is forced to move against her will, it should be an offence. But
if the transport is with the consent of the person being transported or migrating, it is not
an illegal act. The SAARC Convention fails to draw this distinction, and regards mobility
per se for the purpose of prostitution as illegal.
Women are not Children
The SAARC Convention collapses the harms related to the trafficking of adult women
with those of children. This association obscures the very different and specific issues
that affect these two separate groups ( Article 1(5)). The vulnerability of children is
specific to their age and dependency status, and therefore, demands society’s protection
The nature of the vulnerability of adult women is distinct from that of children and must
be understood as such. If it is possible to address children’s issues separately when it
comes to the question of labour, it is also possible, and extremely important to address
their issues separately from those of adult women when it comes to matters of trafficking,
migration and sex.

Some women may have been forced to move when they were minors. An adult woman
should be entitled to legal remedies for any harm she has endured as a child, whether it is
in the form of child sexual abuse, slave labour, or coerced work. Making a remedy
available for harms experienced as a child or minor is very different from setting up a
legal regime that treats all adult women like children.

The issue of consent, especially in relation to the worst forms of labour, including
prostitution, in the case of minors is irrelevant and considered as such in all the SAARC

countries. However, once a child reaches the age of consent then an entirely different set
of rules and legal provisions must govern her. She is no longer a child, dependent and in
need of protection in the same way as a minor. The primary tools she requires to defend
herself are rights. Rights are the only legitimate means by which to resist any further
violence, coercion or harm she may experience whether it is in the family or in
exploitative labour sites. And the legal regime that governs adult women, who have the
capacity to consent, must be separate from the legal regime, which governs
children/minors who are accorded a conditional/ restricted or no capacity to consent,
depending on the issue. The SAARC Conventions fails to acknowledge this basic human
rights principle and hence, not only infantilizes adult women but at the same time
trivialized the specific needs and concerns of children and minors who may be in need of
special protection in such situations.
The Rescue and Rehabilitation Bind

The SAARC Convention recommends that the signatories set up “protective homes and
shelters for rehabilitation of victims of trafficking’^Article IX (3)). NGOs will be
authorised for this task of “providing suitable care and maintenance for the victims of
trafficking (IX (4)). This provision recognizes the lack of suitable arrangements for those
who have been placed into what have been referred to as protective homes’. However,
there is no provision in the Convention which states that stay in a protective home should
be voluntary (especially in the case of adults) and that persons released from trafficking
should not be forced to stay in such places.
It is unclear as to how the SAARC Convention addresses some of the fundamental
problems that have characterized rescue and rehabilitation programmes in the region. The
rescue and detention’ of trafficked women and girls in homes has by and large, proven
not to be a particularly empowering option for the trafficked person. Once a woman or
minor has been detained, she has little right to privacy or bodily integrity, and is
subjected to invasive medical examinations and inquiries about her personal life. It has
been seen that these institutions provide few options for self-employment and alternative,
viable and sustainable livelihoods. Incarceration, loss of liberty, forced medical
examinations and less than adequate living conditions, often drive women and girls
placed in these institutions back into sex work or to the site they had been rescued from.
Frequently, they incur huge debts to cover the cost of legal fees, bail and sureties, which
reinforces their debt bondage status. The SAARC Convention states that adequate legal
advice and health care facilities are to be provided to persons who have been released
from trafficking and are awaiting the voluntary return to their home countries (Article IX
(2)). There is no indication that anyone other than the person who has been released will
bear the cost of such facilities. At the same time it is important to highlight the fact that
via this Convention, State parties do recognize that trafficked persons require legal
protection even after they have been released from trafficking.
Implications for Human Rights

The SAARC Convention sets out two important provisions recognizing the need to
support the human rights of those vulnerable to trafficking. Article VIII (7) provides that
the parties shall “focus on preventive and development efforts on areas which are known
5

to be source areas for trafficking”. States are thus obliged to take more initiative in
preventing vulnerability to trafficking but it is unclear from the Convention how this is to
be achieved. The issue of vulnerability is left completely unexplored, and there is no
reference to the distinctive vulnerabilities faced by adult women and children.

It is important to note that a significant proposal in the earlier draft, which had a crucial
bearing on human rights protection and promotion of trafficked persons, has been
summarily dropped from the final version. This proposal stated that “State parties shall
take steps to eliminate economic, social and political discrimination in national laws and
policies which devalue the status of women” ( Previous draft , Article VIII (10)). The
inclusion of this statement in the earlier draft constituted an official recognition that
trafficking is partly the result of discriminatory State practices, policies and laws against
women, that undermine their human rights, the very tools they need to resist exploitation,
force, coercion and fraud, wherever it may occur. Regrettably, the elimination of this
proposal from the final version of the Convention is a telling comment on the manner in
which human rights standards as well as women’s rights and children’s rights are viewed
as dispensable by State parties.
One provision that can be used to either facilitate or to restrict women’s rights encourages
States to supervise employment agencies to prevent trafficking in women under the guise
of recruitment. (Article VIII (6)) This could lead to a discriminatory impact against
women as witnessed in the application of the Nepali Foreign Employment Act, where
women are restrained from seeking employment in the gulf countries due to the
possibility of the potential harm of trafficking and abuse.
The Prostitution Trap, Yet Again

In its aim to prevent and combat trafficking the SAARC Convention ends up effectively
criminalizing prostitution. Prostitution per se is deemed an offence by the manner in
which it is defined by the convention. Article I (2) defines prostitution as the “sexual
exploitation or abuse of persons for commercial purposes”. When, by definition,
prostitution is considered to be an abuse and sexual exploitation; when adult women are
denied any possibility of engaging consensually in the trade of prostitution; and when
preventing the crime of trafficking is linked only to the purpose of prostitution which is
itself defined as an abuse and hence criminalized, then for all practical purposes,
trafficking and prostitution are not only equated but equally outlawed. However, there is
some confusion and discrepancy in the definitions subsumed under article I because
there is a reference to “forced into prostitution”(I (5)). It is unclear whether in this
particular clause the Convention is positing a distinction between forced and consensual
prostitution.
At the consultative workshop for developing a National Plan of Action Against
Trafficking in Children and their Commercial Sexual Exploitation in 1998, some
statistics were presented about commercial sex work in Nepal gathered in a report

commissioned by UNICEF.1 According to these statistics people of all castes are
involved in sex work. Based on a sample group, about 66.3% of the commercial sex
workers were involved in sex work out of their choice, 37.8% were influenced by female
friends, 9.2% influenced by other natal family members, 6.1% by pimps, 4.1% by brothel
owners and 3.6% influenced by mothers. Although once again these statistics are not
based on a sustained and coordinated research programme on sex work in Nepal, they
belie some of the broad assumptions being made about sex work, that need to be further
interrogated in order to formulate effective laws and policies. In any case, to address the
issue of trafficking even for prostitution through the force of the criminal law, will not
facilitate the rights of either the trafficked women or sex workers. Once she is cast as a
criminal by virtue of the work she has been engaged in, a woman or girl in sex work will
have serious reservations in assisting the state by testifying against her abusers, pimps,
clients or other actors since she herself is deemed a criminal and risks punishment.
Therefore, she will be constrained to seek redress from the state for the abuse and
violence she may be suffering as a woman trafficked into sex work.

There is already well documented evidence that the criminalization of prostitution only
forces the issue underground2. The Convention is not in line with the current global trend
to try and end exploitation in prostitution rather than eliminate prostitution itself.
Commenting on this aspect, the UN Special Rapporteur on Violence Against Women
stated in her interim report on trafficking in South Asia, “...experience has shown that
criminalization of prostitution results in double victimization of the woman concerned as
she, and not the traffickers, becomes the main target of police action. This provision is a
major step backwards... and will create hardship for the women concerned”
The SAARC Convention does not directly and head-on address the real issues of
violence, coercion, fraud and stigma that arise in the context of trafficking. Women and
girls who have been involved in prostitution face severe stigmatisation and social
marginalisation. The Convention has made no proposal for adopting affirmative action
measures in favour of women who are discriminated against to assist in removing this
stigma. If such women and girls are HIV positive or have STD’s no recommendations
have been put forward for the treatment and care of these women. Far from creating an
enabling’ environment for these women, the SAARC Convention might reinforce the
stigmatization and discrimination that they will experience.
1 Siddartha Man Tuladhar, Situation Analysis of Sex Work and Trafficking in Nepal with reference to
Children ,at 4, in the PROCEEDING OF THE CONSULTATIVE WORKSHIP ON THE DEVELOPMET
OF A NATIONAL PLAN OF ACTION AGAINST TRAFFICKING IN CHILDREN AND THEIR
COMMERCIAL SEXUAL EXPLOITATION, organized by the Ministry of Women and Social Welfare.
International Labour Organisation, International Programme on tlie Elimination of Child Labour. April 2224, 1998. Kathmandu. Nepal.
2 Maijan Wijers and Lin lap-Chew, TRAFFICKING IN WOMEN. FORCED LABOUR AND SLAVERY
LIKE PRACTICES IN MARRIAGE, DOMESTCI LABOUR AND PROSTITUTION. Foundation Against
Trafficking in Women and the Global Alliance Against Traffic in Women (1997).
■’ Economic and Social Council. Integration of tlie Human Rights of Women and the Gender Perspective:
Report of tlie Special Rapporteur on Violence Against Women, its Causes and Consequences. Ms.Radhika
Coomaraswamy. on Trafficking in Women. Women’s Migration and Violence Against Women. Submitted
in accordance with tlie Commission on Human Rights resolution 1997/44. E/CN. 4/200/68. 29 February
2000 at para29.

Conclusion

The SAARC States deserves acknowledgement for the political will they have
demonstrated as well as the initiative they have undertaken to address the problem of
trafficking of women and girls in the region. The intentions and commitment to combat
trafficking are indeed sincere and laudable. However, the framework and the approach
which informs the formulation of the clauses of the SAARC Convention on Trafficking
are not consistent with the protection, promotion and fulfillment of the rights of women
and children who are affected by trafficking.
In light of the structural discrimination against women and girls in societal and state
institutions, a major concern while assessing legal instruments related to trafficking of
women and girls is that governments often and inadvertently tend to institute policies and
practices that may further undermine the rights of women, especially the right to mobility
and the right to earn a living. For marginalized communities, in particular women, the
need to migrate for sustainable livelihoods is a pressing need today. It is imperative to
understand the impetus, needs, and desires of people contained within the move to
migrate, and to support these needs by protecting their right to mobility and right to earn
a living by making the process of migration and mobility, as far as possible, free of harm
and safe, rather than restricting movement and thereby quashing genuine needs.
There is only one meaningful lens through which any legal instrument on trafficking may
be evaluated - and that is the lens of human rights. An analysis of the SAARC
Convention on trafficking reveals that yet again this instrument confuses and conflates
trafficking with migration on the one hand and prostitution on the other. The real issues
related to trafficking, that is, the violence, abuse, deception, debt bondage, forced labour
and a host of other human rights violations of trafficked women and girls, remain largely
unaddressed by this Convention.

In summation, the comments of the UN Special Rapporteur on Violence Against Women
on an earlier draft of the SAARC Convention on Trafficking continue to be relevant and
are hence quoted below:
The Special Rapporteur is especially concerned that the Convention lacks conceptual clarity on
important issues and is not in conformity with the new international legal standard on
trafficking in persons as set out in the protocol to the new UN Convention on Transnational
Organized Crime
The SAARC Convention does not distinguish between women and
children. The legal regime surrounding women should be based on a framework of rights and
the concept of coercion when it comes to trafficking. The legal regime with regard to children
must be completely different The draft convention also does not explicitly recognize that
trafficking could be for other purposes than for prostitution. By concentrating on the end
result and not on the process of trafficking and abuse, for whatever purpose, the convention
does not recognize trafficking as a distinct and unique crime regardless of a nexus with
prostitution. In not recognizing this distinction it is not in keeping with current international
standards as set out in recent international conventions and instruments. In addition, the
convention does not distinguish between movements and migrations that are legitimate and
consensual and those that are coerced. This will result in a great deal of abuse and the

violation of women’s freedom of movement in a context of constant movement ofpeople across
national and local borders. In addition, the convention brings into play the concept of
aprotective custody” after rescues and rehabilitation without stipulating that any stay in
government home should be voluntary. The need to ensure women’s economic and social
rights within this context is also not examined,
UN Special Rapporteur on Violence Against Women: Integration of the Human Rights of
Women and the Gender Perspective: Report on Trafficking in Women, Women's Migration and
Violence Against Women, Mission to Bangladesh. Nepal and India4.

1 Ibid, at para 31.
9

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Asian vvoiiicu a xiuiiiaii iueuls Cuuiicu (AvvHivC) ui parmersinp wiiii UixDr 33 w A is proposing to
orcamse a South A sia t^eurt ot Women on the Violence of 1 rafftc&nz and til V /AIDS in Aueiist 2UU3 in
■Rfl-n<rb.jdf-»l’ Tru- Conrt i* h*nrijr orj^HTiisrcI hi (hr corilrAl
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with UaHlakiag ^pccxhcdlj xii the context ol
change* being crearect ny rne ertae* in rhe enrrenr parrem* of gionaiiaarton anct governance rnar are
leading to the destruction and devaluation of livelihoods and life systems of entire communities of
people A ^.2 globalcout/r, to the absolute erosion of d! notions of rights or dignity for die survivor* of
uic violence oi ixaiiicAuiE.

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issues, cGxxOcxxis and oppcrtaaxtlcs related to die euro dieme
rrom inc perspective or me vicrims, survivors ana resistors to traincking.
Provide a forum for women from different repion? of the world to share, reflect and have a
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chaUencmg and transforming discriminatory social and legal policies and evolving a notion ot
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regiona i co-operanon.
Dccncn knowledge through dialogue amon.y people in the regions and facilitate creative and
eonoretc policies s.id program notion.
Kciicraic uic urgency oi uic crisis reiaied. io governance in uic vjuvai suhSj uuc io die ciiccts oi
globalisation and the impact ot these on trathekmg.
Forr’-v.'krtr ;v ynrrH-- and rdrv’jfil follow up arhons and (•yTTip'-ujn’i«« af (he ■»
Tl«llOTl«l wrin
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>trengtnen regional and national networKing among indmduais and groups on tins issue in
order to work for more effective action and advocacv at various levels.
zi irzrAo ; it s Cuiitcum ixciulcu io i rmiKMiiiif

*rc rjuu tfjc tit*t

x^vfycrcHt/C t/rt

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i jy i #// Jcc/mx, xv//cu. oci/vfui jstvgu/rfrric

including worfpsbaps, Courts ot Women, rad rinding Missions, publications, lobbing and adwcacy have been held tn
different ba-tit ofAsia in colkibonation with ot-oups like C^almela. Philippines: Foundation for IFowen, Thailand:
Gbbz! Alkanes Agpins! TraJlicking ::: VP'snssn (CAATlf7); Migrants Inlnra^isnal; Oxfan! ^Icpal),- Sangrans,
SAi\LAAr (India) and ixLSiS'iAi\CE, uBiidiG (Bangtadesoj. i^'e have, over the years, whined at various
fora including SA^KC. the UN forking Group on Gontemborary Bomrs of Slavery and the UN Grime
Gnmfrrircfnt!

ihe aueuipi has been to broaden die scope, no non and deiininon tor iraiiicking, thereby separating
it not onlv from orostitution but also mi?ration. Anv move to combat trattickinp- must not interfere
vrTv.Tri’-

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oecepnon ana canseqnenriv rnererore ir is rne rrarncKer and rmrrir.King nerworas rnar snoniri ne. roe,
of orna!i«atir.n. The other rna.ior area, of concern is that the interests of trafficked tvomcn and
th; need 22
tli£_u report
fccudty must tdre precedence ever the cidzenddp concerns of
member states regarding me legal lucnu*ty oi me women.

AWWPf while wndcW on the »«ruf of traffieking, has also been attempting to
the life cxpcrlcGCCG ^;id rc~lk;c3 of v.-omcn
m prostitution — at issues related to sen worth and dignity, at their right to hie a life
A>aa /'..■? Tr?r.1c*» z»is
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Tt is in tbi«i rontevt that AWTTRC has been emphasizing a human rights approach as far as
uvili women m piuouiuuun axivi viuuuid oi ImiliCikiug axe Cwiiv-ci-llcu.

xuclciuic, me

to evolve and lobbv tor a Human Rights Standard, in the policies related to prostitution and
IrafLcldkig.

While this we teei is important in terms oi strategies and addressing State agencies, we also
feel the need to look more critically at the conceptual limitations of the Rzp 'jZc framework
iliai iaxi» tv» vumcAtualioc me Lljlkcjl vUiiicmpOv<ii.y ieimiicS wimm wmv.li iiaiiiermit: axivi

prostitution are totally located And this universal and therefore a decuitured. impersonal.
LziimcwoA
lhe p^Li of poverty in thoee developing worlds where not
only nas the violence 01 Tiaiiicking been in tact iegnimised bin which are also witnessing me
br»doliwiion <if *xrf»Kfih!li»w Tl»ix inrre'>swv hriH'ibs'>hnn r'mnol lh»*refnre !>*•

>ri)Mrdir; I Iltni! LHC .XCW UAAJllUllliC VyXtlCl mill 5>C ctkb LU muild LUilUSC, LLilllbllilllVni'dJlbC anu

commercialise the phenomenon on an unprecedented scale. The violence of trafficking too
con not be separated from the tote! impoverishment of the entire societies that constitute
either the resources base for wealthier nations or end up as waste by products of a highly
industrialized nr mrnnratr world- a world in which the disparities between the rich and the
uuui arr iiorni vinpiy slaik; a world in wliicli liuinmi relauunsiiips nave gauieci a cold
contractual, impersonal quality and the complex fabric of human impulses have been

reduced to the undimensionai desire of an individual-rootless and ruthless in his desire for seif
•Ail-Glim

It ib u± iliis nebulous iciiaui iliai wc seek a framework of dignity and self worth while
evolving a language of rights, justice and empowerment tor women- be it those who are
victims of trafficking or those who choose prostitution as a livelihood a way of life.

It id
rnnrprm that wp seek to bring forward through the Smith Asia Court of Women
agaui^t Traffickiiig iu Wuiucn. a Court that is part of a process ruitialed by AWIIRC aud El
Taller International a sister organisation located in Tunis; a process that not only seeks to
create a new space and a new politics for women but also one 1that offers a valuable input
into local, national and international campaigns against different forms of violence against

The Courts of Women: An Alternative Political Space
AWHRC and El Taller in partnership with organisations in different regions with Corinne
Kumar as the Internationa! Coordinator have been organising several Courts of Women
focusing on issues specific to the regions. Apart from seven Courts of Women held in Asia,
the others include Mahkammet El Nissa. the Arab Courts of Women, organised in
collaboration with networks and organisations in the region focusing on violence against
women in the Arab world, l\^a Wahine Ei%7/z^,(Pacific Court of Women)organised along
with the Maori Women's Network focusing on issues related to the nuclearisation of the
Pacific and land righrs; rhe lylahakama Wa lyiama Wa Amca (Africa Court of Women), the
World Court of Women Against War. For Peace and the World Court of Women Against Racism, all
organised in Africa in collaboration with several groups and networks like the Institute for
Block Research. University of Natal, the University ot Western Cape, Womens support
N’ctTr-zx-V

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the Economic niockade and its effects on women and children organised by Ei Taiier with rhe
Federation of Cuban Women and the Institute of Philosophy in Cuba: The Indigenous and
Rzinxcc
omert \i Ilumari Rights Coutt Oxgauxsed ill Sydney. Australia with the Centre for
Refugee Research, AN CORW and the Aboriginal Research and Resource Centre
As part of this process of rhe Courts of women, this South Asia Court of women on the
Violence of Tr'AGrfmtr
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HIV/AIDS

This Court that is proposed to be held in August 2003 in Dhaka, Bangladesh will
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A one day series of roundzabie discussions on rhe day preceding me court, on critical, cutting
edp;e issue? related to the core theme? that will provide the context for receiving the text and
testimome? of the Court.
b. The Cuuri itself uii day—2 iliai will near die testimonies of women survivors and
resistors to the violence of trafficking; that will view a deeper nuanced understanding
of the issues through a scries of poetic visuals; that will listen to the voices of
wisdom spoken by a jury of women and men chosen tor their experience and
sensitivity to the issues involved.
c. The follow up meeiing ioliowing the court on the thira nay, wmen win discuss me
concrete way to go forward taking the primary issues that emerge both from the
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The Court will seek to involve a wide range of participants, including women who have been
trafficked, activists, and networks working on the issue, trade union representat*.»es, 1aax^%mm.
representatives, students, academia, policy makers and representatives from various government
agencies from the repion. Leading human rights activists and other influential people from the region
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Issues Uetore the Court
Spccificallv, the testimonies and disenssions will be heard in five sessions.

L The ciinerent faces of rrarfieking: as of now since most national and regional legislations and
conventions fail to provide a clear definition of trafficking, it’s scope, notion and definition need to
be broadened. The existing unclarity results in the application of such laws only to women trafficked
into prostitution and. litis too most often framed within a moralistic framework. The Immoral
• j. rq thekmg Prevention Act in India tor instance under which women trafficked into prostitution are
cHTTiirialised while the traffickers thernselves are allowed to
free. The leshTTiorues during the Court
and the discussions will attempt not only to draw out the different faces of trafficking like forced
marriage, begging, forced labour, domestic work, organ trade et a.1., but will also attempt to define rhe
differences even while redrawing it’s links with prostitution, migration and IIIV/AIDS.

2. GlobzHs^tion, povertj^ migration 2nd racism: The impact of globalisation is being felt
at various levels including the realm or economics, culture, economics, governance models
and even knowledge systems. What is clear is that this new global world order is creating
new insfituticmal iiiajuivwOiks for marginalisation and exploitation like poverty, migration, the
tourism industry, within which is the violence of trafficking being legitimized. It is clear that
of Women and children is directly related to the disintegration of the rural
com mi mines and extreme insecurity of iiveiihoods mat leads to displacement, migration and
the vulnerability of those who are forced to migrate in search of livelihood options.
3.A'Iihtansfition, War and Conflict: War and conflict situations engender situations of
extreme vulnerability particularly for women and children. This is especially so in times of
modern wariare, which has drawn the maximum number 01 civilian casualties ever. Apart
from being direct victims us for inslum e being runed in limes of conflicl and u'urs or being
CuiibCJLipicu ab 2>ca slaves by die juintaiy aS tile Japanese 11111,itaiy slavery uiu utiling inc

*
4

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•

■

Second World War. what is increasing is phenomena like the trafficking of refugees at
borders or setting up of brothels around military7 camps. We wdl the explore the possibility
oi ideiiiiiying women and getting lesiiuioiiirs diai will Ingliliglits issues like iramcking in
refogee camps as in Afghanistan, at the Burmese border, during ethnic conflicts as in Sri
Lanka, in the North East.
4iHu!nan Right? ?.nd T^JRckhigr Institutions of the State like the police, judiciaty and
health system, that are supposed to ensure the nghis oi the citizens to justice, redressal or
care, are in fact the greatest violators of the rights of the people, particularly the poor and
the vulnerable. Incarceration of illegal i^iigrafiis most of who fall prey to traffickers who lure
them to foreign lands through false promises; prosecution of the trafficked by discriminator,7
national legislations; exploitation and almss of women in prostitution by the police in police
srarions; forced texting of rrafricked women or women in prosrinirion for HTV / AIDS ar
detention centres on the borders; forced rebatriation of the trafficked women to homes where
they may be facing conditions of violence, discrimination or stigmatization; irrelevant
rehabilitation policies tor survivors ot trafficking ...Apart, therefore, from looking at the larger
context within which violence is escalating, the Court will also attempt to evaluate policy
frameworks and legal mechanisms that are violating the human rights of the trafficked.

5. Voices ofRcsiaiiHiice: This session Will listcii to testimonies fiom women and groups of
women who have been trafficked and have learnt to assert themselves beyond their
vicliniliood carving out their life choices. For it is these women who in the dailiness of then
lives have seen much violence, exploitation, marginalisation and stigmatization, in whom
xiiffrrmg has forgetl ihr strength Io be survivors with the sharpest insights — be it on the
duuulc iiunuuiil t/Cmviuuif in society, die violent underpin mugs 01 LLaincruiig ilctWouLS oi
even the hollowness of state sponsored rights.

Roundtables

On (he da v nrecedinp- (hr Court will be oryaTiised a jieries of roundtable discunrions around (hr Iwsic
themes listed above. The discussions will however attempt to take up more critical edge issues as for
insm.nc.es rhe different approaches to trafficking and prostitution; the alternative understandings that
arc emerging on the HIV/AIDS issue; an assessment of the legal and policy frameworks that have
been evolved at the national, regional and international levels end an evaluation of the possibilities
and iiimiaiioiis oi die iiuiuau ng?11* iramework diai lias been adopted io address tiic issues, drawing
out the implications ot the tar reaching transformations in the macro context and the dominant
di«»roiir«r of politic* srnd knowledge *y*tem* that i* creating conditions of extreme vulnerability at
.. .

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Possible nirv TvTembers I Resource for
T>
____/ 17—
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IVJlXIlUltlUlCS/
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Witnesses
UL

Queen of Bhutan
Mary Robinson
xvib. in ane xkon Airumi

Ita Nadia, Indonesia
F* ar«a« Cjaiiliaij
(Savatri Chakravarthi Spivak
Nail?. Khan, Bangladesh
Sergio Vieira de ivieiio, OHCHR
Medha Patkar. India
Gopal Sivakdti Ciiiiitaii, Nepal
Pam Rajput, India
Nelin Sancho, Philippines
Nimaika Fernando^ Sri Lanka
Jyoti Sanghera. OHCHR

Dear • nelma.

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Warm greeting*? from AWTTRC!

ilnd enaloGad an invlladaii fbr die Praparalory mcetiag far -I...,

V11V k^\>*V»VXA

Abia v/Kjuii ui vVuiucu vii die Vluieiiue ui TiaiTL.ukuig and ±IIV/ An>3.

■ F i
1

The South Asia Court of
Women on the Violence of
Trafficking
And HTV / AIDS
11-13, August 2003
Dhaka, Bangladesh

Dear Friends,
Asian Women's Human Rights Council (AWHRC) in partnership with UNDP
Regional HIV and Development Programme for South and North East Asia and
UBINIG, Bangladesh is organising the South Asia Court of Women on the
Violence of Trafficking and HIV/AIDS from August 1 1-13 2003 in Dhaka,
Bangladesh. The Court is being organised in association with Oxfam GB, in
Nepal and AATWIN, Nepal; IMADR, Sri Lanka; LHRLA, Pakistan and
Vimochana, Bangalore.
The South Asia Court of Women, through personal testimonies of violence and
of resistance, analyses of expert witnesses and inspiring vision statements of a
jury of women and men of wisdom, will seek to understand the increasing
violence and vulnerability associated with trafficking in women and children
and HIV/ AIDS in the context of the current patterns of globalisation and
governance that are leading to the destruction, and devaluation of livelihoods
and life svstems of entire communities of people in the global south; the
increasing restriction on mobility due to concerns of national securitv; the
absolute erosion of all notions of rights or dignity for the survivors of the
violence of trafficking and HIV/AIDS. In this context therefore’ it is important to
relook at the issue of trafficking not merely as a cross border law and order
problem linked to women, citizenship concerns, repatriation and rehabilitation
but draw out its critical linkages with issues related to gender, migration,
asylum and refugee seekers, conflict and the contempoiar\ discourse on
terrorism - in fact the new global world order.

4»4

We write seeking your support and solidarity for the Court and also to invite your
possible participa tion.
Through the holding of the Court we would attempt to:

Provide a forum for women from different countries of South Asia to share, reflect
and have a deeper understanding of roots of the violence and vulnerability laced bv
women affected by trafficking in women and children and HIV/ AIDS

Recognise and build upon the strengths and survival strategies of affected women
towards challenging and transforming discriminatory social and legal policies and
evolving a notion of rights rooted in their realities.

Evaluate and assess the policy frameworks that are being evolved to address the
issues at national, regional and international levels.

Strengthen regional and national networking among individuals and groups on this
issue in order to work for more effective action and advocacy al various levels.

This Court will comprise of three events:
a.

A one-day series of roundtable discussions on the day preceding the court, on
critical, cutting edge issues related to the core themes that will provide the
context-for receiving the feATand testimonies of the Court.

The Court itself on day two that will hear the testimonies of women survivors
and resistors to the violence of trafficking. The very specific text and textures of
the individual testimonies of survival and resistance will be woven together vx ith
reflections on crucial issues related to the dominant discourse of politics and
knowledge systems that is creating conditions of extreme vulnerability and
violence for a majority of the peoples and communities the world over.
The follow up meeting following the court on the third day, which will discuss
the concrete way to go forward taking the primary issues that emerge both from
the round tables and the Court.

The Court will seek to involve a wide range of participants, including women who have
been victims of trafficking, activists, and networks working on the issue, trade union
representatives, media representatives, students, academia, policy makers and
representatives from various regional and international government agencies.

The Courts of Women: A Background

The South Asin Court of Women on Trafficking and HIV/AIDS is pari of a process ol
the Courts of Women initiated by the Asian Women's Human Rights Council and
several other women's and human rights groups in Asia; a process that not only seeks
to create a new space and a new politics for women but also one that offers a valuable
input into local, national and international campaigns against different forms of

violence against women. While it began in Asia through the AWZHRC, El laller, an
organisation based in Tunis, has taken the Courts to the other regions of the world
including the Arab region, Africa, Central America and the Mediterranean. Seventeen
Courts of Women have been held so far with seven being held in the Asia Pacific
region.

The Courts have been held at regional, national and international levels, with five
World Courts. The issues the Courts have addressed so far include specific issues such
as the violence against Dalit Women, Crimes against Women related to the
Reproductive technologies. Trafficking in Women, War Crimes against Women, and
Crimes against Women related to the Violence of Development. The Courts have also
taken up issues such as the Rights of Refugee and Indigenous Women; Land rights,
Racism and the Economic Blockade in Cuba.
While the Courts are deeply symbolic and an attempt to define a new space for
women; a new politics, as a forum for human rights education they have been an
extremely sensitive and powerful media to reveal the interconnections between the
various forms of personal and public violence against women in different societies.
Violence that has been increasing and escalating; a violence that has become brutal
The Courts of Women challenging the dominant ways to knowledge seek to weave
together the objective reality (through analyses of the issue) with the subjective
testimonies of the women; the personal with the political; the logical with the lyrical
(through video testimonies, artistic images and poetry) urging us to discern fresh
insights, to find a new political imagination.
The Courts of Women attempt to write counter hegemonic histories bv creating a space
where we can listen with care to the voices of the women speaking in their own centre ‘
And in re-writing history the Courts of Women not only hear of the need to extend the
dominant human rights discourse from the experience and perspectives ol women;
they speak too of a new generation of women's human rights.

As part of this process of the Courts and our ongoing involvements with I he issue, the
South Asia Court of Women on Trafficking and H1V/A1DS wall seek to deepen our
understanding of the issues in the context of the new violent global order and while
holding them accountable, will call upon the states and governments to make
appropriate economic, social and legal provisions to protect the rights ol the women
victimised by trafficking and those affected by HIV / AIDS.
Many of you have been a part of the Courts either through your participation or through
extending your solidarity. We invite you once again to be part of the South Asia Court of
II omen on the Violence of Trafficking and HIV/ AIDS by extending your support through a
message of solidarity that will be acknowledged in the publications and reports of the Court.
We would request that you send us your message to the address given below bv Jul\
10 2003, at the very latest.

With warm regards

Sincerely,
Corinne Kumar
International Coordinator
Courts of Women, AWHRC/E1 Taller
International
Farida Akhter
Executive Director
UBINIG

Sonam Yangchen Rana
Senior Advisor and Regional Coordinator
UNDP Regional HIV and Development Programme
South and North East Asia

Madhu Bhushan
Coordinator

AWHRC
India

For further details contact:
Aashti Mudnani
AWHRC - India
33/1-9, Thyagraj Layout
M.S.Nagar Post
Jaibharathnagar
Bangalore 56 00 33
India
Telefax: 91-80-5492782
Email: awhrciwvsnl.com

pis-

“Oh! This one is infected!”: Women, HIV &
Human Rights in the Asia-Pacific Region.
Paper commissioned by the UN Office of the High
Commissioner for Human Rights, from ICW

2004

By Susan Paxton, with Alice Welbourn, P Kousalya, Anandi Yuvaraj,
Sapana Pradhan Malta and Motoko Seko.

March 2004

rD> y

4 f"’ -

CONTENTS
Setting The Scene - The Global Background

Women’s Greater Vulnerability To HIV Infection
Biological Reasons
Economic Status
Social and Cultural Norms
Programmatic Vulnerability

Other Specific Issues
Women and condoms
Women and drug use
Women and sex work
Women and sexual orientation and transgendered people

AIDS-related Discrimination
Ante-natal testing
Health-providers’ attitudes
Discrimination within families and communities
Self-discrimination
Discrimination from NG Os and funders
Women, HIV and ethnicity
Comparison with elsewhere

Recommendations a: The Need for a Gender-Based Response
International instruments of accountability

Recommendations b: Practical Ways Forward
Political leadership
Radical changes to formal health service policy and provision
Support for contributions of HIV-positive people
Contributions of other civil society organizations and individual women and girls
Creating a supportive and enabling environment across society
Summary: multiple levels and multiple linkages

Bibliography

20/? this one is infected!’’: Women, HIV and Human Rights in the Asia-Pacific Region

2
3
3
4

4
5
5
6

7
9
12
12
12
12

14
16
18
19
20
21

“Oh! This one is infected!”: Women, HIV & Human Rights in
the Asia-Pacific Region.
Paper commissioned by the UN Office of the High Commissioner for Human
Rights, from ICW. 2004
By Susan Paxton1, with Alice Welbourn2, P Kousalya3, Anandi Yuvaraj4, Sapana Pradhan Malta5
and Motoko Seko6. 7

“Health is a state of complete physical, mental and social
well-being and not merely the absence of disease or infirmity”
WHO Constitution, 1946
SETTING THE SCENE - THE GLOBAL BACKGROUND
By the end of the 20th century, AIDS was the fourth leading cause of death in the world,
after lower respiratory infection, heart disease and stroke. Women are more than four
times more vulnerable to HIV infection than men are, and women less than 20 years old
are up to ten times more vulnerable. Coupled with their greater vulnerability to
becoming infected, women are significantly more likely than men to experience AIDSrelated dis umination after infection. The response to HIV and AIDS to date has failed
to address adequately women’s inability to prevent themselves from becoming infected,
resulting in a thriving epidemic and huge populations of HIV-positive women who live in
unsafe and undignified conditions.

The Asia-Pacific region is no exception. This paper sets out to explain the varied
reasons why a significant majority of women in the region are disproportionately at risk
of infection, documents specific examples of discriminatory attitudes and actions against
HlV-posi'ive women in the regio.. as a result of their HIV status; and concludes with
recommendsuons of action by and for all levels of society to counteract these human
rights violations.
Determinants of health are multi faceted. Societal and cultural double standards for men
and women are barriers to health care efforts and the oppression of women has led to
denial of their rights. Women’s lower social, political & economic status is fundamentally
linked to negative health outcomes, particularly in relation to HIV/AIDS. Society has
constructed profound psychologi ; il and social differences based on gender, yet the
1 APN+ Advisor, Australian Research Centre in Sex, Health and Society, La Trobe University, Australia
2 Chair, Board of Trustees, International Community of Women living with HIV/AIDS (ICW)
3 ICW South Asia trustee and Director. Pc live Women’s Network, India
4 International IV Alliance, India
5 President. Fo: m for Women, Law
I D /elopment (FWLD), Nepal
6 UNIFF' ’ P
nmme Specialist, Crd HIV/AIDS, Asia-Pacific region
7 With many the iks to Luisa Orza fe ‘
ound comments and editorial support and to Promise
Mthembu, Bev reet, Vicci Tallis, K ’e F ’ her and Junsuda Suwunjundee for further advice.
“Oh this on
' 'fected!”: Women, , VHuman Rights in the Asia-Pacific Region
1

response to HIV/AIDS fails to r ognise these differences. Women are still seen
primarily in their reproductive role, whilst men are seen as the monetary providers, and
thus retain physical, social, legal, religious and medical control over women's lives.
Because of this imbalance of power, public health interests are usually determined by
men, dm en by economic rationally a and often override women’s rights. Compare, for
instanc , the finances invested in . DS vaccines versus female-controlled microbicides;
and the funds invested in drug rials of white males. Prevention of mother-to-child
transmission programs improve quality of life of a child but often overlook or neglect the
health of the mother; and abortion is often advocated for positive women. Interventions
always target women in relation tc ther men or children and do not recognize women
as separate entities in themselves. iese interventions are also very often judgmental.
Women carry a triple jeopa
AIDS: as people infected with HIV, as mothers of
childre infected, and as carer, of partners or parents with AIDS (or, in the case of
increar.i g numbers of grandmeth s, as carers of orphans). Care, traditionally one of
womc s many responsibilities w
i a family, is provided free, but has a hidden cost,
labour is lost, which has a huge impact on the
When omen care for othe.o, th
wealth ind therefore the health no nly of themselves, but also of the whole household.
In the
se cf girls, they are c n
loved from school to care for sick relatives. This is
also a huge economic and sudai dss, both for them and for their future families.
acceleration of feminised poverty across the world
HIV/A DS is thus contributing tc ’
ption.
and t e / sia Pacific region is
WOf
c E .TER VULi
Late.
MD 3 figures (Dec nb
HIV . S in the Asia-Pacifi > Rec
transm sion is overwhelming! he
in me
coi ntries are escala g i
follow ..ose of Africa, then it c?
of infected women and girls in >
worn i and girls’greater vulr i b

ITY TO HIV INFECTION
j03) indicate that 9.5 million people are living with

i. For most women in the region, the means of
^sexual and, for a range of reasons, infection rates
e rapidly in women than in men. If trends in Asia
ally a matter of time before the overall percentage
II overtake that of men and boys. The reasons for
'o HIV infection are summarised below:

Bioloc cal ^^ so is

There is more viru
;n than in vagin*l secretions; therefore women are
lore lib hy to be infects
n than men infected by women.
Ti e vagin* has a ' gicosal surface; any microlesions caused during
ns for the virus; young women are even more
inter
rse may be < i
vuln^iable because th i
d lining is thinner and less mature.
Coerced and viole.it , i ireases the risk of microlesions, especially since
condors are unlikely to b-' ’
d in such circ*mstances.
Th presence of 1 t
STIs, which may cause open sores and which
women may not actuary • ' , increases risk of exposure to the virus.

“Oh th

6 inf‘ 'cted!’’: Women,

nan Rights in the Asia-Pacific Region

Economic Status
Women are more likely to be
s educated than males, more overworked and
underpaid; women are expecte^
vork in the home and are often discouraged from
going out to work; women are the:
re more financially dependent on men.
•
Women have few onnities to engage in waged labour and so have
mited financial survival
r the primary breadwinner is sick.
If women work out
e home, many are forced to become transient
V
kers.
Many women have to exchange sex for material favours for daily survival.
Inerability to HIV infection. (In India, nearly 50% of
Poor nutrition increase
anaemia (UNIFEM 2002)).
all married women suffer f c
tted to own property or to legally inherit ancestral
Women are often not n<
ugh recent legal interventions in some countries
properties or possession::
ment to the Country Code in Nepal and the
such as the eleventh
ession Act in a few states of India) have given
mendment in the Hindu .
i. jritance rights, these rights are seldom upheld in
t em legal ownership a
P ctice, hence women’s s tus remains the same.

Social and Cultural Norms
cuss or make decisions about sexuality. “Good”
• /Von ..n are not expo J .J
women am expected to be v - r before marriage and are expected to be “ignorant”
orm^d of any matter'
g to sex, including their own sexuality.
or i
st condom use, they risk abuse.
f w nen refuse sex or
specially domestic violence) leads to forced sex
io!?, ce against wem
s increasing micro!'
(
ized as a crime in many countries (and in no
Marital rape is not re
), so marriage condones non-consensual sex
< unfnes in South Ea
en a man and his ' i
any time.
and sex outside marriage are widely culturally
F r men, multiple r ~.rt
accented.
\/e relations with or marry older men, who are
7 nen are expcc '
J more likely to be infected.
re sexually experienced
r nged marriage p
lariy among relatives, without the bride or groom
rst,
are a norm in rural India. (In India, 60% of
g
to know one anol in
r irried v omen become r
e s before the age of 19 (UNIFEM 2002).
ited with reproduction and creating a family, and
M riage is strong'y as
re s s'rong pressure on
urg, newly married women to have children
A /Oman’s status g.
n Aoves if she becomes a mother.
I e majority of no’ :t
oeople in Asia are women. This limits women’s
to access inform
hIV/AIDS prevention, care or treatment

r
“Oh t:

owing remarks are .or
!, csitive women- '
am ocie il pressure on w
:re r chit [ren a id_a pc r ’

tive women who took part in the ICW study in
J Choices”. They clearly illustrate the importance
have children, and the conflict that results from a
i is:

■ s / Ve 'led!”: Women, H b

lien Rights in the Asia-Pacific Region

f we vere childless, our f
ante to see what his chif
i egat e, our lineage goes Oi
t
N lheast, aged 27)

ouidn’t be perfect. I mean, there was conflict. He
look like. I had to take a risk. If the baby is HIVwere childless, there would be conflict.” (Woman in

'ar 'ed to make the family pt
d. e alone, lonely. ” (Wo ■ la

< we had no child, he wouldn’t stay with me and I
. . e Northeast, aged 31)

"7ose not infected [with HIV]. But the infected, they
a family must have a mom-dad-kids thing in order
, r e heart, of a family.” (Woman in Central Region,

iv ig a child is necessai
15 O' 'dn’t see it as necessary
e perfect. The child is th

L__ __________________

Progra1 "ia ic Vulnerability
□nd indeed around the world - organizational
In hea
s -vices across the • i
structur sad the development c policies are often gender-blind and even uphold and
ien. Mann and Tarantola (1996) refer to this as
'e (‘^crimination against
exace
..lost of the senior management positions are
“progra r r-atic vulnerability” c
men who have not considered the gender
; n and most do
held b
their own issues around sexuality or their own
dimens ns f health care, nor
i
>s
tend to be formulated almost exclusively by
vulnera lity o HIV. Healthca
e controlled barrier methods such as the female
men. T s o take one examr
have received relatively little research support,
microbicide develooi
condo
■sed mainly on men, and has not addressed, for
. . earch on drugs hat
Simila
n drug tolerance. Female health service staff are
po " dial gender differei
exam i
ront-line positions, as nurses, cleaners, or in
often p .ed in junior, p( orly res
:
ours,
poor pay and little prospect for career
.’is 7 . ositions, .vi i I
other
;.iany insights into how services may be better
, Although I ey r cdevelc
perience, their opinions are not sought or
run, b ed n their direct
welcor
OTHE
Won cWome
HIV. “A
contex

r
p

r ■”

nd
U e

e .

e < '

“Oh th.

CF’C ISSUES

CC icloms
of socio-econr ni
: suges of “al stc
n ■ i’s lives.

is perhaps the greatest catalyst for spread of
rnithful or use condoms” fail to recognise the

inducted by the National AIDS Control Organisation
surrently living with HIV/AIDS had only one sexual
.1'iein. The majority of women did not perceive that they
en they had perceived the risk they did not have the
s ' th their partners; in fact the majority of women do not
i
on.

avioral Surveillance S r
showed that 80% oi v
. -ontracted ’he vi s
of contracti '0 H.
gotiate to use the c
t'lat^condoirsprp r

aferted!”: Women,

■

^an Rights in the Asia-Pacific Region

Most women have no contro1 ov ’' when, with whom and in what circ*mstances they
have s x.
: .dom use is pa ' r
problematic. If women suggest using condoms,
their p dr j. often assume
v omen have been unfaithful. Condoms are not
under'
en’s control and sum
men are threatened with violence and rejection if
they insist on condom use. It i
ulturally acceptable in most Asian societies for
women to purchase or to poss
oondoms. In China, if a woman is found with a
condom i.
er bag, she can be c rested on suspicion of being a sex worker. In Nepal,
female sex workers reported mar' ' cases of police abuse because of carrying condoms
with them. 8 n India, people involved in sex education work, especially field workers and
"•v
^forcing agencies if condoms are found in their
social worf rs, face problem^ r
mly men, but also women to accept condom
bags
hu
caching and ed
use is ■ ha’’T. r: g.

also an issue. For in
Costs
New Dell i m .04, but each on
has agreec :o negotiate with
that its:-ou ] cost Rs 3 at the r.

. "

in India, the female condom was launched in
y costs Rs 45 - nearly a dollar. The company
ment to bring it down to Rs 20-25. NCOS say
h it would be better given free.

Wom r ai
use
In sorrp
' o
.sia, sharin.
r programs I <
Need e
.g drug users bi
among s
ie
womer . .«e. particularly those
commo. fer
jf.ien, v/heth .r
cjendcr violence i
expc
// - s. V^ny peon •.
sell sex
comma cia
< to finance
' qa:nst, bv the
disc
. s towarcs se'
neg

vuipment is a significant mode of HIV infection.
i success in curbing the spread of the epidemic
be very male-focussed and deny the reality of
n who are partners of injecting drug users. It is
e themselves drug-dependent or not, to be
oiL.ilion by their partners, who may force them to
m that women using drugs are also engaged in
.ug use. Thus female drug users are doubly
ni ies and health service providers, because of
i d drug use.

work
Wo.
Tier, who are sc
HIV-hC
. ' are oft. n e
as se
j
i the mcral ju
rights os a
9
in Ta.
J 11' ed ^ndra
ih ths ir non-f
use co 'ido:
n
This fi
Survey
Sex
k S
th re fore at i

or who sell sex but do not identify themselves
isk from discrimination and violation of their
posed on them by society. Studies conducted
at. s in India show that only 20% of sex workers
mtiy regular) partners. (Behavioural Surveillance
similar findings from elsewhere in the world,
sk of HIV-infection from their regular partners.

1I :•! 'yt'l a co*ck ■
I wa rarrpd ‘ •
3 to i cc me , '
Il i.js safet.

■v

8 Report
FWl
“Oh t '

'rot'p iscussior
I h in Vomen (
e si’
'd.'”: 'Vomen, I

/1
7

d a massage parlor which provided sexual
i sband worked in the same place as me. He
died later. I used a condom when I had sex
Voman, aged 30, Positive Women: Voices and

al Sex Workers and hom*osexuals, organized by
jlice, 2003.
i Rights in the Asia-Pacific Region

study conducted in r.’e
DS, A UNDP Regional
' VI
.n's partners had use a
'st id th^t their partners us
4.
said that they have se >
as
es( onsibility and du
inte .ours -■ by women, 37°/'
arc
ent , scolding, beatii
vou d take a second .■
th*
n complained that th
and not rape. In Nepc
oe v' s non-consensi'
1?
eme Court >y FWLD
d a d active order to f
ov >we' t, no initi

D, 2001 Report of Empirical Data Collection on
out of a total of 100 respondents only 44% of
> while having sexual intercourse. Of these, 84%
3 p jrpose of family planning and not for safer sex;
se with their partners because they perceive it
mers. When discussing the refusal of sexual
Oi ( nts stated that their partner’s reaction includes
jssi is of suspicion towards their wife, threats that
an extramarital relationship. Nine percent of
onsider sexual intercourse to be a matter of their
w exempted marital rape as a crime; the definition
than one's own wife”. After a case filed in the
e court interpreted marital rape as a crime and
. to introduce an appropriate bill into parliament,
aken towards enacting such legislation._

rs is so strong, even from other women, that
n STI clinic, for fear of being labelled as a sex
,s focused initially on sex workers, HIV-positive
assumptions that they must have been sex

In A ia, f crirCna^n again?
os’ /e v men w?
mac H>
au ? HIV preven'■
work
won
,e strong discrimi i
worl’

Ip'
Pc

it h per^d to me. I.
ife d from my won
le not to come close i.
ve V men: Voices ar

flat gossiped about me. They knew that I was
rhey said that I’ve got AIDS and asked other
e touch their children." (Thai woman, aged 30,

J
' thn f ;ing women
q o
s O [ iny
ha nc me to 1 -r

o are trafficked for sex work is in many ways
far from home to live and work in situations
i speak their language.

r
d sc ual ''!cnta'
Wotvei
:
se
■
.1
'
omen
c
tr
Lest ia
.on occ use of
rights vk
they ma ace even more
alth gi oeyond the scope of l
and Jl 9*1.

^ndered people
persons are especially vulnerable to human
tudes in society. If they are HIV-positive also,
i. The specific issues facing these women,
are of concern and need particular recognition

The
eve
whe

AID

ATF ) [

Ant ?c
Aloi g '
women
fam le
(In m
pre
ma ri
sexi

'est

“Oh

sin'

SRIMI Am

plonion of I
1
be infecte- v
i te .ted, particuh
stances testing .
t-test counsellin
!xtr< -mar' d sex
wle oe. For me .
'■

'"'nmer

increased discrimination, particularly against
young woman is often the first person in a
?r
sed routine HIV screening during pregnancy,
ut the woman’s informed consent and without
J v. men in Asia are not supposed to have pre' u posed to enter marriage as virgins, with no
Test, the rules are not so strict. Although most
/

Rights in the Asia-Pacific Region

wor n ..ntract HIV from
hus ind
is often assumec
are otter een as “vectors” of
subjecte o violence and abu~

|o
(t
V
Irf-

n
'■

sc
b

gamous long-term partners, such as their
th women who have been unfaithful and so they
, blamed for bringing it into the family and then
he r spouse or in-laws.

e women who participr' j
s as a result of havr
nei
be
r medical conditions,
isn did not know tha
ey

, Thailand study, 52% discovered their positive
J tested in antenatal clinics, during treatment for
was required by their employers. Often the
n tested for HIV until they were given their

is:
fo hospital, they took my blood for a test. They
: use I was a patient. Then they told me that I
iat kind of blood test. I knew nothing. (Thai

a '-ne I was hit by a ca
c t say for what test,
positf e for a blood t
nan, Central Region, a-

n I was pregnant an
ot tell me what the
/ blood tested. They di
-s the .03 lest whe1

s che wed b'/ a doctc
' v: us, and aske'l
a ting b cause they di i
eone learns about it, a ■
nemployed because
'i. 1 > tral Re'

atal care, I was told to have a blood test. They
/ woman who came to the clinic had to have
all what kind of test they were doing. I realized
/. results.’’ (Thai Woman, Central Region, aged

it
■Ja:

• st e

an exam. The doctor said to my husband that it
to take me for an exam too. I consider this as
th
ruth. They neglected my personal rights. If
' ot ers, tt may have an ill effect on my work. I may
not accept people infected with this disease.”

k ' - / • s wed inr ■ th: f
ut it was They just i.
W
an, Central Region, a

' a blood test. I was not told that it is the AIDS
sical check-up, health check-up. ” (Thai

at time I knew tbrt I’y
.. t i my t os
erne o have blood le

nise my husband died of AIDS. I had already
71.7 id HIV and wanted me to leave my job... He
man, Central Region, aged 28)

‘e

ai. '"s'.

o '

Heal

Find
stud

limits

it t ^'ve 'irth
i as r'
and
:lict d get an a' nd:
Hr ny bad."(T^H\

. wke badly. He said that I should be sterilized,
said there was no reason why I should keep it
snond then, all I could do was shake my head
Positive Women: Voices and Choices)

:e ' ■? a ^sni \
v
c.. pov ■' v niik '
:es Repor1

e women that if they are not sterilized, they will
(ICW: Thailand Positive Women: Voices and

11 'enty-six key i
( - E
n ' ' '

husb

ive choices; '
od
rtf . n-lciws, oftei

“Oh this )i

;s inie

. US

in'orviews, conducted in India and Thailand for a
iicats that women diagnosed with HIV have very
e often made by the health care provider, the
i ti e woman resigning herself to an unplanned
n Rights in the Asia-Pacific Region

or unwa’t d pregnancy, or a ac
□rtion and sterilization. This is despite the fact
that abor ’ n is still illegal in rr ay
‘ es in the region (eg: Indonesia, the Philippines,
Laos
ma.) and thereto
o be carried out in ways which can severely
end
er > men’s lives (McC \
2002). All respondents in the Ipas study felt that
com
n:' E.titudes towards
ith HIV who become pregnant are that these
) irresponsible and
; . I ave an abortion, and be sterilised. Attitudes of
won'
heal
; workers are often rm i on '
and judgmental and any counselling is usually
direc
Vomen with HIV r
d
aral reluctance and frequent refusal by health
t to help with childbirth.
care
< rs to provide ii was ) tm.
If wc
find
the s

■/’ ise to do what f
lves ' ng birt
i e
nd h i. newbor

7r
/i

ered 'o one of our fr
cy fre n a go\ r:. ?.
zed a d t^rmiir 'f' ' . t
w e. 7 zaf /as /
di
i
■ 'f r us -d
ordom
fe/777/
, whi
ga
v'lird 1 :e she di~'
vanl
Ui
)e new
1
a s her usb
. 6 :: vl'r>n she
'c 7, which sh
'as m
j 3'0/
abortion.
• la d illnes . I tool-'
d
I
the
i nt • ? i b w hut <. ' ir
! disc
this ■ /
f
mb
' c< • ! ige
jnan
' sba.
n ui^y, wi
J
n: w. S
tons
ft ,
th gf n 'c
'
on

Disc
tran
Neb
Disc
sou

'' n H./

specially in the prevention of parent-to-childstudy conducted by the Positive Women’s
Speaking) in 2003 in southern India,
dso experienced by women in Thailand who
■' ining services:

'th cai
-d
JNI E

t, atmenl

7 il' and :c t
. It is not / .' .

H'
r t

causn it is
? u' ng.” (T i,

’e do not want them to discriminate
’se it is their duty or something like
us good services. If they give
i iotice from their face whether or
29, Positive Women: Voices and

'ted!1’: 'V ■ ien.

; Rights in the Asia-Pacific Region

■ l it "'em ‘

S !

"Oh

it. oo! pregnant, who opted for medical termination oi
he decided to do that because her husband was
? was 16 weeks pregnant. She was her husband’s
■ preparing herself for an abortion. She told me they
gnancies were not planned. She ended up twice
i 'ike, but she had no options. When she conceived a
t this time she was afraid to visit the health care
1 ier for coming back with this problem. She told me
ind most of her time was spent in hospitals caring
.or for terminations she was advised to undergo
. She asked me whether I would be able to convince
: 1 . ,/7e her husband had been again hospitalized for
.ae oology doctor and she told me “You know she is
• h or to get sterilized and I am doubtful: how did she
edridden?" I was shocked to hear this statement
•i.
i s ,© has the right to decide and she only knows her
m mt hospitals refused on the grounds that she was
could not do anything. While she was shunting
!n the hospital. She had no other choice other than
V
t prepared for. She gave birth to a girl and is staying
!
ess to condoms and no supportive environment in
/ c m friend reflects the judgmental attitudes of health
t woiir^n living with HIV/AIDS where we live.” A.Yuvuraj,

r jr ' .e [

iin

l/l

1 J

and go ahead with the pregnancy, they often
ied attendants at hand, thereby placing
..ter health risk.

' t have an IUD fitted. When I went for
it because I didn’t live permanently
' why I should bother using it. Then,
/ learned that I’ve got HIV they said
ected should not use it. They said
^uld not be given any services.
T
7oman, aged 39, Positive Women:

Td
“I’c be
'
? o a hospital, an
tl fit
they did not all
■ex partner. T',
with n
when
checked my rr
| ( IT
ne was infecte
,
■ a’
, those who ■
mtual1'/, I gave back
, V< :er a- d Choices)

Con

entiali'' ':om health se

pF 7<
some
r ' sei
the.
ces

oe ' that perse
"e . ind m ’
Yly'msH
utS ad c .
1 Ch ces'

In N oal, i
infer d with
that V-p

al practitio
//A1 DS becat a
. patients mu

Man hea’th
then eb es
awar nr s o
V
are a
The
oftei
com '
it is
ann ’
uns
Feb 3ry
(http 164.
and up?c '

re workers r
e
’e .jao
e:r c .vn sta •
ed ar
.ack basic I
■ pnact'ce
in c rd jr
er
the

Dis^
A de
fou
fan
pe
sa

'i1' far 7
n cf

4.208/1 > i/qur
ope with the’.

OS' I 'O WOI '

and t
in

9 Rep tc .
Asiai
"Oh t' c
k

rip.

C ’ ■
i con
opn;c 1 \ oon,
■ec!!": M

srs also emerged as an issue:

health care center, a nurse, said
' that... ‘Yes..yes..this girl (meaning
. 3he shouldn’t have talked about me
j
oman, aged 29, Positive Women:

dged that they discriminate against patients
ar of infection. They also expressed the view
ated from other patients9.

a. ,es women or men living with HIV and often
o r ition, support or services - or even the

staff, especially frontline women workers,
,eir male managers (Khanna et al 2002).
ab : HIV transmission. In Pakistan, for instance,
for health workers to inject patients with
re gy levels. In India, a parliamentary reply in
a’fctions in government clinics are “unsafe”
70356). Health staff need proper information
' •. nnd those of their clients.

7u : . s
n n on in Asia conducted by APN+ in 2001-2
iore likeiy to experience discrimination in the
T a study interviewed over 750 HIV-positive
€
j he Phuippines. Forty-six per cent of the

’ractitioners of Various Hospitals of Nepal for South
ober 2002.
ights in the Asia-Pacific Region
9

r need by HIV-positive men and women
s from APN+ study

rential discrimination
Key f

Affirmative responses (%)
Qu'

Has
then
Ha
you i
Have
Ha
lea
Hay
yo
Have
HIV

0: 3 A

Males
Females
(n=394)(n=348)
sv

jy ' oen told about you-

t you wanting

33.5

35.3

ve. • be°n ridiculed, insuitc

-asf )d because of

20.3

31.3*

.ve-

s-: of your status?
. or asked to

2.5
2.8

6.3*
8.6*

□I

r idence because

6.3

12.4*

nct:

is due to your

8.6

16.1*

J you from

10.9

17.8*

’.embers due to

4.6

10.6*

nee you

17.8

45.1*

V6'

-lie
>ee
ow
\/e

o
t-

Jia
•a

usu
Ha\
your
Has
di;
Ha'
be
Ha
fr

,'n physically
'i •
■3n refuse on..
blishmr1 . dir
?-ced to cliang .
>eHIV-p
dve?
n exclunec fi.

u is have family •.■'lies?
' financial supp>

•• advised vou ih
ositiv-.
yu
ilc

1 COP
'stall.

children’ ‘'e-l .e.
p-'i
IIV s

i .cant .1 ' ^rer.

' ’

th
be

HIV S'

Jr.

Te p
pl< e
the
be a*

er
.s

resy
b r

Th
ar r
fa
hou

tior
ul
fi

1 .
ed b

nta v taken away

2.0

2.9

en male and female respondents (p<.05)

ales) were advised not to have children after
coerced into an abortion or sterilisation
ost custody of their children.

‘/q, males 6%) were forced to change their
rdf of these had to change their home more
spondents had been physically assaulted
c
knowledge.
put

?s
rf

eii . "V siatuo nem . '6

’s r

11.5

rilisation
.

■ C'c

ere

e
rs
T

en is even worse. Widows and single women
t violations, including physical assault, from
mity. They disproportionately head poor
ear the brunt of AIDS-related discrimination.

iiscrimination is gender. Overwhelmingly,
.vomen are significantly more likely to face

The
fine
disc

) / ft:

AiOi

an are ine

“O

? is

’76/

1 Rights in the Asia-Pacific Region

The
Ad
(CF
rec

rch conducted in ~d
ar ■' Resea. ch ii
d PWN 2003). Their
the .iltitudes towards ;

sitive Women’s Network, and the Centre for
-depth interviews with HIV-positive women
indicate the following key areas of concern with
fment of HIV-positive women:

gm , Discriminatie
'en a
elihood and Prope
uri‘

;orn
^go
Sin
with
high

re
ion
v ysterns
c d. : culths msi
g capaP’y

ding emerged fmi
HIV positive ,voi n
a
ad ra
of X.5

' tus disci >sure nc
\ or ., nam y.
'the
xua
■ sh ps ? c
hen h s ' rv:
orc
port,
er
acli<,
■ FIs,
xJ- eer:
cal 'ri
ant in
a: j s
, qenera
1 in \/-si pr
Jdin

, ’
5 .

'OU'

i +

’7 d;

'ng
et . ”

:k .
'9 l\ ' ■

r< 'I i ll
■ agt

I
I

)

J Positive Women: Voices and Choices research
laihod. The key findings of this research also
ern, including:
<

>e,
earing,
ng abortion, sterilization, social welfare and

■7

nning after HIV diagnosis,

and participation in support and assistance
mation
/e ..s information on how to behave
■ hi concerned they just tell you how
hat to do about it once you are
7, Positive Women: Voices and

:r,i'
. an
natr
j9, I

' m ation is important. We want to learn
‘^w the disease has changed. We
7... We still have hope” (Thai
,es and Choices)
I

to b
' rni

I decided to have a check-up at
t r. , e blood test, a nurse asked me
u certainly die. She asked me if I
jrly, and she said that around 60%
>o .ared ...a nurse said 60% which is
i th next few years... my feeling was so
< gio. , aged 37, Positive Women: Voices

Io v
-7' 7/ cl

.dying a male family member with AIDS

h /
"i

(Tnai v.
hr ’ es)

“Oh

nei.

its in the Asia-Pacific Region

nir, on
nse ir 'he d; imina
1 s int r is ostra
of 1? "v im<
'i jotypes pron
' related . .ess :

SelfIn rc
awa
obv
gen
adv

ow
ash
hey

Disc
HIV
they ?
pan e
care
wo ’
find
imp
sen
Tho

that women face on diagnosis, many hide
stronger once HIV symptoms become more
dally important to women, as a result of
m he nedia of how women should look. Thus
e c pec
psychologically debilitating.

? a. y jo'
:t wi!
to mee
OPK
anythin
''0
■ not .tlne. I cP
I can
ve p >
'om'

'n g. e with people, any job that will not
-/) work behind the scenes, such as
'b where I do not have to see people.
other people’s eyes when they look
scenes: no one can see me; or a job
aether among us” (Thai Woman,
;s)

Pot t i •

m m a1^
-

nsta r

Time:
ppor
be:nr

awn
and d
' tp"< of

from funders and NGOs, even if
develop their own response to the
id ng agencies focus on community
nted through NGOs. HIV-positive
se NGOs. However, in practice they
access funds to start networks or
ammes that are funded are very
j the skills of the women concerned.
e reality is very different.

facr
|v

S O’"

JIK
ipl

Wui

Ettr
HIV
ind
ove
Gre
eco
ar.
exi
am
m.

r I
11

c; ,
cci m

di’

a
o

in i.
ar in

pc
fra’

“C

g .n
r

IV-vulnerability. In Australia, the rate of
sharply compared to that within the nonus p pulalion women represent 35.6% of
e .uon within non-indigenous people (Bev
.ol unexpected, given the poorer socioaccess to education, employment, health
> Australians. Similar quality of life issues
in the world. Therefore, HIV prevalence
s in other parts of the Asia-Pacific region

wi.lc

OX'
“o

di.

ur
re

~ ^2

Cc
Tl
Pi

ir tha'
pulat' ji
'ithin '
. - ire I

c I

f
• V'-

< -Pacific region are reflected in many
ire ma..\ed similarities in the recent ICW
S
Studies conducted by and with HIV,\/lancheoter and Maposhere 2002), in
nd in Latin America (forthcoming). This
e to the region of adopting a gender-based
:es of the vast majority of HIV-positive
u/n

iecr

‘ lithe

iia-Pacific Region

in the n
n
he r gene' . .

T1ONS 7

G NDEft-BASED RESPONSE

,:'y betwc
om infeciIr

ma'

es den s women the ability to protect
nation a ainst them when they have HIV

natc'v af

S \A

re higlilv
•-o often I

■ i ice the <

ner
mec
ho
des

re ■ p;

^ur

7
, e
lltUR-' bar

W( i

Gl >S3

thems
an ' d
H.

Pr gra
ge de
no "s
the

J - ■

' q.

pr jle(

on;
9 HIV;
c il L ' en of care;
3- lated discrimination
Jons of eople living with HIV need to be
Lo chall ige and transform those cultural
jc/ticipatic i in decision-making and remove
nproved health and dignity.

rs t

Int
Try

ly exacei oated by the combination of their

3CC

ti n

3
'

eci e to overcome discrimination is
uO va:
uO
vat us covenants and declarations
are u eld (some key ones are set out
enfor; ment mechanisms of the treaty
( nation conventions.

ge
s a
:qh

n- ■

ai ^d
be
be as

c
) SI-

rnaf
e r
jenc
he

3 I
/ " r

. pi

ins
> tC Q
IJr

j i*-

s r

by
(
nati

on Econc ic, Social & Cultural Rights
tot c 'laina e standard of health, and to
natory states have a duty to
ro.; ess.
or remove the barriers to
') pre
•' I w
eing.

dnation
All Forms of Discrimination
unalion . d bring gender equality, and
ire serv es. It is an international legal
irvance of the human rights of women
11 . CEDAW Committee has also adopted
avoidance of discrimination
t
ition and control of acquired

for th
mination of violence against
st time that an international
is is the
domestic
olence. However violence
j efforts a
needed to ensure countries
nestic vu. ence.

-y
iin<
^pl
“0/

‘

1 the - 'ia-Pacific Region

he 19.
eiro by i
f the i
ovine
lopmc
he 199C '
e Joint
jns OfL,
;borat:or
ihg
Jbsi'-.

I" . ' i

on Pop.
om< n an
u. Thi was
and was

c
'S.

nci
n
rl
)C

The
rig!
rep

f v
the rir
ice

Hov
trad
will
trar

Be
can
ma’
the
infc
acc

t I
nd

and Human Rights adopted
< n HIV/A
e on HIV
DS (UNAIDS) and the United
oner for I
lan Rights urges States, in
mmunity j promote a supportive and
other vulnerable groups by
cldren a.
equalities hrough community dialogue,
i .s ai i
upport to community groups.

s on the upholding of all human
> e ic on, to information, to sexual and
o p ope ty ownership.

ty dope

° i

es b
t1

themselves that change harmful
women, but these in combination
o er ure that policies are known and

ac::

'■an ■

att
ac'
to
thl;
the
upr
an
wi
arc
go
pc

' tv <

■

o
p

le. '
ely i II I
itic

'ARD

tic sv lich different sectors of society
l a /i tu es and practice, and begin to
r;qiil of HIV-positive women and girls in
r
cos . ould provide access to education,
egc support, proper nutrition, security,
p.ui g powers for women.
L

i of .h
’ " lo
sb
io

■ TIO.

’E

□r

“O

on and Development signed
eir reproductive rights at the
critical shift of focus towards
:nsically tied to the global

e
a

ship to ’ fluence strongly women’s ability to
?nr<*
vernments should be pressured to
dignity and respect, and be made
V
i i di rimination of women. One part of
^ale re resentatives to the parliaments of
, ; lion ir any given country is reviewed and
.y of v men, to protect the rights, dignity
to c ntr further spread of the virus, in line
/' I that all Government departments
s al.
n cc ? -d

ation to make a difference. All

ice policies and fully support any
status or discuss their support for
in h

^sia-Pacific Region

re'
av

Sr
se

r '' '
’r^ue -

'? V tl

• .7V.

. can m ke huge steps in terms of public
i DncfcjScri lination.

1 be add

lie

e sho"'^

rec

e yon' '■?

'10

; be s
'a vt 7? C ?

a r me id treated accordingly.
e right to have children when they want to,
''e
\ n hou judgment. (This means that the
me. lee s to be reviewed. This is because
v. iH. aw e of having HIV, transmits it to
to prote( women from men who knowingly
’ s al
been - used in judgment against
by.
i righ o have an abortion if they want to
ai
u
iOUl be supported to do so, without
unbiased and correct information
DSd t ) fb
contin e with a pregnancy or to terminate
c! ilce should be fully supported.
. luuld
Id e outlawed unless each woman
d cons nt.
j've drugs not only to protect the HIV
'if ir wn ight, to maintain their own health
p

. f

•u thn. '
■ . oz
o.nt1.

1OU

!l\
7
’ n

7.
S
i

. L
'iil(

Wc
cc
sh
str
fre
re(
da
the
ed
an
ad
se
as

3
II

e .

•, ir ependent of men, and power to
ne -ead on this. It implies a profound
.. between men and women. Action must
jj ei. opportunities for women, including
s p op Drty ownership schemes and the
a i L w men. Women and girls who are in
hav1 already been trafficked, especially
ortr 7 to find alternative options for
is c’so ssential that boys are taught, from
tri uti
lo society and the importance of
' n .
y. Rights and power should not be
ive o e taken away from men, but rather
r.iaje for everyone in society.

c ed

•I
c

v
nr
■A’

1
hi

e < mi cant political leadership, given the
/ ■' fe nt faiths across the region. Faith

11
hu
or
th

Th
sp
si
“C

ssed urgently to uphold women’s

■

live

Dr
■3d

n
to

's.

upport for HIV-positive people in
ke a more public, political stance,
aith leaders who stand up and
asitive people, and especially in
n cannot be underestimated. The
Asia-Pacific Region

pHdg- r

re
cou
pre’
di

1c
th
av
OU
co
OPf
te
re
si
S
In

’

2
a
h
IV
P
n
s
o
a
e
P
I
“C

im
ross t

om several different South Asia
Dirient of HIV-positive people in
region, is a welcome step in this

a sti
quite
le d
}y an. >
€
\ y
d rela '
spor\
,r for
art to
nc t
om sc
n
c /ers '

Die in political leadership, through
IIV-workplace policies and HIVrs and their personal partners ouraged and supported at work to
□pics in a gendered framework,
ity for their actions sooner, to be
ein to stay healthy for longer, to
Drk together with their partners to
e international groups, such as
as the gender equity zone of the

‘

3 t
'>r

.aim i
f nos
ms fc
wo
It

d
f.

□yrr
ies I

;t.
i

1
b
in
A
a
s
v
w
ac
d
n

€

□
b

i i

ore;
org ' l
. HIV o
' si
re :

U k
st ’

it
i-i

irn
d t
□et
□rtu
a to

1
3|

4. .

_PC c

S^ '

at1

(

ovision

ch e
rin ; h<

judgmental information and
make informed reproductive
.c
oluntary, informed consent.
;di- ely and be replaced, where
testing. Moreover, there is also a
s most women access to health
the me of pregnancy is the only
alth care facility, innovative
. mation to women must be
egard to the health of HIVId transmission programs,
must be willing to provide

it:

s/a - Pa cific Region

s
ii

onors. There is a key role also to
portant new global collaborative
lotal Coalition for Women and
yorid Bank and bi-lateral donors
J mainstreaming of HIV across all
he knowledge, experiences and
r , organisations in their policy
governments and other partners
i' UNAIDS and UNIFEM jointly to
vv.th their UN colleagues in the
\ to ensure that it actively funds,
yhic h ensure gender equity and

iig

nr 1

q
ha

*o ' '
irdl'

2
H
s
rr
1i
ill
o

bar
i tc

1 oct a
i’h H /
'CC''.- to

H
tt
tl
a
e
in
d
tc
fa
n
s

J gi
ind (
y i"
"’9
• y *
.c- I n
CO' le n
alrc
rc
es
■ vi

A
e
a
n
ti
n
u
rc

2
t<
r
e
n
P

r opp^ 'unistic infections and ARVs.
VIUl
iris w i an adequate and affordable
’■ugs
’G.
e combination antiretroviral drugs to
xim? lyl
1 P day. They are available to less than
Iwic
lyr I pe- le with opportunistic AIDS-related
S L
ac ■ I ap medications such as fluconazole

i also e carers and when they die,
it ncrea d risk of contracting HIV. It
o g eco imic sense to keep mothers
ople with antiretroviral drugs by the
ed to improve their basic health
•y
d use of increased access to these
s should focus on improving access
ng
voluntary counselling and testing
P
3
targeted numbers of people, as this
ull le<
to increased instances of

10
jvit

•&

' 3 p
nd

s
'c
a

L
I

r he
n ’ le

is u.Jer women's control is also
table to women than was originally
siderably more expensive than the
n of male condoms is needed so
ctatic i of women to have children
o a sp rmicide. Such a development
will a i investment in international

3C.'.

, I

Ho'istic interventions for women

s,
im

iti

2
v.
e
a
F
s
H
n

>1
i

urg t training and support in their
judgmental and more supportive
its
g Khanna et al, Dhungana et
nee
confidentiality of all patients,
i t in linking about their own HIV
job
n potential discovery of their
rained and employed in vast
n t
ARV Jucators and distributors.

' 'ti~er

2a-2c above can only really
3 of each country is radically
S S'
ices which fully respect the
re • /-positive people as well as
al gendered health service
jn.
^nowledge that many of their
to

■e Asi

'acific Region

o
te
a
n

>tc

wi'.
ch

"S: ‘

[3
If
rr
tl
ti
w
s
rr

P
o
3
h
E

■

(

. 'j

in'

-3^?

’C

..arly in the epidemic people
realities of living with HIV.
ct on people’s attitudes to
im
- Ne en in particular have been
. Je vPaxton, 2002). Considering
at their skills have not been
’’e

e .i.

r 1

■ t(

esta

11 i

P
a
v
(

•i de'

cor e .• ,e(
uiic
n

is
3’'

r
i

P
v
n
c

ons reduce and community
i rights vic
carjfor p □pie with HIV and protecting
n liv. g with HIV to speak out takes
an c □ far more likely to cope well
ealt i care, early referral to peer
t
Th y require encouragement to
oth 's’ criticism; and they need
ace
, and new skills to advocate
n p c jcti
^cati n if th- wish to.

• f

P
s
tl
u

3
o
tc
di
th
a
L
r
H
ii
F
ir

?e p

i ■1

or
be

a wit; HIV but are too scared to be
>e vet support, since their personal
ble to their institutions. Leadership
or me ical staff across the region.

ll
i

hed network of HIV-positive
an on-going basis. External
s of being asked to speak
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never used to ask the
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F
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Voices and Choices - a
f HIV on their sexual
mprovements in policy
London
2002.

), Hl\

and Human Rights: A

i r

F
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F
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ipirical Data Collection

F
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on Group Discussion
Nepal for South Asian

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ci ■'

Voices and Choices A

jmmendations of HIViroject of francophone

y Nurse Midwives to a
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eproductive well-being

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Society for Integrated
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ander Working Group.

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31-43

|(
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jcus Group Discussion
' FWLD, GWP, Watch

ai
c .hi

lie: HIV/AIDS in India.

ive women’s activism

>gion

*
4

IV
F

L
F

/e spea
n

. Ed. r

“Ol

AIDS education. AIDS

<. Kumarian, 1996.

S as

Issue: Psychosocial

/
3I<
'A i

' ung P
~eo.
nt

dHIV/AIDS: The
IV/AIDS: Prevention,

. Juni

Y
3
y

s, 19

ood from women in a
Rights: transforming
002.
0 Sex Research in a

14: 559-567.

DS (

P
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S
S
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S
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ons, Social Roots, and

safe
eds:
11

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F

itween Partners: Risk

urn
1

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i '3

vw.unaids.org

I
r

11) 2270071; e-mail:

39 Phor

he A

Region

Public Health (2005) 119, 371-381

FD“
§
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H i F~ \L_ r h
JOURNAL OF THE ROYAL INSTITUTE OF PUBLIC HEALTH

ELSEVIER

www.elsevierheallh.com/journals/pubh

Beliefs, sexual behaviours and preventive practice^
with respect to HIV/AIDS among commercial sex
workers in Daulatdia, Bangladesh
G.M.M. Hosain9’*, N. Chatterjee6
^Gono University, Savar, Dhaka 1344, Bangladesh

Texas ABM University, College Station, TX, USA

Received 30 December 2003; rccci. ’ •
received in revised form 28 July 2004;
accepted 16 August 2004
Available online 21 December 2004

PkEWORDS^S’'

fev/AIU.:

Aus (HIVi/acSdTmmSefiSncrsyndrome^

■ Commercial < r
f
sex workers,

tei iiS®
■
wrt

S™."nd!MhX"',;
fci
1^®

I ''E-$

BesvIU. A|tto„,b

HOI

BRiB

ssjxx '“t", *”

fed 2,X"®' '

““
^l.deA

and symptoms was lacking HIV/AIDS was vipwZd’
.knowledge of transmission
immediate economic and survivZncerns
"T^^^ver-ridden by
condoms afforded protection agains STDs/a?d<:

iWiwS

:iOdty °f CSWs knew that

major reason for not using condoms Manv’n’H
e'uC ,ent di5sat'sfactiori was the
timely fashion, if at all
COndO™tMany d,d not obtain treatment for STDs in a

cUniGat-andn^cBreeninteS^

Rii
fewhSSSS

U i"

day of work were protected throtiph m i '
’ on ^e'^ird of sex acts on the last
a CSW for less than 5^ed’ had b-n
working day reported significantly higheT^S^" rr —Or‘ more S^timlast

interventions, along wh^an

CSWs^
reserved.

^P^^iyfiJJJ^progranme__that combines

and contmunication

attention to the^ins^
lnStltUte of Public Health. Published by Elsevier Ltd.

Herman Pressler, Houston, TX 77030, USA, Tel.

i'.J

AU rights

' 372
,ntroduction

------------- 2^-Hosain, N. Chatterjee

;o>n«™fcItete„pSyX™y"™,IHIVY«50'p^
seen a dramatic rise in So ii h
epidemic has
Situated between two verv hi h? South-east Asia.1
(India and Myanmar), wh^Zo fienations

that the infection rate ranees
suS§est
Bangladesh, a poor countrC Zh
to
m""°n and an annual gmsT naZT3''00 °f
capita of only US$35n 3 h
t,or>al product per

«O!» >8» A,Os'S*■„ a’’P"a
dPIected
a'd HIV ,>051,1,.
i oslimated n.ooo peop|e
™""d of Hie seXj“jL” ?A'K/ Th'

Bangladesh in 2000-2001 shZ L
conducted in
Of less than 1% among the
■£ HIVprevalence

excluded due to poor Z

, mation cannot be

tary testing and counselling'
l'mited volunand the stigma and fZZapac'tyinthe country,
detected as HIV positive “ aZ'"® Rdentified and
mf^t argues that the forces h m8? the An
other countries are (ess pronm behTd eP’demics in
reveral studies now
thTt'h
Bangladesh/6
- ■ show thaf
7ho "' ^"S^^sh,
Bank ;nCreasin
1994 'z.a
* Hn
w PreValence
creasing§ since
since ,994
Jhe
Prevalence has
has
Bank found Bangladesh
a
' Jesh to
tr> have
n
MoWeve
r, the WorId
World
opportunity
°w of
opportunity to
to "p^vent
prevent aJ Ln/a narTOW
narr°w wind
window
of
v-gorous
and
p
ro
P
m
p
7
a
n
c
a
”
HW
A,
V'Ss0™US Tdpromptaction\jy£DsS epidemic if
Surveillance
findings ,n b '3^’
<•
.. ^e,u
ance findjngs
that a h'8h
high rate
rate of
of behavi,
behavinn , g. adesh concluded
acquisition
faCt°rS for the
-n of
of HIV
HIV infection
infection
existence, at least among the
Very much in
__ findings
.
among
Surveillance
also r§Jthe
he( sample Population.

'ealedd 3 l°W percePtion
0 nsk, an alarming level of^pif

XTZ'

™ °l .n epwXi T

T""'5

eXrve "m

wT^'r

explanation for rhQ f ,
Bangladesh.10
a’r y
Os\a/s ip

scarce in Bangladesh SerosurvpiH°PU at'°n 'S stiU
surveys have been conducted i
and ad-|l°c
organizations, but little data h °r CSWs by various
date.12 A few studies in Banc£e > T PUblished to

levols of STDs among CSWs to b
[0U"d repoi ted
syphilis and 28% for o
1 £ as„hl8h as 57% for

•«~™c »P»r.uXr"ss

l«k »r

Poverty and other social anrt r,T
y for women,
to gender-based exploitation pT'3 factors related
sex industry deists throughout th^^ that 3 thn'ving
Ln§ to the Institute of EmH
.°Untry-AcCOrd‘
Control and Research ir^R d 7'° °§ical D'sease

50,000 registered CSWs in th308 adesh’ there are
excludes another 50 000 hZ f°Untry' This fi§ure
CSWs. Therefore some am-■ tS and street-based
to be 100,000. According o thin
figUre
organizations fNGOs) !
non-governmental

“«WMinpi,

r »;r

50.000 „omen n“

With treatment r
vention remains the
'ess-developed countries Zhf H V contr°l among
egies such as poppptS"
Z7",to"
hehaviour. Therefore, a more
8
"1 Sexi,al
“"^standi,
and attitude
behaviours r
desi8ning and impfZ
Programmes.
Thi^oer Z® effeCtive intervention
r’r""descriptive cross"
SZ tbe findi^ from a

k-w(edS 'a tS

assess

-»»ptaWte'S!lad.“o‘,r,°rsros among CSWs

Methodology

“»'■>«ta bra'S bX'Z'.''* "’ “PfoXob, With

u t.sWs. This k
levels of STDs in
n

haVe dernor|strated

it'-' '■■

10'8%' ln Ho Chi Minh Citv Vier
Prevalence among CSWs in^
ln 2000'
Kuala Lumpur Malaysia -> a eased to 12.8% in
China." Despite the substnnr ? 1°'3% 'n burning,
data on the HIV burden in this"?
by CSWs'

■<

HIV/AIDS and commercial sex

workers in Bangladesh

of passenger buses cross this river port by ferry The
trucks usually wait for 1-2 days for a ferry. This
waiting time for truck drivers has led to a flourishing
5sx_business in Daulatdia. Truck drivers have been
identified as an important means for the transm'ssion of HIV infection.17 In addition, this is the last
Stop of the Khulna-Daulatdia railway route. As a
result. thousards of temporary workers such as
rickshaw pullers, taxi and pushcart drivers, porters
shoeshine boys, hawkers, day labourers, petty
businessman, shopkeepers and restaurant/hotel
workers can be found in Daulatdia.
This brothel was built on the side of the river
extending over several acres of land. Periodic raids
upon brothels by police and the mobility of CSWs
iPnretVheenthn ?bTate C°Unt °f the number emPl°y?d
the brothel at any given time. CSWs openly
complam about exploitation and cheating by
t™ CSW^H1 gr°UPK SUCh 35 POl,Ce and P°li
education 7
° nOt HaVe aCCess t0 hea^ ^d
inform ? serv,ces’ credit. sanitation, housing
able ? T’ reCreation and other services avaiTable to other communities.’8 Although CSWs in the
brothel may earn significant amounts of money
compared with other disadvantaged groups thej
cannot actually spend the earned money. Most of
their earnings go to exploitative groups such as

TtheT
hel mfadamS and COrrUpt offlcials.
At the time of this survey there werO
mMely 2000 CSWs »rkl„s loDsCtd,,

™i

selected for this cross-sectional study conducted
etween July and October 2000. In an effort to

““eHw"d,be,Ws ,hat

,5 nsk for HIV infection and to define a fern,
or future intention programmes, researchers
Th^ tvn^qUestionnaire to interview the CSWs

373

questions. According to previous research and
reports, this framework of knowledge, attitudes
beliefs and practices has been widely used in
HIV/AIDS studies,--- and some more questions
were added by the researchers. Other than sociodemographics, the CSWs were also asked questions
about how long they had been a CSW- HIV/AIDS
knowledge including transmission, signs and symp
toms prevention, treatment and fatality; sources
of information about HIV; attitudes towards HIV/
AIDS; risk of contracting HIV/AIDS; preventive
practices; condom use in last 24 working hoursand treatment-seeking behaviour for STDs.
Permission was obtained from the local police
station before the interviews were conducted to
broth i1ara5Snlent; '"terviews were conducted in the
brothel complex between 9 am and 2 pm to avoid
possible interference with their working hours. The
CSWs are essentially lodged in small longitudinal
tructures made of tin (corrugated sheet) walls and
roofs, consisting of small, adjacent rectangular

maTm'Ph
f°r the brothet owner
madam (banwalli;, pimps and some relatives There
tlik r k f
e structures form a natural wall for
h compound. There are several entry points into
HC?TP0Und’ and interv’ewers entered the
brothel from different entry points on each day
and worked towards the centre in order to get a
representative sample of CSWs. The respondent
were aware of the purpose of the study and verba
informed consent was obtained from each resnonent after discussing confidentiality procedures In
viewers0 ha?to TP'5
30° respondent^ interewers had to approach 314 CSWs providino ->
(esponse rateof almost 9S%. Most respon’dentswte

rt„MSloTDart'’<i “ d“P',V

«h:“hssT'd,s^“s

SSS-SS

GK because of their nree CSW
6 familiar with
for the last L
Presence m Daulatdia brothel

significance
STATA.22
'

X
/ e Was set at 0*°5 for
'
9Se' Data were analysed using

messages. An exnenen
d,S5eminating health
Physician of GK (one of^ ’ e pri™ary healthcare
the training sessions for the 'mteSr^^^
with 25 CS^'^ (questionnaire) was pretested
jJ so e dTrict MTOhrWOri-M°ndir (a br°thel of he

Results
DemograPhicProfi(e0f the study population

~n„„.d

bo,„ „pen.

374
_ _________________ G.M.M. Hosain, N. Chatterjee

4 Most of them were never married (70%), had very
little education (11%) and almost all came from
rural areas (95%). Mean income in the last working
day was about Bangaldeshi Taka 173 (US$1=Taka
55), which is approximately US$3. More than half
(j8.4%) of the CSWs had been working in this
profession for more than 5 years. Poverty and
deprivation (51%) were the main factors forcing
them to join the sex trade. The sociodemographic
characteristics of the respondents are described in
Table 1.

i
I Variable ■

•

> As>e (years)
i
15:20
; 21-25

ifuf.z ■

j. £.S„
- ,
No education >
i Can read and/or write
t Religion <
Muslim
■ ■i
■ Hindu
; Marital status t
i
Never married
Ever married
I Origin
Rural
''' ■ Urban
YHave children
"

’

Knowledge and attitudes

Table 1 also shows the level of knowledge and
attitudes to HIV/AIDS. More than two-thirds (n-=
204) of the CSWs had heard of rHIV/AIDS’. Age and
education were significantly associated with havinp
heard about HIV/AIDS. Most of the 204 CSWs that
had heard of HIV had learned about it from the
health clinic run by the NGO, followed by radio/
television and theatre/drama. Of those who had
heard of AIDS, 85%
85% (n
(n = i73) named sexual

had heardXX t) “( 204),. .’’

' Variable

_____ _... .......
and knowledge and beliefs about HIV
. •
•
_

'
■

116

266
34 '

Income in last 24 h (Bangladeshi Taka)
No income :
bio

■ .
30

37.7■

;

88.7

■

-•

<200
<200 ■
:.201-400
201-400 .

I tllil
84,0
16.0

7-11
89

70.3
29.7

284
16

94.7
5.3

104

°, ,

. 34.7

6 10
.j
>io,
:<■ / Reasons for joining this profession
Poverty
1
; Family discord -•
Enticement/sbld
Born in the brothel
'
Heard of AIDS
Yes
No

50.5

NGO, nongovernment organization '
• b ^(responseexceeded ,00%beCause of multiplc responses.

■

196
65.3 ;
and beliefs of CSWs who had heard abgut HIV/AIDS (n
-204}
; Source of knowledge®
Beliefs about HIV/AIDS
Health clinic
. AIDS can be prevented3
.121
59.3
By condom
■ Radio/televisioh v
!
107
52.4 \
Vaccine
NGO-stageci drama
92
45.1
1
Cleaning/washing
Clients/peers
78 '
38.2
.
By antibiotic
^cal practitioners '.
32
15.7
Do not know
? Spread, of AIDS®’.'Need more health education
;. Sexual intercourse ,
173 <
84.8 ■
For themselves
Casual contacts . ’ ■ • 7
.55
29.0 ■
For clients’
Needles
•
37
18.1;
Mother to fetus .
There is a vaccine against AIDS
13 ,
6.4
: Do.hot know ,
' h
At risk of contracting AIDS
11
5.4
Symptoms of AIDS3
Healthy person can have AIDS
. /1 AIDS means death
•
; Extreme weight loss
63
30.8 Recurrent fever . •
Clients
should
use
condom
• • 45
22,1.
■
Chronic cough ■
. -'39
19.1 /
I ’■ Prolonged diarrhoea
17
8.3 .
i Do not know .

.103

>400
.
Duration in this profession (years)

" 3-5

252
48

™
Ioz

/ ■

■
.

Cl'

■

A) .

: .-36.0
31.7
16.3
■ 16.0

' '
. 19.0
19.0
Sill

o.
89
86

22.7 .

297

28.7

152
64
47
37

21,3

.204 .
96

68.0
32,0

162 '
43
34 :
26 ; .
12

79.4
21.1
16.6
12.7
5.9

161
183,
43
185
93
167
79

53?7b ■
61.0b •
21.1
90.7 • , ,
45.6
81.9
•26.3b

15.7

12.3

''‘l

■ HIV/AIDS and commercial sex workers in Bangladesh

transmissidn as a mode of transmission. Misconcep
tion about HIV transmission by casual contact such
as kissing, using contaminated clothes, sharing
food, and sharing toilets and a room with an HIVinfected person was found to be common. Unedu
cated CSWs were 1.5 times more likely to have
misconceptions about disease transmission, but the
difference was not statistically significantly (P=
0-21, x =1.60, 95% CI = 0.7-3.5). Common symp
toms of HIV/AIDS mentioned by the CSWs were
weight loss and cough. About 185 CSWs (91%)
believed that they were at personal risk of acquiring
AIDS because of their work. For prevention, 162
women (79%) believed that condom usage was an
effective prophylactic to prevent HIV infection, 43
CSWs (21%) believed that there is a vaccine’for
AIDS, and 34 women (16.6%) thought that HIV could
be preventing by washing/cleaning after sex (see
Tablei).

Benefits of using condoms
CSWs consider the function of condoms to be either
for prevention of STDs/AIDS or pregnancy. The most
response was that 11 would Prevent STDs
(/b/o), followed by prevention of HIV/AIDS (72%).
Forty-nine percent of respondents said that it would
prevent unwanted pregnancies. About 12% men
tioned that it would prevent abdominal infection
tumour/cyst formation and jaundice.

Preventive practices against AIDS

More than four-fifths (85%) of CSWs who had heard
of AIDS reported that they took certain measures to
prevent AIDS/STDs, such as condom use during
sexual
xual intercourse (79%),
(/9%), washing genitalia (17%)
after sex, and taking vaccines and antibiotics.
Sexual practice and condom use
A total of 502 clients were served by these 300 CSWs
during their last working day prior to the survey
The average number of clients served by
n the last working day was 1.67 (see Table 2). More
clients^The°f Cl''entS W6re rePeat:?/regular
clients. The proportion of sex acts protected by
condom use was 36%. Sex -'th new clients had 3 3

greater likelihood of being protected through
(P<0 00? ™ aan/eQXcWRh repeaAguiar clients

( —O-001, x -18.03, 95%a of OR=1.8-6.1) CSWs
who were married, had spent 5 or less years in the
profession, had two or more clients in their last
work,ng day, and sex wjth g new
hat were significantly associated with condom use

375
...........
Sexual practices of commercial sexwbrkers T

Table 2

..... 'vtour....
Numberofclients ?
■iTIWTWi
2-3
4 5

; TT14943b0-i

49.9

i■
r .
. 17/300
i;Typeof,;clients- ■
pNeWSs
318/502
Repeat/regular ;
.
184/502
h Protected sex J ..
181/502
. .Consistently used condom .
11/300
/Consistently did not useT ■. . w/300 ■
■ , .?
r■ VUIIUUII1
condom
Initiation of condom use ‘ .

5.6

I «®*lp 'S

Cbm, ■. ’bti:®
■/
■■

■

' ■ 53/131

«e““'nS-Arnot.ls!„Bm„do„,

70/121 •

Clients refusal
149/321
Acquaintance/no STD
' 114/321
Financial incentives
31/321
• Condom was not available
177321: '
.JTys^labuse/th.eat
, 10/321
•

i'STD, sexually transmitted disease:'
■

•

■

63.3
36.7
36.1
3.7
W 33

I
32.0
29.3’
38.7

46.4 '

5/3

__22._

•

(see Table 3). Although about 36% of sex acts were
protected by condom use during the last working
day, only a minority of the CSWs (3.7%) had used
condoms consistently during their last 2 working
weeks. About 26% (n=78) of respondents wanted
their customers to use a condom every time they
had sex, and in one-third of cases, CSWs initiated
condom use. In cases, where the CSW offered to use
a condom, 28% of the clients protested at first but
finally agreed to use one. The CSWs mentioned a
variety of reasons for not using condoms, with
client s refusal because of diminished sexual
pleasure (n-149) as the main reason (see Table 2).
Treatment-seeking behaviour

Lt
tf c
aSked Whether they sought any
treatment for STDs during the month preceding the
n.erview, more than half (n = 153) reported some
treatment-seeking oehaviour for STDs. Of those 72
had sought treatment from the GK health clinic’ 43
sought treatment from local unqualified allopathic
practitioners, and 21 had self-medicated or treated
themselves by purchasing drugs from the pharmacy
.he mean delay in treatment seeking after the
eppHOf y™'310™ was 27 days. Those who did not
seek treatment (n = 33) for their complaints men
tioned various reasons such as: (i) symptoms were

376

G.M.M. Hosain, N, Chatterjee

■

21 r

' _

-- T- V.... :... “S

^sed<: :v;7LDid^^’.
J. . ...

' ■ 7't';

-• ■

■

;

■

J 1.3 J- : ' .
■-.■■/.

j"
■
2</2 -

■

1.79,-

:7\ : '1.

. ‘ri85>»' ■ • .
20
1

:
14

.......

„
1-60

■TTyv22::
1.4 (0.8 2.4)
h’ j

■2

156

nDuration
Ynedas' sex worker

40 , . . 7 .-W .:
■'<
,;g

years

JS,„S

49
.

n .. .
. -:-.77
’
........................
'128
:,

d,,'-/17

■1O-3
t'
'

wvO.Ti 2i
Y2w
222:.
'. ./...h
1,6.(0.7-3.5)
.... v_...
■ '

Unmureed

*; •< ’

•. f* t

;

■ ■ "

11
<0,01*,; /

■;. 2.3 (1.3-4.0)

0.03*

. 1.73(1.01-2.8)

y- . ~ „ *,•

|116Hli

. ,l!

2^-2^
U F"»

1 f -n

.;70;;'2. ‘Jrl.sJ./J gj

■r
I •*. 4. — — . .

135 ->•

1.37

„ ,

. 93
3.13

Sli9 ■
xsi. ■

'113
...........
•

92\:

Mi 19
N cw
'.; t- '
:r:;V
'* . . .. 76
■• ‘Denotes Significance at O^Te^

BBlii

Substance abuse
Most CSWs were at risk of being addicted to various
substances. Betal leaf/areca nut, cigarettes/bfdi

f
tObaCCd) are used “mmonly by
most CSWs. Among the studied CSWs of this study
156 reported drinking alcohol. Some of them
admitted using marijuana (n = 54), opium (n=io)
and steeping pills (n = l3). None admitted using
intravenous drugs, cocaine or heroin
§

Discussion
This paper presents extensive information about

SwX^co
tdtUdeS anJ PraCtCeS With res-Dect 10
HIV/AIDS, condom use and STD treatment-seeking
behaviour in a sample of 300 CSWs in Bangladesh

’

1.6 (0,92-2.7) ■ ■

’
......................•'

•;J-:2.01 (1-^5)-: h
■.

self-limiting; (ii) symptoms were not serious enough
to warrant medical treatment; (iii) the bah-woii
(landlord of the brothel) does not allow me to seek
medical care; and (iv) I do not have enough money
to Visit a doctor/clinic.

'.'

.t
/.<7.71t/::/

102
. 123

1.37 (0.8-2.5)

J6.br;
■

•s

■

.''I'';'
:<0.001*
33(1.8-6,1)

Survey interviews are always subject to inaccurate
recall. The researchers attempted to reduce this
bias by minimizing the recall period, careful
selection and training of the interviewers, and
providing assurances of privacy and confidentiality
io respondents. Some respondents were probably
sensitized by previous educational encounters The
non-random sample of CSWs may affect the
generalizability of the results. However, the demo
graphic profile of the sample interviewed for this
study is very similar to that of CSW samples studied
previously in Bangladesh.23 25
As in the previous studies, almost two-thirds of
CSWs were aged 15-25 years. They had left their
homes due to family discord, and were misguided or
sold when they came to this area in search of jobs
iome of the CSWs were born in the brothel. Most
respondents (89%) did not have any formal edu
cation and had been working in this profession for
mmm han|5 yearS' ThUS rnany youns w°men in
commercial sex work have become practically
captive in this profession.
A high number of CSWs, almost three-quarters
r ad heard of AIDS but misconceptions persisted
over transmission by casual contact such as hand

IV/Al DS and commercial sex workers in Bangladesh

shakes, kissing, contaminated clothes, sharing
food, and sharing toilets and a room with an
HIV-infected person. There is a need to dispel
unfounded fear of causal AIDS transmission that
may lead to discriminative behaviour towards
people with HIV infection. Taking antibiotics,
washing external genitalia with antiseptic/cleansing agents and inspecting clients’ genital organs
were considered to be preventive measures against
HIV. It was found that the GK health clinic
radio/television, NGO-staged drama/theatre and
peers were important sources of knowledge. There
could be a bias in naming the GK clinic as an
important source of information about HIV because
the interviews were conducted by GK workers, even •
though they were from the Dhaka office. However,
the CSWs clearly did not have correct knowledge
about HIV/AIDS. If at all, the study highlights the
magnitude and scope of work for the NGO (GK)
inside the brothel with respect to providing correct
and appropriate knowledge about HIV. However
compared with earlier studies in Bangladesh,26the level of knowledge about HIV/AIDS was found
to be much higher. This may be due to various
actions taken by the Government and various NGOs
in the last several years.
Although only 36% of sex acts in the last 24 h
were protected through condom use in this study
with X6 -S □'gh lcomPared Wth previous studies
with CSWs in Bangladesh that found only 12-24% of
sex acts to be protected.23-28 This study also found
that only 3.7% of the CSWs used condoms consistenf,y'?H?.this figure is much lower when compared
with findmgs from other developing countries
which show much higher rates of condom use. Fo'f
example, in Hong Kong, Cambodia and the Philipproportion of J^ale-CSWs who always
used condoms in vagin*l sex with commercial sex
partners was 75, 50 and 42%, respectively 1’-2’-3o>
The women more likely to have unprotected sex

n5'?8 eclientele- and
worked in i
■he profession for more than 5 years. They were
more likely to have unprotected sex with repeat/
regular clients than with new clients. cE s
^P^ure was cited as the main reason for not
using condoms. These findings underscore the
tioE neSd t0 implement educational and motiva
tional campaigns regarding condom use among the
male clients of CSWs. One core issue regarding
condom use in the sex act appears to be the^ower
^ make decisions in the CSW-client interaction
Who wields the power in this interaction, and how
oes the person with less power (usually the CSW)
alth3 dJc: USe °f the C°ndOm? ErtlnaS

health education programmes for STDs/AIDS are
rarely complemented by adequate skills training to

377
negotiate with clients, and many women abort the
negotiation process with sexual partners who refuse
to use condoms. Skills training and role-playing
exercise training may be especially useful in this
regard.31
The study also revealed that condoms were
offered depending on the type of sexual partner
For new clients, the CSWs are more persuasive
about condom use than with repeat/regular clients.
CSWs who had more than one client were twice as
likely to use condoms than those with one client
(P=0.005, x2 = 7.71, 95% Cl of OR = 1.2-3.5). This
finding is similar to a study conducted in Singa
pore.
By denying the risk of HIV infection and
shunning protected sex with repeat/regular clients,
CSWs create the sense of a secure committed
relationship. They also assume that their repeat/
regular clients are free of AIDS/STDs, and believe
that clients who look healthy and clean do not have
any disease. Another reason mentioned by CSWs for
not persuading clients to use a condom is that they
had tried to convince their regular clients several
times before, but it did not work. Therefore they
considered that asking clients to use a condom was
a waste of time. For the past several years AIDS
prevention programmes in Bangladesh have introdiced the promotion of condom use among CSWs
mHDihe,’rrCll'entS' The 100% Condom use Pegram
(CUr) in Entertainment Establishment, which was
first introduced in brothels in Thailand, has become
increasingly popular worldwide.33’3z’ CUPs supported by governmental and non-governmental
agencies have yielded measurable successes 35
i he main strategy of the CUP is to convince the
pimps and managers of all brothels to enforce
condom use as a precondition of commercial sex
However two demonstration projects for CUPs in
lumbai, India gave mixed results, confirming the
centrality of co-operation between sex work estabishments^and the Government in HIV risk
roduction
The study raises important questionshow co risk perceptions and knowledge of HIV/AIDS
fit into decisions concerning condom use, and what
does decision making regarding condom use tell us
reaui-edhMtytPe ^i PUbllC health interventions
>required to stem the HIV epidemic? There is a
pressing need for research aimed at answering such
questions and identifying contextual and socio
cultural i actors that influence protected sexual
behaviour. Qualitative anthropological studies
couid be instrumental in elucidating why adequate
knowledge of potential negative'heaUh conse
quences appeared to have little impact on reducing
nsky sexual behaviour. In additioP toTdividuah

and^resta V'hUr
interventi°ns, HIV workers
and researchers are increasingly arguing for

i
i

378
attention to institutional arrangements,-37 legal
legal
issues and a human-rights-based approach to HIV
control and prevention.38
In a paper about HIV in India, the authors argued
that CSWs can be empowered and emancipated,
and that mere promotion of condom use or
educational strategies will not be effective in
controlling the HIV/AIDS epidemic.39 Extensive
developmental work aimed at improving the living
conditions of CSWs is required for effective HIV/
AIDS prevention.35 There are two aspects to this
change: certain facilitative policies, laws and
programmes on the part of the Government coupled
with changes emanating from within the community
of CSWs that demonstrate a move towards empow
erment and autonomy.
A review of health care of female CSWs con
cluded that the public health consequences of
delivering poor health care to CSWs are generally
severely underestimated, particularly in societies
where prostitution is illegal.40 Authors reviewing
international programmes for HIV control among
CSWs found that regulatory efforts, such as man
datory HIV testing, and detention seemed ineffec
tive. The WHO called for changes to governmental
laws and policies on sex work in Asia’s rapidly
growing sex industry because penalization of CSWs
renders the implementation of HIV prevention
programmes extremely difficult.42 It is encouraging
that the Bangladeshi High Court has ruled that
prostitution, as a livelihood, is not illegal 43 This
judgement means that prostitutes in Bangladesh
now have the legal authority to practice their trade
This judgement is highly unusual because it made
angladesh one of the few Islamic countries that
does not ban prostitution. Many health officials
welcomed the ruling because outlawing prostitu
tion only made it'more difficult to distribute
condoms to CSWs, and this could help in efforts'to
contain the spread of HIV.
Currently, about 200 NGOs are working in Bangla
desh m the area of HIV/AIDS to supplement govern
ment activities.9 One UNAIDS case study of HIV
prevention projects in female CSWs in Papua New
Guinea, India and Bangladesh found that the
majority, of projects tended to deal with high-risk,
behavour on an ,ndjvjdlJal basjs by usjng
such as advice, counselling and peer education
However, the best results appeared to be reached
through enabling approaches geared towards creat-

jng greater access to safer sex, or those approaches
that attempt to prevent unsafe sex.44 These NGOs
have to go beyond individually targeted educational
interventions. Furthermore, social movements originatmg from within the csw populatjon jn ^
8,
desh are also noteworthy and promising. In 1998,

G.M.M. Hosain, N. Chatterjee

Durjoy Nad Shongho was established with the aim of
empowering the CSWs and it is registered with the
Ministry of Women and Children’s Affair of Bangla
desh. One of the main issues it dealt with was the
right to sexual health., and it initiated a campaign for
condom promotion among boths clients and CSWs/5
In a press conference on World AIDS Day in December
2003, the spokesperson for CSWs clearly articulated
the need for female condoms (the supply of which
was inadequate) as an option for safe sex choices
because most male clients were reluctant to use
condoms.46

Conclusions and recommendations
The findings of this study suggest that female CSWs
in Bangladesh are at high risk of HIV/AIDS
transmission. Inadequate knowledge of the basic
concepts of HIV/AIDS, low frequency of condom
use, and lack of treatment for STDs contribute to
the high risk in this population. The survey results
also demonstrate that male clients’ attitudes,
especially towards condom use, may contribute
to HIV transmission. Client refusal was one of the
major reasons for lack of condom use, and the
male client initiated use of a condom in only 29% of
sexual encounters (see Table 2). Although’the
education of male clients is equally important it is
necessary that CSWs should be taught culturally
appropriate, effective refusal and negotiation
skins to modify their partner’s behaviour and
ensure consistent condom use. In particular
messages and materials intended for these CSWs
must be kept simple so as to be easily understood
People with low levels of education. Any type of
HIV/AIDS intervention requires that the target
population is aware of the existence of the
phenomenon of HIV/AIDS and is educated about
the threats that it poses to them,21 but education
or (individualized) behaviour change campaigns
alone is not sufficient. Some authors even call for
innovative, interdisciplinary approaches that move
beyond the limited successes of traditional behachOaUngen36en'ent,'OnS

S°C,'al and structural

Sex work is a social problem that is difficult to
adaress given the worsening economic recession in
Bangladesh. Furthermore, Bangladesh as a country
has many contextual features that are extremely
conducive to rapid spread of HIV infection such as
widespread poverty, unequal access to health
services, subordinate status of women, and low
literacy and education levels. Imbalance of power
low self-esteem, gender issues and violence

• HIV/AIPS and commercial sex workers in Bangladesh
may* also influence the use of condoms/7 All
combine to restrict knowledge in relation to health
and negotiating power in matters of sex. These
factors could place the country on the edge of an
HIV epidemic. While economics is at the root of
the problem, it is undesirable that the number of
AIDS cases continues to soar. Therefore, while the
economic problems are being addressed in devel
oping countries such as Bangladesh, the threat of
AIDS epidemics necessitates a comprehensive and
multilevel strategy that includes clinical and
screening strategies for the short term along with
establishment of education and behaviour change
programmes in the medium term, and ultimately
changes in social norms with greater empower
ment of CSWs for not only ensuring prevention of
the disease but promoting their own health.48
Campbell provided a detailed account of the
social organization of commercial sex work in a
squatter camp in a South African gold mining
community.49 In-depth interviews with 21 women
living in conditions of poverty and violence revealed
that even amongst this disadvantaged group of
women, the tendency to speak of women’s ’power
powerlessness’ (as is the case in many studies of
African women in the context of the HIV epidemic)
is unduly simplistic and fails to take into account
that, in order to face the struggles of daily living
the women have constructed a range of coping
strategies and social support networks, which could
sen/e as potentially strong resources for commu
nity-based programmes.
In January 2004, the Daulatdia sex workers were
in the news for recognizing the importance of
organizing themselves and taking collective
action:

379

permitted by law. Then why are we being
ostracized and excluded from normal life?”’
These reports from Bangladesh give hope that
the epidemic can still be contained through broad
based public health efforts. A rights-based, parti
cipatory approach, comparatively new in the field
of public health, is required not just for tackling
the HIV epidemic but for promoting health and
better quality of life among CSWs because their
occupation is deeply entrenched in gender dis
crimination, exploitation and marginalization.
However, it does need concerted effort on the
part of the Government and other societal
institutions.38

Acknowledgements
We are grateful to Save the Children Fund (Aus
tralia) for their support. The authors thank the
CSWs in this study for their participation, Ms
Momtaz, Lably and Rashida for assisting with data
collection, and Babli, Shahana and Mushfiqur Rah
man for data management, and Dr. Scott Bamber
UNICEF, Bangkok for his valuable comments on the
manuscript.

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