Riyadh - 2009 Kingdom of Saudi Arabia

142 Pages·2009·3.27 MB·English

Riyadh - 2009
Kingdom of Saudi Arabia
Table of Contents
Acknowledgements
Foreword
Introduction
Section I: Definition of Trafficking in Persons Under
International Law
1.1. The Global Problem of Trafficking in Persons and the Need for a
Comprehensive Response
1.2. The International Legal Framework to Combat Trafficking in
Persons: The United Nations Protocol to Prevent, Suppress, and
Punish Trafficking in Persons, Especially Women and Children
Section II: The Islamic Legal System: Sources of Law and
Schools of Interpretation
2.1. Characteristics of Islamic Law and its Main Sources
2.2. The Process of Interpretation and the Concept of Ijtihad
Section III: Substantive Law: Prohibitions of Elements of
Trafficking in Persons as a Form of Slavery
under International Law and Islamic Law
3.1. The Prohibition of Slavery in International Law
3.2. From Slavery to Trafficking in Persons: A Shift from “Ownership”
to “Exploitation”
3.3. The Gradual Elimination of the Institution of Slavery in Islamic Law
Section IV: The Principle of Prohibition of Exploitation in
Islamic Law
4.1. A General Prohibition of Exploitation
4.2. Prohibition of Labor Exploitation
4.3. The Sponsorship Rule: A Violation of the Islamic Principle of
Freedom
4.4. Prohibition of Sexual Exploitation
4.5. The Prohibition of Trade in Human Organs
4.6. Trafficking for the Purpose of Adoption
4.7. Forced, Temporary, and Child Marriages: Distinction between
Islamic Doctrine of Consent and Harmful Customary Practices
Section V: Protection of Victims of Trafficking in Persons
under International Law and Islamic Law
5.1. Identification and Definition of the Vulnerable Victim
5.2. Violence Against Women and Islamic Law
5.3. The Child Victim: Addressing the Special Needs of Children and
Orphans
5.4. Refugees, the Internally Displaced, and Migrants
5.5. Rights of Victims of Trafficking
5.6. The Principle of the Non-Punishment of Victims in Islamic Law
5.7. Prevention of Victimization
5.8. The Role of the Ordinary Citizen in Enjoining Good and Forbidding
Evil: The Principle of Participation
Section VI: The Nature of the Crime of Trafficking in
Persons in the Islamic Law of Crime and
Punishment
6.1. The Classification of Crimes in Islamic Law and the Place of
Trafficking in Persons in the Islamic Criminal System
6.2. Hudud, Ta’zir, and Qisas Crimes in Islamic Law
6.3. Trafficking in Persons: A Ta’zir Crime in Islamic Law
6.4. Non-applicability of Statute of Limitations or Prescription Period
Section VII: Contemporary Legislative Enactments
Prohibiting Trafficking in the Muslim World
7.1. International and Regional Human Rights Documents Propagated
in the Muslim World Prohibiting Trafficking in Persons and
Related Crimes
7.2. Constitutional Provisions in the Muslim World Prohibiting
Trafficking in Persons and Related Crimes
7.3. National Legislation in the Muslim World Prohibiting Trafficking
in Persons and Related Crimes
Conclusion

Acknowledgements
This paper is published by the UNODC under the supervision
of Riikka Puttonen, Martin Fowke, and Marika McAdam and guided
by their most valuable insights and commentary. The publication
was drafted by Mohamed Y. Mattar, Research Professor of Law and
Executive Director of The Protection Project at The Johns Hopkins
University School of Advanced International Studies (SAIS). Special
gratitude is extended to Anna Koppel, Director of Research and
Development at The Protection Project, for her significant research
and editorial contribution to the present work. Thanks must also be
extended to other members of The Protection Project team, especially
Leanne Cochrane, Jessica Morrison, and Svetlana Milbert.
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Foreword
This publication on combating trafficking in persons in accordance
with the principles of Islamic law is released at a time of growing
international attention to this crucial issue. As part of the international
efforts to confront trafficking in persons, the United Nations Office on
Drugs and Crime (UNODC) and the Naif Arab University of Security
Sciences (NAUSS) in cooperation with The Protection Project at The
Johns Hopkins University, School of Advanced International Studies, in
Washington DC conducted a series of training programs and published
various research papers focusing on this topic.
Islamic Law calls for the welfare and well-being of all mankind
according to the principles of justice and mercy which are consistent
with international human rights standards. The publication successfully
analyzes the Islamic framework in addressing trafficking in persons,
especially by calling for the elimination of the institution of slavery,
the prohibition of exploitation of human beings in all its forms, the
rejection of oppression and hardship, and the promotion of the duty
of the public to enjoin the good and prohibit the evil.
On the occasion of the 2009 anniversary of NAUSS and the
launching of this publication, I would like to express my sincere
gratitude to the UNODC for its relentless effort in combating trafficking
in persons around the world and its support of NAUSS. I would also like
to thank Dr. Mohamed Mattar, Executive Director of The Protection
Project for drafting this publication.
I hope that this publication will be a valuable contribution to the
academic research in the field of trafficking in persons.
Prof.Dr. Abdul Aziz bin Sagr Al-Ghamdi
President,
Naif Arab University for Security Sciences
Riyadh - Saudi Arabia
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Introduction
Trafficking in persons or human trafficking,1 a recognized human
rights violation prohibited by international law, affects all countries and
regions of the world. As a national and international, often organized
crime, it knows no boundaries—geographic, cultural, political, or
religious. Its victims and perpetrators hail from all around the world,
and its flows reach from and to some of the most far-flung corners
of the planet. It manifests itself as exploitation in different forms
and types across countries, but no region is immune. In this global
phenomenon, Muslim countries2 are no exception—all are affected
by this crime. Trafficking for the purpose of sexual exploitation, as
well as for labor exploitation in the domestic service industry and in
agriculture and construction, affect Muslim countries in the Middle
East and North Africa. Trafficking of children and women for sexual
and labor exploitation likewise occurs in African countries both within
and across national borders. In South and Southeast Asia, trafficking
1 The two terms are used interchangeably. The United Nations in the Protocol to
Prevent, Suppress and Punish Trafficking in Persons Especially Women and
Children to the Convention Against Transnational Organized Crime prefers the
term, trafficking in persons, while the Council of Europe Convention on Action
Against Trafficking in Human Beings uses the term, human trafficking.
2 The Organization of the Islamic Conference has 57 members as follows:
Afghanistan, Albania, Algeria, Azerbaijan, Bahrain, Bangladesh, Benin, Brunei-
Darussalam, Burkina-Faso, Cameroon, Chad, Comoros, Cote D’Ivoire, Djibouti,
Egypt, Gabon, Gambia, Guinea, Guinea-Bissau, Guyana, Indonesia, Iran, Iraq,
Jordan, Kazakhstan, Kuwait, Kyrgyz Republic, Lebanon, Libyan Arab Jamahiriya,
Malaysia, Maldives, Mali, Mauritania, Morocco, Mozambique, Niger, Nigeria,
Oman, Pakistan, Palestine, Qatar, Saudi Arabia, Senegal, Sierra Leone, Somalia,
Sudan, Suriname, Syria, Tajikistan, Togo, Tunisia, Turkey, Turkmenistan, Uganda,
United Arab Emirates, Uzbekistan, Yemen.
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