Combating trafficking in persons in accordance with the principles of Islamic law

Combating trafficking in persons in accordance with the principles of Islamic law

Combating trafficking in persons in accordance with the principles of Islamic law

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—geographical, cultural, political or religious. Its victims and perpetrators hail from all around the world. The flow of trafficked persons reaches some of the most far-flung areas of the globe. Trafficking in persons manifests itself as exploitation in different forms in different countries, but no region is immune to it. Muslim countries, most of which are members of the Organization of the Islamic Conference, are not exempt—all are affected by this crime. Trafficking in persons for the purposes of sexual exploitation and for labour exploitation in the domestic service industry and in agriculture and construction affects Muslim countries in the Middle East and North Africa. Trafficking in children and women for sexual or labour exploitation occurs in African countries both within and across national borders. In South and South-East Asia, trafficking in men, women and children for the purpose of sexual labour exploitation, which may also include trafficking for the purpose of begging or child sex tourism, is prevalent.

While international law provides States with the central guiding framework for combating trafficking in persons, for this effort to be most effective, national legislatures should design legal provisions that, while consistent with international law, are also responsive to national specifics and are tailored to the legal structures and the phenomenon of trafficking manifested in each State.4 Given that the legal traditions and legal systems in many Muslim countries rely primarily on Islamic law, a study of Islamic legal provisions and traditions relating to trafficking in persons becomes important. An understanding of Islam’s position on ­trafficking in persons and related acts and elements can provide important avenues for the development of a comprehensive approach to combating trafficking in persons in Muslim countries, one which draws on and is grounded in the Islamic tradition, as well as in compliance with international law.

The purpose of the present publication is thus to analyse the Islamic legal tradition from the perspective of those sources, principles and provisions that may best be utilized in understanding, addressing and combating trafficking in persons. More specifically, this entails the elaboration of a comprehensive theory of Islamic legal principles for the prohibition of the crime of trafficking in persons and associated acts and means, on the one hand, and the protection of victims of such trafficking, on the other. It involves understanding the nature of the crime of trafficking in persons under Islamic law and what protections and safeguards are provided by Islamic law to the accused in the prosecution of trafficking. It also involves analysing how Islam relates to a victim-centred approach to the problem and what the obligations of the ordinary citizen may be in providing victims with assistance. It is also necessary that any checklist of issues addressing trafficking in persons under Islamic law also include prevention, education and public awareness—all core principles of a comprehensive strategy of combating trafficking as enshrined in international law.

Some of the important questions addressed in this work include, for example, how Islamic law provides for the principle of compensation for victims of a crime? With regard to prevention, how does Islamic law deal with vulnerable victims, such as children, orphans, refugees and internally displaced persons, and with non-Muslims living in a Muslim country? How, if at all, does a religious approach differ from a non-religious approach in designing a public awareness campaign or ­educational curriculum?

In answering these and similar questions, the present work addresses how applicable principles of Islamic legal theory relate to various forms of trafficking in persons, especially those most pertinent to Muslim countries. The forms of trafficking that are most significant in the Muslim world are examined below. The international framework governing ­trafficking in persons, especially the ­Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, as the central guiding international instrument for combating trafficking in persons, serves as a foundational and comparative frame of reference throughout this publication. Since the source of Islamic law is ­religious texts, as opposed to legislation or court decisions, issues of religion may arise that are relevant to trafficking in persons and it is among the aims of this publication to address these considerations.

It is the position of this publication that Islamic law, though it does not specifically prohibit trafficking in persons, explicitly prohibits many of the acts and elements that constitute trafficking in persons. Islam is particularly explicit on the prohibition of slavery. Similarly, Islam prohibits sexual exploitation for profit. The institution of domestic service is common in many Muslim countries and though not prohibited per se, may constitute a form of trafficking for the purpose of labour if it entails exploitation under the sponsorship rule, as Islam is deeply respectful of the rights of workers and emphasizes the centrality of ­honouring contracts, the breach of which is considered a grave offence.

In exploring these and similar provisions, it is important to note that these Islamic principles, which amount to a framework prohibiting trafficking in persons, may not always be followed in practice. For example, although migrant workers are entitled to the same rights as nationals under Islamic tradition, this principle is not always applied. Another practice common in many Muslim countries is trafficking for the purpose of marriage, and so it is necessary to examine how Islam addresses the different forms of marriage and the rights afforded to individuals such that these forms of marriage do not become forms of ­trafficking. The question thus arises as to whether these practices are customs and cultural practices or whether they are part of Islamic law.

Ultimately, this publication seeks to incorporate Islamic legal thought and practice into the international discourse and legal efforts to combat trafficking in persons, so as to enhance and supplement the implementation of the international legal framework for combating trafficking in persons, especially in Muslim countries. The implementation of Trafficking in Persons Protocol obligations by Muslim States will benefit greatly if underpinned by an Islamic framework of prohibition of the crime of trafficking in persons and the protection of victims of trafficking. This is particularly important given that Muslim countries have been enacting laws against trafficking in persons, which indicates that such legislation is not in contradiction with Islamic principles.

The paper is divided into seven sections. Chapter II is devoted to the concept of trafficking as a global problem and the international legal framework that has been designed to combat such a ­problem, especially in the light of the Trafficking in Persons Protocol. Chapter III provides an introductory explanation of Islamic law, its sources, schools of interpretation and characteristics and the process of ijtihad. In Chapter IV, the paper examines trafficking in persons as a form of slavery and explores how international law shifted the focus from traditional slavery to trafficking in persons and defined the latter as a form of exploitation. It also discusses the gradual elimination of the institution of slavery in Islamic law. ­Chapter V focuses on the principle of prohibition of exploitation in Islamic law, making references to labour exploitation, sexual exploitation, trade in human organs and ­trafficking for the purpose of adoption, in addition to forced, temporary and child marriages, all of which constitute a violation of the principle of consent under Islamic law and may constitute harmful customary practices in contravention of Islamic doctrine. Chapter VI examines the victim of ­trafficking, emphasizing how Islamic law addresses the concept of a vulnerable victim, with particular reference to women, children, orphans, refugees, internally displaced persons and migrants. This chapter also refers to the various rights of a victim of trafficking under Islamic law, which explicitly provides for the principle of non-punishment of a victim, prevents victimization and calls for the ordinary citizen to play a role in enjoining the good and forbidding the evil. Chapter VII is devoted to the crime of trafficking in persons, distinguishing among hudud, ta’zir and qisas crimes and ­concluding that trafficking in persons is a ta’zir crime subject to serious punishment that should not be subject to a statute of limitations. Finally, Chapter VIII addresses contemporary legislative ­enactments ­prohibiting trafficking in persons in the Muslim world.

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