What are the new regulations on human trafficking in the draft amending Penal Code? Why do we need the changes? What is your view on the criminalisation of human trafficking in Viet Nam?

Le Thi Van Anh, deputy head of the Criminal Law Division of the Criminal and Administrative Law Department under the Ministry of Justice:

The aim in changing the Penal Code was to improve it, and tackle the difficulties and limitations we faced when applying the Penal Code. And it is expected to better conform to the Transnational Organised Crimes Convention and other international conventions on human rights Viet Nam joined.

Present regulations are not clear enough and do not describe criminal activities in enough detail. They only include regulations on human trafficking for profit, so it is difficult to distinguish between those activities and others, like migration, brokerage for overseas labour or marriage with foreign people, or adoptions.

Le Khac Quang, head of the International Projects Management Division under the Viet Nam Lawyers Association:

Le Khac Quang

The new regulations include clearer, more detailed definitions about human trafficking. They also classify different kinds of crimes, like bringing people across the border to exploit their working capacity, for sexual abuse or for their body organs.

It also ups the charges human traffickers can face. Before, they got two to seven years in prison. Now they can get seven to 12 years.

The changes were necessary, as they give the Government more oversight and include different kinds of trafficking crimes. If the traffickers transport women for sex or take their organs, the consequences will be much more serious than exploiting their working capacity.

Riikka Puttonen, from the Organised Crime Branch of the UN Office on Drugs and Crime

Human trafficking is a crime that infringes upon even the most basic human rights. Viet Nam is a party to the UN Convention against Transnational Organized Crime and its Protocol against Trafficking in Persons. In order to implement the Convention and its Protocol, Viet Nam has a comprehensive law on preventing and combating human trafficking. Moreover, Viet Nam is now in the process of amending the Penal Code, which includes an amended provision on criminalisation of human trafficking. This crime is extremely complex in nature and includes many different forms of exploitation. The challenge for all countries is to create a criminal offence that captures the complexity in a cultural as well as socio-economic context. The criminal offence should also take into account all current and possible future forms of exploitation. For example, in addition to sexual exploitation and forced labour, Viet Nam may wish to consider possible forms of exploitation such as forced or servile marriage, and forced or coerced begging.

How are the changes similar to and different from laws in other countries?

Anh: The changes are based on the Law on Human Trafficking of Viet Nam. When we compiled the law in 2010 we investigated real human trafficking conditions and the application of the law in nine different provinces and cities across the country. We also studied laws of many different countries, especially in Southeast Asia. And as I said above, we aimed to bring the amended Penal Code closer to international conventions, thus it is similar to other countries' regulations.

Quang: The regulations were set up based on experiences from other countries that have detailed laws on punishing human traffickers. They also ensure the implementation of the Transnational Organised Crime Convention. In 2000, the General Assembly adopted the convention and the Protocols. The convention was opened for signature and ratification in 2003. It's the nation's responsibility to fulfill those promises.

Riikka: As the human trafficking situation varies from country to country, so do the laws. Most countries use the Trafficking in Persons Protocol as a basis for their criminalisation provisions. That has the benefit that the approaches are similar, which in turn facilitates international cooperation among countries, whether they are the origin or destination for human trafficking, or the transporters are passing through.

I lived in Viet Nam 15 years ago and can see the enormous progress made. The open debates and high level discussions held at the workshop on Vietnamese legislation's compliance with the Organised Crime Convention and the Trafficking in Persons Protocol impressed me. The discussions included human rights considerations. The challenge for Viet Nam and other countries is to anticipate the changing nature of human trafficking in all its manifestations and complexity, as criminals try to stay a step ahead of law enforcement and judicial officials.

How likely is it that the changes will be approved?

Anh: We need time to decide if the changes are possible or not. It would indeed help overcome difficulties and limitations we have experienced recently. Vague regulations led to confusion between different crimes.

Moreover, our country is a member of the Transnational Organised Crime Convention, so it's our responsibility to implement the convention's regulations.

In the short term, the move would be effective in the struggle against human trafficking crimes.

Quang: The clearer and more detailed the regulations are, the easier it is for authorities to apply it.

In many cases, lower level authorities were embarrassed when implementing the law, because they needed to spend a lot of time asking higher level departments questions.

For instance, the constitution includes the terms of the human rights convention. The Ministry of Foreign Affairs met some problems related to the terms, and needed to take time to consult with the National Assembly Standing Committee. And as a result, the case took much longer to solve.

What are your recommendations for Viet Nam, to help it manage human trafficking better? How will the UN Office on Drugs and Crime help Viet Nam with this matter?

Prevention is always better than a cure. In order to be able to bring perpetrators to justice and to ensure ethical treatment of victims and vulnerable groups, protection is essential.

Riikka Puttonen

Riikka:

The UN office's mandate is to integrate the three Ps: prevention, protection and prosecution. Comprehensive criminalisation is the first step towards prosecution and bringing perpetrators to justice. Still, considering the nature of the crime and the fact that the object of the crime is a human being, any successful effort to combat trafficking in persons takes into account the three Ps. A multidisciplinary approach is crucial to combating human trafficking.

This is the UN office's approach, used in collaboration with states, other UN agencies and international organisations. Our office provides technical assistance, including legislative assistance and capacity-building to promote unified responses in line with international law.

Moreover, our office facilitates co-operation among countries, because no country, no matter how powerful, can tackle human trafficking alone.

Source: VNS