VZCZCXYZ0001
RR RUEHWEB

DE RUEHBU #0501/01 1091448
ZNR UUUUU ZZH
R 181448Z APR 08
FM AMEMBASSY BUENOS AIRES
TO SECSTATE WASHDC 0810

UNCLAS BUENOS AIRES 000501 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
G/TIP FOR FLECK, FORSTROM, AND SIGMON 
 
E.O. 12958: N/A 
TAGS: ASEC ELAB KCRM PHUM PREL SMIG AR
SUBJECT: ARGENTINA: ANALYSIS OF TIP LAW 
 
REF: A) BUENOS AIRES 465 
 B) BUENOS AIRES 438 
 
¶1. (SBU) Summary.  Local NGOs and the Argentine government's 
National Institute for Anti-Discrimination (INADI) and the National 
Ombudsman's Office have criticized the anti-TIP legislation passed 
on April 9.  Their concern is that adult trafficking victims will 
have to prove that they did not consent to their exploitation. 
However, under a strict interpretation of the law, even adult 
victims who "consented" to exploitation would still be considered 
trafficking victims under the law if the state proves any of the 
means of trafficking (e.g., by fraud, intimidation, force, abuse of 
power or vulnerability, etc.). 
 
¶2. (SBU) According to legal scholars, the GOA can ensure that 
judges, prosecutors, and law enforcement officials properly 
interpret and implement the law -- if there is sufficient political 
will to do so.  The local representative of the International 
Organization for Migration (IOM) and other NGOs argue that 
Colombia's first anti-trafficking law had similar gaps which 
resulted in low prosecutions until amendments were adopted a few 
years later.  Time will tell whether the Argentine law needs similar 
amendments.  In the meantime, Post will continue to urge, monitor, 
and support vigorous implementation of the anti-TIP law.  End 
summary. 
 
-------------------------- 
Victim's Consent Explained 
-------------------------- 
 
¶3. (U) On April 9, the Argentine Congress passed anti-TIP 
legislation despite concerted objections from some Members of 
Congress and some NGOs over whether an adult trafficking victim can 
consent to his or her own exploitation.  The debate centers around 
article 3(b) of the Palermo Protocol which clarifies that once a 
prosecutor not only proves that a suspected trafficker recruited, 
transferred, transported, harbored, or received a victim for the 
purpose of exploitation, but also used one of the necessary "means" 
(i.e., force or other forms of coercion, abduction, fraud, 
deception, abuse of power, abuse of a position of vulnerability, or 
giving/receiving payments or benefits to achieve a persons' 
consent), a victim's consent is not possible, regardless of age, and 
therefore legally irrelevant. 
 
¶4. (U) The law's definition of exploitation tracks with the Palermo 
Protocol.  In the case of children, the law's article 3 excludes the 
"means" element, which also appears to be protocol-consistent. 
Article 3 defines trafficking in minors as: 
 
      "the recruitment, transportation and/or transfer - 
      whether domestically or internationally - the 
      harboring or receipt of persons younger than 18 years 
      of age, for the purpose of exploitation. 
 
      Trafficking in minors exists even when no deception, 
      fraud, violence, threat or any means of intimidation 
      or coercion, abuse of authority or a vulnerable 
 situation, giving or receiving payments or benefits 
 was used to obtain the consent of a person having 
 control over the victim." 
 
¶5. (U) Article 3 of Argentina's law also explicitly states that in 
the case of victims under the age of 18 "assent will not have any 
effect", i.e., irrelevant.  The law, however, does not explicitly 
make "assent" irrelevant in the case of adult victims.  As a result, 
IOM, various NGOs, and government agencies such as the National 
Institute of Anti-Discrimination and the National Ombudsman's Office 
have argued the law falls short of Argentina's Palermo Protocol 
obligations. 
 
¶6. (SBU) Instead, article 2 of the law defines trafficking of adults 
aged 18 and over as: 
 
 "the recruitment, transportation and/or transfer - 
 whether domestically or internationally- the harboring 
 or receipt of persons older than 18 years of age, for 
 the purpose of exploitation, by means of deception, 
 fraud, violence, threat or any means of intimidation 
 or coercion, abuse of authority or a vulnerable 
 situation, or of the giving or receiving of payments 
 or benefits to obtain the consent of a person having 
 control over the victim, even if the victim assented." 
 
One penal expert told us that a strict interpretation of this 
article would mean that even if an adult victim consented to his or 
her own exploitation, they would be considered trafficking victims 
under the law if the state proves any of the means of trafficking 
(e.g., by fraud, intimidation, force, abuse of power or 
vulnerability, etc.). A university law professor noted that the word 
"assent" in legal terminology means "passive consent", but many 
attorneys would most likely not make this distinction, and would use 
 
it interchangeably with "consent".  This expert believed that the 
law's intent is clear: adult trafficking victims should receive due 
protection under the law regardless of consent.  Still, both experts 
acknowledge that strong political will from the GOA is required to 
ensure that judges, prosecutors and law enforcement officials 
properly interpret and implement the law. 
 
¶7. (SBU) The local IOM office, some local NGOs, and some members of 
the Argentine Congress maintain, however, that the law is subject to 
misinterpretation precisely because the law does not explicitly 
state that "assent" is irrelevant in the case of adult victims. 
They point out that Colombia's first anti-trafficking law had 
similar gaps which resulted in low prosecutions until amendments 
were adopted a few years later.  IOM Country Representative Eugenio 
Ambrossi explained that if law enforcement, prosecutors, or judicial 
officials do not wish to investigate a possible TIP crime, they may 
stop the line of questioning by establishing that a victim initially 
consented and hence, dismissing the case.  Citing the level of 
corruption in Argentina, he speculated that most officials would 
stop at the first line of questioning. 
 
---------------- 
Other Provisions 
---------------- 
 
¶8. (U) Article 5 of Argentina's anti-TIP law establishes that 
"trafficking victims can not be punished for committing any crime 
that is the direct result of having been a trafficking victim."  It 
also states that victims will not be subject to penalties arising 
from migration violations when the violations are a direct result of 
having been a trafficking victim.  Article 6 outlines a victim's 
right to: 
 
-- Receiving information on their rights in a language they 
understand, and in a manner that is appropriate to their age and 
maturity; 
 
-- Receiving appropriate housing, maintenance, enough food and 
appropriate personal hygiene; 
 
-- Receiving free psychological, medical and juridical assistance; 
 
-- Testify under protection and care; 
 
-- Protection against any possible retaliation against the victim or 
the victim's family, participate in Argentina's national witness 
protection program; 
 
-- The adoption of necessary measures to guarantee their physical 
and psychological integrity; 
 
-- Be informed of the status and evolution of trial proceedings; 
 
-- Keep their identity protected 
 
-- Remain in-country, in conformity with existing legislation 
 
-- Have their return to their place of residence facilitated; and 
 
-- Voluntarily gain free access to assistance. 
 
In the case of minors, Article 6 stipulates that in addition to the 
aforementioned rights, under no circumstance will they be compelled 
to face their captors.  In addition, measures to protect minor 
victims can not be used to restrict their rights or guarantees, nor 
deprive them of their freedom.  Finally, the law states that 
authorities will seek to reintegrate minor victims with their 
nuclear or extended family or community. 
 
¶9. (U) Article 7 states that under no circumstance will prisons, 
jails, police stations or detention centers be used to house 
trafficking victims.  Article 8 establishes that trafficking victims 
have the right to privacy, identity protection, and confidential 
trial proceedings.  Article 9 directs Argentine diplomatic and 
consular representatives to provide assistance and facilitate the 
return of Argentine trafficking victims abroad, should they ask for 
such assistance. 
 
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COMMENT 
------- 
 
¶10. (SBU)  The local IOM representative, some Members of Argentina's 
Congress, and a number of interested NGOs have valid concerns that 
the law's omissions may result in a misapplication of the law.  Only 
time will tell if the GOA and the judicial branch have the political 
will to make it work.  In the meantime, Post will continue to urge, 
monitor, and support vigorous implementation of the anti-TIP law. 
 
WAYNE