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Determination Under Section 107(a) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008


June 14, 2013

   
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Pursuant to the authority vested in me by Section 107(a) of the William Wilberforce Trafficking Victims Protection Act of 2008 (P.L. 110-457) and Delegation of Waiver Authority Pursuant to Section 107(a) of Public Law 110-457, I hereby determine that a waiver of the application of clause (i) of Section 110(b)(3)(D) of the Trafficking Victims Protection Act of 2000, as amended (P.L. 106-386), is justified with respect to Afghanistan, Angola, Barbados, Belarus, Burundi, Chad, Comoros, The Gambia, Liberia, Malaysia, Maldives, and Thailand.

This Determination shall be reported to Congress and published in the Federal Register.


Date

John F. Kerry
Secretary of State


MEMORANDUM OF JUSTIFICATION CONSISTENT WITH SECTION 107(a) OF THE WILLIAM WILBERFORCE TRAFFICKING VICTIMS PROTECTION REAUTHORIZATION ACT OF 2008

Section 107(a) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457) (2008 TVPRA) requires that a country that has been ranked Tier 2 Watch List for any two consecutive years after the enactment of the 2008 TVPRA (i.e., starting with the 2009 TIP Report), be included in the following year’s report on the “Tier 3” list of countries whose governments do not, and are not making significant efforts to bring themselves into compliance with the minimum standards for the elimination of trafficking. Section 107(a) authorizes the President to waive application of this automatic downgrade for up to two years if he determines and reports credible evidence to the Committees on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, that such a waiver is justified because – “(I) the country has a written plan to begin making significant efforts to bring itself into compliance with the minimum standards for the elimination of trafficking; (II) the plan, if implemented, would constitute making such significant efforts; and (III) the country is devoting sufficient resources to implement that plan.” On September 20, 2010, the President delegated his waiver authority under Section 107(a) to the Secretary of State.

This Memorandum provides the justification for the invocation of the Section 107(a) waiver authority with respect to Afghanistan, Angola, Barbados, Belarus, Burundi, Chad, Comoros, The Gambia, Liberia, Malaysia, Maldives, and Thailand.

Explanations of the determinations regarding each of the twelve countries follow:

Afghanistan

In January 2013, the Government of Afghanistan provided a written plan of action tasking government agencies to improve Afghanistan’s anti-trafficking legislation, improve coordination, increase agencies’ capacity to fight trafficking, and strengthen trafficking victim protection. The plan calls for the ratification of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Supplementing the United Nations Transnational Organized Crime Convention and the amendment of trafficking in persons legislation so as to come into compliance with international law. The plan addresses anti-trafficking law enforcement efforts by introducing specialized anti-trafficking units and capacity building for prosecutors working on trafficking cases; it increases the professional staff dedicated to address the issue, including in the Ministry of Interior and the National Directorate of Security. The Afghan plan addresses victim protection by increasing victim identification and referral to trafficking support centers, as well as developing procedures for the trafficking victims’ medical care. On prevention, the plan tasks various agencies to conduct public awareness campaigns on the dangers of human trafficking, including by conducting workshops on the prohibition of trafficking and roundtables with religious scholars on the issue. These steps, if implemented, will improve the Government of Afghanistan’s response to human trafficking. Afghan Minister of Justice Ghaleb, the Chairman of the High Commission to Combat Smuggling and Human Trafficking, wrote a letter to Ambassador-at-Large CdeBaca in April 2013 that confirms the allocation of sufficient human and financial resources to implement the written plan. Because implementation of the plan would constitute making significant efforts to bring Afghanistan into compliance with the minimum standards for the elimination of trafficking, and because the Government of Afghanistan is devoting sufficient resources to implement the plan, a waiver is justified under Section 107(a) for Afghanistan in the 2013 Trafficking in Persons Report.

Angola

In May 2013, the Angolan Ambassador to the United States, Alberto do Carmo Bento Ribiero, submitted a written plan to the Department of State outlining the Government of Angola’s commitment to combat trafficking through actions assigned to specific government entities. The plan tasks the Ministry of Justice and Human Rights (MOJHR) to include trafficking in persons prohibitions and penalties in the revision of the Penal Code. In addition, within the plan, the government described its planned law enforcement efforts to address trafficking crimes, including forced child labor, through training officials on victim identification and coordinating investigations with the National Police, MOJHR, the Ministry of Labor, and the National Institute of Children. The plan also commits the government to provide support for the establishment and maintenance of shelters for victims of violence, including trafficking victims. The government pledged its “support, manpower and resources to meet the objectives described” in the plan. Specifically, the government also promised to increase the availability of shelter and psychological services to trafficking victims, as well as using increasing media resources to inform the public about human trafficking. This written plan followed a Diplomatic Note from the Angolan Ministry of Foreign Affairs sent to U.S. Ambassador to Angola McMullen in April 2013, affirming the government’s broad commitment to address trafficking in collaboration with the U.S. government as part of its strategic partnership. Because implementation of the plan would constitute making significant efforts to bring Angola into compliance with the minimum standards for the elimination of trafficking, and because the Government of Angola is devoting sufficient resources to implement the plan, a waiver is justified under Section 107(a) for Angola in the 2013 Trafficking in Persons Report.

Barbados

In May 2013, the Government of Barbados, through its Ministry of Foreign Affairs, submitted to the Department of State Barbados’ Work Plan for the Prevention of Trafficking in Persons 2013. The work plan provides concrete objectives to improve the prosecution of trafficking offenders, protection of trafficking victims, and the prevention of trafficking; these objectives are achieved through a listing of activities, with deliverables, deadlines and responsible agencies. For example, the government calls for improved victim identification by training a cadre of officers to understand human trafficking and the procedures for the proper protection of trafficking victims. The government addresses prosecution by seeking to harmonize conflicting provisions in the immigration act and the anti-trafficking act. On prevention, the government calls for increased public awareness through broadcasts and billboards. The government assigns an explicit deliverable of “allocated resources to complete the activities in the work plan.” Because implementation of the action plan would constitute making significant efforts to bring Barbados into compliance with the minimum standards for the elimination of trafficking, and because the Government of Barbados has devoted sufficient resources to implement the plan, a waiver is justified under Section 107(a) for Barbados in 2013.

Belarus

The Government of Belarus has a series of written plans that together aim to improve trafficking victim protection and public awareness of human trafficking and to strengthen the legislative framework to fight trafficking. First, the Belarus state program on countering trafficking in human beings, irregular migration, and related illicit activity for 2011-2013 provides specific measures for strengthening the government’s response to trafficking. Among other provisions, it tasks law enforcement agencies to ensure referral of trafficking victims to rehabilitative organizations and public associations for assistance. It also enhances investigative mechanisms against trafficking by strengthening monitoring of financial flows, creating specialized interview rooms, and providing professional training on combating human trafficking. Article 3 of the program dedicates resources toward the plan’s implementation through state agencies. Second, Lukashenko signed the Commonwealth of Independent States (CIS) Action Plan that directed signatory states to take concrete action to improve anti-trafficking programs, including through strengthening victim protection, collaboration with NGOs, and specialized training for relevant officials. Third, in implementation of the CIS Action plan, the Government of Belarus issued a national action plan with the objectives of permitting the co-financing of NGOs for services rendered to trafficking victims; establishing government standards and a practical mechanism for the provision of guaranteed medical, psychological, and rehabilitative assistance; and increasing diplomatic and consular protection of Belarusian victims abroad. While the government has passed laws to implement a number of provisions under this plan, these laws await implementing regulations to come into full effect. The implementation of these plans would greatly improve the Belarusian government’s anti-trafficking efforts. Because implementation of the written plan would constitute making significant efforts to bring Belarus into compliance with the minimum standards for the elimination of trafficking, and because the Government of Belarus has devoted sufficient resources to implement the plan, a waiver is justified under Section 107(a) for Belarus in 2013.

Burundi

In April 2013, the First Vice President of Burundi transmitted to U.S. Ambassador to Burundi Liberi a written plan outlining concrete actions to be taken by the Burundian government in 2013 to fight trafficking in persons. Among other steps, the plan instructs the Ministry of Justice to invest more resources in the investigation and prosecution of trafficking cases. The government’s plan also calls for the creation of a permanent commission on human trafficking issues. The First Vice President has already set up the commission charged with executing the written plan. The plan describes efforts to be taken during 2013 to pass a law prohibiting human trafficking. These actions address key areas of criminalizing trafficking, prosecution of trafficking cases, and promotion of government coordination that will improve Burundi’s response to human trafficking. The government addresses resources to implement the plan both by describing the particular agencies directed to implement the policies and by describing international organization partners with which the government will collaborate to achieve goals such as training. Because implementation of the action plan would constitute making significant efforts to bring Burundi into compliance with the minimum standards for the elimination of trafficking, and because the Government of Burundi has devoted sufficient resources to implement the plan, a waiver is justified under Section 107(a) for Burundi in 2013.


Chad

In April 2013, the Government of Chad, through a diplomatic note from the Ministry of Foreign Affairs, submitted to the Department of State its engagement plan outlining steps the government will undertake to address human trafficking through 2014. The government renewed its commitment to the “Eradicating the Traffic of Persons” plan pledging intra-governmental coordination, legislation, and increased trafficking victim assistance; this plan was the basis of Chad’s waiver in the 2012 TIP Report. The government also provided an update on the partial implementation of the plan of engagement, noting, for example, a training course the Ministry of Justice conducted for law enforcement. In the diplomatic note, the government also promised to take action to implement its 2013-2014 child protection plan, which set forth specific steps to end the use of child soldiers, including through monitoring and by providing rehabilitation to former child soldiers. Efforts to address child soldiers issues and to increase victim protection are among the most important issues for Chad to address in its fight against human trafficking; the April 2013 diplomatic note from the Ministry of Foreign Affairs outlined the government resources dedicated to achieve these goals. Specifically, the government committed 80 staff members at the Ministry of Human Rights, 56 government employees at the Ministry of Social Action, and over 50 prosecutors or judicial protection employees at the Ministry of Justice. Therefore, because implementation of the written plan would constitute making significant efforts to bring the country into compliance with the minimum standards for the elimination of trafficking, and because the Chadian government is devoting sufficient resources to implement the plan, a waiver is justified under Section 107(a) for Chad in 2013.

Comoros

In May 2013, the Government of the Comoros presented an action plan to the Department of State. The plan commits the government to apply existing laws in the investigation, prosecution, and punishment of trafficking offenders and consider adoption of specific trafficking in persons. In addition, the plan highlights efforts to increase government capacity to protect victims through the development of procedures to identify victims and subsequently refer them to care. With regard to prevention, the government pledges to conduct awareness raising campaigns among officials and the public. Specifically, the plan directs the government to 1) submit the draft penal code, which includes a trafficking provision, to the parliament for adoption by the end of 2013; 2) establish a trafficking in persons working group; and 3) draft victim referral guidelines for police and social workers. The government also committed to providing resources toward this plan, including through allocating new cars, office space, and equipment to the Morals and Minors Brigades to allow these units to more effectively carry out their anti-trafficking mission. The government also dedicated human resources by assigning specific personnel from named Ministries to carry out the tasks of devising guidelines, training materials, and legislative revisions. Because implementation of the plan would constitute making significant efforts to bring Comoros into compliance with the minimum standards for the elimination of trafficking, and because the Government of the Comoros is devoting sufficient resources to implement the plan, a waiver is justified under Section 107(a) for the Comoros in the 2013 Trafficking in Persons Report.

The Gambia

The Government of the Gambia has a written national action plan against trafficking for the time period 2012 to 2016. The plan describes actions to increase the government capacity to recognize trafficking, protect trafficking victims, and prevent trafficking. The government assigned responsibility for the plan’s implementation to certain agencies; the plan’s success is measured against concrete indicators and deliverables. For example, to address protection, the plan provides that the government will establish reception centers to provide rehabilitative services to trafficking victims. The plan also calls for the government to develop a trafficking victim identification guide. With regard to prevention, the plan directs the Ministry of Justice and other government partners to conduct workshops on trafficking for politicians, religious and community leaders, and the media. The plan also directs the government to enhance capacity by training law enforcement and other relevant officials on trafficking issues. The plan assigns resources to achieve the plan through a combination of agency responsibility and focused foreign funding. Because implementation of the action plan would constitute making significant efforts to bring the Gambia into compliance with the minimum standards for the elimination of trafficking, and because the Government of the Gambia has devoted sufficient resources to implement the plan, a waiver is justified under Section 107(a) for the Gambia in 2013.

Liberia

In April 2013, the Government of Liberia submitted to the Department of State a written plan of action pledging increased action in the fight against human trafficking. Specifically, the Liberian government, through its Attorney General, committed to ensure an increase in law enforcement investigations and prosecution of human trafficking offenders. The government set forth its plan to finalize and implement standard operating procedures for direct assistance and support to trafficking victims and to identify and care for trafficking victims. The Liberian government committed to educate the public on the dangers of human trafficking, including by outreach to chiefs and elders in border regions. The government intends promised to commit sufficient resources to achieve the plan through financial, material, and personnel means. Because implementation of the action plan would constitute making significant efforts to bring Liberia into compliance with the minimum standards for the elimination of trafficking, and because the Government of the Liberia has devoted sufficient resources to implement the plan, a waiver is justified under Section 107(a) for Liberia in 2013.

Malaysia

The Government of Malaysia submitted to the Department of State a written plan of action that details activities to be undertaken by government agencies during the time period of 2012 and 2013 to address key areas of concern in combating trafficking in persons. Throughout 2012, the government took some action to implement the plan, including by reviewing Malaysia’s anti-trafficking law and victim protection schemes to prepare for revisions, but must still enact most key provisions on victim assistance to improve its anti-trafficking program. This written plan, coordinated by the government’s Anti-Trafficking Council (MAPO), relates to the government’s broader five-year national action plan (2010-2015) but specifically sets out a framework of program areas, activities, timeline, and anticipated outcomes. Among the activities proposed to address trafficking concerns, the written plan seeks to: amend existing legislation to provide for greater victim protections including those provided by NGOs; intensify law enforcement efforts against employers and agents involved in the forced labor of migrant workers; and carry out greater public awareness campaigns, including those that focus on migrant worker communities. The government has committed to providing the necessary resources to accomplish the goals set forth in the written plan of action. Therefore, because implementation of the written plan of action would constitute making significant efforts to bring the country into compliance with the minimum standards for the elimination of trafficking, and because of the Government of Malaysia is devoting sufficient resources to implement the plan, a waiver is justified under Section 107(a) for Malaysia in 2013.

Maldives

In February 2013, the Government of the Maldives endorsed a written anti-trafficking action plan for the term 2013 through 2014. The Maldives plan represents a strategy to fight trafficking through 1) establishing the necessary anti-trafficking mechanisms; 2) coordinating anti-trafficking activities within the government; 3) conducting awareness raising activities; 4) conducting capacity building of relevant officials and institutions, including law enforcement agencies; 5) collaborating with international partners; and 6) monitoring and evaluating the implementation of the plan. Each of these objectives is measured through concrete deliverables, assigned deadlines, and implementing agencies. The government assigned the agencies responsible for the plan’s implementation to be directed by the Human Trafficking Ministerial Committee and the Human Trafficking Steering Committee. This plan builds on initial steps taken to fight trafficking, including submitting an anti-trafficking law to the Maldivian parliament. The plan assigns funding from the contingency budget for 2013. Because implementation of the action plan would constitute making significant efforts to bring the Maldives into compliance with the minimum standards for the elimination of trafficking, and because the Government of the Maldives is devoting sufficient resources to implement the plan, a waiver is justified under Section 107(a) for the Maldives in 2013.

Thailand

The Government of Thailand has provided to the Department of State a written plan for the period 2012-2013; this is the second year a waiver is justified on the basis of this plan. The plan has seven anti-trafficking goals to address victim protection, prosecution of trafficking offenders, increased adherence to international law, and trafficking prevention. The plan’s objectives include advancing proactive victim identification through increasing the capacity of front-line responders, including law enforcement officers; increasing prosecutions of trafficking offenders generally and Thai officials complicit in human trafficking, specifically; improving labor inspection standards and procedures; changing procedures to allow adult trafficked victims to work temporarily in Thailand; protecting migrant workers in the fishing industry; developing a sustainable solution to decrease the vulnerability to trafficking of migrant workers from neighboring countries; and ratifying the UN Convention on Transnational Organized Crime. The Royal Thai government has committed to providing the necessary funds to support these activities. Because implementation of the action plan would constitute making significant efforts to bring Thailand into compliance with the minimum standards for the elimination of trafficking, and because the Government of Thailand is devoting sufficient resources to implement the plan, a waiver is justified under Section 107(a) for Thailand in 2013.



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