Date and place of thesis defense:
24.07.2009. Faculty of Law
mr. sc. Emir Nurkić Kačapor
prof. dr. Vesna Kazazić
The role of the State in securing human rights and protection of victims of organized crime and human trafficking
The purpose of this doctoral dissertation is to ascertain and determine The role of the State in securing human rights and protection of victims of organized crime and human trafficking. Based on the premise of the concept of State in which no one is outside of law, not even the lawmakers, this study poses a central question of the future development of new democracies in Central and Eastern Europe based on rule of law and discusses the models for establishment of optimal human rights in the society.
The study establishes the goal of securing human rights and freedoms for all citizens within one State and each individual in principle, as the basic precondition and a rational for studying this problem and the role of State in the contemporary context of its existence and efficacy of its functioning and securing the rule of law. The study establishes the context of Lawful State in which the rule of law is established on humanistic principles such as: justice, just relationships, human rights, moral and democracy rather then the rule of individuals or groups. It starts by discussing the historical development of human rights, their political realization within national states as well as the Universal human rights in the context of United Nations. The development of the human rights idea is followed and analyzed from it's early inception in Magna Carta Liberatum, it's principles, rules and legal security until the contemporary developments such as the establishment of the Universal declaration of human rights and European convention on human rights, dignity, equality, justice and solidarity. Moreover, the concepts and issues related to creation of the network of political mobilization, monitoring and decision making, cross-boarder collaboration, neoliberalizm, codependence and post-industrial development, globalization and development of global institutionalization of human rights have been discussed through various perspectives.
Furthermore, author presents the relationship between human rights and democracy as well as human rights and freedoms concluding that although democracy is not solely defined by human rights, it can not be imagined outside of the context of human rights. Author studies the concepts of slavery, exploitation, colonialism and trafficking of human beings throughout the history, arguing that the freedom is in the core of human nature and that humans never resist it. This study puts forth the argument that victims of trafficking and organized crime suffer from the consequences of a complete denial of human rights and that the protection of human rights of these people is of paramount importance. Organized crime and trafficking are a negation of the core principle of humanity and represent the most severe case of human degradation and modern day slavery that affects 12.3 million people around the world every day according to International Labor Organization (ILO) weather they are victims of labor exploitation, bonded labor, forced sexual exploitation or sexual slavery. This study discusses the development of antitrafficking institutional framework and establishes forms of violations of human rights and fundamental freedoms of trafficking victims during the process of their initial, secondary and tertiary victimization.
The phenomenon of trafficking of human beings as a multi-disciplinary category is studied from several different viewpoints (law, sociology, economy, anthropology, philosophy, pedagogy, psychology, medicine etc.). Author employed both longitudinal and transversal study approach - through time and history throughout the world and in present through the case study of Bosnia and Herzegovina.
When Bosnia and Herzegovina first recognized this problem after the war, it became apparent to academics and practitioners that the road to effective solutions will be complex and difficult, especially because of insufficient knowledge and experience with this problem as well as the lack of legal and institutional framework that recognizes and addresses it as a criminal activity - organized, transnational crime. In an effort to contribute to the body of knowledge and bridge this gap, author took it upon himself to move beyond theoretical discussions and conduct the empirical research and study current practice and perceptions of effectiveness of programs as well as the legal framework in cross country comparative analyses.
The empirical research has been conducted on the basis of clearly defined purpose and goals as well as hypothesis and objectives of the empirical research outlined in the research project document.
Research goals: The research has been directed towards:
Main hypothesis: In achieving established goal of determining the guidelines for the development of coordination mechanism for protection of victims and victim-witnesses of trafficking of human beings within the existing national mechanisms, the author leads towards the confirmation of the main hypothesis of this dissertation which claims that < in the context of globalization the existing national frameworks of criminal law in transitional societies in South-Eastern Europe do not adequately facilitate a joint and coordinated effort of international organizations and state actors in combating transnational organized crime, especially in the realm of victim and victim-witness protection, their compensation, repatriation, and/or resocialization and rehabilitation.>
- Studying and analyzing relevant programs of international organizations in Bosnia and Herzegovina and determining their role and effectiveness in combating transnational organized crime and victim protection;
- Studying the perspectives of victims of transnational organized crime and victim- witnesses prosecuted and identified by relevant governmental institutions and/or international organizations
- Studying the perspectives of employees of nongovernmental organizations about quality of national framework of criminal law and efficiency of state actors and international organizations in combating transnational organized crime and victim and victim-witness protection
- Studying and determining the guidelines for the development of coordination mechanism for protection of victims and victim-witnesses of trafficking of human beings within the existing national mechanisms.
This study points out effective programming components as well as inefficiencies in interpretation and operationalization of international norms and standards used in strategy formulation and program design. The governments of developed nations that respect minimum standards of victim protection and antitrafficking efforts, struggle to adequately combat trafficking of human beings and organized crime on their territory and bring the perpetrators to justice. The human rights protection and assistance to victims is still largely declarative rather then actual. The author proposes significant adjustments to be made to existing laws, especially to criminal prosecution laws and procedures, execution of sanctions and implementation of legal measures (including policy actions) that strengthen the protection of rights of individuals, especially the victims of organized crime and trafficking.
Antitrafficking efforts are largely led by international organizations and institutions as well as local nongovernmental organizations in Bosnia and Herzegovina. Author had to deal with the reality of parallel, overlapping institutional subjects that provide legal analyses and determine the responsibility of the State in this matter. This study shows the role of these subjects, their phylosophical frameworks and approaches as well as their relationship. Moreover, the study lookes at this problem from both the legal framework standpoint as well as the perspective and perception of victims of organized crime and trafficking in human beings residing in shelters and safe houses throughout the country themself.
This research proved the established hypothesis and reached its goals entirely. It gives an academic contribution to providing a solution to this problem by pointing out to possible solutions to improve the existing anti-trafficking model in BIH. It opens up the possibility of establishing sustainable, effective solutions that strengthen safe, right based, overarching coordination system of victim and witness protection.
In this dissertation author used scientific instruments of logical order of problem definition, establishment of hypothesis, operationalization of problems and comparative study of theoretical perspectives and practice in criminal law, that were used as the basis for deriving conclusions for contemporary solutions that include modern global standards, international law and criminal and legal framework for treatment of trafficking in human beings.
Key words: State, human rights, international law, international relations, gloabalization, organized crime, trafficking in human beings, victim, witness, freedom, democracy, rule of law.