Issue 5/10

20 Dec 2010

AFGHANISTAN Social Well-Being

Child Labour and Trafficking Co-authored by Erin Foster Humanitarian Assistance and Social Well-Being Subject Matter Expert and Stefanie Nijssen Assistant Knowledge Manager
The purpose of this paper is to provide a brief examination of child labour and trafficking in Afghanistan. Children remain income earners in many Afghan families and are vulnerable to a host of abuse and exploitation. Afghanistan has signed and ratified legislation to ensure the rights of children, however gaps between law and everyday life remain. Additional information is available at www.cimicweb.org. 1 Hyperlinks to original source material are highlighted in blue and underlined in the text.

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Children in Afghanistan are not immune to the socio-economic challenges that face the majority of the population as they are often required to assist in offsetting their family income by working. This practice, however, has led to the exploitation of children and/or physical and mental consequences as well as vulnerability to human trafficking. According to data from the United Nations, children aged 0-14 years old comprise 46% of the total population in Afghanistan with an estimated 30% of Afghan children aged 5-14 years old engaged in child labour based on the 2010 State of the Worlds Children report issued by the United Nations Childrens Fund (UNICEF). As outlined by the Convention on the Rights of the Child, it is a universal right for children to be protected from abuses. It is important then, to better understand what child labour is and how it has been defined and addressed within the context of Afghanistan. UNICEF defines child labour as work undertaken in excess of a limited number of hours prescribed depending on the age of the child: Children ages 5-11; one hour of economic work or 28 hours of domestic work per week; Children ages 12-14; 14 hours of economic work or 28 hours of domestic work per week; Children ages 15-17; 43 hours of economic or domestic work per week. The International Labour Organization (ILO) defines child labour as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. This definition specifically refers to work that is mentally, physically, socially or morally dangerous/harmful to children and/or interferes with their schooling by: depriving them of the opportunity to attend school; obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work. The Afghanistan Independent Human Rights Commission (AIHRC) monitors the situation of child labour in the country and published a report in 2006 that defined child labourers in Afghanistan as those employed under the age of 12, or those aged 12 to 14 engaged in hazardous work. The worst forms of
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child labour in Afghanistan are defined by AIHRC as exploitation of children, child trafficking, forced employment, coerced into illegal acts and exposure to hazardous work. This study also found Afghan children to be working in light, heavy and hazardous industries, though distinctions between light and heavy work are not always clearly defined. In 2009, the AIHRC reported that nearly 43% of children under the age of 12 and 35% of children aged 12-15 years old fit the description of child labourers, including some in the worst child labour industries: carpet weaving, brick making and poppy harvesting. Carpet weaving is considered especially dangerous at it can lead to the development of respiratory illnesses and bodily injury. The US Department of Labor2 report Findings on the Worst Forms of Child Labor 2009 also found that children are being engaged in agriculture and coal mining in rural areas, active in street gangs in urban areas and generally forced to work in opium production and trafficking. Afghan children were also found to be subject to child trafficking for forced labour as soldiers, beggars or for sexual exploitation, domestic service or debt bondage both within Afghanistan and in foreign countries such as Iran, Pakistan, Saudi Arabia, Oman, Zambia and Zimbabwe. In 2009 the Afghanistan Research and Evaluation Unit (AREU) released a study on the causes of child labour in Afghanistan. The study found that along with poverty, the household composition and labour resources, gender norms and the expectations of community members all influence parents decision when it comes to sending their children to work. It is not always the case that poor households in Afghanistan send their children to work. AREUs research shows that if the local education system is highly valued in the community and a long term higher level of earning is seen as a direct result of Above: Two children do their homework while minding the education, then parents may encourage family watermelon stand. Photo: UNAMA, 2010. their children to continue schooling. In other examples, AREU noted that work was seen as a form of education that would allow children to immediately contribute to family finances as well as keep them safe by not walking back and forth to school, especially for girls in some communities who are restricted to working in the home. UNICEF finds that girls are also subject to more unpaid work than boys (i.e. household chores) while orphans and children living away from parents are found to be some of the most vulnerable and at a greater risk of becoming subject to child labour and exploitation. Meanwhile, an Oxfam briefing paper on education in Afghanistan states that, despite a 350% increase in school enrolment since the fall of the Taliban in 2001, half of all Afghan children in 2006almost 7 millionwere not in school. In 2006, the National Strategy for Children at risk was developed by the Ministry of Labour, Social Affairs, Martyrs and Disabled (MoLSAMD) with support from the United Nations Childrens Fund (UNICEF) to provide a comprehensive overview of who does what for the provision of community-based child protection and family support mechanisms. The MoLSAMD is the lead Ministry in Afghanistan to address child labour and the Plan of Action was intended to provide a framework of services provided to children,
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See also the US Department of Labor, Annotated Bibliography of Child and Forced Labor Information, Vol. 1, 2009.

transition guidance to support community-based initiatives, assistance for developing new programmes and services as well as guidance for donor support to the child protection system. According to the National Strategy, at risk children were identified as follows:
Disabled children Kidnapped children Children deprived of parental care Ethnic minority children Street children Trafficked children Forced marriage/early marriage Child drug users or sellers Children in conflict with the law Child soldiers Internally displaced/refugee children Abused children

Beyond the various committees and units that have been set up to address child labour and trafficking, the Provincial Department of Social Affairs is also responsible for monitoring and preventing child labour at the community level. In response to the specific needs of war-affected at risk children including child soldiers, UNICEF established a demobilisation and reintegration programme in 2004 that has now assisted tens of thousands of Afghan children. UNICEF has also been providing support to community based schools in remote areas, with emphasis being put on the Afghanistan-Pakistan border areas, for the reintegration of out-of-school children. There is also a specific child protection cluster facilitated by the UN Office for the Coordination of Humanitarian Affairs (OCHA), as well as countless programmes run by non-governmental organisations and community-led initiatives that attempt to address the protection of children as part of the national strategy. Children are not only exposed to and participate in child labour but they are also more vulnerable to exploitation as a result of the high demand for such work. Child trafficking is not only a violation of human rights, but also results in some of the worst forms of child labour for Afghan children. The United Nations Convention against Transnational Organized Crime supplemental Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children defines trafficking in persons as:

[t]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

In Afghanistan, the majority of trafficking victims are children according to the US Department of States Trafficking in Persons Report 2010. Afghan children are typically forced into prostitution, labour and begging as well as marriage and debt bondage. Research undertaken by the International Organization for Migration (IOM) in 2003 and 2008 provides a more in-depth understanding of the phenomenon of human trafficking in Afghanistan. Generally, research found a lack of understanding about what trafficking in persons is at all levels of society, especially in the identification and treatment of victims, and this gap continues to place children in danger. The creation of a National Plan to Combat Child Trafficking in Afghanistan was undertaken in 2004, yet IOM research indicated a significant gap between the progressive plan and its implementation over time. The study also made a series of recommendations for the prevention of trafficking, the prosecution of traffickers and the protection of victims. The recommendations called for greater public awareness of issues related to trafficking and distinguishing it from human smuggling or kidnapping. IOM also called for training to be provided on trafficking legislation as well as the provision of assistance to male and female victims. The current referral mechanism for trafficking cases is based on the Ministry of Interior (MoI), Ministry of Womens Affairs (MoWA) and the MoLSAMD identifying cases and then referring them to IOM for further action. Currently, the MoWA runs four shelters while IOM has opened one shelter for

child victims of trafficking. Child survivors of trafficking are typically placed under the care of government social services, orphanages or NGO facilities, with land being granted by the Afghan government for the construction of shelters for children. Legislative Action and Trends in Child Labour and Trafficking in Afghanistan Afghanistan has signed on and ratified numerous international human rights declarations (see Annex 1 and 2). However, in spite of the fact that Afghanistans 2004 Constitution states that forced labour on children shall not be allowed, the Afghan government has yet to draft national legislation that thoroughly addresses specific child labour and trafficking practices or enforcement.3 While Afghanistans 1976 Penal Code contains laws concerning kidnapping, it was not until 1987 that Afghanistan formalised labour codes. The 1987 Labour Code set the minimum age for work at 14 (13 with permission from a legal guardian), limited children under the age of 16 to working no more than 30 hours per week and stated that those under the age of 18 were entitled to 30 days of recreational leave with pay every year. Nevertheless, adherence to national labour laws during and after the presence of the Union of Soviet Socialist Republics was scattered at best and was exacerbated with the Taliban rise to power in the mid1990s. The volatility of the turn of the century rendered the acting government, be it Mujahedeen or Taliban, as largely unsuccessful at managing various aspects of government and resulted in widespread disrespect for the rule of law. Amidst a period of civil war, Afghanistan ratified the Convention on the Rights of the Child (CRC) in 1994.4 This convention details the specific rights of the child and denounces the economic exploitation and trafficking of anyone under the age of 18. Article 32 of the CRC asserts the right of children not to be engaged in work deemed to be hazardous or to interfere with the childs education, or to be harmful to the childs health. Taliban rule was marked by a tremendous backlash against the modernism promulgated by the Communist government in the 1980s, leading to a dramatic decreases in boys and girls education levels and restrictive laws placed on womens mobility. This resulted in many children leaving school to work for the family. A Human Rights Report published in 2000 by the US State Department found no evidence that Taliban-ruled Afghanistan enforced labour laws and claimed that many children worked to help support their families by herding animals, collecting paper and firewood, shining shoes, begging, or collecting Above: An Afghan boy making bricks. Photo: Pajhwok 2010 scrap metal among city street debris from the age of six. The UN Special Rapporteur on Violence against Women also reported in 2000 that there were known cases of trafficking in women and children. Although Afghanistan signed the UN Convention against Transnational Crime in 2000, it has not yet signed nor ratified the 2000 supplementary Protocol on Trafficking in Persons which states that ratifying members shall ensure, at a minimum, there are national penal laws and policies in place to cover certain acts of economic and sexual exploitation (to include child labour and trafficking).
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In keeping with the Islamic Republic of Afghanistans pledged commitments to various ratified international agreements, the president enacted a new Juvenile Code in 2005, put forth by the Ministry of Justice. While this code was drafted to ensure the rights and legal protections (stated under international agreements) for children who clash with the Afghan justice system, no such code exists for child labour or child trafficking. 4 Afghanistan signed onto the Convention on the Rights of the Child in 1990.

Under a new government led by the Karzai administration in 2002, Afghanistan acceded the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. In 2005, the government attempted to attract children off the street and away from work by cooperating with non-governmental organisations (NGOs) to establish vocational training centres. The same year the government also established the Commission on the Abolition of Child Trafficking and the Child Protection Commission as a step towards addressing the rights and needs of children at a national level. The US State Department also pointed out a 2005 presidential decree mandating the death penalty for child traffickers convicted of murder. Furthermore, the MoLSAMD set up a transit centre in 2005, with the assistance of the AIHRC and UNICEF, to assist with the repatriation, reunification and reintegration of 317 children that had been trafficked to neighbouring countries. While the 2006 Afghanistan National Development Strategy only made provisions for child labour awareness-raising campaigns, the 2006 Afghanistan Compact reaffirmed Afghanistan and its international partners commitment to strengthen the Governments capacity to comply with and report on its human rights treaty obligations by the end of 2010. As stated in the compact, both the Afghan Government and the AIHRC, a permanent and independent human rights body set up under the 2004 Constitution, are tasked with human rights monitoring. Since receiving this task, the AIHRC has published several reports related to the situation of children in Afghanistan within the context of human rights.5 In 2007, through the use of Child Rights Volunteers trained by the AIHRC Child Rights Unit, approximately 203,000 students were given presentations on child rights issues including trafficking and the right to education. In 2008, the 2007 Labour Code went into effect, setting the minimum age for full-time employment at 18 years old but permitting children aged 15 years and older to do light work. It also included a section that deems it impermissible for youths to be engaged in any type of work that is physically arduous, or harmful to health or carried out in underground sites.6 According to the AIHRC, an estimated 25% of children in Kabul worked in 2008, despite the constitutional ban and labour code. The AIHRC attributed this persistence of child labour to the lack of existing law enforcement mechanisms. Even though the specific offence of trafficking in persons did not exist in Afghanistan prior to 2009, about 370 persons were convicted of trafficking-related offences in 2005, increasing slightly to 393 convictions in 2006. According to a report by the United Nations Office on Drugs and Crime (UNODC), the criminal justice system has used various articles from the Penal Code to prosecute some forms of trafficking in persons, including the kidnapping of minors. Special units to combat human trafficking were also created within the police departments of every province in Afghanistan in 2007 and a new Anti-Trafficking Section was established as the coordinating body within the Criminal Investigation Directorate. UNODC notes, however, that these units so far have dealt mainly with kidnapping. In March 2008, the MoI took further measures to address human trafficking in the country and created a six-person Counter Trafficking Unit and the Committee to Counter Child Trafficking, the latter of which includes an established referral mechanism. The new Law Countering Abduction and Human Trafficking was enacted by Presidential Decree 52 on 14 July 2008. The law defines trafficking in persons as the: transfer, transit, employing, keeping, and or giving a person in one's control for the purpose of exploitation or taking advantage of weak financial status or helplessness by spending or taking money or interest or other means of deception to gain the consent of the victim or the guardian of the victim. A trafficker is defined as someone who takes part in human trafficking in person or persuades, encourages, or provides facilities to others to commit human trafficking.

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The Afghanistan Independent Human Rights Commission (AIHRC) has these reports publicised on its website. According to Article 120 of the Labour Code a list of these types of jobs was to be prepared and approved by the Ministry of Public Health (MoPH) and MoLSAMD.

A 2008 country profile report issued by the United States Library of Congress affirms that child labour and trafficking remain common in Afghanistan, particularly outside of Kabul. A 2009 US State Department report on trafficking also stressed that the conflation of the crimes of kidnapping and trafficking has led to a poor understanding of trafficking and therefore poses an impediment to intervention. A new study released by the UN Office on Drugs and Crime (UNODC), Combating trafficking in persons in accordance with the principles of Islamic law, provides guidance about how international conventions on trafficking in persons can be applied to national legal structures in line with Islamic legal requirements. Although trafficking in persons isnt specifically mentioned in Islamic law, the various components and acts of trafficking in persons are prohibited. In August 2009, the Afghanistan Ministry of Foreign Affairs (MFA) launched its first report on the Convention of the Rights of the Child. In the report, the ministry recommended judicial and legal system reforms to ensure national compliance with international standards of child rights and the National Solidarity Programme. However, it was not until April 2010 that Afghanistan ratified both ILO Convention 182 on the Worst Forms of Child Labour and ILO Convention 138 on the Minimum Age for Work. These conventions still need to be adopted into the national legislation of the country. In an attempt to highlight the inconsistencies between national legislation and international agreements, UNICEF called on the Government of Afghanistan, in November 2010, to devise a comprehensive Child Act fully in line with the provisions and principles of the Convention on the Rights of the Child.

ILO Convention 182 on the Worst Forms of Child Labour Each Member shall, taking into account the importance of education in eliminating child labour, take effective and time-bound measures to: (a) prevent the engagement of children in the worst forms of child labour; (b) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration; (c) ensure access to free basic education, and, wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour; (d) identify and reach out to children at special risk; and (e) take account of the special situation of girls. -- Article 7 (2) ILO Convention 138 on the Minimum Age of Workers Each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons. -- Article 1

Child labour and trafficking have been defined both at the international and national level for Afghanistan. The Government of Afghanistan is obligated to meet the needs of children in its country not only with respect to the international and national legislation outlined above, but also in the commitments it has made to Millennium Development Goals 1, 2 and 4 (see CFC Social Well-Being Monthly Report The Millennium Development Goals), the Afghanistan National Development Strategy (ANDS) and the National Solidarity Programme (NSP). However, various studies and reports indicate an ongoing practice of child labour in the country as well as continuing cases of trafficking in children. Concerted efforts now need to be made to monitor and support the implementation of legislation and action plans in order to break the cycle of abuse and exploitation that persists for many Afghan children.

The Civil Military Fusion Centre (CFC) is an Information and Knowledge Management organisation focused on improving civil-military interaction, facilitating information sharing and enhancing situational awareness through the web portal, CimicWeb. CFC products are developed with open-source information from governmental organisations, non-governmental organisations, international organisations, academic institutions, media sources and military organisations. By design, CFC products or links to open sourced and independently produced articles do not necessarily represent the opinions, views or official positions of any other organisation.

Annex 1. Child Labour Relevant Legislation

Legislative Agreement International Covenant on Economic, Social and Cultural Rights 16 December 1966 International Covenant on Civil and Political Rights 16 December 1966 Convention on the Rights of the Child 20 November 1989 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography 25 May 2000 Optional Protocol on the Involvement of Children in Armed Conflict 25 May 2000 Constitution of the Islamic Republic of Afghanistan 03 January 2004 ILO Convention 182 on Worst Forms of Child Labour 17 June 1999 ILO Convention 138 on Minimum Age of Workers 26 June 1973 Signed and Ratified 24 January 1983 (accession) 24 January 1983 (accession) 27 September 1990 (signed) 28 March 1994 (ratified) 19 September 2002 (accession) 24 September 2003 (accession) 26 January 2004 (signed & ratified) 07 April 2010 (ratified) 07 April 2010 (ratified) Articles: 49, 54 Articles: 32, 33 Relevant Article Articles: 10

Articles: 3

Annex 2. Child Trafficking Relevant Legislation

Legislative Agreement Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 07 September 1956 Convention on the Civil Aspects of International Child Abduction 25 October 1980 International Covenant on Civil and Political Rights 16 December 1966 Convention on the Rights of the Child 20 November 1989 Convention on the Elimination of All Forms of Discrimination against Women 18 December 1979 Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography 25 May 2000 United Nations Convention against Transnational Organized Crime 15 November 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime 15 November 2000 Presidential Decree Number 52 enacting the Law on Combating Kidnapping and Human Trafficking 14 July 2008 Signed and Ratified 16 November 1966 (accession) Relevant Article

NOT SIGNED

24 January 1983 (accession) 27 September 1990 (signed) 28 March 1994 (ratified) 14 August 1980 (signed) 05 March 2003 (ratified) 19 September 2002 (accession) 14 December 2000 (signed) 24 September 2003 (ratified) Articles: 11, 33, 35

Articles: 2, 10

NOT SIGNED

14 July 2008