Memorandum for the Secretary of State: Presidential Determination No. 2004-46

Consistent with section 110 of the Trafficking Victims Protection Act of 2000 (Division A of Public Law 106-386), as amended, (the "Act"), I hereby:

Make the determination provided in section 110(d)(1)(A)(i) of the Act, with respect to Equatorial Guinea and Venezuela, not to provide certain funding for those countries' governments for fiscal year 2005, until such government complies with the minimum standards or makes significant efforts to bring itself into compliance, as may be determined by the Secretary of State in a report to the Congress pursuant to section 110(b) of the Act;

Make the determination provided in section 110(d)(1)(A)(ii) of the Act, with respect to Burma, Cuba, Sudan, and North Korea, not to provide certain funding for those countries' governments for fiscal year 2005, until such government complies with the minimum standards or makes significant efforts to bring itself into compliance, as may be determined by the Secretary of State in a report to the Congress pursuant to section 110(b) of the Act;

Make the determination provided in section 110(d)(3) of the Act, concerning the determinations of the Deputy Secretary of State with respect to Bangladesh, Ecuador, Guyana, and Sierra Leone;

Determine, consistent with section 110(d)(4) of the Act, with respect to Equatorial Guinea, for the implementation of programs, projects, or activities regarding police professionalization, business responsibility, and promotion of the rule of law, that provision to Equatorial Guinea of the assistance described in section 110(d)(1)(A)(i) of the Act for such programs, projects, or activities would promote the purposes of the Act or is otherwise in the national interest of the United States;

Determine, consistent with section 110(d)(4) of the Act, with respect to Sudan, for all programs, projects, or activities of assistance as may be necessary to implement a North/South peace accord and to address the crisis in Darfur, that provision to Sudan of the assistance described in section 110(d)(1)(B) of the

Act for such programs, projects, or activities would promote the purposes of the Act or is otherwise in the national interest of the United States; and

Determine, consistent with section 110(d)(4) of the Act, with respect to Venezuela, for all programs, projects, or activities designed to strengthen the democratic process, including strengthening of political parties and supporting electoral observation and monitoring, that provision to Venezuela of the assistance described in sections 110(d)(1)(A)(i) and 110(d)(1)(B) of the Act for such programs, projects, or activities would promote the purposes of the Act or is otherwise in the national interest of the United States.

The certification required by section 110(e) of the Act is provided herewith.

You are hereby authorized and directed to submit this determination to the Congress, and to publish it in the Federal Register.

GEORGE W. BUSH

Memorandum of Justification Consistent with the Trafficking Victims Protection Act of 2000, Regarding Determinations with Respect to "Tier 3" Countries 

The President has made determinations regarding the ten countries placed on Tier 3 of the State Department’s 2004 annual Trafficking in Persons Report. His determinations impose sanctions on Burma, Cuba, Equatorial Guinea, North Korea, Sudan and Venezuela. The United States will not provide funding for participation by officials or employees of the Governments of Burma, Cuba, North Korea, and Sudan in educational and cultural exchange programs until such a government complies with the Act’s minimum standards to combat trafficking or makes significant efforts to do so. The United States will not provide certain non-humanitarian, non-trade-related assistance to the Governments of Equatorial Guinea and Venezuela. The determinations also indicate the Deputy Secretary of State’s subsequent compliance determinations regarding Bangladesh, Ecuador, Guyana and Sierra Leone. Furthermore, the President determined, consistent with the Act’s waiver authority, that certain assistance to Equatorial Guinea, Sudan, and Venezuela would promote the purposes of this Act or is otherwise in the national interest of the United States.

Section 110(d)(1)(B) of the Act interferes with the President’s authority to direct foreign affairs. We, therefore, interpret it as precatory. Nonetheless, it is the policy of the United States that, consistent with the provisions of the Act, with respect to Burma, Cuba, Equatorial Guinea, North Korea, Sudan, and Venezuela (except in the cases of Sudan and Venezuela for certain assistance), the U.S. Executive Director of each multilateral development bank, as defined in the Act, and of the International Monetary Fund will vote against, and use the Executive Director’s best efforts to deny any loan or other utilization of the funds of the respective institution to that country (other than for humanitarian assistance, for trade-related assistance, or for development assistance which directly addresses basic human needs, is not administered by the government of the country, and confers no benefit to that government) for Fiscal Year 2005 until such a government complies with the minimum standards or makes significant efforts to bring itself into compliance, as may be determined by the Secretary of State in a report to the Congress pursuant to section 110(b) of the Act.

It is important that four of the ten Tier 3 countries took actions that averted the need for the President to decide between sanctions and waiver. Information highlighted in the Trafficking in Persons report and the possibility of sanctions, in conjunction with our diplomatic efforts, encouraged these countries’ governments to take important measures against trafficking.

Statement of Explanation:  Bangladesh

On the basis of positive actions undertaken by the Government of Bangladesh since the end of the 2004 reporting period, the Deputy Secretary of State has determined that the Government of Bangladesh does not yet fully comply with the Act’s minimum standards for the elimination of trafficking, but is making significant efforts to bring itself into compliance. This is the standard for placement on Tier 2 of the State Department’s Trafficking in Persons (TIP) Report.

The Deputy Secretary of State has placed Bangladesh on the Special Watch List because the determination that the Government of Bangladesh is making significant efforts is based, in part, on commitments by the country to take additional future steps over the next year.

In June 2004, the Government of Bangladesh was presented with a work plan by the State Department that outlined steps to combat trafficking. Since that time, it has accomplished each of the items in the Department’s action plan, thus demonstrating "significant efforts." These efforts include:

Prosecution

The Government of Bangladesh has begun and concluded the prosecution of 17 trafficking-related cases since June 14. These resulted in the convictions of 30 persons. During the same time period, a number of law enforcement operations have been launched against suspected traffickers, leading to the arrest of 47 persons on trafficking charges and the rescue of 102 trafficking victims. The Government of Bangladesh has established a police anti-trafficking in persons unit, fulfilling one of the action plan objectives. It also appointed a coordinator of all trafficking prosecutions -– the Deputy Attorney General -– and instructed special anti-trafficking public prosecutors in 32 districts to assign trafficking cases the highest priority. Three public officials have been arrested for complicity in trafficking crimes; their prosecutions are being prepared.

Protection

As noted above, the Government of Bangladesh has made far greater efforts to identify and rescue trafficking victims. Since June 14, over 100 victims have been rescued by police, immigration officials, and border security personnel. Using district-level TIP committees as a referral mechanism, police and immigration authorities have returned rescued victims to their families or have placed them in government or NGO shelters.

Prevention

Public Awareness: The Government of Bangladesh continues an impressive commitment to anti-trafficking awareness campaigns throughout the country. The Ministry of Women and Children’s Affairs assists and promotes NGO education and public awareness efforts, and sponsors an annual TIP Awareness March through districts most vulnerable to trafficking. In late June, the Government of Bangladesh created an inter-ministerial committee on TIP, which will coordinate all aspects of the Government’s strategy to combat trafficking, including prevention.

On the basis of positive actions undertaken by the Government of Guyana since the end of the 2004 reporting period, the Deputy Secretary of State has determined that the Government of Guyana does not yet fully comply with the Act’s minimum standards for the elimination of trafficking, but is making significant efforts to bring itself into compliance. This is the standard for placement on Tier 2 of the State Department’s Trafficking in Persons Report.

The Deputy Secretary of State has placed Guyana on the Special Watch List because the determination that the Government of Guyana is making significant efforts is based, in part, on commitments by the country to take additional future steps over the next year.

In June 2004, the Government of Guyana was presented with an action plan by the State Department that outlined steps to combat trafficking. Since that time, it has accomplished each of the items in the Department’s action plan, thus demonstrating "significant efforts." It should be noted that Guyana appeared on the Trafficking in Persons (TIP) Report for the first time this year in Tier 3. Once the Government recognized the problem, it began making significant efforts to eliminate trafficking. These efforts include:

Prosecution

The Government of Guyana has conducted three raids of known trafficking venues, arrested a suspected trafficker, and rescued five victims. The Guyana Police Force has been tasked by the Government to keep data on current and future TIP related cases. The Government has also drafted and is expected to pass a comprehensive anti-TIP law in October of this year. The Government has spoken out and drafted legislation raising the age of consent of sexual activity from 13 to 18, which will allow for better prosecution of adults who exploit children commercially. The Government of Guyana appointed a national TIP "czar," who is responsible for overseeing an anti-TIP working group that includes government officials, non-governmental organizations, and law enforcement officers. The anti-TIP working groups drafted a comprehensive national anti-TIP plan of action.

Protection

The Government of Guyana will direct resources to a Government-run shelter to work with TIP victims. Additionally, through its national plan, the Government of Guyana has identified procedures to protect and aid trafficking victims.

Prevention

Public Awareness: The Government of Guyana aired U.N. television public service announcements on labor and sexual exploitation during cricket matches, which are very popular in the country. High-ranking government officials, including the President, have spoken out on the dangers of TIP. News articles relating to the definition and dangers of TIP were published in the two largest local newspapers in addition to the government-run media outlets. The TIP "czar" is currently conducting a comprehensive outreach campaign on TIP in the remote interior regions of the country. The International Organization for Migration (IOM) and the Inter-American Commission of Women of the Organization of American States, in collaboration with the Government of Guyana, convened a seminar on TIP on June 16.

Training of Officials: The Government of Guyana has addressed the need to train officials in its national plan and efforts are currently underway to train 300 community workers on TIP. The IOM, with the support of the Government of Guyana, conducted training in the capital city of Guyana. Officials from remote areas all over Guyana traveled long distances to attend the event. The Guyana Police Force is using Internet materials to provide basic training to police on TIP.

Bilateral Cooperation: The Government of Guyana is working with the Governments of Barbados and Trinidad on a possible TIP case. In addition, the Government of Guyana is working with the bordering country of Suriname on TIP-related matters. The Government of Guyana has proposed future efforts for bilateral cooperation on TIP-related matters. The TIP "czar" will ask the Foreign Ministry to begin contacts with neighboring governments on TIP, which will be in the form of an introductory diplomatic note on cooperating on TIP investigations, arrests and prosecutions.

Statement of Explanation:  Sierra Leone

On the basis of positive actions undertaken by the Government of Sierra Leone, the Deputy Secretary of State has determined that the Government of Sierra Leone does not yet fully comply with the Act’s minimum standards for the elimination of trafficking, but is making significant efforts to bring itself into compliance. This is the standard for placement on Tier 2 of the State Department’s Trafficking in Persons Report.

The Deputy Secretary of State has placed Sierra Leone on the Special Watch List because the determination that the Government of Sierra Leone is making significant efforts is based, in part, on commitments by the country to take additional future steps over the next year.

In June 2004, the Government of Sierra Leone was presented with a work plan by the State Department that outlined steps to combat trafficking. Sierra Leone fulfilled each of the action items in the Department’s work plan, thus demonstrating "significant efforts." These efforts include:

Prosecution

The Government convened a legislative working group to draft a national law on trafficking. The group completed a draft anti-TIP law that is ready for executive and parliamentary review. The Government formed a Joint TIP Action Committee along with representatives from civil society. The committee is cataloging existing laws applicable to TIP and developing a national anti-TIP strategy. The Government has opened TIP investigations.

Protection

The Government met U.N. child protection officials to address protection of vulnerable populations and ways of identifying TIP situations. Initial training for police officers has begun, which includes training on victim protection policies. Training has been given to the military on cross-border trafficking. The Government is working to reintegrate former child soldiers and to develop a database of missing persons.

Prevention

The Minister of Social Welfare was designated as the national TIP coordinator. The Minister has raised the issue in interviews and printed articles. The President issued a statement on TIP that was carried by major media outlets. Anti–TIP training programs have been provided to local government officials. An art exhibit featuring the work of former victims of trafficking is scheduled, and municipal legislation restricting minors from nightclubs has been introduced.

Statement of Explanation:  Ecuador

On the basis of positive actions undertaken by the Government of Ecuador since the end of the 2004 reporting period, the Deputy Secretary of State has determined that the Government of Ecuador does not yet fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards for the elimination of trafficking, but is making significant efforts to bring itself into compliance. This is the standard for placement on Tier 2 of the State Department’s Trafficking in Persons Report.

In June 2004, the Government of Ecuador was presented with an action plan by the State Department that outlined steps to combat trafficking. Since that time, it has accomplished each of the items in the Department’s action plan, thus demonstrating "significant efforts." It should be noted that Ecuador appeared on the Trafficking in Persons (TIP) Report for the first time this year in Tier 3. Once the Government recognized the problem, it began making significant efforts to eliminate trafficking. These efforts include:

Prosecution

The Government of Ecuador has conducted 75 raids as suggested in the action plan. The Ecuador National Police arrested and the prosecuting authority convicted two suspected traffickers. Many victims were rescued as a result of these raids. The Government has named an official to keep data on these and future TIP related cases. The Government has drafted and is expected to pass a comprehensive anti-TIP law in November of this year. Furthermore, there are comprehensive efforts to reform and update existing laws to better protect children, including enhanced protections against commercial sexual exploitation of minors. The Government appointed the Minister of Government as the national TIP "czar." The Government drafted a general national anti-TIP plan of action in the form of a "Presidential Decree." This decree created an anti-TIP working group made up of government officials, who will consult with NGOs.

Protection

The Government, through its "Presidential Decree," directed that procedures be put in place to increase protection to TIP victims. The Government of Ecuador also committed to give priority to developing a process to ensure that TIP victims are transferred from police custody to appropriate caregivers.

Prevention

Public Awareness: High-ranking government officials, including the President, have addressed the dangers of TIP and public service announcements relating to TIP have been aired in Ecuador.

Training of Officials: The Government has addressed the need to train officials in its "Presidential Decree" and proposed additional efforts to train more officials on TIP.

Bilateral Cooperation: The Government of Ecuador is working with the Governments of Colombia and Spain on TIP-related matters. Efforts are also underway for future bilateral and multi-lateral cooperation on TIP-related matters with Peru and Venezuela.

Statement of Explanation:  Burma

The Government of Burma does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to sanction Burma.

Justification: The Burmese military is directly involved in forced labor and there are reports that some children have been trafficked into the Burmese Army for the purpose of forced labor. Although the Burmese Government has taken some steps to combat trafficking for sexual exploitation, the significant state-sanctioned use of internal forced labor, especially by the military, continues, offsetting the Government’s inadequate but improving efforts.

Impact of Sanctions: The United States does not provide direct assistance to the Government of Burma. The United States Government provides assistance, through various NGOs, to Burmese refugees and displaced persons, and supports training and advocacy activities both inside and outside the country. One example is the United States Government’s support for one NGO working in Burma to assist victims of trafficking repatriated from Thailand. The United States Government also provides funds to the United Nations Office on Drugs and Crime (UNODC) for alternative development projects in Burma. Since aid is given to NGOs and does not involve the Government, the Act’s sanctions do not apply.

Existing sanctions on Burma ban new investment, bilateral assistance, and arms sales, and impose travel restrictions against senior Burmese officials and their immediate relatives. Signed on July 28, 2003, and extended in July 2004, the Burmese Freedom and Democracy Act of 2003 and Executive Order 13310 imposed additional measures including an importation ban, a ban on the exportation of financial services, and a freeze on the assets of the State Peace and Development Council and several Burmese financial institutions in the United States. This ban also extends to individuals and entities.

The State Department’s Bureau of Educational and Cultural Affairs maintains a small educational and cultural exchange program. The program supports approximately 12 visitors per year from Burma. The Act’s sanctions will continue to prevent government officials from participating in the program. Non-government individuals are permitted to participate under the Act’s sanctions.

Statement of Explanation:  Cuba

The Government of Cuba does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to sanction Cuba.

Justification: The Government of Cuba continues to dismiss any criticism of the Government’s failure to address trafficking as politically motivated. Further, it has avoided developing a strategy to address the problem, has no anti-trafficking law enforcement policy, and there has been no observed progress in punishing traffickers during the last year.

Impact of Sanctions: The Government of Cuba is already subject to an extensive economic embargo tied to Cuba’s poor record on democracy, human rights and economic reform. No Cuban government officials or employees participate in current or planned United States Government-funded educational or cultural exchange programs. The United States Government does not offer economic assistance to the Government of Cuba and will not allow any significant new investment in Cuba by U.S. companies until democratic and economic reforms are instituted. While the embargo-related sanctions will remain in place until there are fundamental political and economic reforms in Cuba, sanctioning Cuba for activities related to trafficking in persons expresses clear U.S. disapproval of the Cuban Government’s acceptance, if not endorsement, of such activities. The United States Government supports NGOs under Section 109 of the LIBERTAD Act of 1996, and sanctions against Cuba do not apply to activities under this section.

Statement of Explanation:  Equatorial Guinea

The Government of Equatorial Guinea does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to sanction Equatorial Guinea. The President has also determined that provision of certain assistance regarding police professionalization, business responsibility, and promotion of the rule of law, would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: The imposition of partial sanctions will further the national interest of the United States by precluding most forms of assistance, but allowing other assistance designed to make the police force more professional, encourage socially responsible business practices, and foster respect for the rule of law in Equatorial Guinea.

Impact of Sanctions: The Act’s sanctions will not significantly impact U.S. assistance programs to Equatorial Guinea as these programs are minimal.

The United States Government will not provide certain funds for military education and training. Certain assistance intended to build capacity in the judicial system of Equatorial Guinea and provide training to police on topics critical to law enforcement, including trafficking in persons, will not be affected.

Statement of Explanation:  North Korea

The Government of North Korea does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to sanction North Korea.

Justification: The Government of North Korea is making no effort to address trafficking in persons. The Government does not recognize trafficking as a problem and imposes slave-like labor conditions on its prisoners. Further, conditions in North Korea drive large numbers of Koreans to seek a way out of the country, putting them at risk of becoming trafficking victims. Women who enter Northern China from North Korea may be sold as brides and trafficked for purposes of sexual exploitation. The Government of North Korea carries out widespread forced labor abuses within the country. Although other U.S. measures against North Korea are in place, the President’s determination indicates the strong U.S. disapproval of the North Korean Government’s failure to address trafficking in persons.

Impact of Sanctions: The Act’s sanctions will not impact U.S. assistance to North Korea. No North Korean Government officials or employees participate in current or planned United States Government-funded educational or cultural exchange programs.

The only assistance provided to North Korea by the United States is food aid given through the United Nations World Food Program and disaster assistance. Food insecurity is an ongoing problem in North Korea and the population remains vulnerable to malnourishment, disease, and starvation.

In addition, the United States provided disaster aid in response to the train explosion in Ryongchon, North Korea, in April 2004 that killed 150 people, injured 1,300 others, and destroyed or damaged buildings in a radius of four kilometers. The U.S. disaster assistance included $100,000 through the American Red Cross to the International Federation of Red Cross and Red Crescent Societies to purchase family kits for affected households and a bilateral donation of medical supplies and bed sheets for local hospitals.

The food and disaster aid provided by the United States helps to alleviate the desperate situation in North Korea. This assistance to North Korea is purely humanitarian, and the sanctions against North Korea will not adversely impact food or disaster aid.

Statement of Explanation:  Sudan

The Government of Sudan does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to sanction Sudan. The President has also determined that provision of certain assistance to Sudan, as may be necessary to implement a North/South peace accord and to address the crisis in Darfur, would promote the purposes of this Act or is otherwise in the national interest of the United States.

Justification: Current trafficking in persons concerns in Sudan are often linked to and exacerbated by the on-going civil war between the Government of Sudan and the Sudan People’s Liberation Movement/Army. Both parties resolved the major outstanding issues on June 5, and are near to agreement on the remaining technical issues. It is the intention of the United States Government not to provide any such assistance to the Government of Sudan until the North/South peace accord is ready for implementation and a satisfactory resolution of the crisis in Darfur is achieved.

Impact of Sanctions: The Act’s sanctions will prevent Sudanese Government officials from participating in United States Government-funded educational and cultural exchange programs. Comprehensive sanctions against Sudan are already in place, including those imposed under the International Emergency Economic Powers Act (IEEPA), those related to its designation as a state sponsor of terrorism, and several others. Since Sudan is already under comprehensive sanctions, further sanctions would likely not affect any current programs.

However, as the parties reach a peace settlement and the crisis in Darfur is resolved, we intend to implement a wide variety of programs to restore effective governance and allow economic growth in the South and other conflict areas. These would likely include, but not be limited to, programs aimed at restoring a functioning judicial system and other elements necessary for return to rule of law and security, a functioning legislature, and elements of a market economy. These efforts will be complemented by extensive humanitarian efforts in Darfur, in the South, and other impacted areas throughout the country. Specific programs are now being developed. The programs will be implemented bilaterally and in conjunction with other countries and international institutions. The President’s action will allow these important efforts to take place if and when appropriate.

Statement of Explanation:  Venezuela

The Government of Venezuela does not fully comply with the Act’s minimum standards for the elimination of trafficking, and is not making significant efforts to bring itself into compliance. The President has determined to sanction Venezuela. The President has also determined that provision of certain bilateral and multilateral assistance designed to strengthen the democratic process in Venezuela, including strengthening of political parties and supporting electoral observation and monitoring, would promote the purposes of the Act or is otherwise in the national interest of the United States.

Justification: The Government of Venezuela has not focused serious attention or devoted resources to a growing trafficking-in-persons problem in the region. The Government carries out no anti-trafficking law enforcement and no victim protection activities. Political turmoil in the country has contributed to this lack of action, and the provision of certain assistance to promote the democratic process in Venezuela will serve to promote stable and legitimate leadership that will, it is hoped, make significant efforts to combat trafficking in persons.

Impact of Sanctions: The Act’s sanctions will preclude provision of assistance in the form of Foreign Military Sales.

The imposition of partial sanctions will further the national interest of the United States by precluding most forms of assistance, but allowing other assistance designed to strengthen the democratic process. A partial waiver allows important U.S. assistance programs in Venezuela to continue at a critical time for Venezuelan democracy. Specifically, funds administered through the United States Agency for International Development’s (USAID) Office of Transition Initiatives (OTI) supports political party building programs administered by the International Republican Institute (IRI) and National Democratic Institute (NDI), which are open to all political parties, including the pro-government Fifth Republican Movement (MVR). These programs are vital to strengthening Venezuela’s much debilitated political parties and to leveling the playing field for minority political party participation in the electoral arena. The United States is concerned about the progressive deterioration of democratic institutions, increasing executive control over the other branches of government and the poor human rights situation in Venezuela.

Funds are also needed to support electoral observation of scheduled national legislative elections in 2005 and a presidential election in 2006. The Carter Center’s observation efforts for the August 2004 recall vote, which were funded in part by United States Government funds, have been critical to ensuring a peaceful and credible referendum process. These types of programs at times entail working with government institutions such as the National Assembly and the National Electoral Council. In Venezuela’s highly polarized environment, mediation and national reconciliation programs are indispensable to prevent political violence and reduce tensions.

Venezuela is party to the Rome Statute and has not entered into an Article 98 agreement with the United States. Therefore, pursuant to the American Servicemembers’ Protection Act, Venezuela is already restricted from receiving assistance in the form of military education and training or foreign military financing.