Routledge Handbook of Human Trafficking

by Piotrowicz, Ryszard; Rijken, Conny; Uhl, Baerbel Heide

  Most crucially, in many countries, trafficking victims are not protected from prosecution and punishment for unlawful activities undertaken as a direct consequence of their exploitation, such as the infringement of immigration laws. As a result, traffickers can exercise a higher degree of control over their victims, who become more vulnerable to their exploitation and more reluctant to escape and report their traffickers. For instance, a victim subject to domestic servitude or exploited in the sex industry would be unwilling to escape and report her employer, as this would consequently trigger her infringement of immigration and/or labour laws and would automatically put her at risk of prosecution and immediate deportation.57 In many countries across the region, as a result of the inadequate framework of victim protection, victims of trafficking, instead of receiving special protection, may be prosecuted, detained, punished, or deported for violating entry, visa, residence, or employment regulations.

  Indicatively, it has been reported that Oman, Bahrain, Qatar, Lebanon, and the UAE are lacking an effective regulatory framework for the protection of, and the provision of support to, victims of trafficking, including an early identification and referral scheme, as well as legislative guarantees for non-prosecution of victims of trafficking.58 Israel, on the other hand, has made significant progress in the area of victim protection, particularly in respect of enhancing its screening and identification mechanisms in detention and deportation centres, developing the functioning of shelters for victims of trafficking, and facilitating victims’ participation in the legal proceedings against traffickers.59

  Conclusion – key recommendations

  Taking into consideration the traditional and emerging trafficking trends prevalent in the Middle East, as well as the major challenges that are being faced in the region and the slow pace of reforms undertaken, a number of recommendations are formulated, with the aim of developing an effective anti-trafficking regulatory, institutional, and administrative framework to successfully combat THB and protect its victims.

  Firstly, it is necessary that Middle Eastern countries engage more actively with international legal instruments that regulate various areas connected, directly or indirectly, to THB. Some of these are particularly relevant to the trafficking typologies prevalent in the region. For instance, most countries in the Middle East are hosting large populations of migrant workers, and it is undisputable that the rules governing migrant workers’ status in the countries of destination are instrumental for the effective prevention of THB. In this context, despite the weak support it has received in destination countries, it would be meaningful for countries in the region to become parties to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Ratifying the Convention would also enable them to become engaged in a meaningful dialogue with the Convention’s treaty body, which could greatly contribute in assisting them with the formulation of an effective regulatory and policy framework governing the entry, stay, and employment of migrant workers. Furthermore, taking into account that trafficking for labour exploitation is a dominant form of trafficking in the region, governments should consider ratifying the 2014 Protocol to the Forced Labour Convention, which includes provisions for the protection of undocumented migrants and the non-criminalisation of victims of forced labour, as well as the Domestic Workers Convention No.189, which sets a framework for the regulation of the highly unregulated and unprotected sector of domestic labour.

  In the same vein, States should reconsider the system of Kafala with a view to abolishing it entirely. Kafala confers disproportionate power to the sponsor, and it establishes a highly unbalanced relationship between employer and worker. Its abolition would have a number of benefits for migrant workers. Abolishing the Kafala would allow Middle Eastern countries to develop, enforce, and effectively monitor a healthy and functional labour market for migrant workers, to prevent and detect THB, and to offer protection and support to its victims, in accordance with international human rights standards. The economy of the host country would benefit from increased labour mobility and productivity, given that an improvement in labourers’ living and working conditions will have a positive impact on their productivity. Finally, social cohesion would be enhanced, as the status and social integration of the currently marginalised labour workers’ population would be substantially improved.

  Moreover, significant reforms are required in the labour market. All workers, including domestic workers and labourers, should be protected by national labour law, in order to ensure that sufficient protection is afforded to the unprivileged categories of workers, in line with international human rights law. On the other hand, legislative and administrative measures must be adopted to regulate and monitor the operation of PEAs. Since many cases of trafficking are fundamentally connected with the unlawful and fraudulent operation of these agencies, their regulation is imperative, and this can only be achieved through the strengthening of existing labour inspection and enforcement bodies. It is also necessary that Middle Eastern countries take appropriate measures to ensure that all labour sectors are inspected effectively, including domestic labour, a very large and highly unregulated sector of their economies, with the aim of protecting workers’ rights and identifying abuses and occurrences of forced labour and trafficking as soon as possible.

  Furthermore, countries across the region should focus more on the development of effective systems for the protection of victims of trafficking and other vulnerable groups. The establishment of screening and identification procedures, especially in detention and deportation centres, as well as the delivery of law enforcement and judicial training, would be instrumental in facilitating the early identification of victims, which is key for their protection. Most importantly, States should take all appropriate legislative and administrative measures to ensure that victims of trafficking are not prosecuted, detained, or punished for unlawful acts committed as a direct consequence of their exploitation.

  It is evident from the above analysis that Middle Eastern States are facing common challenges, particularly in view of the ongoing conflict and the ensuing refugee crisis that has significantly exacerbated the prevalence of THB in the region. In this context, taking into account that regional and bilateral cooperation in the region is currently rather weak, it would definitely be meaningful for Middle Eastern States to work more closely together to develop common action plans and synergies to eliminate the phenomenon and to protect its victims through the adoption of MoUs and/or bilateral and regional agreements. Technical support and assistance should also be offered by the international community to effectively address trafficking associated with the widespread armed conflict and the severe refugee crisis, such as trafficking for child soldiers.

  Notes

  1 United Nations Office for Drugs and Crime (UNODC), Global Report on Trafficking in Persons (2014), www.unodc.org/documents/data-and-analysis/glotip/GLOTIP_2014_full_report.pdf (UNODC Trafficking Report 2014), p. 84.

  2 UNODC, Global Report on Trafficking in Persons (2009), www.unodc.org/documents/Global_Report_on_TIP.pdf (accessed 11 February 2016), p. 6.

  3 Committee on the Elimination of Discrimination Against Women (CEDAW), Concluding Observations Lebanon (2015) CEDAW/C/LBN/CO/4–5 (CEDAW Lebanon 2015), paras 29–30.

  4 Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo, Report: Egypt (2011) A/HRC/17/35/Add.2 (SR THB Egypt 2011), para 11.

  5 Haroff-Tavel, H. and Nasri, A. (ILO), Tricked and Trapped – Human Trafficking in the Middle East (2013), www.ilo.org/wcmsp5/groups/public/—arabstates/—ro-beirut/documents/publication/wcms_211214.pdf, pp. 67–69.

  6 Ibid., p. 15.

  7 CEDAW, Concluding Observations Israel (2011) CEDAW/C/ISR/CO/5, para 30; US Department of State, Trafficking in Persons Report (2014) (US TIP Report 2014), www.state.gov/documents/organization/226846.pdf, p. 214.

  8 SR THB Egypt 2011 (n.4), paras 5–7; CEDAW, Concluding Observations Yemen
(2008) CEDAW/C/YEM/CO/6 (CEDAW Yemen 2008), paras 32–33; Committee on the Rights of the Child (CRC), Concluding Observations Yemen (2014) CRC/C/YEM/CO/4 (CRC Yemen 2014), paras 81–82; CRC, Concluding Observations Iraq (2015) CRC/C/OPSC/IRQ/CO/1 (CRC Iraq 2015), paras 18–19; CRC, Concluding Observations Syrian Arab Republic (2012) CRC/C/SYR/CO/3–4 (CRC Syria 2012), paras 82–83; CRC, Concluding Observations the Islamic Republic of Iran (2005) CRC/C/15/Add.254 (CRC Iran 2005), paras 23, pp. 70–71.

  9 UN Women, Gender-based Violence and Child Protection Among Syrian Refugees in Jordan, With a Focus on Early Marriage (2013), www.unwomen.org/~/media/headquarters/attachments/sections/library/publications/2013/7/report-web%20pdf.pdf, pp. 33–34; US TIP Report 2014 (n.7), pp. 366–367.

  10 Sharia law is based on the life, practices, and teachings of the Prophet Muhammad. The fact that the Prophet married his third wife, Aisha, when she was nine years old [Spellberg, D., Politics, Gender, and the Islamic Past: The Legacy of ‘A’isha Bint Abi Bakr (New York: Columbia University Press, 1994), pp. 39–40], in conjunction with controversial verses of the Quran (4:6; 65:4), is sometimes interpreted – mostly by conservative Islamic scholars – as allowing girls to enter into marriage at the age of reaching puberty. See for instance, Muhammad Saed Abdul-Rahman, Jurisprudence and Islamic Rulings: Transactions –Part 2 (MSA Publications, 2004), https://islamqa.info/en/178318 and http://talktoislam.com/41/does-islam-allow-child-marriage, pp. 7–9. The UN Committees on the Elimination of All Forms of Discrimination Against Women and on the Rights of the Child have expressed their concerns in respect of the legality of child marriages in many Middle Eastern countries where Sharia is in force. See for example, CEDAW, Concluding Observations Saudi Arabia (2008) CEDAW/C/SAU/CO/2 (CEDAW KSA 2008), paras 35–36; CEDAW Yemen 2008 (n.8), paras 30–31, 46–47; CEDAW, Concluding Observations Jordan (2012), CEDAW/C/JOR/CO/5 (CEDAW Jordan 2012), paras 49–50; CRC Iraq 2015 (n.8), paras 18–20; CRC Yemen 2014 (n.8), paras 9–10, 27–28, 48–49; CRC Syria 2012 (n.8), paras 30–31, 67–68; CRC Iran 2005 (n.8), paras 22–23.

  11 According to Sharia, Thawban reported that the Prophet said: ‘The woman who seeks divorce from her husband for no reason will not even smell the fragrance of Paradise’, Sunan Abu Dawud (2/268) No. 2226, Sunan Tirmidhi (3/485) No. 1187, Sunan Ibn Majah (3/207) No. 2055, Sunan al-Darime (2/216) No. 2270, Musnad Ahmad (5/283) No. 22493. Women have limited rights to divorce their husbands (khula), compared to men. To be granted permission to divorce their husbands, women are required to prove to the Islamic Judge (Qadi) that exceptional circumstances exist, such as being subject to excessive abuse. The Committee on the Elimination of All Forms of Discrimination Against Women has expressed its concerns in respect of gender inequalities with regard to legal capacity and personal status, including divorce, in many countries in the region where Sharia law is in force. See, for instance, CEDAW KSA 2008 (n.10), paras 15–16; CEDAW Yemen 2008 (n.8), paras 40–41; CEDAW Jordan 2012 (n.10), paras 49–50.

  12 UNODC Trafficking Report 2014 (n.1), 9, 33.

  13 ILO, Global Estimate of Forced Labour: Results and Methodology (2012) (ILO Global estimate 2012), www.ilo.org/wcmsp5/groups/public/-ed_norm/-declaration/documents/publication/wcms_182004.pdf, p. 16.

  14 Abimourched, R., Migrant Domestic Workers in the Mashriq: Towards a Rights-based Regulatory Framework (2011) European University Institute Robert Schuman Centre for Advanced Studies Carim Research Reports 2011–13, http://cadmus.eui.eu/bitstream/handle/1814/18955/CARIM_RR_2011_03.pdf?sequence=1, pp. 3–5.

  15 Haroff-Tavel, H. and Nasri, A. (ILO) 2013 (n.5), pp. 41–42.

  16 OSCE Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings, Unprotected Work, Invisible Exploitation: Trafficking for the Purpose of Domestic Servitude (2010), www.osce.org/secretariat/75804?download=true, pp. 12–13.

  17 US TIP Report 2014 (n.7), p. 8.

  18 See also, Haroff-Tavel, H. and Nasri, A. (ILO) 2013 (n.5); International Trade Union Confederation (ITUC), “Hidden Faces of the Gulf Miracle: Behind the Gleaming Cities of Doha (Qatar) and Dubai (UAE), Stories of Migrant Workers With Few Rights and Inhuman Living Conditions”, Union View No. 21 (2011), www.ituc-csi.org/IMG/pdf/VS_QatarEN_final.pdf; Human Rights Watch, Building Towers, Cheating Workers: Exploitation of Migrant Construction Workers in the United Arab Emirates (2006), www.hrw.org/sites/default/files/reports/uae1106webwcover.pdf; Human Rights Watch, The Island of Happiness: Exploitation of Migrant Workers on Saadiyat Island, Abu Dhabi (2009), www.hrw.org/report/2009/05/19/island-happiness/exploitation-migrant-workers-saadiyat-island-abu-dhabi.

  19 Haroff-Tavel, H. and Nasri, A. (ILO) 2013 (n.5), pp. 103–107 and 110–120.

  20 See indicatively, The Guardian, Revealed: Qatar’s World Cup ‘Slaves’ (2013), www.theguardian.com/world/2013/sep/25/revealed-qatars-world-cup-slaves; BBC News, Qatar 2022: ‘Forced Labour’ at World Cup stadium (2016), www.bbc.com/news/world-middle-east-35931031; AlJazeera, Amnesty: Qatar World Cup Stadium Workers Suffer Abuse (2016), www.aljazeera.com/news/2016/03/amnesty-workers-world-cup-stadium-suffer-abuse-160331034227936.html; Amnesty International, The Ugly Side of the Beautiful Game – Exploitation of Migrant Workers on a Qatart 2022 World Cup Site (2016), www.amnesty.org/en/documents/mde22/3548/2016/en/.

  21 US Department of State Office to Monitor and Combat Trafficking in Persons (2005), Fact Sheet The Facts About Children Trafficked For Use As Camel Jockeys, http://2001-2009.state.gov/g/tip/rls/fs/2005/50940.htm; Anti-Slavery International, Trafficking of Children for Use as Camel Jockeys (2006), www.antislavery.org/includes/documents/cm_docs/2009/2/2006uae_cameljockeys.pdf; Calandruccio, G., “A Review of Recent Research on Human Trafficking in the Middle East”, in Laczko, F. and Gozdziak, E. (eds.), Data and Research on Human Trafficking: A Global Survey, Offprint of the Special Issue of International Migration 43 (1/2) (Geneva: International Organization for Migration, 2005), https://publications.iom.int/system/files/pdf/global_survey.pdf.

  22 UNICEF, Starting Over – Children Return Home From Camel Racing (2006), www.unicef.org/infobycountry/files/StartingOver.pdf; US Department of State, Trafficking in Persons Report (2005), http://2001-2009.state.gov/g/tip/rls/fs/2005/50940.htm.

  23 Law No. 22 of 2005 on Children and Camel Races, Qatar. See also, UNICEF 2006 (n.22).

  24 Relevant interpretations of Sharia principles are based on Sahi Al Bukhari vol 2., Elahi, M., “The Rights of the Child Under Islamic Law: Prohibition of the Child Soldier”, in Elizabeth Warnock Fernea (ed.), Children in the Muslim Middle East (Austin: University Texas Press, 1995), pp. 367–374; Sait, S., “Islamic Perspectives on the Right of the Child”, in Fottrell, D. (ed.), Revisiting Children’s Rights (The Hague: Kluwer Law International, 2000), p. 43.

  25 CRC, Concluding Observations Yemen (2014), CRC/C/OPAC/YEM/CO/1 (CRC OPAC Yemen 2014), paras 27–28; CRC, Concluding Observations Iraq (2015), CRC/C/IRQ/CO/2–4 (CRC Iraq 2–4 2015), paras 74–75. See also, Singer, P.W., Children at War (Berkeley, CA: University of California Press, 2005), pp. 21–22, 24.

  26 Tiefenbrun, S., “Child Soldiers, Slavery and the Trafficking of Children” (2007) 31(2) Fordham International Law Journal 415, 423–426.

  27 US TIP Report 2014 (n.7), 367.

  28 Ibid., 411.

  29 Kenneth Roth (Human Rights Watch), Slavery, the ISIS Rules (2015), www.hrw.org/news/2015/09/05/slavery-isis-rules; Human Rights Watch, Iraq: ISIS Escapees Describe Systematic Rape (2015), www.hrw.org/news/2015/04/14/iraq-isis-escapees-describe-systematic-rape.

  30 United Nations Assistance Mission For Iraq (UNAMI) and Office of the High Commissionaire for Human Rights (OHCHR), Report on the Protection of Civilians in the Armed Conflict in Iraq: 11 December 2014–30 April 2015, www.ohchr.org/Documents/Countries/IQ/UNAMI_OHCHR_4th_POCReport-11Dec2014-30April2015.pdf.

  31 Montgomery, K., ISIS Recruits Brides to Solve Middle East Marriage Crisis (2015), www.syriadeeply.org/articles/2015/05/7207/isis-recruits-brides-solve-middle-east-marriage-crisis/; Binetti, A., New Frontier: Human Trafficki
ng and ISIS’ Recruitment of Women From the West (2015) Information2Action, Georgetown Institute for Women and Peace, https://giwps.georgetown.edu/sites/giwps/files/I2A%20-%20A%20New%20Frontier%20-%20Human%20Trafficking%20and%20ISIS’s%20Recruitment%20of%20Women%20from%20the%20West.pdf.

  32 United Nations Office on Drugs and Crime, Issue Paper – The Role of ‘Consent’ in the Trafficking in Persons Protocol (2014), p. 8, www.unodc.org/documents/human-trafficking/2014/UNODC_2014_Issue_Paper_Consent.pdf.

  33 Nelson, S. and Elgot, J., “British Mother Tareena Shakil Who Joined IS Scaled Barbed Wire Fence to Flee Fate as a Jihadi Bride” Huffington Post (2015), www.huffingtonpost.co.uk/2015/01/16/british-mother-tareena-shakil-who-joined-is-scaled-barbed-wire-fence-flee-fatejihadi-bride_n_6486224.html.

  34 Bloom, M., Bombshell: The Many Faces of Women Terrorists (London: C Hurst & Co Publishers, 2011), p. 60; Binetti, 2015 (n 31), p. 4.

  35 See list of ratifications https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII 12-a&chapter=18&lang=en.

  36 International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families, 2220 UNTS 3 (1990).

  37 Forced Labour Convention No. 29, C029 (1930); Abolition of Forced Labour Convention No. 105, C105 (1957); Protocol of 2014 to the Forced Labour Convention of 1930, P029 (2014).

  38 Private Employment Agencies Convention No. 181, C181 (1997).

  39 Domestic Workers Convention No. 189, C189 (2011).

  40 Optional Protocol to the Convention on the Rights of the Child, on the Involvement of Children in Armed Conflict (1977) 1125 UNTS 17512.

  41 CRC, Concluding Observations OPAC Iraq (2015) CRC/C/OPAC/IRQ/CO/1, paras 31–32.

  42 Khan, A. and Harroff-Tavel, H., “Reforming the Kafala: Challenges and Opportunities in Moving Forward” (2011) 20 (3&4) Asian & Pacific Migration Journal 293; McGeehan, N., “Trafficking in Persons or State Sanctioned Exploitation? The False Narrative of Migrant Workers in the United Arab Emirates” (2012) 26 Immigration Asylum and Nationality Law 1, 29–30; Roper, S. and Barria, L., “Understanding Variations in Gulf Migration and Labor Practices” (2014) Middle East Law and Governance 6, 32–52.