The principle of non-refoulement, i.e., that refugees may not be returned to their country of origin where there is a fear of persecution. Initially formulated in international agreements on refugees, the principle was repeated in the UN Convention against Torture, 1984, which requires States to ensure that no-one is repatriated to a country where they would face torture (by state officials or non-state actors, such as traffickers or their associates).
In 2002, the UN High Commissioner for Human Rights outlined other principles. One that has received progressively more attention is that trafficking persons should not be punished for offences committed as a direct result of being trafficked or exploited. By 2008, a UN anti-trafficking toolkit explained this non-punishment principle and suggested that people who had been trafficked should not even be prosecuted, yet alone punished:
An essential element of protection of victims of trafficking and their rights must be that States do not prosecute or punish trafficked persons for trafficking-related offences such as holding false passports or working without authorization, even if they agreed to hold false documents or to work without authorization. Whether prostitution is legal or not, States should not prosecute persons for being trafficked into sexual exploitation, even if the person originally agreed to work in the sex industry. Without this approach, victim assistance and support programmes are rendered ineffective and meaningless.8
Updated information about five categories of collateral damage
Some action has been taken since the publication of the 2007 GAATW anthology to reduce the collateral damage that it highlighted. However, the following five subsections show that collateral damage is still common and, in some areas, may have increased. While the information contained in the 2007 anthology was collected by eight individual researchers, the details below were acquired by the author in the course of routine work on the topic of human trafficking over the past eight years. This included evaluations of anti-trafficking projects and programmes, research concerning methods that help protect unaccompanied children and adolescents who leave home to earn a living elsewhere (in their own countries or abroad), and preparing articles for a journal focusing on finance for anti-trafficking programmes and projects.9
Legal definitions of human trafficking
The complicated definition of trafficking in persons in the Palermo Protocol, containing three elements – an action, an abusive means (only in the case of adults, but not children), and an exploitative purpose – has routinely been difficult for investigators and prosecutors to prove in court. Further, because the Palermo Protocol was adopted at the same time as a separate protocol about migrant smuggling (the Protocol against the Smuggling of Migrants by Land, Sea and Air, 2000, supplementing the UN Convention against Transnational Organized Crime), many training materials present the two together. Despite attempts to clarify the difference, confusion continues, especially in regions such as Latin America or South East Asia, where funding streams and conferences deal with both topics together. The connection with migrant smuggling results in trafficking being interpreted all too often as an offence committed mainly against migrants moving between countries, thereby minimising the attention given to people who are trafficked and exploited within their own countries, who may well outnumber those trafficked across borders in most regions of the world.
Some quite different problems continue to occur when the internationally defined offence of trafficking has been transposed into national law. In some cases, as the example below illustrates, the very nature of the offence has been changed; for example, by omitting reference to the abusive means that are an inherent part of the Palermo Protocol’s definition of the offence of trafficking adults.
Mexico
Mexico has adopted two successive laws against trafficking in persons, in 2007 and 2012. While the first included a definition of human trafficking that resembled the Palermo Protocol’s, the 2012 law is described by the UN Office on Drugs and Crime (UNODC) as “a radical change”,10 for its definition of trafficking in persons lists only two elements (i.e., an action for the purpose of one of eleven listed types of exploitation), dropping reference to the abusive means that are key to the Palermo Protocol’s definition. Article 10 makes it an offence to commit: “Any wilful act or omission of a person or persons to obtain, engage, transport, transfer, hold, deliver, receive and accommodate one or more persons for the purpose of exploitation”.11 The types of exploitation listed include exploitation of the prostitution of others and other forms of sexual exploitation, and also “labour exploitation”. With respect to the exploitation of prostitution of others, therefore, the Mexican law skips over the issue of abusive means (except as aggravating circumstances to increase the penalty), with the result that all cases of pimping and ‘living on immoral earnings’ are categorised as human trafficking, even if none of the abusive means listed in Article 3 of the Palermo Protocol are used.12
The UNODC’s critique observes that the 2012 law, while it may increase the number of convictions, will not necessarily lead to more prosecutions of traffickers, but rather of less significant ‘exploiters’.13 In many respects, therefore, the 2012 Law is a throw-back to the UN’s previous Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 1949, which required States Parties to make it an offence to profit from the prostitution of another person, even with the consent of that person. In effect, the 2012 law allows law enforcement officials to avoid having to distinguish between serious offences involving trafficking, and much more minor ones involving some exploitation.
In addition to being the scene of high levels of extortion, exploitation, and abuse of irregular migrants making their way north through Mexico to the United States, there are estimated to be more than half a million adult sex workers in the country,14 some of whom earn a living in so-called tolerance zones, where commercial sex is not treated as a crime. Despite the positive provisions on assistance to trafficked persons in the 2012 Law (in theory to benefit anyone who has been pimped, yet alone trafficked), sex workers, including those trafficked according to the definition of trafficking in the Palermo Protocol, continue to complain that law enforcement officials use violence against them, and make little attempt to identify trafficking victims, yet alone to protect them. The US Government’s annual Trafficking in Persons report for 2015 criticised Mexican law enforcement officials for
investigating bars and nightclubs for administrative irregularities, as opposed to intelligence-based operations targeting traffickers … Women at nightclubs and other establishments launched protests in response to authorities’ reported use of violence during anti-trafficking operations in Mexico City.15
Measures to prevent human trafficking
Numerous initiatives to prevent human trafficking have involved imposing restrictions on the rights of the very adults and adolescents who are supposed to benefit, such as their right to freedom of movement (which includes an individual’s right to leave their own country). In contrast, a few initiatives (which probably represent good practice) have involved empowering adults or children known to be at high risk of being trafficked. The most effective of these are, in the author’s opinion, those which make cash or material resources available to counter-balance the financial incentives offered by traffickers.
Women from Nepal
GAATW noted in 2010 that five Asian governments had placed restrictions on women migrating to work abroad: Bangladesh, Burma/Myanmar, India, Nepal, and the Philippines.16 In the case of Nepal, the ban was introduced following the death of a Nepali woman employed as a domestic worker in Kuwait in 1998, when Nepal decided that no Nepali women should work anywhere in the Gulf. This ban was lifted in 2003 to allow women to seek certain types of employment, but not domestic work (for which there was high demand in Gulf countries). In 2008, a similar ban for women was extended to Lebanon and Malaysia. In 2010, Nepal’s ban on women working in Gulf countries was lifted, only to be re-imposed in 2012, agai
n due to reports of the abuse of domestic workers, this time to prevent women under 30 from working as domestic workers in Gulf States. In 2014, the ban was extended to stop Nepalis emigrating to engage in domestic work anywhere, even though this was the main type of overseas employment available to women.
As a method to prevent its citizens being trafficked or abused, the successive bans seem a remarkably blunt instrument, though they may serve in part to convey a protest to the governments of countries where women migrant domestics have been abused with impunity. However, the bans imposed by Nepal and other countries from which women migrate for domestic work have not led to better protection for migrant domestic workers, for the short-fall in the supply of workers from one country is routinely made up (quickly) by women migrants from other countries. The impact in the countries where bans are imposed (not only Nepal) is either to deprive women of the opportunity to earn a living abroad, or to oblige them to resort to riskier migration options. In the case of Nepal, women continued to travel to the Middle East, including the Gulf, and also to Malaysia, but without being able to benefit from schemes supported by their own government. In effect, to avoid the bans, women have to resort to riskier migration options than their male counterparts, making them more vulnerable to abuse in transit and at their destination. Male-dominated governments continue to disregard these risks.
A recent study of the effects of the age bans in Nepal concluded that the journeys taken by women when age bans were in force are “longer and expose women to the risk of waiting for long periods, sometimes at their own expense, denial of freedom of movement, and having the terms and conditions of their jobs abroad changed.”17 In contrast, when they could migrate legally, they paid lower fees, were able to use agencies rather than relying on individual brokers, and were generally better informed.
Children in South Asia and West Africa
Well-intentioned initiatives to stop children being exploited, either by stopping them leaving home in the first place or by intercepting them while travelling, were already reported in the 1990s. Repackaged from 2000 onwards as ‘anti-child trafficking measures’, the first stinging criticism of such measures, focusing on the prejudice caused to children, was published in Mali in 2003.18 This was followed by equally severe criticism of the efforts of NGOs in Nepal to stop young women and girls from crossing from Nepal into India.19
The Mali study published evidence about the impact of so-called vigilance committees, established in villages to prevent children from being trafficked. The notion of locating responsibility for protecting children at community level sounded good, but the reality in Mali was shown to be problematic. Two years after the committees were established, the study found that committee members did not distinguish between trafficked children and other children leaving their homes to earn a living. It found that young people were excluded from the committees, which were composed instead of older men, that interceptions had aggravated relations between the young and the old, and that young people were resorting to methods of migrating which increased risks rather than reducing them. The vigilance committee system had exacerbated the problem rather than offering a solution, although the international organisations which had supported their establishment were initially reluctant to recognise their failings.
The situation in Nepal had some common characteristics. Nepali NGOs were allowed by the authorities to intercept young people crossing the border to India. They employed specialists known as ‘physionomists’, who intercepted adolescent girls on the grounds that they were being trafficked – but the assessment was based on the girls’ ethnicity, caste, and social class. After being intercepted, girls were transferred to a transit centre run by the same NGO. In effect, NGOs had adopted police-like powers to stop young women from certain social groups from crossing to India, even though a civil war was raging in Nepal.
Interception on the basis of little specific evidence that the child concerned is at risk could be justified if the child has not yet reached puberty and is palpably too young to be travelling alone, though such an action would have to be backed up by a formal best interests assessment for each child concerned. However, the same does not apply to adolescent boys or girls. In the case of adolescents, interception might be justifiable if there is evidence that the vast majority of young people of a certain age crossing a border end up being exploited or otherwise abused – such a large proportion that it is reasonable to make the presumption that most adolescents crossing the border are destined for exploitation. However, in the case of Nepal, NGOs made this assumption without obtaining adequate evidence. It was not until 2005 that an international NGO commissioned research into the reasons why young people crossed the border, and concluded that there were numerous good reasons for their doing so, though interceptions have continued subsequently.20
Ensuring that lessons are learned and bad practice is discontinued has been difficult in both West Africa and South Asia. Once the findings of the 2003 study in Mali had been replicated in other West African countries,21 international organisations and NGOs pooled their resources in an effort to stop child migrants being routinely misdiagnosed as ‘trafficked’, and to identify more appropriate methods to protect them from harm.22 Nevertheless, Western-based organisations encountering shocking situations in West Africa for the first time have continued to suggest that the best way of protecting children would be to stop them from moving, disregarding the substantial evidence of collateral damage caused to children by such initiatives. For example, in 2014, an anti-slavery organisation recently established in Australia – supporting a Ghanaian NGO, Challenging Heights, that rescued children working in Lake Volta’s fishing industry (including some involved in life-threatening dives to untangle nets) –launched an appeal to Ghana’s Inspector-General of Police to check vehicles systematically and to intercept children. It justified the appeal on the grounds that the International Labour Organization (ILO) had estimated that 21,000 children were victims of hazardous labour in the lake’s fishing industry.
“Since vehicles are routinely checked to ensure compliance with the law”, the Walk Free Foundation suggested, “it would be a relatively simple step to ensure that, their passengers are legal as well. By looking out for vehicles with suspiciously large numbers of children or checking buses at critical times of the year such as the school holidays, Ghana’s police can significantly cut off the flow of children being trafficked into slavery”.23
The authors of the appeal paid no attention to the evidence that had already been compiled to show that the interception of children by law enforcement officials in West Africa was rarely in the best interests of the children concerned. Further, although the ILO had indeed criticised the involvement of children in hazardous work in Lake Volta’s fishing industry (it estimated that some 68,000 young people under 18 were working in the industry), the study’s survey of 350 children working around the lake indicated that three-quarters lived with one or both parents, while 17 percent lived with a relative, and just 3 percent with an employer or other caregiver. It reached no conclusion about the proportion who were trafficked or enslaved.24
Vulnerability
Part of the problem that has provoked this category of collateral damage stems from the use of the term “vulnerable” in the UN Trafficking Protocol, Article 9.4 of which requires States Parties to “take or strengthen measures … to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity”.25 The Palermo Protocol’s use of the term “vulnerability” has led to vast categories of people being considered “vulnerable” by programmers designing projects to prevent human trafficking, including minority groups, all women, and sometimes all children, and irregular migrants in general. This in turn has precipitated acts of discrimination against entire groups, albeit motivated by an intention to prevent them from being trafficked.
Collateral damage due to inadequate protection and assistance
for trafficked persons in the criminal justice system
A third category of collateral damage is the one that received most attention during the years following the adoption of the Palermo Protocol: the fact that assistance for trafficked persons was routinely made conditional by government agencies on their cooperating with law enforcement officials (police or prosecutors) and being willing to act as witnesses at trials of suspected traffickers, even if this put them or their loved ones in danger. However, the collateral damage caused by law enforcement officials went much further. For example, when investigating the situation of adolescents who agreed to testify against their traffickers in Kosovo a decade ago, the author heard of cases in which the authorities had failed to inform a victim-witness that an alleged trafficker who lived in the same community as her had been found not guilty (so was walking around near her home), and had taken no meaningful action when informed that an adolescent victim-witness had been the subject of reprisals by associates of her trafficker.26
The Palermo Protocol gave little attention to the practical ways in which trafficking victims should be protected during criminal investigations and trials. However, at a pragmatic level, it seems that lessons have been learned since 2007 about victim and witness protection. This means that the practice of making some or all assistance to victim witnesses conditional on their cooperating with law enforcement officials and being willing to provide prosecution evidence has diminished, though it remains a serious problem. Commenting on what constitutes a “comprehensive and successful response to trafficking in persons”, a background paper for a Thirteenth UN Congress on Crime Prevention and Criminal Justice workshop in April 2015 commented that: “Victims of trafficking should be assisted and protected, regardless of their ability or willingness to cooperate with the authorities, and have access to justice and remedy for the harm inflicted on them”.27
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