Data collection on human trafficking is not a neutral concept, but needs to be understood as an anti-trafficking intervention tool that may result in violation of the human rights of trafficked persons. Digital data on human trafficking, including the use of Big Data, can be easily transformed into governmental surveillance techniques, such as the restriction of the freedom of movement, or can contribute to further stigmatise migrants and other marginalised populations, including sex workers. A human rights approach to anti-trafficking data collection tools should encourage narratives going beyond a criminological framework by including all the complexities of the social, legal, and economic realities (presumed) trafficked persons face.
Notes
1 See European Commission, Action Oriented Paper on Strengthening the EU External Dimensions on Action Against Trafficking in Human Beings (19/11/2009–11450/5/09 REV 5), p. 14, https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/action_oriented_paper_on_actions_against_trafficking_en_1.pdf.
2 Hague Ministerial Declaration on European Guidelines for Effective Measures to Prevent and Combat Trafficking in Women for the Purpose of Sexual Exploitation (Ministerial Conference under the Presidency of the European Union, The Hague, 24–26 April 1997, Art. III.1.4).
3 European Commission, Commission Staff Working Document: Report on the Progress Made in the Fight Against Trafficking in Human Beings (2016) as Required Under Article 20 of Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims (COM(2016) 267 final), p. 69.
4 International Labor Organisation (ILO), Global Estimate of Forced Labour: Results and Methodology, Geneva (2012), www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_182004.pdf.
5 See www.globalslaveryindex.org/findings/.
6 See www.state.gov/j/tip/rls/tiprpt/2016/258694.htm.
7 The numbers in parentheses are for labour trafficking prosecutions, convictions, and victims identified.
8 See https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/eurostat_report_on_trafficking_in_human_beings_-_2015_edition.pdf, p. 10.
9 European Commission, Commission Staff Working Document: Report on the Progress Made in the Fight Against Trafficking in Human Beings (2016) as Required Under Article 20 of Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting Its Victims (COM(2016) 267 final), p. 44 [emphasis in original].
10 In paragraph 60 of the Plan of Action, UNODC is assigned the mandate and duty to collect relevant data, and to report on trafficking in persons patterns and flows at the national, regional, and international levels.
11 Eidam, Eyragon, “The Role of Data Analytics in Preventative Policing”, in Government Technology (September 2016), http://www.govtech.com/data/Role-of-Data-Analytics-in-Predictive-Policing.html.
12 Ungerleider, N., Google, Palantir, Salesforce Fight Human Traffickers (2013), www.fastcompany.com/3008097/where-are-they-now/google-palantir-salesforce-fight-human-traffickers.
13 Grothaus, M., How Google Is Fighting Sex Trafficking With Big Data (2013), www.fastcompany.com/3009686/how-google-is-fighting-sex-trafficking-with-big-data.
14 Ibid.
15 See ICMPD, Anti-Trafficking Data Collection and Information Management in the European Union – A Handbook (2009), pp. 92 & 111.
16 OSCE/ODIHR, National Referral Mechanism: Joining the Efforts to Protect the Rights of Trafficked Persons – A Practical Handbook, p. 24.
17 International Centre for Migration Policy Development (ICMPD), Guidelines for the Development of a Trans-national Referral Mechanism for Trafficked Persons in Europe (Vienna, 2010), p. 86.
18 Uhl, B.H., Die Sicherheit der Menschenrchte (2014), p. 165.
19 Aaradau, C., “Human Trafficking – Between Data and Knowledge”, in KOK e.V. (eds.), Data Protection Challenges in Anti-Trafficking Policies: A Practical Guide (Berlin: KOK-Bundesweiter Koordinierungskreis gegen Menschenhandel e.V., 2015), pp. 7–15.
20 Morozof, E., Smarte neue Welt (2013), p. 26.
21 www.irinnews.org/special-report/2016/03/07/spies-sans-fronti%C3%A8res.
22 Vismann, C., Das Recht und seine Mittel, Ausgewählte Schriften (2015), p. 187.
23 Ibid., p. 187.
24 KOK.e.V. (2015) (n.19), p. 83.
25 In Germany, in 1987, for example, the announced census of population led to mass demonstrations and mobilisation against governmental surveillance policies.
26 See EU Directive 95/46/EC.
27 See www.datact-project.org.
28 KOK.e.V. (2015) (n.19), p. 74.
29 Ibid., p. 74.
30 Ibid., p. 74.
31 Ibid., p. 75.
32 Ibid., p. 75.
33 Ibid., p. 75.
34 Ibid., p. 75.
35 Ibid., p. 75.
36 EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims – Art. 11.2:
Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3.
37 Vismann, C. (translated by the author), Menschenrechte: “Instanz des Sprechens – Instrument der Politik”, in Menke, C. and /Raimondi, F. (eds.), Die Revolution der Menschenrechte (Germany: Suhrkamp Taschenbuch Wissenschaft, Frankfurt a.M., 2011), p. 164:
Der Mensch, die Lücke im Gesetz, erklärt sich, indem er spricht. Die Erklärung des Begriffs Mensch – wohlweislich kein, nicht einmal ein unbestimmter Rechtsbegriff – ist darum Teil des diskurs-generierenden Projekts der Menschenrechte. Er hat eine geradezu mathematische Funktion, indem er alle Namen annimmt, die man ihm gibt. Wie durch einen diskursiven Filter gehen die verschiedenen Vorstellungen, Versionen und Bilder des Menschen durch die Menschenrechte hindurch. Er kann all das sein, was und als wer er spricht: als Individuum oder Kollektiv, biologisch definiertes Gattungswesen oder in seiner Eigenschaft, ein Volk zu bilden.
Part 7
Actors, stakeholders and institutions
33
Changing the system from within
The role of NGOs in the flawed anti-trafficking framework
Marieke van Doorninck
Introduction
Anti-trafficking policies are often (mis)used by governments as a palliative, in order not to tackle the root causes of exploitation and abuse. States use human rights and anti-trafficking rhetoric but, in reality, anti-migration measures prevail over the obligation to uphold rights; and the neo-liberal pressure to deregulate the labour markets is leaving more and more workers without protection.1 People are being deprived of the tools to protect themselves from exploitation, such as legal labour migration (and job) opportunities and strong labour protection mechanisms. When workers are subsequently severely exploited, they are entitled to support, legal aid and possibly a temporary residence permit. But only if they come forward or are ‘found’; if they are officially identified as victims2 by the authorities; if their exploitative situation fits the legal definition of THB; if they behave like a victim; and if they are willing to co-operate with the authorities. Only if all these boxes are ticked are States willing to allow trafficked persons to participate in a State-developed victim protection scheme. General rights protections are being reduced and replaced by exclusive rights for a limited group, justified by anti-trafficking rhetoric, and even by human rights language.
The anti-trafficking framework was established with the adoption of the Palermo Protocol in 2000, and has been enthusiastically adopted by many States, but at the same time strongly criticised by academics and civil society actors.3 While in the early days only a few sex workers’ rights groups, anti-trafficking organisations and academics were flagging the problems with the concept of trafficking and the negative impact it would have on the rights of trafficked persons and affected groups, in recent years criti
cisms of anti-trafficking policies have significantly increased, have become louder and more diverse. NGOs, academics and activists are still in the lead – providing evidence of ‘collateral damage’ of counter trafficking policies; and States’ failure to address the root causes of trafficking put people in a situation of vulnerability.4 Journals like the Anti-trafficking Review of the Global Alliance against Traffic in Women5 and the Beyond Trafficking and Slavery blog on the Open Democracy6 website show that while State power and legislation can be used for positive ends, they can equally be employed in the pursuit of measures that run contrary to human rights concerns. In the past few years, international and inter-governmental organisations have also raised concerns about the ineffectiveness of anti-trafficking measures resulting in low numbers of trafficked persons provided with assistance, as well as the low rates of prosecutions and convictions of traffickers.7
The anti-trafficking community, and especially service-providing NGOs, needs to consider to what extent the benefits of the anti-trafficking framework – the protection of the rights of identified trafficked persons – outweigh both the collateral damage that it causes and the opportunity it provides States to use it as a perfect diversion from their repressive migration control measures and labour market deregulation.
The first part of this chapter looks at some problematic areas of the anti-trafficking framework – especially those with which service-providing NGOs working with trafficked persons and affected groups are confronted. The second part looks at the benefits of anti-trafficking work. The third part explores if and how service-providing NGOs can continue their role in the anti-trafficking field without compromising themselves. It then assesses the opportunities for NGOs to challenge and change the framework from within, in their capacity as service providers, whistle-blowers and watchdogs.
Numerous NGOs are active in the anti-trafficking field – from large advocacy groups, to small service providers with different opinions about the framework and root causes of THB. Anti-trafficking civil society is by no means a homogenous group and should not be addressed as such. This chapter particularly refers to service-providing NGOs that take on a human rights approach to their anti-trafficking work, and which do not advocate the abolition of sex work.
What is wrong with anti-trafficking?
When analysing the critiques of the anti-trafficking framework, a number of different elements can be found:
Concerns with the framework itself – as it is a criminal justice response to a human rights problem;
Concerns with how the framework is being (mis)used to serve other agendas; and
Concerns with the lack of implementation – especially of protection measures.
Concerns with the framework: a criminal justice solution to a human rights problem
Although THB is widely recognised as a gross violation of human rights, the main international legislation to combat human trafficking has been developed within the criminal justice framework, outside the human rights system. The first, and most important, is the Palermo Protocol.8 The guiding force behind the Protocol was not so much the human rights violations trafficked persons suffer, nor the socio-economic root causes that cause trafficking, but the concerns of (particularly industrialised) States with transnational (organised) crime and irregular migration. Of the three Ps of the Palermo Protocol that categorise the measures States should take in order to combat trafficking – to prosecute, to prevent and to protect – only the first, the law enforcement measures to detect, prosecute and punish traffickers (and deter others), is obligatory.9
While acknowledging the many downsides of the criminal justice framework, Anne Gallagher argues that the criticisms of the criminal justice focus are naïve. The alternative – a human rights treaty on trafficking – was never a serious possibility in the first place because it would not have received the necessary level of political support.10
In theory, much has improved in the international anti-trafficking framework since the adoption of the Protocol. In response to the concerns voiced by civil society and human rights defenders, the international human rights system’s attention to trafficking has improved, helped by a growing awareness of a synthesised ‘international law of human trafficking’. The starting point was in 2002, when the UN issued the Recommended Principles and Guidelines on Human Rights and Human Trafficking, which provided a way forward that has supported the evolution of a cohesive ‘international law of human trafficking’ which weaves together human rights and transnational criminal law. The key principles for all anti-trafficking measures are that they “shall not adversely affect the human rights and dignity of persons, in particular the rights of those who have been trafficked, and of migrants, internally displaced persons, refugees and asylum-seekers”;11 and that “the human rights of trafficked persons shall be at the centre of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims”.12
A human rights approach places people who have been or might be trafficked at centre-stage and assesses strategies on the basis of their impact on those individuals. The approach involves identifying which individuals or groups are disproportionately more likely to be trafficked than others, analysing who is accountable for protecting them and recommending what measures are required to ensure that their human rights will be upheld and protected more effectively.13
The human rights approach has been widely embraced, not only by civil society and human rights bodies: it is also reflected in the Council of Europe Convention on Action against Trafficking in Human Beings (the Convention of 2005) and, to a lesser extent, the EU Directive on preventing and combating trafficking in human beings and protecting its victims (2011) –as they go far beyond the Palermo Protocol in seeking to uphold the rights of trafficked persons. Although almost all Member States of the Council of Europe have ratified the Convention, and therefore agreed with the rights-based or victim-centred approach, it is questionable if they are aware of what they committed themselves to; or if they are aware but are willing to use the human rights approach only in their rhetoric and not in their actions.
The priority for governments in their efforts to stop human trafficking has been to arrest, prosecute and punish traffickers, rather than to protect the human rights of people who have been trafficked or to tackle the underlying root causes that make people vulnerable to exploitation and abuse. The evaluation reports of the monitoring mechanism of the Convention, GRETA, show that many States perform poorly when it comes to implementing the obligatory protection mechanisms. In its 2014 annual report, GRETA noted that, in many countries, victims of trafficking appear to be treated first and foremost as irregular migrants, rather than as victims in need of specific assistance and protection, as guaranteed by the Convention.14 At the same time, it is well documented that the occurrence of collateral damage – human rights violations as the result of anti-trafficking measures (such as brothel raids in countries such as Thailand and Cambodia,15 and the expulsions of exploited irregular migrant workers in the US)16 –has not decreased since States started to call their anti-trafficking policies human rights-based.
Although international anti-trafficking instruments have been improved by the inclusion of rights protections (at least in the European context), it can be questioned if it is at all feasible to serve all three Ps with the same priority in national measures.
Next to not upholding human rights, and in many cases violating them, the criminal justice focus of the anti-trafficking framework does not seem to be connected to the reality of the experiences of trafficked persons, nor to the crime of THB. While the Palermo Protocol is widely acknowledged for providing, for the first time, an internationally accepted common definition, the elements of the definition of trafficking were left intentionally vague for the sake of achieving agreement. Human trafficking is, therefore, at the same time a narrow and a wide legal construction. The Palermo Protocol provides a very narrow definition, as the three constitutive elements (acts, mea
ns and purpose) have to occur subsequently in order to constitute the offence of trafficking. At the same time, the definition is wide, because the elements of acts, means and purpose each cover a wide array of situations.
The wide legal construction allows States, but also activists and NGOs, to refer to the issues they want to address as ‘human trafficking’, knowing that by framing it as such it generates much more political public attention and funding. This makes the construction very inclusive: able to cover a range of acts related to migration, exploitation and prostitution. At the same time, the narrow definition causes a very exclusive framework, in which many boxes need to be ticked for a (criminal) act to be judged as human trafficking, and for a trafficked person to be officially identified as a victim and, therefore, as the holder of a set of specific rights. Practitioners in law, law enforcement and social counselling have to serve different functions in dealing with THB. They have to decide whether the features of individual cases fit the legal definition of human trafficking in their specific country. For practitioners in the current legal framework, it is important to draw a clear line not only between trafficking and legitimate transactions, but also between trafficking and other criminal offences (if, for example, it was rape, fraud or abduction, but not trafficking). This legal distinction has consequences for the real world: if a judge convicts someone of THB, the sanctions are more serious. The ascription of trafficking victim status includes the entitlement to social assistance and a more favourable legal position than victims of other serious crimes.17 While many cases of exploitation would qualify as THB in the perception of the public and of service providers, and even law enforcement officials, they do not fit the legal definition, and are therefore not prosecuted as such. This leaves millions of exploited and abused (migrant) workers unprotected or deported.
Routledge Handbook of Human Trafficking Page 83