There is no doubt that the low number of victims assisted is caused by the shortcomings of States in actively identifying victims of trafficking. But the huge discrepancy between the significant number of possible victims estimated by organisations including Eurostat, Global Slavery Index and the ILO,18 and the low numbers of victims positively identified, as well as of traffickers prosecuted and convicted, might well also be the result of the flaw that is incorporated in the anti-trafficking framework itself – the vague and narrow definition.
Concerns with the misuse of the framework: over-simplified, hyper-sexualised and de-politicised
It is remarkable that, while the anti-trafficking framework poses so many difficulties not only for human rights concerns but also for the effective prosecution of traffickers, the concept is so appealing to States – but also to anti-trafficking and human rights organisations. The answer is that it is precisely the lack of definitional clarity that allows a constant slippage between ‘irregular immigration’, ‘forced prostitution’ and ‘trafficking’.19 As everyone agrees that human trafficking and (sexual) exploitation is wrong and must be stamped out, politicians, activists and NGOs can use the concept for the issues they want to raise; and they can justify the means they are using by calling it fighting trafficking. Anti-prostitution activists advocate the criminalisation of clients of sex workers in the name of combating trafficking; labour rights advocates allow a function creep in the trafficking concept – for example, by referring to all forms of labour exploitation as trafficking; and States claim to clamp down on trafficking by closing borders and introducing repressive (labour) migration policies.
Although THB is a highly complex problem related to different fields and interests – migration, organised crime, prostitution, human rights, violence against women, the feminisation of poverty, the gender division of the international labour market, unequal international economic relationships – the stories and images used to raise awareness of THB are often one dimensional and simplistic. The vast majority of anti-trafficking campaigns still only focus on trafficking into the sex industry: portraying the story of an innocent girl in a developing or Eastern European country, lured into prostitution by false promises, finding herself at the mercy of brutal pimps and raped by clients, only rescued by a raid of the brothel, and happy to be returned home. Many campaigns include imagery of women’s bodies in chains, battered, scantily dressed or even processed like goods or packaged like animals, thereby enhancing the objectification of women by depicting them as commodities and disempowering them by portraying them as helpless victims without any agency.20 Campaigns addressing labour exploitation follow a similar storyline, but without the sexualisation. The effect is that the perception that people (the general public as well as professionals who have to work with trafficked persons) have about human trafficking often does not reflect the reality of what trafficked persons experience (or have experienced). Also, it creates an image of a trafficked person that does not fit everyone who has been trafficked – resulting in the fact that trafficked persons are not regarded as such, as they do not fit that image or behave like victims. A service provider once mentioned that:
[f]or many States’ officials, even the well-trained with guidelines, these victims do not correspond to the image of a crying victim, happy to be finally saved, but instead they seem suspicious, because they are anxious, stressed or angry.21
These campaigns reduce the complexity of both the problem and its potential solutions to sound bites: leading the public to believe that “doing something” –anything at all – is better than doing nothing, when the opposite may well be true.22 Those who criticise the proposed measures are accused of either being ignorant of the problem or condoning trafficking.
The moral panic over trafficking has yielded a narrow understanding of trafficking as the product of individual deviant behaviour (of the trafficker) and lack of agency (of the victim), and is diverting attention from the structural causes of the abuse of migrant workers. The over-simplification of THB thus helps to create a humane consensus outside political debate – no one can doubt that trafficking must be eradicated. Concern becomes focused on the evil wrong-doers, rather than on more systemic factors. The slippage serves to de-politicise anti-trafficking interventions and to avert attention from the role of the State in creating the conditions in which exploitation occurs. In particular, it ignores the State’s approach to migration and employment: which effectively constructs groups of non-citizens who can with impunity be treated as unequal.23 The political risks of taking measures that have a negative impact are low, as they often only affect marginalised groups, such as sex workers and irregular migrants.
Concerns with implementation: if the crime is so heinous, why are victims so poorly protected?
“I wish the people who come to our services would be victims of trafficking, then at least they would have some rights and I would have the possibility to properly assist them, but they are only severely exploited workers”, said a representative of a Belgian organisation for undocumented migrant workers. As described above, the interpretation of what is human trafficking can be very wide, but the anti-trafficking framework itself is very exclusive. The result is that, while the estimates of the number of victims of human trafficking is very high,24 only very few trafficked persons (those who tick all the boxes of a victim of the crime as formulated in the very narrow definition) are entitled to a set of specific rights.
From a human rights perspective, the protective measures and rights for trafficked persons are the most important asset of the anti-trafficking legislation. While these rights are indeed important and strong, they are only there for a limited group and, as evidence shows, often only exist on paper, not in practice. In order to measure the priorities within countries’ efforts to address human trafficking, and their compliance with international agreements such as the Council of Europe Convention, Seo-Young Cho developed the 3P Anti-Trafficking Policy Index.25 The index shows that, since the beginning of the 3P evaluation in 2000, many countries have demonstrated low commitment towards victim protection – especially compared to prosecution and prevention efforts. The poor score in protection policy is mainly attributed to the fact that many countries are negligent in identifying victims of trafficking. As a result, trafficked persons are not officially recognised as victims, and therefore not provided with the protection they are entitled to; but instead are often punished and/or deported as irregular immigrants, or as colluders of traffickers. The general slow progress, and recent regression, in victim protection suggests that many governments simply treat human trafficking as a violation of immigration law or national security – thus having little interest in prioritising victim protection in anti-trafficking measures. This implies that the human rights dimension of anti-trafficking has not been sufficiently emphasised:26 there is a huge gap between rights on paper and in practice.
Also, the reports of GRETA show many shortcomings in the implementation of protective measures. In the top ten main gaps in the implementation of the Convention that GRETA identified in its annual report for 2013–2014, nine are within the protection area.27 In its 4th annual report, GRETA concluded that the majority of the 35 evaluated countries needed to make improvements in order to meet their obligations under Article 10 (identification of victims), Article 12 (assistance to victims), Article 13 (recovery and refection period) and Article 15 (compensation and legal redress). In almost half of the countries, GRETA found that compliance with the non-punishment provision (Article 26) was not ensured. When analysing implementation in practice of international legislation, it is important to distinguish what the reasons could be for this non-compliance, in order to address them and to formulate recommendations. It can be ignorance (a lack of awareness) incompetence (a lack of skills and knowledge), but also a lack of (political) will. The international anti-trafficking community has devoted much time and money to the development of awareness-raising campaigns, guidelines, trainings, indicators
and workshops to equip States and personnel with the capacities and tools to identify and support trafficked persons. However, all these tools will not have the desired impact when non-compliance is the result of a lack of political will.
In 2015, La Strada International conducted a small qualitative research survey on the discrepancy between rights on paper and in practice of trafficked persons.28 The service providers of La Strada were asked about their experiences with the implementation by the authorities of the above-mentioned protective measures of the Council of Europe Convention. The survey shows that – especially when it comes to identification (the first step to granting rights) –the criminal justice basis and anti-migration priorities are regarded as the main barriers. State authorities seem to follow one track, which is aimed at prosecution; the victim-centred approach is a derivative of this track. The criminal law bias among officials also means that trafficked persons are often treated as witnesses or criminals, so conversations that are meant to identify in practice turn out to be interrogations.
According to many respondents, the victim-centred approach conflicts with the current perception of migration, which is mainly seen as a problem that needs to be curbed. This influences the work of frontline workers dealing with human trafficking, such as border control, police officers and other law-enforcement authorities.
What has anti-trafficking brought us?
What is the role of human rights-based service providers (whose mission it is to support and assist trafficked persons) in this problematic framework? First, the framework has brought a universal definition; second, the existence of the framework, and the fact that so many States have engaged with it, has promoted much research, in a range of disciplines, into the phenomenon, its root causes and its connections with larger socio-economic structures and developments. While States may continue to approach trafficking mainly with a criminal justice focus, and a rather one dimensional perspective, international and inter-governmental organisations have developed concepts and strategies on trafficking in an increasingly holistic manner. In 2010, the UN Global Initiative to Fight Human Trafficking (UN.GIFT) published a handbook on human trafficking and businesses, recognising that trafficking should be of pressing concern to companies – especially those with international operations and/or complex supply and production chains – and that their operations can both positively and negatively affect human rights.29 In 2011, the OSCE High-level Alliance against Trafficking in Persons conference, ‘Preventing Trafficking in Human Beings for Labour Exploitation: Decent Work and Social Justice’, looked into the various inter-connected factors that foster the exploitation of people in slavery-like practices. The conference concluded that “trafficking for labour exploitation would be best prevented by building a fair and democratic society that respects human rights and workers’ rights and bans all forms of exploitation, including exploitation of migrant workers”.30 In her first report as UN Special Rapporteur on Trafficking in Persons, Especially Women and Children, Maria Grazia Giammarinaro argues that an inclusive and holistic approach to the prevention of trafficking requires addressing the systemic/underlying social factors that create vulnerabilities in victims and potential victims of trafficking. Moreover, increasingly restrictive and exclusionary immigration policies, including criminalisation and detention of irregular migrants, insufficient channels for regular migration and family reunification and lack of regular access to the labour market for asylum seekers, refugees and migrants, further contribute to an increase in the exploitation of migrants – including through trafficking.31
At the same time, awareness of, and political and public attention to, labour exploitation and forced labour have increased tremendously. The process of the development and adoption of two ground-breaking conventions of the International Labour Organisation (ILO), on domestic work (2011), and the 2014 Protocol to the Forced Labour Convention have undoubtedly benefitted from global concerns about THB. In June 2015, the Fundamental Rights Agency of the EU (FRA) published research on severe forms of labour exploitation, showing that extreme forms of labour exploitation in Europe occur on a large scale, but do not always involve the three elements of the crime of trafficking (act, means and purpose) –which leaves all those workers unprotected.32 In order to address this, the FRA recommends extending to severely exploited persons the protective measures that are there for trafficked persons.
The rise of joint human/labour rights grass roots advocacy demanding labour-based solutions to the problem of human trafficking; the demand for a holistic approach of the human rights bodies of inter-governmental organisations and rapporteurs; the increased understanding and acknowledgement of structural root causes; the active engagement by new charitable organisations; and the ILO’s bid to engage in new international standard-setting: all these developments provide opportunities to reallocate the power to frame the problem of trafficking, and responses thereto.33
Chuang refers to this development as the ‘exploitation or forced labour creep’, which conflates trafficking with two phenomena prohibited under international law: forced labour and slavery. She argues that while exploitation creep can be used to maintain the dominance of a criminal justice approach to trafficking, the battle over paradigms carries the potential to re-conceptualise both the nature of, and approach to, the problem of human trafficking. Chuang argues that, for the first time in the history of the modern anti-trafficking regime, there is the potential to make a shift from the criminal justice approach that prioritises the punishment of individual perpetrators, to a focus on the underlying structures that create vulnerability to trafficking in the first place.34
The role of NGOs: think globally, act locally
There is much to be said for human rights NGOs abandoning the anti-trafficking framework and focusing on (sex) workers’ rights, migrants’ rights and human rights in general, to prevent people being exploited and abused. But while anti-trafficking is still very appealing to States and to the public, (sex) workers’ and migrants’ rights are not.
Rather than abandoning the anti-trafficking framework, NGOs should use it to push for an alternative agenda. The increased international attention to labour exploitation, and the engagement of international organisations, provides the opportunity to create both space and an audience for a thorough debate about labour rights, and the rights of migrant workers, in a way that cannot be ignored by those in power. The nascent exploitation creep in the trafficking discourse opens up the possibility of more focus on the negative impact of our flexible, migrant-dependent labour market on labour standards, and on the link between deteriorating labour standards and severe exploitation.
Another argument to keep the focus on anti-trafficking is that if NGOs ‘exit’ the framework, it will not cease to exist; instead, NGOs will lose their influence on the developments in and around the framework. Governments will engage with new organisations to provide services for identified trafficked persons, organisations that might be less inclined to take on an independent and critical approach. While this reasoning is valid, it is also dangerous, as it can make people and organisations move away from their initial mission and vision – as they feel obliged to keep on working within a flawed system, because otherwise someone else will do it. This puts an extra responsibility on NGOs working in the field of trafficking not only to stay critical towards policies and measures, but also towards their own work and the organisations they co-operate with – and to the funding they receive. The fact that NGOs have their work paid for by anti-trafficking funding means that they should be aware of, and respond to, the harms that are done in the name of fighting human trafficking.
NGOs as inclusive service providers in an exclusive framework
Many NGOs that provide services to trafficked persons started as independent organisations, serving those in need of assistance, irrespective of their official status as victims. Since States are obliged to include protective measures in their anti-trafficking policies, in many countries the same NGOs have b
een commissioned by their governments to fulfil this duty. Often this is done through tenders or procurements. Although this provides a legal basis and steadier funding to the work of the service providers, it also has the risk of limiting their work to that requested by the State. These limitations can be in the services provided, but even more importantly, limitations in who is allowed to benefit from these services. States often only allocate funding for assistance to officially identified victims of trafficking, while NGOs want to support all people in need as a result of exploitation and abuse.
NGOs need to protect their independence to ensure that neither their work nor whom they support is dictated by the authority funding the work. The best way to do so is to diversify funding opportunities. While the services provided to officially identified victims are funded by the State, for all other work, NGOs need to obtain funding from other donors.
Although NGOs will consider this division only to exist on paper, and that all their clients will have access to the same services in order not to create first class and second class victims, in practice this can be difficult, as some clients will have more rights than others. From their own experience, NGOs know that, whether migrants or not, workers cannot be divided into two entirely separate and distinct groups – those who are trafficked involuntarily into the misery of slavery-like conditions in an illegal or unregulated economic sector, and those who voluntarily and legally work in the happy and protected world of the formal economy. Violence, confinement, coercion, deception and exploitation can and do occur within both legally regulated and irregular systems of work, and within legal and illegal systems of migration.35
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