Routledge Handbook of Human Trafficking
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While NGOs are working on the local level, where their expertise and experience is based, they should be engaged in the international discourse and the developments around labour exploitation, both in international legislation as well as public debates. Thinking globally could mean using the recommendations of the FRA36 on severe forms of labour exploitation, to open up rights protections for exploited workers in NGOs’ negotiations with their governments on funded work, and in discussions with law enforcement officials on the identification of individuals. They could urge governments to implement the recurring recommendations of GRETA for a differentiated approach to identification – enabling a series of relevant actors to perform identification – and substantially contribute to the victim identification process and be involved in a multi-agency effort to significantly increase the number of identifications of victims of trafficking. They could use the critique of the European Commission to States, on the low number of identified victims,37 to engage their governments in discussion of what the purpose of victim identification should be: to identify a crime, or to identify a person in need? They should hold their authorities accountable for the implementation of the human rights approach, meaning that the first obligation is towards the trafficked persons. By advocating a separation of the identification of the crime and the identification of the person in need, NGOs can ensure that their services are not exclusively for people officially identified as victims of human trafficking, but are accessible to all who have experienced exploitation and abuse.
NGOs as whistle-blowers: re-politicise trafficking in human beings
NGOs have played an important role as whistle-blowers by putting THB on the international agenda, and by raising awareness of the human rights violations trafficked persons have endured. In the past ten years, civil society organisations have also been officially acknowledged for their grass roots knowledge, and are invited to sit at the table with the governmental and inter-governmental anti-trafficking communities where agendas are set and policies developed. In these settings, NGOs are regarded as those who can represent the voices of victims on the international stage. It is true that, within the international anti-trafficking community, NGOs have the most grass roots experience. But while NGOs can bring their experiences of working on a daily basis with people who have suffered multiple forms of exploitation, violence and abuse, they cannot speak for them. Nor should they, because as long as trafficked persons are represented by service providers, this would give an excuse to those in power to exclude trafficked persons and affected groups from discussions concerning their experiences and their futures.
Anti-trafficking NGOs should use their position in the international anti-trafficking community to ensure that the groups most affected by anti-trafficking policies are also invited to the table. By including migrant rights organisations, sex workers and (progressive) labour unions in the high-level anti-trafficking debates, the discussions will broaden, and issues such as workers’ rights, legal (labour) migration opportunities and the negative impact of anti-trafficking policies on those rights will be addressed. The inclusion of those mostly affected by the crime of trafficking will make it no longer possible to isolate human trafficking from societal and economic developments, or from the political choices behind those developments. Broadening the anti-trafficking debate and including interest groups that work on labour rights, migrant rights and sex workers’ rights means that, inevitably, the political dimension will be (re)introduced into the framework.
NGOs as watchdogs: evidence-based policies, not policy-based evidence
NGOs know from experience whether anti-trafficking measures (especially those protecting the rights of trafficked persons) are being implemented or not; how these measures actually work out in practice; and what the effects of those measures are on the rights of trafficked persons and affected groups. They are able to access a wide range of data not available to other institutions; therefore, their input is crucial in responding to these needs and reporting them, as well as in strategising and helping to shape policy. This information is vital in order to advocate changes in policy, as it provides evidence of the impact of policy on the rights of trafficked persons. This can be used both in the context of national advocacy as well as in working with international monitoring bodies.
Although grass roots NGOs have all this knowledge and experience on the implementation and impact of anti-trafficking policies, they are often not perceived, or do not perceive themselves, as watchdogs and advocates. Also, grass roots organisations feel that the responsibility of monitoring will create extra workload next to their core work, which is direct assistance to trafficked persons and affected groups.
It is important that NGOs recognise monitoring States’ compliance with obligations and assessments of the implementation of anti-trafficking policies, as well as the human rights impact assessment, as among their core tasks. These functions provide civil society with the information and evidence needed to demonstrate the unwillingness or incompetence of States to provide proper protection, and of the flaws in the system itself. Systematic monitoring of the effects and impact of anti-trafficking policies provides the evidence and tools to advocate change.
The experiences of NGOs in Europe in providing input to regional monitoring mechanisms, such as GRETA, have been, in general, very positive: their concerns and recommendations have been included in several GRETA reports. It is encouraging for grass roots organisations to see that their experiences are noted by international bodies, and that their concerns are being shared. At the same time, the GRETA reports, and the recommendations for improvement of States’ efforts, provide civil society organisations with a perfect tool with which to advocate better implementation of protective measures.
Monitoring by service-providing NGOs has another benefit: NGOs have better control over their own data collection if they analyse and publish it themselves. Often, NGOs are overwhelmed by all the researchers, students and institutes that want their data, figures and real life stories for anti-trafficking research. This not only takes up much time of organisations that are first and foremost service providers, it also includes the danger that NGOs lose control over how their data is being used, and to what extent the data of their clients is protected.
Conclusion
In the past decade, thanks to civil society, together with International Organisations, rights protection of trafficked persons has been included in the criminal justice framework to combat human trafficking. The next challenge for civil society is to change the system from within: to transform it into a real, inclusive framework that is based on the prevention of human trafficking by ensuring the protection of the rights of all workers, irrespective of their residence status, and irrespective of the sector of work. NGOs can contribute to this development in their traditional capacities as service providers, whistle-blowers and watchdogs.
Notes
1 Robinson, C., “Claiming Space for Labour Rights Within the United Kingdom Modern Slavery Crusade” (2015) 5 Anti-Trafficking Review 129–143.
2 This article uses the terms ‘trafficked person’ and ‘victim of THB’. The word ‘victim’ is used when referring to the (legal) status of a victim of a crime, and when paraphrasing others. However, as the label ‘victim’ often reduces (predominantly) trafficked women to powerless persons without agency, the author prefers to use the term ‘trafficked person’.
3 The critique of anti-trafficking serving other goals, such as fighting prostitution and anti-migration measures, is widespread and well researched. Academics like Ronald Weitzer (“The Social Construction of Sex Trafficking: Ideology and Institutionalization of a Moral Crusade”, 2007) and Elisabeth Bernstein (“Sex, Trafficking, and the Politics of Freedom”, April 2012, paper number 45) focus on the conflation between human trafficking and prostitution. See also Bridget Anderson on anti-trafficking and anti-migration (for example, in Anderson, B. and Andrijasevic, R., “Sex, Slaves and Citizens: the Politics of Anti-Trafficking” (20
08) 40 Soundings 135–145). Janie Chuang looks into the reluctance to address the socio-economic root causes (“Beyond a Snapshot: Preventing Human Trafficking in the Global Economy” (2006) 13(1) Indiana Journal of Global Legal Studies 137–163). More recently, the Beyond Trafficking and Slavery blog on Open Democracy explores the negative impacts of anti-trafficking policies, www.opendemocracy.net/beyondslavery/prabha-kotiswaran-sam-okyere/role-of-state-and-law-in-trafficking-and-modern-slavery.
4 Global Alliance Against Traffic in Women (GAATW), Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights Around the World (Bangkok: Amarin Printing & Publishing Public Company Limited, 2007).
5 www.antitraffickingreview.org.
6 www.opendemocracy.net/beyondslavery.
7 Eurostat, Trafficking in Human Beings (2013).
8 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention against Transnational Organized Crime, 2000.
9 Global Alliance Against Traffic in Women (GAATW), Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights Around the World (2007), p. 6.
10 Gallagher, A.T., “Two Cheers for the Trafficking Protocol” (2015) 4 Anti-Trafficking Review 14–32.
11 Principle 3 of the UN High Commissioner’s Recommended Principles and Guidelines on Human Rights and Human Trafficking, Addendum to the Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council (UN Doc. E/2002/68/Add.1, 20 May 2002).
12 Ibid., Principle 1.
13 GAATW, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights Around the World (2007), p. 7.
14 GRETA, 4th General Report on GRETA’s Activities, Covering the Period From 1 August 2013 to 30 September 2014 (2015), at p. 41.
15 ‘Hit and Run’, developed by Empower Foundation in Thailand, provides a valuable point of departure: a perspective from those in the eye of the anti-trafficking storm. This project, along with their video, “Last Rescue in Siam” (2012), offers extensive research and commentary on the travails of those suffering from the cruel side of the anti-trafficking policies and projects.
16 A 2014 study from the Urban Institute, for example, found instances where human trafficking victims were placed into deportation proceedings, threatened by immigration officials, or arrested and then placed into a detention centre for being unauthorised. Of the victims in the study’s case data, 14 percent were jailed or put through the deportation process instead of being identified as someone who had been trafficked.
17 Cyrus, N. and Vogel, D., Demand Arguments in Debates on Trafficking in Human Beings: Using an Historical and Economic Approach to Achieve Conceptual Clarification (DemandAT, Working Paper No. 1, 2015), p. 5.
18 See: ICMPD, Policy Brief, Tip of the Iceberg? Improving the Interpretation and Presentation of Trafficking Data (2014).
19 Anderson, B. and Andrijasevic, R., “Sex, Slaves and Citizens: The Politics of Anti-Trafficking” (2008) 40 Soundings 135–145.
20 See, for in-depth analysis of anti-trafficking campaigns, Andrijasevic, R. and Anderson, B., “Anti-Trafficking Campaigns: Decent? Honest? Truthful?” (2009) 92(1) Feminist Review 151–155.
21 Vergeldt, J., The Discrepancy Between the ‘Rights On Paper’ and the ‘Rights in Practice’ for Trafficked Persons: A Case Study on the Role of an NGO, La Strada International, in Putting Forward the Protection Side of Anti-Trafficking Policy (Thesis, Vrije Universiteit Amsterdam, 2015).
22 See Kempadoo, K., “The Modern-Day White (Wo)Man’s Burden: Trends in Anti-Trafficking and Anti-Slavery Campaigns” (2015) 1(1) Journal of Human Trafficking 8–20, at p. 12.
23 Anderson, B. and Andrijasevic, R., “Sex, Slaves and Citizens: The Politics of Anti-Trafficking” (2008) 40 Soundings 135–145.
24 See: www.globalslaveryindex.org; and http://polarisproject.org/facts.
25 Cho, S.-Y., “Evaluating Policies Against Human Trafficking Worldwide: An Overview and Review of the 3P Index” (2015) 1(1) Journal of Human Trafficking 86–99.
26 Ibid., at p. 93.
27 GRETA, 4th General Report on GRETA’s Activities, Covering the Period From 1 August 2013 to 30 September 2014 (2015), at p. 33.
28 Vergeldt, J., The Discrepancy Between the ‘Rights on Paper’ and the ‘Rights in Practice’ for Trafficked Persons: A Case Study on the Role of an NGO, La Strada International, in Putting Forward the Protection Side of Anti-Trafficking Policy (Thesis, Vrije Universiteit Amsterdam, 2015).
29 Available at: www.ungift.org/doc/knowledgehub/resourcecentre/GIFT_EHTN_elearning_tool_training_handbook.pdf.
30 See: www.osce.org/event/alliance11.
31 A/HRC/29/38, Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Maria Grazia Giammarinaro (31 March 2015).
32 FRA, Severe Labour Exploitation: Workers Moving Within or Into the European Union – States’ Obligations and Victims’ Rights (2015).
33 Chuang, J.A., “Exploitation Creep and the Unmaking of Human Trafficking Law” (2014) 108(4) American Journal of International Law 609–649, at p. 618.
34 Ibid., at p. 612.
35 Anderson, B. and Andrijasevic, R., “Sex, Slaves and Citizens: The Politics of Anti-Trafficking” (2008) 40 Soundings 135–145, at p. 141.
36 FRA, Severe Labour Exploitation: Workers Moving Within or Into the European Union – States’ Obligations and Victims’ Rights (2015).
37 See: www.europeanlawmonitor.org/latest-eu-news/anti-trafficking-day-the-commission-calls-for-better-protection-of-the-victims.html.
34
The role of the UN Special Rapporteur on trafficking in persons, especially women and children
Maria Grazia Giammarinaro
The UN Special Procedures1
UN Special Rapporteurs are an integral part of the Special Procedures of the Human Rights Council. There are two types of mandates: country mandates and thematic mandates. Moreover, Special Procedures include Special Rapporteurs, Independent Experts, and Working Groups. As of March 2015, there are 41 thematic and 14 country mandates (Belarus, Cambodia, Central African Republic, Côte d’Ivoire, Democratic People’s Republic of Korea, Eritrea, Haiti, Islamic Republic of Iran, Mali, Myanmar, Palestinian territories occupied since 1978, Somalia, Sudan, and the Syrian Arab Republic).2
Special Rapporteurs are independent human rights experts with mandates to report and advise. They cover all areas of human rights: civil, general economic, political, and social. They undertake country visits; act on individual cases and concerns by sending communications to States and others actors in which they bring alleged violations or abuses to their attention; conduct thematic studies and convene expert consultations; contribute to the development of international human rights standards; engage in advocacy; raise public awareness; and provide advice for technical co-operation. Special Rapporteurs report annually to the Human Rights Council; some of them also report to the General Assembly. The tasks of every Special Rapporteur are defined in the resolutions creating or extending their mandates.
Guarantees of independence
Special Rapporteurs and other mandate-holders enjoy full independence and carry out their mandate according to the fundamental principles of ethics and integrity. They act in their personal capacity as experts in the specific domain covered by their mandate, be it thematic or country-based. Their independence is ensured, first of all, through the unique position of mandate-holders, who are not officials of the UN System. This implies full independence, not only from the UN apparatus and decision making, but also from individual Member States. Independence from the State of nationality of every mandate-holder is reinforced through the provision according to which they cannot be seconded by any Member State. Since they act in their personal capacity, they do not receive a salary for discharging their mandate, neither from the UN nor from any Member State. Thirdly, the mandate is incompatible with decision-making positions in governments, or in any other
organisation or entity, which may give rise to a conflict of interest with the responsibilities inherent to the mandate.
Mandate-holders’ obligations
The primary source of mandate-holders’ duties and obligations is the Code of Conduct for Special Procedures mandate-holders,3 adopted by the Human Rights Council in 2007 as an integral part of the review, improvement, and rationalisation called for in General Assembly Resolution 60/251 that, inter alia, seeks to enhance the co-operation between governments and mandate-holders, which is acknowledged as essential for the effective functioning of the system. The Code of Conduct, which is an Annex to the above mentioned Resolution, complements the Regulations Governing the Status, Basic Rights and Duties of Officials other than the Secretariat Officials and Experts on Mission.4 The purpose of the Code of Conduct is to enhance the effectiveness of the system by defining the standard of ethical behaviour and professional conduct that Special Procedures mandate-holders of the Human Rights Council shall observe while discharging their mandates.
According to Article 3 of the Code of Conduct, mandate-holders are independent UN experts. They are selected not on the basis of political criteria but primarily on the basis of their expertise and experience in the field related to their mandate. The fundamental merit-based criteria of selection are coupled with considerations related to geographical balance. In fact, the selection procedure is based on candidates’ qualifications and experience and on an interview, evaluated by a Consultative Group composed of five ambassadors nominated by each of the five regional groups of the Human Rights Council. After interview, the Consultative Group recommends one or more candidates to the President of the Human Rights Council through a public report. The appointment is finalised when the selected candidate put forward by the President is approved by the Human Rights Council.