Routledge Handbook of Human Trafficking

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

  Victim and human rights-centred approach

  In spite of the wide acknowledgement that “[v]iolations of human rights are both a cause and a consequence of human trafficking”,82 adequate and effective remedies continue to elude trafficked persons, within Africa and beyond. In many States, trafficked persons are not provided with remedies as a matter of right. Trafficked persons are rarely known to have received compensation and other assistance necessary for their recovery and reintegration. Often, many trafficked persons are wrongly identified as irregular migrants, detained and deported – without having had a chance to consider seeking remedies.83 Some are further victimised and criminalised on arrival in their home countries. Information relating to trafficked persons’ rights and the mechanisms available to seek remedies is critical in ensuring their access to such remedies.

  For Africans trafficked outside the continent, the ability to claim remedies depends upon the regularisation of their residence status in the country where a remedy is sought. Expulsion, or the risk of it, makes it difficult for them to obtain remedies. While African States have no control over laws of destination countries, they can promote, especially through sub-regional, regional and bilateral co-operation, the inclusion of such measures, including safe return, regularisation of residence status and accessing remedies, in receiving countries where victims have been trafficked. Some co-operation agreements signed by African States with other countries, especially in Europe, often do not provide for safe migration options and safe return (including such compensation as will help to prevent re-trafficking and re-victimisation of victims). The safe migration option is an important policy objective to pursue, given the linkage of trafficking to migration.

  In pursuance of the writer’s mandate as the then UN Special Rapporteur on Trafficking in Persons, 11 pillars that formed the fulcrum of the work were advocated: five Ps (protection, prosecution, punishment, prevention and promoting international co-operation and partnership), three Rs (redress, recovery and reintegration), and three Cs (capacity, co-operation and co-ordination). These acted as fundamental guiding principles in developing and implementing measures aimed at combating THB and protecting and promoting the human rights of trafficked persons.84

  Thus, the thematic report on the right to an effective remedy for trafficked persons touches upon the three Rs: redress, recovery and reintegration.85 The developed draft of basic principles on the right to effective remedies for trafficked persons86 has outlined and reinforced States’ obligations. They call for granting:

  a non-conditional reflection and recovery period, during which trafficked persons are provided with measures necessary for the physical, psychological and social recovery, including, but are not limited to: appropriate housing, counselling and information about their situations and legal rights; medical, psychological and material assistance; and employment, educational and training opportunities.87

  For example, in cases where a safe return to the country of origin cannot be guaranteed, denying a temporary or permanent residence status to victims may place them at risk of persecution or further human rights violations.88 Where trafficked persons are repatriated, restitution may imply States’ obligations to undertake broader measures to address root causes of trafficking, and to provide the necessary support for reintegration of trafficked persons.

  Conclusion

  Africa has become a major source of trafficked persons around the world. Although African States have come a long way in criminalising THB, there is still work to be done – especially in adopting a human rights and victim-centred approach towards ending THB. Implementation levels of international and regional standards committed to by African States remain low in many countries due to various factors, including lack of resources, insufficiently severe punishments and the lack of capacity to trace and confiscate proceeds of the crime of trafficking. Inadequate or incomplete legislation, together with the reluctance of the victims of trafficking to report it due to fear of reprisals or re-victimisation, make THB difficult to detect. There are also problems relating to protection of, and assistance to, victims – including the lack of compensation and support available for recovery and reintegration. A rights-based approach should be introduced by legislation to expand the protection of victims.

  African governments need to show a lot more leadership, including collectively committing financial resources to stop THB. So far, this is not happening, as shown by the lack of sustainability of even AU. COMMIT and other previous resolutions, and of sub-regional actions towards combating and preventing human trafficking. Most of the funding for fighting trafficking comes from external partners, intergovernmental agencies, International Organisations and Western donor countries. The private sector, and other non-state actors, are as yet to push for government action or to demand accountability, including commitments from businesses in Africa to ending forced and exploitative labour.

  The African Union should encourage the speedy ratification of all international agreements aimed at combating THB – especially the Palermo Protocol and ILO standards, including the MWC. Moreover, African States must begin to take concrete measures to translate and transform their international and regional obligations into domestic legislation, and to effectively pursue their implementation through multi-stakeholder plans of action. Countries need to have both the political will to enact legislation criminalising THB and the resources to enforce such legislation.

  The globalisation of the world economy has increased the number of people moving across borders, both legally and illegally, especially from poorer to wealthier countries. Africa must tackle some of the underlying social problems which facilitate human trafficking and irregular migration, such as poverty, low standards of living and gender inequality. African States also need to address the vulnerability of victims, especially as regards age, gender and the reasons for their recruitment. Tackling corruption, accountability to good governance and focused implementation of the Sustainable Development Goals will address the root causes that make people vulnerable to trafficking.

  African countries should concentrate on enhancing capacity to tackle trafficking at all levels and on holding officials accountable. The African Union should map out resources for applied research to gather quantitative and qualitative data on the scale, seriousness and trends on trafficking in the African region; research that will inform anti-trafficking interventions that can be monitored and evaluated over time.

  Notes

  1 Joy Ezeilo, the UN Special Rapporteur on Trafficking in Persons, especially women and children – UN Doc. A/HRC/10/16, of 20th February, 2009, and presented to the Human Rights Council, Geneva, Switzerland on 12 March, 2009; see, also, UN General Assembly Doc. A/64/290, 12 August, 2009, presented on 23 October, 2009.

  2 These include: Egypt, Sudan, Libya and Tunisia.

  3 See IOM, Laczko, F. and Gozdziak, E. (eds.), Data and Research on Human Trafficking: A Global Survey. Off-print of the Special Issue of International Migration, Vol. 43 (1/2) (Geneva: International Organization for Migration, 2005); and, in particular, Adepoju, A.’s chapter on “Review of Research and Data on Human Trafficking in Sub-Saharan Africa”, pp. 75–98.

  4 Trafficking in Human Beings, Especially Women and Children in Africa (Florence: UNICEF Innocenti Research Centre, 2003).

  5 See United Nations Office on Drugs and Crime (UNODC), Global Report on Trafficking in Persons 2014 (New York: United Nations, 2014).

  6 Ibid., p. 10.

  7 UNODC, Global Report on Trafficking in Persons 2012, p. 10, Fig.2.

  8 See the US, Trafficking in Persons Report, July 2015 (TIP). Somalia was the only African country not ranked, and was treated in the TIP report as a special case.

  9 Angola, Benin, Cape Verde, Cameroon, Chad, Côte d’Ivoire, Ethiopia, Kenya, Liberia, Madagascar, Malawi, Morocco, Mozambique, Niger, Nigeria, Rwanda, Senegal, the Seychelles, Sierra Leone, South Africa, Swaziland, Togo, Uganda and Zambia.

  10 Tier 2 Watch List countries inclu
de: Botswana, Burkina Faso, Congo, the Democratic Republic of the Congo, Djibouti, Egypt, Gabon, Ghana, Guinea, Lesotho, Mali, Mauritius, Namibia, Sudan, Tanzania and Tunisia (17 countries); Tier 3 countries include: Algeria, Burundi, the Central African Republic, the Comoros, Equatorial Guinea, Eritrea, The Gambia, Guinea-Bissau, Libya, Mauritania, South Sudan and Zimbabwe (12 countries).

  11 See US, TIP Report 2015, pp. 54–55.

  12 In the case of the land route, they will travel through the Sahel and the Sahara to North Africa, and then cross the border into Ceuta or Melilla in Spain. Similarly, on the route to Italy, they will attempt the sea passage from North Africa to Lampedusa or Sicily. See UNODC, Global Report on Trafficking in Persons 2014, p. 56.

  13 See United Nations, First Decade of the Mandate of the Special Rapporteur on Trafficking in Persons, Especially Women and Children (2014), p. 7. See, also, the Special Rapporteur’s report on her Mission to Italy (12–20 September 2013) –A/HRC/26/37/Add.4.

  14 Ibid. See, also, UNODC, Global Report on Trafficking in Persons 2014 (n.5), pp. 23–27.

  15 (Unreported – Charge No. B/BHC/2005) –see Ezeilo, J., Women, Law and Human Rights: Global and National Perspectives (Abuja/Enugu: ACENA Publishers, 2011), pp. 359–361.

  16 This has occurred also in Belarus, where some of the women convicted were victims who, as part of gaining their freedom, lured other girls into trafficking situations. See the Special Rapporteur’s report on her Mission to Belarus –A/HRC/14/32/Add.2.

  17 This first manifested in the Lord’s Resistance Army, Uganda, where thousands of school girls and boys were abducted; and currently in Nigeria, with the abduction of the Chibok girls and the increase in the use of young girls for terrorist suicide bombings by Boko Haram insurgents in the north east of Nigeria and beyond. Since Boko Haram pledged allegiance to Islamic States (ISIS), it is alleged that some of the captured girls and boys are being trafficked to Syria and Iraq through Turkey. See Batstone, D., Not for Sale: The Return of the Global Slave Trade – and How We Can Fight It (New York: Harper Collins Publishers, 2010), revised edition, “The Lord’s Resistance Army (LRA), a Guerrilla Militia”, at pp. 89–90.

  18 See the Global Alliance Against Traffic in Women (GAATW), June, 2002.

  19 Data obtained directly from NAPTIP, Abuja, Nigeria, December, 2015. Under the previous anti-trafficking laws that established NAPTIP, it enjoys extra-territorial jurisdiction. Furthermore, the latest NAPTIP Act – Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015 –in ss. 5(l) & (s), provides for strengthening of co-operation, and conducting joint operations with relevant law enforcement and security agencies, international authorities, and relevant partners, in the eradication of trafficking in persons. Furthermore s.5(s) recognised mutual legal assistance between Nigeria and any other country in regards to trafficking in persons.

  20 See the Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo, Mission to Seychelles (General Assembly Doc. A/HRC/26/37/Add.7, of 5th June, 2014) –in particular, pp. 5–6.

  21 ILO, 2012 Global Estimate of Forced Labour: Executive Summary, www.ilo.org/forcedlabour. See, also, International Labour Office (ILO), Special Action Programme to Combat Forced Labour (SAP-FL), ILO Global Estimate of Forced Labour: Results and Methodology (2012), at p. 13.

  22 Ibid. ILO estimates that 20.9 million people are victims of forced labour, globally. Human trafficking can also be regarded as forced labour; and so this estimate captures the full realm of human trafficking for labour and sexual exploitation.

  23 ILO Action Against Trafficking in Human Beings (Geneva: ILO, 2008); and also, A Global Alliance Against Forced Labour (Geneva: ILO, 2005), at p. 14.

  24 Some 232 million international migrants are living in the world today –World Migration in Figures: A Joint Contribution by UN-DESA and the OECD to the United Nations High-Level Dialogue on Migration and Development, 3–4 October 2013 (pp. 1–2). See, further, International Organization for Migration (IOM), World Migration Report 2015 –Migrants and Cities: New Partnerships to Manage Mobility (Geneva, Switzerland: IOM, 2015), at p. 17.

  25 A 41% increase since 2000 –see IOM, 2015 Global Migration Trends: Factsheet, p. 5.

  26 Ibid., p. 11.

  27 See Dinan, K.A., “Globalization and National Sovereignty: From Migration to Trafficking”, in Cameron, S. and Newman, E. (eds.), Trafficking in Human$: Social, Cultural and Political Dimensions (Tokyo/New York/Paris: United Nations University Press, 2008), at p. 58.

  28 See Adepoju, A., “Review of Research and Data on Human Trafficking in Sub-Saharan Africa”, in Laczko, F. and Gozdziak, E. (eds.), Data and Research on Human Trafficking: A Global Survey, Offprint of the Special Issue of International Migration, Vol. 43 (1/2) (Geneva: International Organization for Migration, 2005), pp. 84–85.

  29 Ibid.

  30 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990, came into force 1st July, 2003. Adopted by General Assembly Resolution 45/158, of 18th December, 1990; and so far ratified by 48 countries, including 19 African States.

  31 See ILO, International Labour Migration: A Rights-based Approach (Geneva: ILO, 2010), at p. 94.

  32 ILO Forced Labour Convention, 1930 (No. 29). Article 2(2) made exceptions, including: excluding as forced labour any form of work or service exacted as part of compulsory military service, civic obligations, conviction by a court, and minor communal service. The Slavery Convention, 1926, provides that “all necessary measures” shall be taken to prevent compulsory or forced labour from developing into conditions analogous or similar to slavery or slave-like practices.

  33 Haque, S., “Ambiguities and Confusions in the Migration-Trafficking Nexus: A Development Challenge” Regional Seminar on the Social Implications of International Migration (24–26 August 2005, Bangkok), pp. 5–6.

  34 Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo, Mission to Gabon (14–18 May 2014, General Assembly, Human Rights Council Doc. A/HRC/23/48/Add.2, of 24 May 2013).

  35 Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo, Mission to the United Arab Emirates (General Assembly, Human Rights Council Doc. A/HRC/23/48/Add.1, of 22th February 2013).

  36 Report of the Day of General Discussion on Migrant Domestic Workers –see CMW/C/11/2, 29th October 2009, Geneva, Switzerland.

  37 See the Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Mission to UAE, op. cit. (n.35), at pp. 3–5.

  38 Adepoju, A., “Review of Research and Data on Human Trafficking in Sub-Saharan Africa”, op. cit. (n.28), at pp. 89 & 91.

  39 See the reports of the Special Rapporteurs on contemporary forms of slavery, including its causes and consequences, following country visits to Mauritania and Niger: Mission to Mauritania (24 October–4 November, 2009) –A/HRC/15/20/Add.2; and Mission to the Niger (11–21 November 2014) –A/HRC/30/35/Add.1.

  40 This was the case in Gabon and Morocco, from findings from visits to both countries in 2012–2013.

  41 48 African States are party to the Palermo Protocol; and all 15 ECOWAS Member States are parties to the Protocol.

  42 See Ezeilo, J., “Achievements of the Trafficking Protocol: Perspectives From the former UN Special Rapporteur on Trafficking in Persons” (April, 2015) Anti-Trafficking Review 144–149.

  43 This has been ratified by all African States except Somalia. See Articles 7, 16, 19, 28, 31, 32, 34, 35, 36, 37 and 39.

  44 See, specifically, Articles 2, 6, 9, 11, 12, 14, 15 and 16.

  45 See Articles 1, 2, 3 and 8.

  46 Articles 1, 2 and 6.

  47 See Articles 2, 5, 15, 18, 60, and 61. Specifically, Article 18(3) provides that: “The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in i
nternational declarations and conventions”.

  48 See Articles 3, 15, 16, 21, 24, 25, 27 and 29.

  49 In particular, Articles 2, 3, 4, 11, 13 and 24.

  50 Adopted at the 3rd Session of the AU Conference of Ministers for Drug Control and Crime Prevention, held 3–7 December, 2007.

  51 Adopted at the Assembly of the African Union, 11th Ordinary Session, 30th June –1st July, 2008, at Sharm El-Sheikh, Egypt (Assembly/AU/Dec.207(XI)).

  52 Department of Social Affairs, AU Commission, May, 2009.

  53 The author attended, as the UN Special Rapporteur on TIP, the AU.COMMIT launch for the ECOWAS region, held 24 March, 2010, at the ECOWAS Headquarters in Abuja, Nigeria.

  54 Adopted at the Executive Council Ninth Ordinary Session, 25–29 June, 2006, Banjul, The Gambia, EX.CL/276 (IX).

  55 Adopted by Ministers of Justice and Gender from ECOWAS Member States in 2009, it also serves as a guiding framework for all actors in providing effective protection and care to victims.

  56 These include: Burkina Faso, Côte d’Ivoire, The Gambia, Guinea, Guinea Bissau, Liberia, Niger, Nigeria, Senegal and Togo (information obtained from ECOWAS TIP Unit, Abuja 2015).

  57 All 26 ECOWAS & ECCAS Member States entered into a Multilateral Cooperation Agreement on child trafficking in West and Central Africa in 2006.

  58 See ECOWAS, Annual Synthesis Report on the Implementation of the ECOWAS Plan of Action to Combat Trafficking in Persons 2012/2013, issued on 21 July 2014.

  59 See ECOWAS’s 2014 Annual Synthesis Report on Trafficking in Persons in West Africa, version 28 July 2015, produced by the ECOWAS Commission TIP Unit.