43 Haroff-Tavel, H. and Nasri, A. (ILO) 2013 (n.5), 14. See also, UN Special Rapporteur on Trafficking in Persons, Especially Women and Children, Huda, S., Report: Bahrain, Oman, Qatar (2007). A/HRC/4/23/Add.2 (SR THB Bahrain Oman Qatar 2007), paras 64, 91; ILO, Giving Globalization a Human Face (Geneva: ILO, 2012), www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocument/wcms_174846.pdf; ILO Governing Body, Report of the Director General (2014) GB.320/INS/14/8.
44 SR THB Bahrain Oman Qatar 2007 (n.43), para 63; Haroff-Tavel, H. and Nasri, A. (ILO) 2013 (n.5), p. 16.
45 Ministry of Labour Decision No. 79 (2009) regarding the mobility of foreign employees from one employer to another Art 2 and Law No. 15 (2011) amending paragraph A of Article 25 of Law No. 19 of 2006 regulating the labour market, Bahrain.
46 Varia, N., “Sweeping Changes? A Review of Recent Reforms on Protections for Migrant Domestic Workers in Asia and the Middle East” (2011) 23 Canadian Journal of Women and the Law 265, 279–280.
47 Special Rapporteur on Trafficking in Persons, Especially Women and Children, Joy Ngozi Ezeilo, Report: UAE (2012) A/HRC/23/48/Add.1 (SR THB UAE 2012), para 7.
48 Regulation No. 90/2009 of Domestic Workers, Cooks, Gardeners and Similar Categories, Jordan; Temporary Social Security Act (2010), Jordan.
49 Employment Agreement for Domestic Workers and Sponsors (2007), United Arab Emirates; Standard Unified Contract (2009), Lebanon.
50 CEDAW Lebanon 2015 (n.3), paras 37–38; Varia, N., 2011 (n.46), pp. 274–276.
51 Malit, F. and Ghafoor, S. (International Association – International Gulf Organization), Domestic Work Legislation in the GCC: A Comparative Policy Review (2014), p. 8, www.igogcc.org/wp-content/uploads/2014/07/Policy-Report-Final-English-1.pdf. Also in the news, see, Whiteman, H., “Indonesia Maid Ban Won’t Work in Mideast, Migrant Groups Say” CNN News (2015), http://edition.cnn.com/2015/05/06/asia/indonesia-migrant-worker-ban; Buchanan, E., “Nepalese Foreign Work Ban for Young Women” BBC News (2012), www.bbc.com/news/world-asia-19348971 and Sambridge, A., “UAE, Kuwait, Qatar face ban on Filipino maids” Arabian Business (2011), www.arabianbusiness.com/uae-kuwait-qatar-face-ban-on-filipino-maids—418458.html.
52 US TIP Report 2014 (n.7), 15–17; Haroff-Tavel, H. and Nasri, A (ILO) 2013 (n.5), pp. 46–52; SR THB Bahrain Oman Qatar 2007 (n.43), paras 53–59.
53 Instructions on the Conditions and Procedures for Licensing Offices Specialized in Working in Recruitment and Placement of Non-Jordanians Working inside the Homes 16 February 2009 Art 8(d), Jordan.
54 Standard recruitment and employment contract for domestic workers (2010) Art 5(5), Kuwait; Ministry of Interior Order No. 1182 (2010) Art 11(2), Kuwait.
55 Ministerial Decree No. 1/1 (2011) Art 15, Lebanon; Ministry of Labour Ordinance No. 1283 regulating the work of private employment agencies 23 December 2010 Art 6(b), UAE.
56 SR THB Egypt 2011 (n.4), paras 25–29; SR THB Bahrain Oman Qatar 2007 (n.43), para 65.
57 SR THB Bahrain Oman Qatar 2007 (n.43), para 65; SR THB UAE 2012 (n.47), para 92.
58 CEDAW Lebanon 2015 (n.3), paras 29–30; SR THB UAE 2012 (n.47), paras 52, 78, 81.
59 US TIP Report 2014 (n.7), pp. 214–217.
Part 2
Types of exploitation
9
Defining exploitation in the context of trafficking – what is a crime and what is not
Klara Skrivankova
Introduction
The notion of exploitation is commonly ascribed to the Marxist theory that explains exploitation, in the context of labour relations, as that of a powerful employer and a powerless worker. When considering human trafficking, the misbalance of power between the victim and the exploiter is also a key factor; however, it is the combination of the abuse of that power and the position of vulnerability of an individual that leads to a situation of exploitation. Furthermore, exploitation in the context of trafficking goes beyond traditional labour relations, and includes situations where the activity that a person is being exploited for is a criminal offence – such as drug production or street crime.
When the international community, for the first time, codified the definition of trafficking in persons in the Palermo Protocol1 in 2000, the term ‘exploitation’ was not defined within Article 3, which set out the three elements of the trafficking definition. Instead, examples of the sorts of actions that would, at a minimum, constitute exploitation were included in the definition. Since then, there has been a debate whether a definition of exploitation is needed, and whether the absence of such a definition helps or hinders.
This chapter considers how the absence of a clear international definition of exploitation has been dealt with in practice, and discusses whether a strict definition of exploitation would assist identification and remediation of the variety of situations of exploitation in which workers find themselves.
The continuum of exploitation
One of the cited reasons as to why there is no firm definition of exploitation is that the real life experiences of workers in labour situations are rarely static, and that the permutations of experiences cover a sphere that stretches from the optimum (decent work) to the worst (forced labour). This sphere has been described as the ‘continuum of exploitation’.2 Within the spectrum of the continuum, varied degrees of exploitative acts are covered, such as non-payment of wages or withholding of identification documents. In law, some of these would constitute civil or administrative breaches, such as the non-payment of a minimum wage or failure to provide protective clothing; whereas other breaches along the continuum are more serious, and would constitute criminal conduct, such as threats, withholding of documents, or coercion.
The concept of the continuum was developed in order to capture both the complex combinations of situations that are known to occur along the spectrum, as well as the well-documented fact that the situation of an individual worker evolves over time.3
In this context, the continuum is useful in denoting that any deviation from the optimal constitutes a situation of exploitation – even if the workers themselves might not perceive it as such. It can be argued that, for that very reason, using the concept of a continuum is more appropriate than striving to define what constitutes exploitation in strict terms, as any precise definition is unlikely to be capable of capturing the breadth and complexity of the issue, and will inevitably miss some relevant scenarios.
Benton, for example, also accepts that exploitation is “more accurately conceptualised as a continuum”4 and suggests a further application of the continuum to examine not just the exploitative situation of an individual worker, but also to examine the actors who are involved along the continuum –i.e., the actions undertaken with the intention to exploit someone else. The list of such actors, which she calls the “Typology of Bad Actors”, is quite extensive, and includes:
Smuggling and trafficking organisations: these organisations range from highly organised hierarchical operations to loose networks; their operations may be large to small in scale. Some migrants who pay for the services of smugglers end up as victims of trafficking; for example, if they are forced to work or prostitute themselves to repay the cost of passage.
Employers: employers can commit a range of offences that violate labour, immigration, or criminal law, in the exploitation of migrant workers. These offences vary in severity. Immigration infringements include employment of unauthorised workers; labour infractions include unpaid overtime, or failure to respect maximum hours; and criminal acts encompass violence, fraud, coercion, and slavery-like conditions.
Labour providers, temporary work agencies, and ‘gangmasters’: whether legitimate or unregistered, labour agencies come under pressure to provide cheap labour. This means they often adopt practices in the grey area between legality and illegality; for example, not paying for overtime, or charging equipment or job-finding fees. As sub-contractors, they are one step removed from the workplace, and so it is harder to trace responsibility.
Private hous
eholds: a culture of mild exploitation, such as always having to be on call, can easily give way to more severe forms of exploitation in the private setting. Employment of domestic workers is usually exempt from labour standards (e.g., minimum wage or maximum hours).
Officials: criminal operations often rely on public corruption, including bribes taken by border, law enforcement, and other public officials.
Professionals, acquaintances, and informal social networks: lawyers or housing providers may supplement legitimate income by providing services they know enable exploitation. Friends and relatives and informal institutions like churches may facilitate illegality for non-financial reasons.
Workers: unauthorised migrants are likely to have committed certain immigration offences, including entering the country illegally, working without authorisation, forging documents, supplying fake documents, or borrowing the identity of another. Some migrants may become involved in criminal activity (either voluntarily or through coercion), such as drug smuggling or prostitution,5 to pay a smuggling debt.
Consumers: consumers benefit from the purchase of goods produced under exploitative work conditions. In the sex industry, purchase of sex from a victim of trafficking is routinely criminalised under strict liability laws,6 even in countries where the purchase of sex is not criminalised.
Supermarkets or other large-scale buyers of exploitatively produced goods: large-scale buyers of goods are not usually liable for the means by which such goods are produced; but it is sometimes illegal to purchase goods in the knowledge they were produced under exploitative conditions.7
The examination of actors who operate along the continuum (and Benton’s list can be further expanded, as hers was inevitably limited by the industries that her paper addressed) appears to further support the theory that capturing exploitation as a continuum, rather than as a narrower definition, is more apt for aiding our understanding of the problem, and can enhance our strategies to deal with the myriad of exploitative scenarios that occur in reality.
The continuum assists us in understanding the ‘journey’ of an individual worker, where the exploitation is often a result of a series of actions, that can start with deceptive recruitment, and further develop into a relationship of an extreme misbalance of power where the employer (or an agent or a trafficker) controls an element, or even the whole, of a worker’s life. In applying the continuum perspective, we are able to discern not only what violations and abuses the worker is suffering, and has previously suffered, but also to understand the underlying factors and the sophistication/effectiveness of this method of entrapment.
In fact, workers often do not identify themselves as victims, or as being exploited. Some blame themselves for getting into that situation; others would believe that there is no better option, or are not aware what their entitlements are.
The question of consent, or perceived consent, by the worker is commonly raised in this context. International law8 establishes that where a person has been trafficked, any consent is rendered irrelevant. This is based on the premise that an individual cannot consent to exploitation, because in those circumstances their freedom of choice is inhibited through, for example, fear, deception, coercion, or the abuse of their position of vulnerability. Considering this from the perspective of decent work (optimal end of the continuum), freedom of choice means that the worker possesses bargaining power and is able to negotiate with the employer about terms and conditions of employment without facing any punishment. In a situation of forced labour, the power of the employer to impose conditions and rules is absolute, and the worker is unable to refuse without facing some kind of punishment, i.e., is under the menace of penalty: “[t]he issue at stake is the worker’s ability to revoke the given consent and the premise that the worker’s right to free choice of employment remains inalienable at any given point”.9
Hence, thinking about the actions by bad actors along the continuum can be particularly helpful for evidencing a situation of exploitation, where the question of the worker’s consent may be unclear or contested. By evidencing the actions of wrongdoing and harm perpetrated by the bad actor, it can be demonstrated how a situation of exploitation has been created and maintained. Exploitation is, by definition, an ongoing activity rather than a single act of violence; hence, the perpetrator will commonly take a series of actions to bring a worker into a situation of exploitation.
While this chapter focuses mainly on exploitation of a non-sexual nature, the concept of continuum can be equally applied to trafficking for sexual exploitation.
Identifiers of exploitation
Various approaches have been tried and tested over the past two decades with the aim of finding the best methodology of identification of situations of exploitation. In that period, a number of tools were designed to assist with the identification of situations of exploitation. Most commonly, these come in the form of lists of indicators that are examples of the sorts of abusive situations in which workers are found, and that, depending on their severity, represent a situation of forced labour (human trafficking), or a situation that, while exploitative, would not be considered a crime.
In this context, the optimal end of the continuum would best be described as a situation where any form of abuse or exploitation is wholly absent (one of decent work). The worst end of the continuum is, then, the situation that is well defined and explained in the literature – one of forced labour.
Forced labour, which is often the outcome of human trafficking, was defined by the International Labour Organization (ILO) for the first time in 1930.10 Forced labour practices changed and evolved throughout the twentieth century, and then transformed further in the twenty-first century with the onset of globalisation. In order to make the definition current, the ILO opera-tionalised it through a set of 11 indicators,11 intended to assist in identification of forced labour situations. These indicators of forced labour are:
Abuse of vulnerability;
Deception;
Restriction of movement;
Isolation;
Physical and sexual violence;
Intimidation and threats;
Retention of identity documents;
Withholding of wages;
Debt bondage;
Abusive working and living conditions; and
Excessive overtime.
The ILO advises that, in some cases, even if only one of these above indicators is detected, this may imply a situation of forced labour (such as in case of debt bondage). In other cases, however, more indicators will be required that, together, would point to a forced labour situation.12
Indicators assist in categorising where on the continuum a situation sits, and hence also whether it is possible to classify the situation as a crime. Inevitably, such a judgment will vary according to the jurisdiction. For example, while in some countries the retention of someone else’s passport is a criminal offence that would be strictly enforced, in other countries it is accepted to keep a migrant worker’s passport, and in some it is even a requirement.
Many situations that are closer to the less extreme end of the continuum will, however, fail to qualify as forced labour. Long or irregular working hours, payment below the minimum wage set by law, and unsafe working conditions are examples of situations that would constitute a breach of labour laws and, for example, health and safety regulations, but which in law may not constitute a criminal offence. However, on closer examination, a collection of acts that individually may be perceived as ‘lesser violations’ may well meet the threshold of forced labour.
The ILO indicators can arguably be perceived also as examples of abuses – actions that workers are subjected to by the perpetrators.
A question often asked is where the demarcation line is: when does a situation become severe enough so that it is no longer labour exploitation but forced labour? It is often difficult to precisely identify that line. At the same time, it may be asked whether it is important and pertinent to try to precisely define the line at all times.
Is that the most important task? Or is it rather to ensure that the wrongs are remedied, and that the worker receives compensation?
Any situation that deviates from decent work is exploitation, because of breach of laws or regulations, and will consequently trigger a right to a remedy. The severity of the exploitative conduct will determine whether a remedy could be found within civil law, criminal law, or both. Conversely, it is common in practice that situations that are severe and amount to forced labour (a crime) are misidentified as civil violations, with the consequence that the victim is denied full access to justice.
To avoid misidentification of situations as civil violations, the European Commission, together with the ILO, developed Operational Indicators of Trafficking in Human Beings,13 known also as the ‘Delphi indicators’ because of the methodology used to devise them. The document suggests three different strengths for indicators (strong, medium, weak) that are in turn applied to each of the elements of the trafficking definition (act-means-purpose).
While these tools are helpful, there is an ongoing debate about how to determine the severity of individual actions, or how many strong indicators are required in order for the criminal threshold to be met. The most recent addition to the debate is the work of the EU Fundamental Rights Agency (FRA), which has introduced the concept of ‘severe labour exploitation’. Severe labour exploitation appears to be offered as an umbrella term for a variety of criminal actions, including forced labour. However, the FRA does not offer a strict definition of labour exploitation, but rather defines the notion through enumeration of the kinds of abuses that can fall under the umbrella. Similarly, the definition of exploitation refers to working conditions as defined in other legislation, and gives examples of what deviation from those might constitute.
Routledge Handbook of Human Trafficking Page 25
