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27 US Department of State, Trafficking in Persons Report 2015 (Washington, DC: Department of State, 2015).
28 The numbers in parentheses are those of labour trafficking prosecutions, convictions, and victims identified.
29 US Department of State, Trafficking in Persons Report 2016 (Washington, DC: Department of State, 2016).
30 Jordan, supra note 21.
31 Article 14, Palermo Protocol, supra note 18.
32 Global Alliance Against Traffic in Women (GAATW), Human Rights and Trafficking in Persons: A Handbook (Bangkok: GAATW, 2000).
33 Huckerby, J., “United States of America”, in Collateral Damage: The Human Rights Impact of Anti-Trafficking Policies Around the World (Bangkok: Global Alliance Against Traffic in Women, 2007), pp. 260–256; Peters, A., Responding to Human Trafficking: Sex Gender and Culture in the Law (Philadelphia: University of Pennsylvania Press, 2015); Orhant, supra note 12.
34 UNODC, Issue Paper: The Concept of ‘Exploitation’ in the Trafficking in Persons Protocol (Vienna: UNODC, 2015).
35 Ibid; Jordan, supra note 21.
36 Miller, and Vance supra note 14.
37 Danziger, R., “Where Are the Victims of Trafficking?” (2006) 25 Forced Migration Review 10–12; Vance, C., “States of Contradiction: Twelve Ways to Do Nothing About Trafficking While Pretending To” (2011) 78(3) Social Research 933–948.
38 Chuang, J., “Exploitation Creep and the Unmaking of Human Trafficking Law” (2014) 108(4) American Journal of International Law 609–649.
39 Vance, supra note 37.
40 GAATW, supra note 32.
41 Gallagher, supra note 17.
42 See Council of Europe, Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings (Warsaw: Council of Europe, 2005). See specifically para 127:
To protect and assist trafficking victims it is of paramount importance to identify them correctly. Article 10 seeks to allow such identification so that victims can be given the benefit of the measures provided for in Chapter III. Identification of victims is crucial, is often tricky and necessitates detailed enquiries. Failure to identify a trafficking victim correctly will probably mean that victim’s continuing to be denied his or her fundamental rights and the prosecution to be denied the necessary witness in criminal proceedings to gain a conviction of the perpetrator for trafficking in human beings.
43 GAATW, supra note 32; Limanowska, B., Trafficking in Human Beings in South Eastern Europe: 2003 Update on Situation and Responses to Trafficking in Human Beings (New York: UNDP for UNICEF/OHCHR/OSCE ODIHR, 2003); Miller, and Vance supra note 14.
44 Zimmerman, C. and Watts, C., WHO Ethical and Safety Recommendations for Interviewing Trafficked Women (Geneva: World Health Organization, 2003); Organization for Security and Cooperation in Europe (OSCE)/Office for Democratic Institutions and Human Rights (ODIHR), Ensuring Human Rights Protection in Countries of Destination: Breaking the Cycle of Trafficking (Warsaw: OSCE-ODIHR, 2005) (report from an anti-trafficking conference held in Helsinki on 23–24 September 2004).
45 OSCE-ODIHR, National Referral Mechanisms (Warsaw: OSCE-ODIHR, 2004).
46 Gallagher, supra note 17.
47 Asia Foundation and Population Council, Prevention of Trafficking and the Care and Support of Trafficked Persons: In the Context of an Emerging HIV/AIDS Epidemic in Nepal (Kathmandu: The Asia Foundation and Horizons Project Population Council, 2001); Frederick, J., “The Myth of Nepal-to-India Sex Trafficking: Its Creation, Its Maintenance, and Its Influence on Anti-trafficking Interventions”, in Kempadoo, K., Sanghera, J., and Pattanaik, B. (eds.), Trafficking and Prostitution Reconsidered: New Perspectives on Migration, Sex Work, and Human Rights (Boulder, CO: Paradigm Publishers, 2005), pp. 127–148.
48 GAATW, supra note 32; Huckerby, supra note 33.
49 Lawyers Collective, Sex Workers Stage National Protest for Rights (Mumbai: OSCE-ODIHR, 2006); OSCEODIHR, supra note 45.
50 Group of Experts on Action Against Trafficking in Human Beings (GRETA), Report Concerning the Implementation of the Council of Europe Convention on Action Against Trafficking in Human Beings by Bosnia and Hercegovina (Strasbourg: Council of Europe, 2013); Group of Experts on Action Against Trafficking in Human Beings (GRETA), Report Concerning the Implementation of the Council of Europe Convention on Action Against Trafficking in Human Beings by Albania (Strasbourg: Council of Europe, 2011); Group of Experts on Action Against Trafficking in Human Beings (GRETA), Report Concerning the Implementation of the Council of Europe Convention on Action Against Trafficking in Human Beings by Azerbaijan (Strasbourg: Council of Europe, 2014).
51 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; Brennan, D., Life Interrupted: Trafficking Into Forced Labour in the United States (Durham, NC: Duke University Press, 2014).
52 Kennedy, supra note 4; Halley, J., “Rape at Rome: Feminist Interventions in the Criminalization of Sex Related Violence in Positive International Criminal Law” (2008) 30(1) Michigan Journal of International Law 1–123.
53 US Government Accountability Office (GAO), Human Trafficking: Better Data, Strategy, and Reporting Needed to Enhance U.S. Anti-trafficking Efforts Abroad (Washington, DC: GAO, 2006); US Department of State, supra note 27; Chuang, supra note 38.
54 VERA Institute, Screening for Human Trafficking: Guidelines for Administering the Trafficking Victims Identification Tool Kit (TVIT) (New York: VERA Institute of Justice, 2014).
55 For an illustrative example, Airline Ambassadors International provides online training for airline attendants to help ‘spot’ human trafficking victims, http://airlineamb.org/our-programs/human-trafficking-awareness/aai-presentation/.
56 OSCE, Trafficking in Human Beings: Identification of Potential and Presumed Victims, a Community Policing Approach (Vienna: OSCE, 2011); UNODC, Online Toolkit to Combat Trafficking in Persons, www.unodc.org/unodc/en/human-trafficking/2008/electronic-toolkit/electronic-toolkit-chapter-6-victim-identification.html; European Commission DG Home Affairs, Guidelines for the Identification of Victims of Trafficking in Human Beings (Luxembourg: Publications Office of the European Union, 2013); United Nations Human Rights Office of the High Commissioner, Human Rights and Human Trafficking: Fact Sheet No. 46 (New York and Geneva: United Nations, 2014).
57 US Department of Homeland Security, “Myths and Misconceptions”, Blue Campaign (2014), www.dhs.gov/blue-campaign/myths-and-misconceptions.
58 Michigan Department of Health and Human Services, Human Trafficking Victim Identification Toolkit (2011).
59 For example, a message from an FBI website reads: “Human sex trafficking and sex slavery happen locally in cities and towns, both large and small, throughout the United States, right in citizens’ backyards”, https://leb.fbi.gov/2011/march/human-sex-trafficking.
60 For an astute reading of the way the ‘law in their minds’ in the US affects the identification of trafficking victims, with the axis of sexual harm/innocence playing a key role in government agents’ understanding of who to look for, see Peters, A., Responding to Human Trafficking: Sex Gender and Culture in the Law (Philadelphia: University of Pennsylvania Press, 2015). See also: Farrell, A., McDevitt, J., and Fahy, S., “Where Are All the Victims? Understanding the Determinants of Official Identification of Human Trafficking Incidents” (2010) 9(2) Criminology & Public Policy 201–233.
61 For example, see Polaris’ “Take Action project”, https://polarisproject.org/action.
62 Muraszkiewicz, J., “Can Apps Prevent Human Trafficking?”, Project Syndicate (2015), www.project-syndicate.org/commentary/apps-can-help-trafficking-victims-by-julia-muraszkiewicz-2015-11; Polaris Project, Building the Global Safety Net for Victims of Human Trafficking: A Toolkit for Hotlines (2015), https://polarisproject.org/sites/default/files/Polaris-Global-Toolkit.pdf.
63 The framing of rights as an aspect of ‘personhood’ ineluctably linked to the mere statu
s of being human (and a common vision of all humanity) is the establishing trope of human rights rhetoric. See Universal Declaration of Human Rights. For a historical inquiry into this idea of humanity see: Hunt, L., Inventing Human Rights: A History (New York: W.W. Norton & Company, 2007).
64 Golder, B., “Beyond Redemption? Problematising the Critique of Human Rights in Contemporary International Legal Thought” (2014) 2(1) London Review of International Law 11–114; Douzinas, C. and Gearty, C. (eds.), The Meanings of Rights: The Philosophy and Social Theory of Human Rights (Cambridge: Cambridge University Press, 2014).
65 Grewal, I. and Kaplan, C. (eds.), Scattered Hegemonies: Postmodernity and Transnational Feminist Practices (Minneapolis: University of Minnesota Press, 1994); Merry, S.E., “Measuring the World: Indicators, Human Rights, and Global Governance” (2011) 52(3) Current Anthropology 83–95; Otto, supra note 4.
66 Owens, P., “Reclaiming ‘Bare Life’? Against Agamben on Refugees” (2009) 23(4) International Relations 567–582.
67 Gruber, A., Cohen, A., and Mogalescu, K., “Penal Welfare: The New Human Trafficking Intervention Courts” (2016) 68(5) Florida Law Review 1333–1402.
68 Allain, supra note 19.
69 Chuang, supra note 38.
27
Collateral damage provoked by anti-trafficking measures
Mike Dottridge
Introduction
The term ‘collateral damage’ came into general use in 2003, during the US bombing campaign preceding the invasion of Iraq, to refer to civilians who were killed or injured unintentionally. However, concepts such as the ‘law of unintended consequences’ have a much longer history.
In the context of social or economic development projects, the importance of detecting unexpected side-effects (both predicting them and taking remedial action) has long been emphasised. Various methods are recommended for identifying them. A handbook for evaluation specialists1 recommended that those responsible for monitoring and evaluation needed to look, not just once, but twice for the possible negative effects of the programmes they evaluated. It suggested to evaluators: “Deliberately set out to capture negative change and to seek out those who might report it, particularly groups who are often disadvantaged such as women, minority groups, or people who have dropped out of the project”. The message is simple, but often ignored: it is vital to talk directly (and usually confidentially) to the people who are supposed to benefit from a particular measure, in order to compare their perceptions of the benefits with the intentions of planners and donors, whether it involves a development project or a crime prevention initiative to stop human trafficking.
When a group of researchers was convened by the Global Alliance Against Traffic in Women (GAATW) in 2007 to discuss the chapters they had drafted about the human rights impact of anti-trafficking laws and policies in eight countries, one suggested that the anthology should be titled Collateral Damage.2 This was followed by a fuller, explanatory title: The Impact of Anti-Trafficking Measures on Human Rights around the World.
The term was coined, the publication came out, and, even though many of the specifics in the critiques made of specific national anti-trafficking laws and policies received scant attention, the notion that efforts to combat trafficking in human beings caused collateral damage became common currency. In part this was because staff in some international organisations specialising on the issue of human trafficking were already aware that projects and programmes were having unintended side-effects. While, as international civil servants, they could not criticise the treaty which was the foundation stone of their work, the Palermo Protocol, some of them were ready to mention informally a term coined by others, and to start emphasising that it was important to avoid anti-trafficking initiatives having negative effects on the very people they were supposed to benefit. This should have resulted in a rapid decrease in cases of collateral damage caused by anti-trafficking initiatives. However, this did not happen. Almost ten years later, this chapter reviews why.
Concepts before 2007
The term “adverse human rights impacts” has come into vogue since Professor John Ruggie, the Special Representative of the UN Secretary-General on the issue of human rights and transnational corporations and other business enterprises from 2005 until 2011, published a set of Guiding Principles on Business and Human Rights in 2011, which used the term to refer to human rights violations which occur as a direct or indirect result of the activities of businesses. The Guiding Principles emphasise, “the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others, and to address adverse impacts that occur”.3 Evidently, States are required to act to the same due diligence standard to protect and respect human rights, both in terms of preventing people from being trafficked, and in terms of the protection and assistance provided to anyone who has been trafficked.
The adverse human rights impacts of anti-trafficking measures had been noted by UN representatives and specialist non-governmental organisations (NGOs) in the late 1990s, before the UN Trafficking Protocol was adopted. The UN Special Rapporteur on Violence against Women, Radhika Coomaraswamy, criticised several types of anti-trafficking initiatives in 2000, particularly ones restricting women from emigrating or from entering a country to work. Citing the example of a country where the government introduced tighter immigration and visa controls, she noted that: “[S]ome legal reforms may create new opportunities for trafficking and may be counterproductive for women”. Criticising Germany for introducing special visa requirements for citizens of the Philippines and Thailand, she concluded that:
Such restrictions generally do not limit trafficking or forced labour. Rather, they increase women’s reliance on extra-legal means of migration, and the costs associated with such migration. Responses that target specific nationalities also serve to stigmatize women from certain countries as potential sex workers or undocumented migrants and increase patterns of discrimination against migrant women.4
Although the Palermo Protocol contains no reference to adverse human rights impacts, a year and a half after its adoption by the UN General Assembly, the UN High Commissioner for Human Rights, Mary Robinson, emphasised that anti-trafficking measures should not “adversely affect” human rights, in a set of Recommended Principles and Guidelines on Human Rights and Human Trafficking issued in 2002.5 She started with the principle 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”. It was already apparent while these principles were being drafted that the priority for governments around the world in their efforts to stop human trafficking was to arrest, prosecute, and punish traffickers, rather than to protect victims’ human rights. The High Commissioner also stated that a key principle for all anti-trafficking measures was that they should “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”.
GAATW’s 2007 publication on collateral damage
GAATW’s 2007 anthology reviewed anti-trafficking measures in eight countries. The authors of the country studies (on Australia, Bosnia and Herzegovina, Brazil, India, Nigeria, Thailand, the UK, and the US) were asked to summarise the evidence available about the human rights impact of anti-trafficking laws and policies on people affected directly or indirectly. They were also asked to investigate the human rights impact of other initiatives and programmes intended to prevent trafficking or to protect or assist trafficked persons.
The anthology noted three sets of adverse human rights impacts that were common throughout the world:
Assistance for people identified as possible trafficked persons was routinely made conditional on their cooperating with law enforcement officials (police or prosecutors) and being willing to testify in court or provide prosecution evidence, even if this put them in danger;
The concept of ‘trafficking’ was routinely used to further political agendas related to immigration, gender, and commercial sex, often in ways that caused prejudice to migrants.
Principles identified to prevent anti-trafficking measures from causing ‘collateral damage’
In an introduction to the GAATW anthology, the present author identified a number of principles in international law which States were under an obligation to take into account (but did not) in framing their anti-trafficking policies and programmes. These included:
The principle of proportionality, which the Human Rights Committee (the treaty-monitoring body established by the International Covenant on Civil and Political Rights, 1966) had emphasised in its General Comment 27 on Freedom of Movement (1999) as the need to maintain a suitable balance between ‘protection’ measures that restrict freedom and rights, on the one hand, and the rights of individuals to exercise their civil and political rights, on the other.6 This principle requires that restrictive measures “must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected”.7
The principle of the best interests of the child, which the Convention on the Rights of the Child, 1989, required (Article 3) to be a “primary consideration” in all actions (and decisions) affecting an individual child (anyone under 18), groups of children, or children in general, including public policies intended to prevent child trafficking. The Convention asserts the right of children to have their views listened to and taken into account in accordance with their age and maturity in any matter affecting them (Article 12), such as a decision to repatriate an unaccompanied child identified in a country other than their own.