On paper, things improved in Europe once the Council of Europe Convention on Action against Trafficking in Human Beings was adopted in 2005. More recently, the European Union’s Directive on preventing and combating trafficking in human beings and protecting its victims, adopted in 2011, requires European Union Member States to “take the necessary measures to ensure that assistance and support for a victim are not made conditional on the victim’s willingness to cooperate in the criminal investigation, prosecution or trial”.28 In South East Asia, law enforcement officials engaged in counter-trafficking operations have made a number of pledges to take more substantial action to protect victim-witnesses,29 although the Association of Southeast Asian Nations (ASEAN) Convention against Trafficking in Persons, Especially Women and Children, adopted in 2015, does not discourage parties from making assistance to trafficked persons conditional on their co-operating with law enforcement.
Recent cases in Latin America reveal how the understanding of law enforcement officials about protecting trafficking victims has not kept pace with their countries’ willingness to adopt legislation to prosecute traffickers. In Peru, for example, a court case involving a woman who had been trafficked and forced into prostitution in the northern city of Piura provoked a scandal in 2013 when the people running a nightclub where she had been held were initially acquitted, and the name and photo of the woman concerned, who had escaped and gone to the police for help despite being aware that she was in mortal danger, were widely publicised in the media.30
Other recent cases suggest that law enforcement officials continue to cause prejudice to the people they should be protecting. In the Amazonian city of Iquitos, a 14-year-old girl who had escaped from her traffickers went to the police, and she was initially well cared for.31 When officials who were supposedly child protection specialists took charge of her, problems started. She spent two and a half months at a residential centre for children who had experienced commercial sexual exploitation, and was then moved back to her city of origin, ostensibly to be back in contact with her own parents (who had played no role in her being trafficked). However, she was prevented from contacting them, and instead kept at a residential centre for disabled people, where she was required to look after disabled children, in effect becoming a victim of forced labour! A second Peruvian child’s case revealed more collateral damage. This 13-year-old had experienced a week’s sexual exploitation, but was nevertheless initially handcuffed by the police when they found her, and taken to a police station in the same vehicle as her trafficker. Later the same day, without any warning, and before being allowed to talk to a lawyer or other advisor, she was taken to be interviewed by a television journalist, thereby making her identity public.32
Such cases highlight that the process of making law enforcement officials more empathetic to child victims of crime in general, let alone to trafficked children or adults, is still in its infancy, and that much more training, along with appropriate procedures and protocols, is needed in Peru, as well as in most other Latin American countries.
Collateral damage on sex workers/people in prostitution
GAATW’s 2007 anthology on Collateral Damage noted that sex workers who had not been trafficked were probably the group worst affected by law enforcement anti-trafficking operations, in particular police raids on premises where prostitution was suspected of occurring, during which some were assaulted. Sex workers in general, and migrant sex workers in particular, have continued to record incidents in which they suffered prejudice as a result of actions which were justified as ‘anti-trafficking’. Presenting findings in 2009 concerning the United States (US), the Sex Workers Project noted presumptions by US law enforcement officials that “all immigrant sex workers have been trafficked, and that sex workers who have not been trafficked must be punished”. The authors argued that such presumptions were wrong, and noted that they had “led to the disproportionate allocation of anti-trafficking resources to local vice raids targeting prostitution venues”.33 They also reported on cases of women who had indeed been trafficked, but who had been arrested by police without being screened to check if they had been trafficked (and who consequently received no protection or assistance). Similar cases have been noted more recently in Mexico.34
In Canada, members of a Canadian organisation supporting the human rights of sex workers concluded that donors were causing collateral damage to immigrant sex workers who had not been trafficked and coined the term “anti-trafficked” to describe victims of this type of collateral damage.35 The authors’ analysis focused on the side-effects of the assumptions and prejudices of several Canadian anti-trafficking donors, both private and government-financed ones, pointing out that the criteria in their calls for applications for funding included an implicit assumption that most women engaged in transactional sex in Canada had been trafficked, even though evidence that was widely available showed this assumption was not correct.
Politically motivated inaccuracy
Each year since the Palermo Protocol was adopted in 2000, politicians in industrialised countries have claimed that they would be stopping human trafficking by introducing new restrictions on irregular migration. For example, the British Minister of the Interior (Home Secretary) was reported in 2009 to be “delighted” by the destruction of a camp for migrants in France, situated near the port of Calais, from where refugees and irregular migrants attempted to cross to the UK. He claimed that: “The measures that we have put in place are not only there to prevent illegal immigration but also to stop people trafficking”.36 There were reports that the cost of being smuggled to the UK doubled as a result of the camp’s destruction. If indeed any of those seeking to cross the Channel to the UK were being trafficked, this would potentially have increased any debt that they were going to have to work off in debt bondage, suggesting that the camp’s destruction would have aggravated cases of trafficking, not prevented them. However, the Minister’s claim exemplified the way that politicians in numerous countries have exploited the issue of trafficking to support their favoured policies, whatever the effects on irregular migrants or trafficked persons.
Anti-trafficking practitioners have grown used to seeing the issue of human trafficking subjugated to a country’s political interests, which is most apparent each July when the US Department of State publishes an annual Trafficking in Persons report. The 2015 edition exceeded all fears with respect to two countries with particularly bad records (as far as taking meaningful action to stop human trafficking was concerned), Malaysia and Mexico. Despite the discovery of secret graves of suspected trafficking victims along the border between Malaysia and Thailand, the “tier” rating of Malaysia was improved from Tier 3 (the worst) to Tier 2 (Watch List). The Asia Division Deputy Director for Human Rights Watch, Phil Robertson, commented that: “The discussion on Malaysia is … a triumph of diplomatic writing trumpeting process rather than impact”.37 It seemed that the alleged improvements in Malaysia had more to do with US authorities’ wish to conclude a Trans Pacific Partnership agreement with Malaysia than with the fate of trafficked people.
A week after the Department of State’s report was issued, the Reuters News Agency reported that both Malaysia and Cuba (which had just renewed diplomatic relations with the US) had been moved off Tier 3 status, “even though the State Department’s own trafficking experts believed neither had made notable improvements”.38 It also alleged that US diplomats had turned down a proposal by the Department of State’s anti-trafficking specialists to downgrade Mexico from Tier 2 to a lower ranking, a level that might have been more consistent with criticisms made in the State Department’s own report.39
Conclusions
There are many hypotheses about why levels of collateral damage have remained so high.
In a few cases, the ongoing incidence of collateral damage may be due to ignorance on the part of policy-makers, or a lack of training for law enforcement or other personnel who come into contact with adults or children who have been trafficked. Howe
ver, in other cases it appears to be due to deliberate decisions by policy-makers not to pay attention to certain forms of collateral damage, in particular harm caused to sex workers or irregular migrants. The situation with respect to child migrants is more complicated: idealistic policy-makers who imagine a perfect world in which children could remain in a parental home until adulthood (without engaging in economic activities) think they are asserting the principle that children’s rights should not be violated when they support policies that make it riskier for children to migrate. In practice, some policies contradict the ‘best interests’ principle guaranteed by the UN Convention on the Rights of the Child.
An additional possible reason is that politicians and others in senior positions in government and in law enforcement agencies are convinced too easily by their own propaganda and do not even realise that their laws or policies have not taken into account evidence available about their likely effects.
A final possible reason is that anti-trafficking practitioners, including legislators developing laws and policies on human trafficking, do not listen to trafficked persons properly (if at all). While they appear happy to hear testimony about the misery caused to trafficking victims by criminals, they do not listen to feedback provided by the same people about their experiences while supposedly being protected and assisted by law enforcement officials or others assisting trafficked persons. Indeed, the entire anti-trafficking community still lacks appropriate stan-dardised methods and protocols for collecting such information. Put crudely, this is rather like driving a car in the dark with the headlights turned off. So there is an urgent need for knowledge about appropriate research methods to be disseminated, so that the deliberate blindness or deafness that results in collateral damage can be stopped.
Notes
1 Roche, C., Impact Assessment for Development Agencies, Learning to Value Change (Oxford: Oxfam GB with Novib, Oxfam Publishing, 1999).
2 Global Alliance Against Traffic in Women (GAATW), Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World (Bangkok: GAATW, 2007).
3 Ruggie, J., Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie (UN document A/HRC/17/31, 21 March 2011). [Emphasis added].
4 Coomaraswamy, R., Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Ms. Radhika Coomaraswamy, on Trafficking in Women, Women’s Migration and Violence Against Women, Submitted in Accordance With Commission on Human Rights Resolution 1997/44 (UN document E/CN.4/2000/68, 29 February 2000).
5 UN High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, Addendum to the Report of the UN High Commissioner for Human Rights to the Economic and Social Council (UN document E/2002/68/Add.1, 20 May 2002).
6 Human Rights Committee, General Comment 27 on Freedom of Movement, Article 12 of the International Covenant on Civil and Political Rights (UN Document CCPR/C/21/Rev.1/Add.9).
7 Ibid.
8 UN Office on Drugs and Crime (UNODC), “Tool 6.1 Non-criminalization of trafficking victims”, in Toolkit to Combat Trafficking in Persons (New York: UN, 2008).
9 Dottridge, M., Kids Abroad: Ignore Them, Abuse Them or Protect Them? Lessons on How to Protect Children on the Move from Being Exploited (Geneva: Terre des Hommes International Foundation, 2008); Dottridge, M. and Bazeley, P., Asia Regional Trafficking in Persons (ARTIP) Project, AidWorks Initiative Number ING262: Independent Completion Report (2011); Dottridge, M., ed., “Special Issue on Following the Money: Spending on Anti-Trafficking”, Anti-Trafficking Review, 3 (2014), 1–175.
10 UNODC, Diagnóstico Nacional sobre la Situación de Trata de Personas en México (México D. F., 2014).
11 “Toda acción u omisión dolosa de una o varias personas para captar, enganchar, transportar, transferir, retener, entregar, recibir o alojar a una o varias personas con fines de explotación”.
12 The abusive means listed in the UN Protocol are, “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”.
13 UNODC, Diagnóstico Nacional sobre la Situación de Trata de Personas en México (México D. F., 2014).
14 An estimated 603,556 according to Romero, E.M., Montejo, J., and Romero, R.I.M., ABC de la Trata de Personas. Brigada Callejera de Apoyo a la Mujer “Elisa Martínez”, Indesol, Mexico City, 2013, http://es.calameo.com/read/000137394fe0094fddae8 (accessed 27 July 2015).
15 US Department of State, Trafficking in Persons Report (Washington, DC, 2015).
16 Global Alliance Against Traffic in Women (GAATW), Beyond Borders: Exploring Links Between Trafficking and Migration (GAATW Working Papers Series, Bangkok, 2010).
17 Shrestha, J. and Taylor-Nicholson, E., No Easy Exit – Migration Bans Affecting Women From Nepal (Geneva: ILO, 2015).
18 Castle, S. and Diarra, A., The International Migration of Young Malians: Tradition, Necessity or Rite of Passage? (London School of Hygiene and Tropical Medicine, 2003).
19 Hausner, S.L., The Movement of Women: Migration, Trafficking and Prostitution in the Context of Nepal’s Armed Conflict (Kathmandu: Save the Children USA, 2005), www.humantrafficking.org/uploads/publications/stc_2005_movement_of_women_nepal.pdf (accessed 10 August 2015).
20 Ibid.
21 Notably in Botte, R., Mission au Bénin, au Burkina Faso et au Mali: Rapport de Mission (UNICEF, 2005). Unpublished.
22 See African Movement of Working Children and Youth, International Labour Organization, International Organization for Migration, Plan International, Save the Children, Terre des Hommes International Foundation and UNICEF, Quelle protection pour les enfants concernés par la mobilité en Afrique de l’Ouest? Nos positions et recommandations. Rapport régional de synthèse – Projet “Mobilités”, Dakar, 2011.
23 Walk Free Foundation, Ghana Police: Act Now to Save Children Smuggled Into Slavery! (2014), http://campaigns.walkfree.org/petitions/ghana-police-act-now-to-save-children-smuggled-into-slavery-1 (accessed 28 July 2015).
24 Kukwaw, P.A., Analytical Study on Child Labour in Volta Lake Fishing (Geneva: ILO-IPEC, 2013).
25 Emphasis added.
26 Dottridge, M., Young People’s Voices on Child Trafficking: Experiences From South Eastern Europe (Innocenti Working Paper 2008–05, UNICEF Innocenti Research Centre, Florence, 2008).
27 UN Congress on Crime Prevention and Criminal Justice, Background Paper, Workshop 2: Trafficking in Persons and Smuggling of Migrants: Successes and Challenges in Criminalization, in Mutual Legal Assistance and in Effective Protection of Witnesses and Trafficking Victims (UN document A/CONF.222/11, 30 January 2015). [Emphasis added].
28 Article 11.3 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.
29 See ASEAN, Criminal Justice Responses to Trafficking in Persons: ASEAN Practitioner Guidelines, finalized by the ASEAN Ad-Hoc Working Group on Trafficking in Persons (25 June 2007), Vientiane, Lao PDR and endorsed by the 7th ASEAN Senior Officials Meeting on Transnational Crime, Vientiane, Lao PDR, 27 June 2007; and ASEAN, Progress Report on Criminal Justice Responses to Trafficking in Persons in the ASEAN Region (2011).
30 Centurion, J., “Apoyemos a Jhinna”, Diario 16, 2013 (no specific date of publication mentioned), http://diario16.pe/columnista/8/jeronimo-centurion/2299/apoyemos-a-jhinna (accessed 10 August 2015). As a result of a court appeal, the nightclub staff were retried and convicted later the same year.
31 Capital Humano y Social Alternativo (CHS Alternativo), “Informe de País – Perú”, in Sotelo, M.A. (ed.), Hac
ia una mayor rendición de cuentas/responsabilidad; monitoreo participativo de iniciativas contra la trata de personas. Informe regional (Bangkok: GAATW, 2015), pp. 221–264.
32 Ibid.
33 Ditmore, M., The Use of Raids to Fight Trafficking in Persons (New York: Sex Workers Project, 2009).
34 Sotelo, M.A. (ed.), Hacia una mayor rendición de cuentas/responsabilidad; monitoreo participativo de iniciativas contra la trata de personas. Informe regional (Bangkok: GAATW, 2015).
35 Clancey, A., Khushrushahi, N., and Ham, J., “Do Evidence-based Approaches Alienate Canadian Anti-Trafficking Funders?” (2014) 3 Anti-Trafficking Review 87–108.
36 Black, P., France Bulldozes Migrant ‘Jungle’ (CNN, 22 September 2009), http://edition.cnn.com/2009/WORLD/europe/09/22/calais.france.illegal.migrants.removal/(accessed 30 July 2015).
37 Whiteman, H., Who’s Fighting Human Trafficking? U.S. Releases Rankings (CNN, 28 July 2015), http://edition.cnn.com/2015/07/27/world/us-trafficking-tip-report-2015/(accessed 28 July 2015).
38 Szep, J. and Spetalnick, M., Special Report: State Department Watered Down Human Trafficking Report (Reuters, Washington, 3 August 2015), www.reuters.com/article/2015/08/03/us-usa-humantrafficking-disputes-special-idUSKCN0Q821Y20150803 (accessed 3 August 2015).
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