What the future holds
The interface between culture and THB is a broad subject with many facets which still need to be explored.
One example is the need for cultural training for law enforcement, welfare agencies, NGOs and any other bodies in contact with victims or perpetrators of trafficking. Since victims and perpetrators may come from cultures different from those of law enforcement officials and those who provide support systems, misunderstandings may arise and, in the end, result in failed cases and failed treatment. On the other hand, proper training for practitioners in cultural differences may improve the handling of cases and treatment. This topic includes both the need for such training and its possible content, though naturally, each jurisdiction would need to tailor such training to its own social and cultural milieu.
Another important topic is cultural beliefs and practices with the potential of creating a climate friendly for trafficking. In many, if not all countries, there may be cultural values or practices which either create a climate friendly for trafficking or in themselves constitute trafficking under certain conditions. In some cases, these traditional values or practices have positive sides, whereas in other cases, they are largely problematic. Examples include societal acceptance of informal adoptions which can lead to a climate friendly to child exploitation; the centrality of privacy, which may lead to reticence to complain about what goes on in a household; an accepted practice of sending children to live away from their families which may lay the foundation for child exploitation; hierarchical relations between parents and children which may lead to children blindly accepting their parents’ dictates, even if these lead to trafficking; beliefs in the magical properties of children’s organs which may lead to trafficking for organ removal; and bride kidnappings which may lead to an attitude of objectification conducive to trafficking women.
Notes
1 I wish to thank UNODC, which has informed and enriched this chapter by means of two invaluable tools: the UNODC Human Trafficking Case Law Database and the Case Digest on Evidential Issues in Trafficking in Persons Cases, which can be accessed respectively at https://www.unodc.org/cld/v3/htms/cldb/index.html?lng=en and https://www.unodc.org/documents/human-trafficking/2017/Case_Digest_Evidential_Issues_in_Trafficking.pdf
2 See the Palermo Protocol, which alludes to vulnerable populations in the name of the convention, in its preamble, in Article 3(a) and in Article 9(4); see also, UNODC, Issue Paper on Abuse of a Position of Vulnerability and Other “Means” Within the Definition of Trafficking in Persons (New York: United Nations, 2013).
3 See for example, R v. Wei Tang (2009) 23 VR 332; (2009) 233 FLR 399; [2009] VSCA 182 (17 August 2009), available at the UNODC Human Trafficking Case Law Database (UNODC Case No. AUS001), where Thai women were held under conditions of slavery in Australia; and United States v. Sabhnani 599 F.3d 215 (2d Cir. 2010), available in the UNODC, Human Trafficking Case Law Database (UNODC Case No. USA033), where Indonesian women were held under forced labour and peonage in the US.
4 See, for example, US v. Alzanki 54 F.3d 994 (1st Cir. 1995), where the defendant, though residing in the US, was originally from Kuwait; US v. Veerapol 312 F.3d 1128 (9th Cir. 2002), available at the UNODC, Human Trafficking Case Law Database (UNODC Case No. USA065), where the defendant, though residing in the US, was from Thailand.
5 One of the most famous definitions of ‘culture’ comes from Clifford Geertz, The Interpretation of Culture: Selected Essays (New York: Basic Books, 1973), p. 89: “an historically transmitted pattern of meanings embodied in symbols, a system of inherited conceptions expressed in symbolic forms by means of which men communicate, perpetuate, and develop their knowledge about and their attitudes toward life”. For a description of other definitions see Anthrobase – Dictionary of Anthropology, www.anthrobase.com/Dic/eng/def/culture.htm.
6 Bar-Yoseph, T., “Introduction: Making a Difference”, in Levine Bar-Yoseph, T. (ed.), The Bridge: Dialogues Across Cultures (New Orleans: Gestalt Institute Press, 2005), pp. 24–25.
7 See the definition of THB in Article 3(a) of the Palermo Protocol, which includes the terms ‘means’ and ‘purpose of exploitation’.
8 While wherever possible reference is made to publicly reported cases, in some instances, and for example, when addressing courts of first instance whose decisions are not always publicly reported, reference is made to information received from experts practicing in various countries.
9 Amery, J., At the Mind’s Limits (Sidney and Stella Rosenfeld tr., Indiana University Press, 1980), pp. 46–47.
10 The term “control methods” derives from the UNODC, Anti-Human Trafficking Manual for Criminal Justice Practitioners (New York: United Nations, 2009), module 4. For those who prefer to use the terminology of the Palermo Protocol, these may be referred to as “means”.
11 See for example, US v. Afolabi, 508 Fed. Appx. 111 (3rd Cir.), available at the UNODC, Human Trafficking Case Law Database (UNODC Case No. USA 011), where the perpetrator and most of the victims were from Togo; Attorney General of the Federation v. Omoruyi, Case No. B/31C/2004, High Court of Justice Edo State of Nigeria, Benin Judicial Division, 22 September 2006, available in the UNODC, Human Trafficking Case Law Database (UNODC Case No. NGA002), where both victims and trafficker were Nigerians.
12 For more information on the use of ‘juju’ see: Leman, J. and Janssens, S., “Creative Adaptive Criminal Entrepreneurs From Africa and Human Trafficking in Belgium: Case Studies of Traffickers From Nigeria and Morocco” (2013) 2 International Journal of Criminology and Sociology 153–162.
13 Wikipedia, the Free Encyclopedia, https://en.wikipedia.org/wiki/Juju (accessed 27 October 2015).
14 See note 11, above.
15 See note 11, above.
16 Attorney General of the Federation v. Okoya, High Court of Justice Edo State of Nigeria, Benin Judicial Division, 19 November 2004, Case No. B/15C/2004, available at the UNODC, Human Trafficking Case Law Database (UNODC Case No. NGA001).
17 R v. Anthony Harrison (T20117086), July 7 2011 (unreported). Information about this case was obtained from an expert from the UK, who attended the Expert Group Meeting convened in Vienna, Austria in May 2014 in order to review a UNODC draft, now published and titled Case Digest on Evidential Issues in Trafficking in Persons Cases (Expert Group Meeting). This expert clarified that in the UK the only “reported” criminal judgments are those cases which are appealed to the Court of Appeal or a higher instance. Judgments relating to the Crown Court are unreported. Additional information was provided in Rachel Annison: In the Dock. Examining the UK’s Criminal Justice Response to Trafficking (Anti-Trafficking Monitoring Group) (Anti-Slavery International, 13 June 2013) 81. See also news report from the day following the conviction, July 8 2011 at: www.dailymail.co.uk/news/article-2012351/Voodoo-caretaker-trafficked-young-girls-eat-hearts-jailed-20-years.html.
18 At Canterbury Crown Court, 29 October 2012. This case was not officially reported and the only official link is in the law reports, www.thelawpages.com/court-cases/Osezua-Elvis-Osolase-9446-1.law. See also, In the Dock ibid.
19 6KLs 810 Js 13094/010. Information on this case was supplied by a German expert who attended the Expert Group Meeting.
20 Case Against Sophia Ogiemwanye et al., 501 Kls 1/12 (68 Js 633/09) Landgericht Berlin, 14 December 2012; Case Against Kate Müller, 533 Kls 33/12 (251 Js 976/12) Landgericht Berlin, 2. October 2013. These cases were reported by a German expert who attended the Expert Group Meeting.
21 Supreme Court 4 March 2014, ECLI:NL:HR:2014:477; see also Dutch National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children. Trafficking in Human Beings – Seventh Report of the Dutch National Rapporteur (The Hague: Bureau NRM, 2009), pp. 358–367, www.dutchrapporteur.nl/reports/seventh/. These sources were reported by an expert from the Netherlands who attended the Expert Group Meeting.
22 R v. Kovacs [2009] 2Qd R 51, 23 December 2008, Queensland Court of Appeal, available at the UNODC, Human Trafficking Ca
se Law Database (UNODC Case No. AUS015).
23 Appeals Court Case No. LB-2012–63028, Borgarting Lagmannsrett Judgement (2 April 2013). District Court Oslo Tingrett Judgement (2 February 2012), TOSLO-2011–68460. Information about this case was supplied by a Norwegian expert who attended the Expert Group Meeting.
24 US v. Farrell 563 F.3d 364 (2009), available at the UNODC Human Trafficking Case Law Database (UNODC Case No. USA006).
25 US v. Cook, No. 10-00244-02-CR-W-DW, 2013 WL 3039296 at 4 (W.D. Mo. June 17, 2013) aff’d. 782F.3d 983 (8th Cir. 2015).
26 For one definition of “organisational culture”, see Business Dictionary.Com, www.businessdictionary.com: “The values and behaviors that contribute to the unique social and psychological environment of an organization”.
27 R v. Urizar, File No. 505–1–084654–090, L-017.10, Court of Québec, District of Longueuil, Criminal Division (J.C.Q.) (2010–08–13), August 13, 2010, available at the UNODC, Human Trafficking Case Law Database (UNODC Case No. CAN005); and Urizar v. R, No. 500–10–004763–106, Court of Appeal, Quebec, January 16, 201.
28 See Dutch Rapporteur on Trafficking in Human Beings and Sexual Violence against Children, Case Law on Trafficking in Human Beings 2009–2012, www.dutchrapporteur.nl/reports/case-law.
29 See for example US v. Davis, 453 F. App’x 452, 455 (5th Cir.2011).
30 Reported as Attorney General’s Reference No 126 of 2014 [2015] EWCA Crim 128, para. 7.
31 R v. Dobie (2009) 236 FLR 455, 18 December 2009, Queensland Court of Appeal, Australia, available at the UNODC, Human Trafficking Case Law Database (UNODC Case No. AUS013).
32 See also US v. Sabhnani 599 F.3d 215 (2d Cir. 2010), the USA. The case is available in the UNODC, Human Trafficking Case Law Database (UNODC Case No. USA033), in which the court noted that one of the Indonesian victims spoke no English, did not know what a visa was and did not know how to drive a car or use an American telephone. These facts formed the background to the affirmation of a conviction on charges of forced labour, peonage and other charges.
33 See also subheading Impact on victim credibility which addresses victim credibility.
34 See for example, The Prevention of Trafficking in Persons Act 2009 of Uganda.
35 Deliberations about forced begging can arise in the context of jurisdictions which explicitly mention this as a purpose of exploitation, as do Thailand, Egypt, Qatar, Bulgaria and Columbia, or in the case of jurisdictions which may include this act as a form of forced labour. See also in this regard, EU Directive 2011/36/EU which explicitly includes begging as a form of “forced labour or services” in Article 2(3).
36 UNODC, Issue Paper on the Concept of ‘Exploitation’ in the Trafficking in Persons Protocol (Vienna, United Nations, 2015).
37 Ibid. 115–116.
38 Ibid. 116, 119.
39 Jezile v. State, High Court of South Africa (Western Cape Division, Cape Town), 23 March 2015, High Court Case No. A 127/2014.
40 See Dundes Renteln, A., “What Do We Have to Fear From the Cultural Defense?” in Kymlicka, W., Lernestedt, C., and Matravers, M. (eds.), Criminal Law and Cultural Diversity (Oxford, UK: Oxford University Press, 2014), pp. 185–198.
41 See Lernestedt, C., “Criminal Law and ‘Culture’”; Lacey, N., “Community, Culture and Criminalization”; Matravers, M., “Responsibility, Morality, and Culture”; Greenwalt, K., “The Cultural Defense: Reflections in Light of the Model Penal Code and the Religious Freedom Restoration Act” in Kymlicka et al., ibid.
42 The foremost proponent of admitting cultural evidence is Allison Dundes Renteln, ibid. However, there are others who take into account the importance of blameworthiness in justifying punishment, for example, Lernestedt, C., “Criminal Law and ‘Culture’” ibid.; Parekh, B., “Cultural Defense and the Criminal Law”; all in Kymlicka et al., ibid.
43 See Matravers, ibid. and Greenwalt ibid. in Kymlicka et al., ibid.
44 See Nuotio, K., “Between Denial and Recognition: Criminal Law and Cultural Diversity”; Bhikhu Parekh ibid., both in Kymlicka et al., ibid.
45 Ibid.
46 Ibid.
47 See Kymlicka ibid. Though most of the contributing authors see the value in considering cultural defences, both by means of legislation and criminal trials, Allison Dundes Renteln ibid. expresses doubts as to the efficacy of legislation.
48 See note 11, above.
49 See note 16, above.
50 See note 11, above.
51 See note 17, above.
52 Arnhem Court of Appeal 12 March 2012, ECLI:NL:GHARN:2012:BV8582, the Netherlands. Information on this case was supplied by an expert from the Netherlands who attended the Expert Group Meeting.
53 Supreme Court 4 March 2014, ECLI:NL:HR:2014:477, the Netherlands. Information on this case was supplied by an expert from the Netherlands who attended the Expert Group Meeting. Note that this case and the previous case concern the same large scale investigation which included 40 victims. The Supreme Court addressed only a point of law – the method of obtaining the statements of the victims.
54 Groningen District Court 12 December 2000, ECLI:NL:RBGRO:2000:AA8975, the Netherlands. Information on this case was supplied by an expert from the Netherlands who attended the Expert Group Meeting.
55 Reported as Attorney General’s Reference No 126 of 2014 [2015] EWCA Crim 128, para. 7.
56 Criminal Case 23751–02–10, Tel Aviv – Jaffa District Court State of Israel v. A.G.G.R., September 2014.
57 This information was supplied by a Nigerian prosecutor who attended the Expert Group Meeting.
58 See note 11, above.
59 See note 17, above.
60 Osolase case, At Canterbury Crown Court, 29 October 2012, www.thelawpages.com/court-cases/Osezua-Elvis-Osolase-9446-1.law.
61 See note 19, above.
62 See note 20, above.
63 See note 39, above.
64 See note 25, above.
65 See note 22, above.
66 See note 24, above.
67 The source for this discussion was the Expert Group Meeting.
Part 6
Statistics, data and knowledge
30
Work in progress
International statistics on human trafficking
Jan Van Dijk and Claudia Campistol
Introductory remarks
Although statistics on crime are among the oldest and most widely available official statistics of modern States, they tend, for several reasons, to be controversial. The first reason is that acts punishable by law are typically committed in secrecy. This implies that most incidents remain hidden from the authorities and that, consequently, officially recorded incidents will always reflect no more than a small part of the true volume. In addition, official statistics on crime are difficult to compare across countries due to variations in legal definitions, reporting patterns and recording practices. In spite of these problems, several treaties have made the collection of international statistics on human trafficking mandatory. The Palermo Protocol obliges parties to collect and share information on trends in organised crime, including human trafficking.1 Likewise, GRETA, the monitoring body of the Council of Europe Convention on Action against Trafficking in Human Beings, recommends the maintenance of comprehensive statistical systems covering all aspects of human trafficking.2 Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims emphasises that “the Union should continue to develop its work on methodologies and data collection methods to produce comparable statistics on trafficking in human beings” (Article 19).
The aim of this chapter is to review the statistics on Trafficking in Human Beings (THB) made available in the frameworks of the International Organisations mentioned above. First, we will focus on statistics regarding victims of THB. Within this category, a further distinction can be made between statistics of officially registered victims and statistics on the (estimated) actual numbers of victims. Statistics of registered victims are regularl
y collected and published by both the United Nations Office on Drugs and Crime3 and Eurostat, the statistical arm of the European Commission.4 Estimates of the true numbers of victims have been made by UNODC,5 the International Labour Organization6 and the NGO Walk Free.7 Later we will focus on statistics concerning traffickers/exploiters. Here, a distinction will be made between statistics on arrested persons/suspects closed (police statistics), prosecuted persons (prosecution statistics) and convicted offenders (conviction statistics). Finally, we deal with statistics on counter-trafficking policies. This last category of THB-related statistics reflects the compliance of governments with the obligations arising out of international legal instruments (implementation statistics), such as, for example, the provision of specialised victim assistance, temporary residence permits or compensation for damages. The chapter concludes with a discussion and some proposals.
Victim-related statistics
In theory, statistics on THB cases tried by courts would be the purest source of information on registered victims of THB. One example is the number of victims recognised as aggrieved parties in convictions of THB as published in the annual reports of the National Rapporteur on THB of Sweden. In most countries, however, the number of personal victims involved in court cases is not automatically recorded in the verdict. In many civil law countries, for example, victims will only be mentioned if they have constituted themselves as a party civil or, in Germany, as assistant prosecutor (Nebenklage). Such statistics on victims do not provide a reliable picture of the real number of victims implicated in cases of THB, as they only relate to victims who have been assigned a special status in the proceedings. Police statistics on recorded crimes, or on persons suspected of having committed offences, do not necessarily include information on the victims, either. Such administrative statistics are often exclusively offender-centred. In other words, for the collection of statistics on victims of THB we cannot rely on existing police or court statistics because these often provide no more than fragmentary information on victims.
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