71 Report of the High-level Independent Panel on Peace Operations on Uniting Our Strengths for Peace: Politics, Partnership and People (UN Doc. A/70/95 –S/2015/446, 17 June 2015), paras 28 & 279–291.
72 Ibid., para 281.
73 UNGA/SC, Report of the Secretary General, The Future of United Nations Peace Operations: Implementation of the Recommendations of the High-level Independent Panel on Peace Operations (UN Doc. A/70/357 –S/2015/682, 2 September 2015), paras 119–125.
74 Idem, para. 119.
75 See: UNGA, Sixth Committee, draft resolution (UN Doc. A/C.6/70/L.17, 17 November 2015).
76 UNGA Res.69/114 (10 December 2014).
77 Bolkovac, K. and Lynn, C., The Whistleblower: Sex Trafficking, Military Contractors, and One Woman’s Fight for Justice (Basingstoke, UK: Macmillan, 2011); Kent, V., “Protecting Civilians From UN Peacekeepers and Humanitarian Workers: Sexual Exploitation and Abuse”, in Aoi, A., de Cooning, C., and Thakur, R. (eds.), The Unintended Consequences of Peace Operations (Tokyo: United Nations University Press, 2007), pp. 44–66.
78 Traynor, I., “Nato Force ‘Feeds Kosovo Sex Trade’”, The Guardian (7 May 2004).
79 IOM, Counter-Trafficking Service, Changing Patterns and Trends of Trafficking in Persons Within, To and Through the Balkan Region (Geneva, IOM, May 2004), p. 39; Human Rights Watch, Hopes Betrayed: Trafficking of Women and Girls to Post-Conflict Bosnia and Herzegovina for Forced Prostitution (Volume 14, No. 9, New York, 2002).
80 Limanowska, B., Trafficking in Human Beings in South Eastern Europe (UNICEF/UNOHCHR/OSCE-ODIHR, 2002), p. 8.
81 UN Development Fund for Women, Trafficking and Forced Prostitution of Palestinian Women and Girls: Forms of Modern Day Slavery (Jerusalem/Ramallah: UNIFEM, June 2008), l; International Labour Organization (ILO), Trafficking in Human Beings: New Approaches to Combating the Problem (May 2003), l.
82 International Labour Organization (ILO), Forced Labour Convention, C29 (Geneva, 28 June 1930), www.refworld.org/docid/3ddb621f2a.html; International Labour Organization (ILO), Abolition of Forced Labour Convention, C105 (Geneva, 25 June 1957).
83 ICTY, Prosecutor v. Kunarac, Kovac and Vukovic, Trial Chamber, Judgment, Case No. IT-96-23-T (22 February 2001), para 542.
84 International Labour Organization (ILO), P029 –Protocol of 2014 to the Forced Labour Convention (1930), adoption: Geneva, 103rd ILC session (11 June 2014).
85 UNGA, Rome Statute of the International Criminal Court (last amended 2010) (UN Doc. A/CONF.183/9, 17 July 1998).
86 UN, Observance by United Nations Forces of International Humanitarian Law (ST/SGB/1999/13, 6 August 1999).
87 Ibid., Section 7.3.
88 Ibid., Section 7.4.
89 Ibid., Sections 7.1 and 7.2.
90 See: Economic Community of West African States (ECOWAS): Community Court of Justice, Hadijatou Mani Koraou v. The Republic of Niger, ECW/CCJ/JUD/06/08 (27 October 2008), para 85.
91 European Court of European Rights, C.N. v. United Kingdom, Application No. 4239/08 (13 November 2012), para 69.
92 Francioni, F. (ed.), Access to Justice as a Human Right (Oxford: Oxford University Press, 2007).
93 UNGA, International Covenant on Civil and Political Rights (16 December 1966), 999 UNTS 171.
94 See: Bassiouni, M.C., “International Recognition of Victim’s Rights” (2006) 6(2) Human Rights Law Review 203–279.
95 UN, Human Trafficking and United Nations Peacekeeping (DPKO Policy Paper, March 2004), para 24.
96 Ibid., para 10.
97 Ibid., para 18.
98 UNGA, Comprehensive Review of the Whole Question of Peace-keeping Operations in All Their Aspects (UN Doc. A/RES/49/37).
99 Ibid., para 47.
100 UNGA/SC, Report of the Secretary-General, The Future of United Nations Peace Operations: Implementation of the Recommendations of the High-level Independent Panel on Peace Operations (UN Doc. A/70/357 –S/2015/682, 2 September 2015), para 100.
101 UNAIDS/DPKO, Protect Yourself, and Those You Care About Against HIV/AIDS (New York: United Nations, April 1998), pp. 14–15.
102 The Ten Rules is a pocket card distributed to all peacekeepers when deployed, and includes a simple decalogue of rules that should be followed.
103 Fleck, D. (ed.), The Handbook of the Law of Visiting Forces (New York and Oxford: Oxford University Press, 2001), Annex F, 603.
104 See, for example, UN, DPKO, General Guidelines for Peacekeeping Operations (New York, 1995); UN, DPKO, United Nations Peacekeeping Operations: Principles and Guidelines (March 2008), p. 15.
105 DPKO, Enhancing the Operational Impact of Peacekeeping Operations: Gender Balance in Military and Police Services Deployed to UN Peacekeeping Missions (Policy Dialogue, New York, 28–29 March 2006).
106 See, for instance, Bastick, M., Integrating a Gender Perspective Into Internal Oversight Within Armed Forces (Geneva: DCAF, OSCE, OSCE/ODIHR, 2014).
107 UN Convention on Privileges and Immunities, note 9, above, Article. V, Section 20.
108 Compilation of Guidance and Disciplinary Directives on Disciplinary Issues for all Categories of Personnel Serving in United Nations Peacekeeping and Other Field Missions (UN Doc DPKO/MD/03/0099), [24]–[25].
109 UN, Human Trafficking and United Nations Peacekeeping (DPKO Policy Paper, March 2004), para 26.
110 Deschamps, M., Jallow, H.B., and Sooka, Y., Taking Action on Sexual Exploitation and Abuse by Peacekeepers (Report of an Independent Review on Sexual Exploitation and Abuse by International Peacekeeping Forces in the Central African Republic), p. 4.
111 UNGA/SC, Report of the Secretary General, The Future of United Nations Peace Operations: Implementation of the Recommendations of the High-level Independent Panel on Peace Operations (UN Doc. A/70/357 –S/2015/682, 2 September 2015), paras 119–125.
112 Ibid., para 120.
113 Ibid., para 121.
114 Ibid., para 122.
115 DPKO, Training and Evaluation Service Military Division, Gender and Peacekeeping Operations In-Mission Training (New York: United Nations, 2001).
116 UNGA, Convention on the Elimination of All Forms of Discrimination Against Women (18 December 1979), 1249 UNTS 13.
117 Byrne, B., Marcus, R., and Power-Stevens, T., Gender, Conflict and Development. Volume II: Case Studies Cambodia; Rwanda; Kosovo, Somalia; Algeria; Guatemala and Eritrea (BRIDGE Report No. 34, Brighton: IDS, 1995).
36
Can labour make an effective contribution to legal strategies against human trafficking?
Zuzanna Muskat-Gorska
Forced and trafficked labour is the very antithesis of decent work. Eliminating contemporary forms of slavery is a rights-based issue and a moral imperative for the trade union movement.1 Estimates show there are more than 21 million modern slaves worldwide.2 Forced labour in the private economy generates US$ 150 billion in illegal profits annually.3 Domestic work, agriculture, construction, manufacturing, and entertainment are among the sectors most concerned.
This chapter presents some of the strategies adopted by the global trade union movement in order to identify and address those factors that increase worker vulnerability to trafficking. Part one considers under which conditions persistent withholding of wages could be recognized as an indicator of coercion, or an indicator of involuntariness – taking into account that “menace of penalty” and “involuntary offer to work” are constitutive elements of the crime of forced labour.4 The second part discusses the legal gap in access to a judicial remedy for victims of forced labour and trafficking committed by, or in the interest of, corporate actors.5 Both subjects are rooted in the labour rights-based approach to human trafficking. This chapter describes this approach and discusses its potential to identify factors that significantly increase worker vulnerability to trafficking, but that are often ignored by anti-trafficking policies – those factors that derive from labour and employment laws, as well as from other relevant regimes that might affect enforcement of labour rights. It then presents the abo
ve-mentioned case studies and discusses their added value. The chapter concludes that interventions targeting strengthening of the bargaining position of workers vulnerable to trafficking and providing them with tools for transforming employment practices to reduce instances of exploitation are crucial both for coherence of legal responses, as well as for the quality of policy interventions.
Labour approach to human trafficking
The last ten years have seen a significant increase in anti-trafficking and anti-slavery legislation and related policies and projects.6 These efforts have been largely based on the model of a human rights-oriented approach to trafficking, provided by the international anti-trafficking instruments: the Palermo Protocol, the Council of Europe Convention on action against trafficking in human beings, and the relevant EU instruments – such as the Anti-Trafficking Directive.7 These instruments have been implemented by a vast number of countries worldwide, and have played a crucial role in providing some measure of protection of severely exploited workers. However, criminal prohibition of labour trafficking has not, so far, resulted in a decrease of incidence or prevalence of the crime.8 Assistance provided under this framework reaches an alarmingly small number of individuals, leaving the rest of the traffickers and trafficked population unaffected.9 The prevailing human trafficking approach is grounded on policies attending to the individual victim’s situation – mostly after exploitation – through the focus on victim rescue.10 Under this approach, ex-post help is offered to certain severely exploited workers. The focus is on the removal of the individual from exploitative conditions and on rehabilitation of physical and psychological injuries. Arguably, such a narrow, rescue-centred, post-exploitative approach offers insufficient tools to develop policies focused on prevention of labour trafficking. Preventing the most severe forms of abuse would require intervention into the exploitation cycle much earlier, before the employment situation – individual or collective – turns into forced or trafficked labour.
Labour laws interfere into contractual freedom in the field of employment. They impose protection of the rights of workers and protection of collective bargaining between the parties to the labour contract. Such an approach is derived from the doctrine of inequality of power between workers and employers. At the international level, a general depiction of such inequality lies at the heart of the ILO motto that “labour is not a commodity”.11 From the labour perspective, the imbalance in bargaining power is inherent within the employment relationship, and needs to be corrected as a form of social equality.12
Accordingly, a labour approach to human trafficking differs from the individual-centred, post-exploitative focus of the majority of anti-trafficking frameworks. Instead, a labour approach focuses on elements of the legal order that shape power relations in labour markets. It assumes that worker vulnerability to trafficking is determined by a combination of such factors which are structural – that is, they derive from the particular immigration, labour, employment, criminal, and other legal regimes.13
Several of the factors that affect the power balance between workers and employers have been identified as being common to many of the current legal systems.14 These factors may include: undocumented migration status and the legal consequences of being undocumented, such as lack of access to judicial remedies; under-enforcement of labour and employment law in the informal sector; limited ability to leave the employer because of sponsorship laws; debts arising from recruitment fees; lack of protection against non-payment of wages; and/or de facto or de jure exclusion from protective employment or labour laws.15
A labour approach to human trafficking has recently been lifted to the level of an international labour standard, following the adoption of the Protocol to the ILO Forced Labour Convention, together with the accompanying Recommendation on Supplementary Measures for the Effective Suppression of Forced Labour (No. 203).16 Both the Protocol and the Recommendation have been adopted in order to complement existing international standards, and aim to achieve greater policy coherence.17 Accordingly, they add some labour considerations to the treatment of trafficked persons in so far as they become victims of forced and compulsory labour.18
However, although States are obliged to prevent human trafficking, and despite the centrality of labour exploitation in the definition of trafficking provided by the Palermo Protocol and other international instruments, the labour protection framework is still largely absent from the current anti-trafficking regimes.19
The next section presents two strategies aiming at ameliorating exploited workers’ bargaining position beyond individual ‘rescue’. The first relates to labour interpretation of the meaning of coercion in the context of definition of labour trafficking; the second assesses barriers to remedies for victims of trafficking or forced labour committed by, or in the interest of, corporate actors.
Withholding of wages as a means of coercion
In 2015, both the European Commission and EUROJUST published their first analyses of selected court judgments relating to labour trafficking.20 These studies revealed varying interpretations of the meaning of withholding of wages, and of the extent to which this indicator substantiates the offence of forced labour.21 Although several European courts considered poor working conditions, including withholding of wages, among indicators of labour exploitation,22 on its own, withholding of wages has never been recognised as tantamount to coercion or a stand-alone indicator of menace of a penalty.23 This interpretation is shared by courts beyond Europe. Globally, courts are struggling with the issue of indirect forms of coercion – those that go beyond objective tests of coercion by law, physical force, or threat of penal sanction. More subjective tests, such as psychological or economic coercion, are less accepted.24
Against this background, the International Trade Union Confederation decided in 2015 to submit written comments to the European Court of Human Rights in reference to the case Chowdhury v. Greece.25 The intervention aimed at presenting arguments on whether work imposed by exploiting the vulnerability of the worker (such as irregular migrant status resulting in no position to assert rights, or lack of access to freedom of association) under the menace of a penalty (such as persistent and deliberate withholding of wages) should meet the definition of forced labour and, therefore, the threshold for the application of Article 4, ECHR.
The case concerned an incident that took place in April 2013: a supervisor shot at a crowd of around 150 Bangladeshi irregular migrant workers at a strawberry farm in the Nea Manolada region, seriously injuring around 30 of them. The incident followed a prolonged dispute over unpaid wages. Workers had begun to work for the farmers on differing dates from October 2012 to February 2013. They had not been paid since. Before the incident in April, they went on strike twice – in February and in March – in an attempt to recover their unpaid salaries. On 15 April, the employer ordered them to leave the fields and he brought a team of new irregular migrants to replace his former workers. The dispute that followed ended in shooting, which, according to Amnesty International, was “the culmination of months of neglect and exploitation of thousands of migrant workers in the area around Manolada”.26 The Prosecutor’s office brought charges of serious bodily harm and illegal possession of weapons against the supervisor who fired the shots, and of trafficking in persons against the shooter and two farm owners who were employing the workers in their fields.
The court in Patras recognised that the workers were promised wages of 3 EUR/hour, well below the legal minimum wage,27 and that these wages had never been paid, although the employer arranged for access to the local shop, where workers could get food daily. The cost of the food was to be deducted from the promised wages at the amount of 3 EUR/day. Workers were required to work around 12 hours per day, seven days per week. The employer lodged them in heavily overcrowded tents made of cardboard and plastic, with no sanitation, electricity, or protection against heat. Compliance at work was secured by the constant presence of armed guards patrolling the fields. Employers were well awar
e of the workers’ irregular migration status and their lack of knowledge of the Greek language. They knew they could secure labour from the workers without having to pay wages.28 The local police were aware of both living and working conditions of the workers, as well as of persistent non-payment of wages by the employers.29 The police had not informed the workers about their rights, they had not opened investigation into possible labour trafficking, nor had they notified the labour inspectorate.30
The court in Patras cleared all the defendants of the charges of trafficking, despite confirming the existence of indicators of severe exploitation.31 Charges of forced labour were not raised, as Greece does not criminalise forced labour separately from labour trafficking. The court held that the treatment of the workers by the employers did not amount to labour trafficking. It held that the employers had not exercised complete control over the workers; the workers were not completely isolated – they were free to move in the area (e.g., they could go to the shop to buy food) and they were free to leave the farm. Also, the employers had not threatened workers in a way amounting to coercion. Had that been the case, workers would have fled the workplace. The wish to save life would have been stronger than worries about unpaid wages or about the need to earn a living. Also, the court held that the employers had not used deception to bring workers into exploitation. According to the court, although the promised wages were below the legal minimum wage, no deception or abuse of workers’ vulnerability could be established, as such wages were a widespread practice in the agricultural sector in the region. Accordingly, the court held that the treatment of workers by the employers did not amount to trafficking for labour exploitation.
Analysis of the case from the labour perspective could lead to a different outcome. From this perspective, as considered by the ILO Committee of Experts, in cases in which work or service is imposed by exploiting the worker’s vulnerability, under the menace of a penalty, dismissal, or payment of wages below the minimum level, such exploitation ceases to be merely a matter of poor conditions of employment: it becomes one of imposing work under the menace of a penalty, and calls for the protection of the ILO Forced Labour Convention.32 Specifically, a deliberate and persistent non-payment of wages, used to compel work, may be considered as one of the factors strengthening the indirect test for forced labour. As explained by the 2012 ILO General Survey: “a worker who is not paid has to stay because outstanding wages will be lost if he or she leaves, hence there is a penalty for leaving”.33 In such cases, the worker is deceived either as to the level of wages to be paid (when paid below what was initially offered at the stage of recruitment), or as to being paid at all. The ILO guidelines on forced labour in adults and children explicitly recognised that:
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