Addressing Trafficking of Persons in the Human Rights Framework
By Lin Chew
I've been working on anti-trafficking for 20 years. Despite some hard-won gains, the situation is getting rapidly worse now. My own specialty is bringing together anti-trafficking with human rights work. I feel that if we're going to tackle this and win we have to find a way to bring all the people working on this issue together. I believe that a human rights framework would help us analyze, strategize and link the various aspects of the complex issue of trafficking together.
We come from many backgrounds and bring many different interests to the shared goal of addressing human trafficking. If we were to understand and apply "human rights" in the same way, we would have a strong basis for collaboration on a global scale. Perhaps with the power of this unified approach we could begin to make a much bigger difference in our efforts to bring about a better world, in which trafficking would not exist.
Here's a sketch of how we'd approach trafficking through human rights.
The Human Rights Framework
The human rights framework is monitored by the United Nations.
The crime of trafficking often violates our most basic rights:
- The right to be free from physical violence;
- The right not to be tortured or submitted to cruel or degrading treatment;
- The right to personal autonomy;
- The right to enjoy psychological, physical and sexual health;
- The freedom to choose one's place of residence and to move within one's own country;
- The right to work with just pay and safe working conditions; and
- Freedom from slavery and forced labor.
People who survive trafficking must have a way to find help for the violations of their rights, and they need access to resources that will help them recover. But trafficking usually happens to people who are already deprived of basic rights, especially to life and a decent livelihood. Working in a 'rights framework' means ensuring that vulnerable people get the economic, social, cultural, civil and political rights to which all of us are entitled.
The previous UN High Commissioner for Human Rights, Mary Robinson, named 10 principles that should underlie all efforts to address trafficking. The most basic of these principles, ones that are usually not observed by the way, are:
- The definition of the term "trafficking" should not be restricted to sexual exploitation but should cover other purposes, such as bonded or forced labor and other slavery-like practices.
- Trafficked persons should not be criminalized for being forced to enter or reside in a country illegally, or for any activities they are forced to perform as a consequence of their status as trafficked persons.
- Efforts must be made to address the root causes of trafficking, including poverty, inequality, discrimination and racism.
Trafficking: an Issue of Human Rights or Crime Prevention?
In the last two decades, the most important development in the work to address trafficking has been an effort to clarify a definition of "trafficking in persons" that is in accordance with human rights principles and is globally acceptable.
This is necessary in order to develop effective strategies on behalf of the rights of trafficked persons and ultimately, the prevention of trafficking. Securing such a definition is not an easy journey.
The "Human Rights" Definition
The former United Nations Special Rapporteur on Violence against Women, Radhika Coomaraswamy, was mandated to investigate and report on trafficking in women and to suggest strategies to eliminate trafficking. In her last report, she wrote of the need for a new definition of trafficking that is based on respect and defense of the human rights of all persons:
"In order to address¦trafficking in women, the definition of trafficking focuses on 'forced labor or slavery-like practices' rather than narrowly focusing on prostitution or sexual exploitation. Documentation on trafficking patterns reveal that trafficking is undertaken for numerous purposes, including but not limited to prostitution or other sex work, domestic, manual or industrial labour, and marriage, adoptive or other intimate relationships.
The common elements found in all of the trafficking patterns are:
1. the lack of consent;
2. the brokering of human beings;
3. the transport; and
4. the exploitative or servile conditions of the work or relationship.
Thus, any definition of trafficking must capture these elements".
(E/CN.4/2000/68, 29 February 2000)
In Contrast, the "Crime Prevention" Definition
In November 2000, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, was adopted by the UN General Assembly.
The definition in the Protocol is as follows:
"''Trafficking in persons' shall mean the recruitment, transportation, transfer, harboring or receipt of persons, by means of 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 the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs".
This "crime prevention" definition of trafficking actually contains all the human rights elements Radhika Coomaraswamy explained, but notice that its focus on crime detracts from the concern for the basic rights of survivors. In fact, when you read all the relevant documents, you see they contain provisions to protect and assist trafficked persons, but only those who agree to become witnesses.
What does this really mean? It means that the rights of trafficked persons who are NOT witnesses or complainants in a trafficking case are not protected. And while law enforcement is required for governments, protection and assistance is only discretionary. That is why it is we must advocate for protection and assistance for trafficking survivors.
The human rights system says that governments have to respect, protect and promote the human rights of all peoples in their country — citizens and non-citizens, migrants and visitors alike. It's a common misunderstanding that traffickers harm survivors and governments rescue and protect them. We need to realize that trafficked persons suffer serious rights violations at the hands of traffickers, but too often, once they are released from the slavery-like conditions, they are subject to serious human rights violations at the hands of the government.
Trafficked persons are vulnerable to arrest, detention and deportation because many destination countries are unwilling to recognize that they are victims of crimes, and instead treat them as "illegal" migrants who have entered the country illegally. Trafficked persons often do not have the chance to lodge complaints, seek damages, assess whether it is safe to return home, collect their belongings or apply for asylum. They are treated more like criminals than victims, as in Dinah's case below:
Dinah, a Cambodian woman, moved to Thailand to work in a sewing factory. An agent promised her good wages and assured her of the legality of work in Thailand. Upon arrival in Bangkok with the agent, she was taken to a factory where she was forced to work 12 hours every day except Sunday, was given no freedom to go outside and never received any wages.
Dinah was 'rescued' during a police raid on a factory, but soon after at the police station was arrested for her illegal status (working without a permit). Her employer was arrested for the illegally low salary she paid the workers, but not for the abuses she inflicted upon them e.g. illegal confinement.
During investigations, Dinah was provided with no translator, which meant the investigation took longer. During this time she was held in a detention centre, slept on the floor and only received 2 meals per day.
At the court hearing Dinah was found guilty of working without a permit. The fine was $100 but since she did not have money, she had to stay in jail for 3 months instead. Then she was sent to the detention centre for deportation. The court trial for the employer began after Dinah's deportation, so she had no ability to participate in the proceedings.
(source: Human Rights and Trafficking in Women: A Handbook, GAATW 2001. see www.gaatw.net)
Finally, a human rights approach must address the root causes. Real prevention of trafficking means entitling and including all those in vulnerable situations. This approach implies radical systemic changes to guarantee global equality, justice and democracy.
Meanwhile, concrete steps can be taken in the two difficult areas where trafficking occurs:
1. Prevent trafficking of migrant workers, by creating possibilities for legal migration (within and across borders) for all kinds of work, including domestic work and sex work; respecting all the rights of migrants irrespective of their legal status; ensuring just pay and safe working conditions for work done by migrants; and giving independent residence status to immigrant partners of nationals / resident immigrants.
2. Prevent trafficking in the sex industry, by recognizing sex work as legitimate occupation; strengthening all the rights of sex workers, including and enabling sex workers to participate in decision-making affecting their lives and work, including formulation of anti-trafficking measures.
This is my framework for addressing trafficking, and I would welcome comments from readers.