Trafficking and Human Rights
For Norter Yusu and Lingling: may yours be a better, more caring world
Trafficking and Human Rights European and Asia-Pacific Perspectives
Edited by
Leslie Holmes Professor of Political Science, University of Melbourne, Australia and Recurrent Visiting Professor at both the Graduate School for Social Research, Warsaw, Poland and the University of Bologna, Italy
Edward Elgar Cheltenham, UK • Northampton, MA, USA
© Leslie Holmes 2010 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA
A catalogue record for this book is available from the British Library Library of Congress Control Number: 2010922135
ISBN 978 1 84844 159 0
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Typeset by Cambrian Typesetters, Camberley, Surrey Printed and bound by MPG Books Group, UK
Contents List of tables List of contributors Abbreviations Preface and acknowledgments 1 2
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Introduction: the issue of human trafficking 1 Leslie Holmes Human trafficking: a challenge for the European Union and its member states (with particular reference to Poland) 18 Zbigniew Lasocik Responses to sex trafficking: gender, borders and ‘home’ 37 Sanja Milivojevic and Marie Segrave People smuggling and human trafficking within, from and through Central and Eastern Europe 56 Leslie Holmes ‘Boys will be boys’: human trafficking and UN peacekeeping in Bosnia and Kosovo 79 Olivera Simic´ Between social opprobrium and repeat trafficking: chances and choices of Albanian women deported from the UK 95 Stephanie Schwandner-Sievers Trafficking in human beings for sexual purposes: Sweden’s anti-trafficking regime and the lessons for Australia 116 Kevin Leong Combating transnational crime in the Greater Mekong Subregion: the cases of Laos and Cambodia 133 Susan Kneebone and Julie Debeljak Exit, rehabilitation and returning to prostitution: experiences of domestic trafficking victims in the Philippines 153 Sallie Yea Conclusions: quadruple victimisation? 175 Leslie Holmes
Bibliography Index
207 233 v
Tables 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4.10 4.11 4.12 4.13 4.14 4.15 4.16 7.1 9.1 9.2 10.1
Attitudes towards immigration Perceptions of the scale of people smuggling Perceptions of the involvement of crime gangs in people smuggling Perceptions of the collusion of corrupt state officials in people smuggling Perceptions of the types of state official that cooperate most with organised crime gangs in people smuggling Perceptions of the dominant nationality among members of organised crime gangs involved in people smuggling Presumed intentions of people smuggled into your country Anticipated or assumed impact of EU membership on people smuggling People smuggling as an abuse of human rights Perceptions of the authorities’ approach to people smuggling Attitudes towards whistleblowers Perceptions of the problem of people smuggling Levels of empathy with those seeking assistance from people smugglers GDP growth rates in selected CEE and CIS states Annual inflation rates (consumer price increases – %) in selected CEE and CIS states Average annual unemployment rates in selected CEE and CIS states Number of investigations and convictions in Sweden for trafficking and procurement, 1998–2006 Interviews with Balay Isidora clients Mode of detection of clients to enter Balay Isidora for 2006 Scores of selected countries in selected years on Transparency International’s (annual) Corruption Perceptions Index (TI CPI)
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60 61 61 62 63 64 64 65 65 66 67 67 68 70 70 71 122 163 165
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Contributors Julie Debeljak is a Senior Lecturer in the Faculty of Law and Deputy Director of the Castan Centre for Human Rights Law at Monash University, Victoria, Australia. She has a particular interest in the field of international human rights law and comparative domestic protection of human rights, including bills of rights. Dr Debeljak completed her LLM with First Class Honours at the University of Cambridge, and was an intern with the Indigenous Peoples Team at the UN Office of the High Commissioner for Human Rights in 1998. In 2001, she was awarded a Fulbright Scholarship to attend a summer course on American constitutional law at Boston College. Dr Debeljak was awarded her PhD in 2004; her thesis examined comparative domestic human rights protection, focusing on Australia, Canada and the United Kingdom. Dr Debeljak is a Chief Investigator on the Australian Research Council Linkage project ‘Australia’s Response to Trafficking in Women: A Model for the Regulation of Forced Migration in the Asia-Pacific Region?’ She has published on various human rights topics, and has extensive professional experience, predominantly working with domestic and international governments on the implementation of human rights obligations. In addition, Dr Debeljak has been a member of several professional and advocacy bodies working on human rights and bills of rights issues. Leslie Holmes is Professor of Political Science at the University of Melbourne and Recurrent Visiting Professor at both the Graduate School for Social Research in Warsaw and the University of Bologna. He specialises in corruption and organised crime, recently with particular reference to human trafficking and people smuggling in Europe. His most recent books are Rotten States? Corruption, Post-Communism and Neoliberalism (Duke University Press, 2006), Communism: A Very Short Introduction (Oxford University Press, 2009) and the edited collection Terrorism, Organised Crime and Corruption: Networks and Linkages (Edward Elgar, 2007). He was President of the International Council for Central and East European Studies (ICCEES) 2000–2005, and of the Australasian Association for Communist and Post-Communist Studies (AACPCS) 2005–07. He has been a consultant to the World Bank, Transparency International and the Swiss government, and has been a Fellow of the Academy of the Social Sciences in Australia since 1995. vii
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Susan Kneebone is a Professor of Law and Deputy Director of the Castan Centre for Human Rights Law at the Faculty of Law, Monash University, Victoria, Australia. Susan teaches Forced Migration and Human Rights, International Refugee Law and Practice, and Citizenship and Migration Law. She has organised several conferences and workshops on these issues, made submission to public enquiries and frequently handles media enquiries on these matters. She is the author of many articles on these topics and editor of The Refugees Convention 50 Years On: Globalisation and International Law (Ashgate, 2003) and, with F. Rawlings-Sanaei, New Regionalism and Asylum Seekers: Challenges Ahead (Berghahn, 2007). Susan was the initiator of and is a Chief Investigator on the Australian Research Council Linkage project ‘Australia’s Response to Trafficking in Women: A Model for the Regulation of Forced Migration in the Asia-Pacific Region?’ together with her colleagues Dr Julie Debeljak and Professor Bernadette McSherry and four collaborating organisations. Zbigniew Lasocik is a graduate from Warsaw University Law School with an LLM, doctoral and post-doctoral degrees in law and criminology, and has an MA in Sociology from Warsaw University’s Institute of Crime Prevention and Rehabilitation. He is Professor of Criminology and Corrections. He serves as Dean of the Faculty of Law at Lazarski University in Warsaw, and as head of Warsaw University’s Human Trafficking Studies Center. He conducts numerous research projects and studies in criminology (violent crimes, policing, prison systems) and human rights (HR education, human trafficking). He has published several books and numerous articles on all of these topics. He has been a Visiting Fellow at the Human Rights Program at Harvard Law School, John Jay College of Criminal Justice in New York, the Center for the Study of Human Rights at Columbia University, the Swedish National Council for Crime Prevention and the Criminology Department of the London School of Economics. Prof. Lasocik is President of the Polish Section of the International Commission of Jurists, a Member of the Board of Directors of the International Senior Lawyers Project and a former Regional Director of the European Human Rights Foundation in Warsaw. Kevin Leong is a graduate policy officer at the Department of the Prime Minister and Cabinet, Australia. He first undertook his research into Sweden’s anti-trafficking regime while a student at the University of Sydney, and completed the research as a summer research scholar at the Australian National University. He has worked variously as a research assistant for the Director of the National Europe Centre at the Australian National University, as a legal clerk at the Aboriginal Legal Service (NSW/ACT) Limited, and as a tutor at the University of Sydney.
Contributors
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Sanja Milivojevic is a Lecturer in Criminology and Policing Studies at the University of Western Sydney. She holds a BA and MA from Belgrade University Law School, and a PhD from Monash University, Victoria, Australia. Her research is in the field of sex trafficking in Serbia and Australia, with a particular focus on how victims of trafficking have been constructed in Serbian and Australian culture. She has worked with the Institute for Criminological and Sociological Research in Belgrade. Sanja was one of the founders of the Victimology Society of Serbia, and was instrumental in establishing the first Victim Support Service in the Balkan region. In 2001–02, she was a Public Interest Law Fellow at Columbia University Law School in New York City. In 2003, Sanja completed a World Society of Victimology postgraduate course in Dubrovnik, Croatia. She has participated in several international and domestic conferences, and has published a number of articles in both Serbian and English. Her most recent major publications are the coauthored books Trafficking in People in Serbia (OSCE, 2004) and, with Marie Segrave and Sharon Pickering, Sex Trafficking: International Context and Response (Willan, 2009). Stephanie Schwandner-Sievers studied Balkan Studies and Social Anthropology at Berlin Free University (MA 1993) and has conducted longterm ethnographic fieldwork in Albania, Kosovo and among the Albanian diaspora since 1992 (last including background research, facilitated by OSCE/ODIHR, on the anti-trafficking efforts in Albania in 2008). From 1997 to 2003 she served the School of Slavonic and East European Studies (SSEES), University College London, as the first Alex Nash Fellow for Albanian Studies. She is currently Honorary Research Fellow at Roehampton University and an Honorary Research Associate at SSEES, and also teaches ‘The Anthropology of Eastern Europe’ for an international MA area studies programme, MIREES, at the University of Bologna. Her consultancy firm, Anthropology Applied Limited, has produced numerous reports for national and international courts and agencies, and she has published extensively on Albanian politics of representation and identity and the construction of tradition, gender, security, myth, memory, nationalism and transnationalism. Marie Segrave is a lecturer in Criminology in the School of Political and Social Inquiry at Monash University, Victoria, Australia. She researches in a wide range of areas related to regulation, globalisation, exploitation, policing and criminalisation. Marie’s current research projects are focused on temporary migration and labour exploitation in Australia, people trafficking, women’s experiences of survival post-release from imprisonment in Victoria, and the police provision of victim support in Victoria. Marie has most recently completed Sex Trafficking: International Context and Response (Willan,
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2009), with co-authors Sanja Milivojevic and Sharon Pickering – an analysis and critique of the design and implementation of national responses to people trafficking in Australia, Asia and Europe. Her most recent articles were published in Women’s Studies International Forum (July–August 2009) and the Australian Journal of Human Rights (2009). Olivera Simic´ is in her final year of a doctoral candidature in Law at the University of Melbourne, Australia. She graduated from Essex University, UK with a Masters in International Human Rights Law and a year later from the UN University for Peace, Costa Rica with an MA in Gender and Peacebuilding. Before enrolling in the PhD program, Ms Simic´ worked in different NGOs and international organizations such as UNICEF, OSCE and ICMPD. Her fields of interest are peacekeeping, peacebuilding, gender, international human rights and humanitarian law, trauma and reconciliation. She has taught in Bosnia Herzegovina, Serbia and Australia and held awards for postgraduate studies in the UK, Costa Rica and Australia. Olivera has participated and presented her work at a number of international and domestic conferences and has published in Europe, the USA and Australia. Sallie Yea is a Visiting Fellow in the Department of Geography, National University of Singapore. She gained her PhD in Human Geography from Monash University in 2000. She has been conducting research in the field of human trafficking since the early 2000s, focusing her research mainly on trafficking for marriage and for prostitution in Asia. She has published widely on the subject, including papers in Women’s Studies International Forum, Asian and Pacific Migration Journal and Singapore Journal of Tropical Geography. She is currently conducting research into human trafficking and the commercial sexual exploitation of children in Singapore and surrounding Indonesian territories.
Abbreviations AFESIP AFP AIDS ARC ARCPPT ARTIP ASEAN ATLeP BI BiH CARE CARPO CATW CBOS CEC CEE CEELI CHASTE CIS CivPol CNCC COMMIT CPI CSE CTOC DAPHNE DP DPA DPKO DSWD
(Action for Women in Distressing Circumstances) Agence France-Presse acquired immune deficiency syndrome Australian Research Council Asia Regional Cooperation to Prevent People Trafficking Asia Regional Trafficking in Persons (Project) Association of South East Asian Nations Anti-Trafficking Legal Project Balay Isidora Bosnia and Herzegovina (originally) Cooperative for American Remittances to Europe (Council of Europe and EU – CARDS Regional Police Project) Coalition Against Trafficking in Women (Centre for Public Opinion Research) Commission of the European Communities Central and Eastern Europe (Europe and Eurasia Program, American Bar Association) Churches Alert to Sex Trafficking Across Europe Commonwealth of Independent States civilian police Cambodian National Council for Children Coordinated Mekong Ministerial Initiative against Trafficking Corruption Perceptions Index Commercial Sexual Exploitation Convention against Transnational Organized Crime (Program to combat violence against children, young people and women in Europe) Democratic Party Dayton Peace Accords Department of Peacekeeping Operations Department of Social Welfare and Development xi
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ECPAT EU EUPM Eurojust Europol FIFA FLSW GAATW GCB GDP GEC GFC GMS GRO HIV HRW IACAT ICMPD IISS ILO IO IOM IPTF JCACC JIT KFOR KTV LAPTU LEASEC LEASETC LICADHO LWU LYU MIEC MIREES MLSW MoU
Trafficking and human rights
End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes European Union European Union Police Mission European Union’s Judicial Cooperation Unit European Union Law Enforcement Agency Federation of International Football Association freelance sex worker Global Alliance Against Traffic in Women Global Corruption Barometer gross domestic product global economic crisis global financial crisis Greater Mekong Subregion guest relations officer human immunodeficiency virus Human Rights Watch Inter-Agency Council Against Trafficking International Centre for Migration Policy Development International Institute for Strategic Studies International Labour Organization (or Office) International Organisation International Organization for Migration International Police Task Force Joint Committee on the Australian Crime Commission Joint Initiative in the Millennium against Trafficking in Girls and Women Kosovo Force karaoke television Lao Anti People Trafficking Unit Law Enforcement Against Sexual Exploitation of Children Law Enforcement Against Sexual Exploitation and Trafficking of Children (Cambodian League for the Promotion and Defence of Human Rights) Lao Women’s Union Lao Youth Union Ministry of Industry, Employment and Communications Interdisciplinary Master’s in East European Research and Studies Ministry of Labour and Social Welfare Memorandum of Understanding
Abbreviations
MTV NATO NCID NGO OC ODIHR OGA OHCHR OHR OJEC OJEU OMCTP OSCE PDR PP ROSA SEA SFOR SIDA SOFA SP SRSG STD STOP SVD TED THBU TI TiP TPIU TPU TVPA UK UN UNDP UNDP HDI UN DPKO UNECE UNESCAP UNICEF
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Music Television North Atlantic Treaty Organization National Criminal Investigation Department non-governmental organisation organised crime Office for Democratic Institutions and Human Rights Office of Gender Affairs Office of the High Commissioner for Human Rights Office of the High Representative Official Journal of the European Community Official Journal of the European Union Office to Monitor and Combat Trafficking in Persons Organization for Security and Co-operation in Europe People’s Democratic Republic Philippines peso Regional Office for South Asia South East Asia Stabilisation Force (BiH) Swedish International Development Cooperation Agency Status of Forces Agreement Socialist Party Special Representative of the Secretary-General sexually transmitted disease Special Trafficking Operations Program (Society of the Divine Word) Trade and Environment Database Trafficking in Human Beings Unit Transparency International Trafficking in Persons Trafficking and Prostitution Investigation Unit Trafficking in Persons Unit Trafficking Victims Protection Act United Kingdom United Nations United Nations Development Programme United Nations Development Programme Human Development Index United Nations Department of Peacekeeping Operations United Nations Economic Commission for Europe United Nations Economic and Social Commission for Asia and the Pacific United Nations Children’s Fund
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UNIFEM UNMIBH UNMIK UNODC UNTAC US USAID VoT
Trafficking and human rights
United Nations Development Fund for Women United Nations Mission in Bosnia and Herzegovina United Nations Interim Administration Mission in Kosovo United Nations Office on Drugs and Crime United Nations Transitional Authority in Cambodia United States United States Agency for International Development victim of trafficking
Preface and acknowledgments The present volume grew out of a conference entitled ‘Sex ‘n’ Drugs and Shifty Roles’ held at the Contemporary Europe Research Centre (CERC), University of Melbourne, in December 2006. For their generous sponsorship of that conference, I wish to thank the Goethe Institut (Melbourne Branch), and the European Union’s Jean Monnet Fund. And for all their help in very practical ways, I thank CERC’s Director, Philomena Murray; its former manager, Geraldine East; and CERC’s many postgraduates. Several of the chapters in this volume started life as papers at the CERC conference just mentioned. However, for various reasons, four of the original contributors eventually proved to be unable to convert their conference papers into chapters, despite having agreed to rework and update their papers. In three cases, the editor was not informed about this inability, and waited expectantly for the chapters. When it finally became obvious that the chapters would not be forthcoming, it looked as if the book project would, regrettably, fall through; there was simply not enough critical mass. But two specialists who had not been involved with the original conference in any way very kindly agreed to produce chapters at extremely short notice, so that the project was once again viable. Those two people – Stephanie Schwandner-Sievers and Sallie Yea – deserve my special thanks. But I also want to thank all of the other contributors for their patience and support; many could have taken their chapters elsewhere, and I owe each and every one of the original contributors a debt of gratitude. Understandably, publishers can be difficult if a project falls behind. But this was not the case here; for their tolerance when I kept having to change the submission deadline, and their faith in the project when even I was beginning to despair, I wish to thank Alexandra O’Connell and Nep Elverd at Edward Elgar. Leslie Holmes Melbourne
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1. Introduction: the issue of human trafficking Leslie Holmes Human trafficking has justifiably been called the slavery of our times. While the overwhelming majority of internationally trafficked persons – an estimated 80 per cent – are women and children, many thousands of men are trafficked each year too. The majority of internationally trafficked persons are forced into what is nowadays an antiquated term, ‘white slavery’ – that is, sex work. One reason why this term is no longer appropriate is that contemporary trafficking involves people of all colours, ethnicities and religions. But not all trafficked persons are engaged in sex work. While some – especially children – operate in the shadow economy as beggars or pickpockets, many others work in more or less legitimate areas of national economies, including agriculture, construction, fishing, domestic service, and manufacturing. Many other children are trafficked for adoption purposes, which sometimes results in them virtually becoming slaves to their new families. According to the International Labour Organization (ILO), some 43 per cent of trafficked persons are trafficked for sexual exploitation, 32 per cent for non-sexual labour exploitation and circa 25 per cent for a mixture of sexual and nonsexual labour exploitation (ILO 2008: 3). One feature common to all trafficked persons is that, irrespective of the type of work in which they are engaged, they are being severely exploited, enjoy few if any human rights and, in one way or another, are being severely coerced. Most have also been deceived by traffickers. Before exploring this issue further, it is necessary to define two of the key terms used in this study. The first is ‘human trafficking’. The most frequently cited definition in the 2000s is that provided in Article 3 of one of the so-called Palermo Protocols of the United Nations (UN), that on human trafficking (the ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children’ – in UN 2000a).1 This is quoted in full in Chapter 2, and need not be repeated here. Unfortunately, while this UN definition is a thoughtful and comprehensive one, it is also somewhat cumbersome and even confusing. For instance, newcomers to the topic might find difficulty in understanding from it the differences between human trafficking and people smuggling; the 1
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latter is the second term requiring definition here. Human trafficking can be distinguished from people smuggling in six ways. First, whereas smuggling is necessarily an international phenomenon, not all cases of trafficking are. For example, a young woman might be abducted in a village in her native country and taken to the capital, where she is forced to engage in sex work. This said, many cases of trafficking do involve a transnational component, and most of the material considered in this volume relates to international trafficking. Second, all smuggling is by definition illegal, whereas many trafficked persons cross state frontiers on a legal basis, using a genuine passport and visa – while some remain in the home country, as already noted. Moreover, human trafficking was not technically illegal in many countries until the 2000s; indeed, of 155 countries surveyed by the UN, almost 30 per cent (57 countries) still did not have specific legislation criminalising trafficking in persons as of November 2008 (Sarrica et al. 2009: 22). The third and fourth points relate to the use of force and mendacity, and are closely interlinked. Smuggling involves neither coercion nor deception of one another on the part of the two principal actors, the smuggler and the smugglee (though it does necessarily entail deception of state authorities); trafficking always involves coercion and typically, sooner or later, also involves deception. In theory, smuggling is a straightforward – albeit illegal – economic transaction of essentially equal but different agents. The smugglers have a service to sell (illegal migration), and those who seek their assistance in illegally entering a destination country are willing to pay for that service and are fully aware of the terms of the deal. The person being smuggled is free to exit the deal at any point, although they may well forfeit their fee if they do; this freedom to exit the agreement means that no coercion is involved. Trafficked persons, on the other hand, are not free to exit the ‘business relationship’, and in most cases can leave it only through an often risky escape or when the trafficker permits them to leave. The coercion necessarily involves a level of psychological violence. This assumes many forms, but includes threats to report ‘difficult’ trafficked persons to the authorities for not having the appropriate documentation, or to shame prostituted women by informing their families about their activities (that is, two forms of blackmail), and threats of physical violence. In all too many cases, especially those involving women and children, it also involves actual physical violence. In addition to the more obvious examples of this – starvation, beatings, torture, rape, even murder2 – mention should be made here of the tendency among many traffickers to render trafficked persons more dependent by promoting their addiction to drugs. There are many reports from trafficked victims of having been forcibly injected with illicit drugs, on which they have then become dependent (Repetskaia 2005: 52). Occasionally, as a
Introduction: the issue of human trafficking
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means of ensuring obedience, trafficked people have even been forced to watch others being executed (ibid.: 53). Trafficking also involves deception. Even where people have agreed to work for others on less than optimal terms, what eventually become their harsh living and working conditions have not been explained in advance. Drug dependency can also arise from deception (that is, as well as from overt coercion); a number of trafficking victims have related how they were unwittingly introduced to illicit drugs, through being given drinks or food laced with an addictive drug. Trafficking also typically involves deprivation; of the various forms this assumes, one of the worst is the deprivation of identity papers, which renders escape attempts that much more difficult and risky. Fifth, international human trafficking – unlike people smuggling – involves a continuing and coercive relationship between the trafficker (or other traffickers) and the victim after the latter has reached the destination country. An essentially similar distinction is drawn by Paul Holms, a former member of London’s Metropolitan Police and subsequently a specialist working for the International Organization for Migration (IOM). For him, the salient distinguishing feature between people smuggling and international human trafficking is that the former involves payment in advance and in full for a person being transported illegally to a destination country, whereas the latter refers to a situation in which at least some (and often all) of the sum demanded by the smugglers is to be paid after the person illegally entering a destination country has reached that country (Holms cited in Bezlov and Tzenkov 2007: 109). In the case of people smuggling, therefore, the relationship between the smuggler and the smugglee is terminated once the latter has arrived in their chosen country; trafficked persons are not so fortunate, and have to ‘work off’ their often artificially inflated and hence unjustified debt. Invariably, this involves severe exploitation and coercion, usually degradation, and all too often violence against the trafficked person. Finally, and leading on from the last point, the attitudes of smugglees towards smugglers is often markedly different from that of trafficked persons towards their traffickers. Research into Chinese people smuggling reveals that many smugglees and others in source countries consider that people smugglers are doing a ‘good deed’, while smugglers often see themselves as providing a valuable service and are concerned about their responsibilities to their clients (Zhang and Chin 2004: ii, 8–10). Few if any traffickers would be sufficiently self-deceptive as to see themselves in such positive terms. Unfortunately, the clear conceptual distinction that exists between people smuggling and human trafficking is not always sustainable in practice. All too often, people smuggled to their chosen end-destination then discover that their ‘smugglers’ claim that their expenses have increased significantly since the original agreement, and that the smuggled persons will therefore have to work
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Trafficking and human rights
off the additional costs in the destination country. This scenario demonstrates clearly how people smuggling readily mutates into human trafficking. Since the smuggled persons have broken the laws of the destination country in entering it illegally, they typically see themselves as being in no position to complain to the authorities. This gives the ‘smugglers’ – now actually traffickers – an ideal situation to exploit.
SIGNIFICANCE As demonstrated below, it is impossible to determine the precise scale of trafficking, either globally or even into or between particular countries; the various reasons for this will be elaborated. Unfortunately, a few crude positivists maintain that if a phenomenon cannot be adequately measured, then serious researchers should avoid it. Fortunately, none of the contributors to the present volume is so naive as to accept this argument. But for those who believe that the scale of trafficking is exaggerated, it is worth pointing to some of the many qualitative ways in which trafficking directly or indirectly affects everybody – so that it is a more significant phenomenon than is often realised. One of the most significant reasons that trafficking matters is because of its ethical and human rights implications; but this is more appropriately considered in a later section of this chapter. Another important aspect of trafficking is the health implications. Given that so many trafficked persons – mainly but not exclusively women and children – are engaged in sex work, the fact that they are all but invisible to state authorities and typically do not have proper access to state-provided medical resources is a potential problem to anybody using their services. If they catch and transmit sexually transmitted diseases (STDs), it is often not merely their clients who become infected, but also thirdparty partners of the clients. While many STDs can be readily cured nowadays, others cannot; the most serious STD is HIV (human immunodeficiency virus), which remains a potential killer, recent improvements in medical treatments notwithstanding. Given that so many trafficked persons work illegally, they are in a particularly weak position to negotiate for better conditions. This has implications for those who are in a position to work legally. Trafficked persons will often perform tasks for a fraction of the cost that legal workers would consider as minimum wages.3 Two obvious and common consequences of this are that wages are pushed down (that is, exploitation levels increase) and/or unemployment rates increase among those legally able to work.4 If local citizens believe that their poor working conditions or unemployment are in some sense the result of illegal migrants undercutting them, the ensuing resentment can fuel tensions, including racial ones. Since overt racism
Introduction: the issue of human trafficking
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is on the rise in many parts of the world (see for example Hainsworth 2006), it is most unfortunate if trafficking both adds to this and further increases the already numerous dangers faced by trafficked persons. Finally, the macroeconomic ramifications of trafficking are significant. There is some dispute among experts as to the scale of different forms of transnational illicit business. Obuah (2006: 250), citing others, maintains that international human trafficking is now the third-largest form of smuggling, after drugs and weapons. Others maintain that human trafficking has become either the second-largest (European Commission 2007) or even the largest form of smuggling in terms of revenue generation and/or the number of criminals engaging in it. And there are certainly claims that it is the fastest-growing crime globally (Chalke 2009: 8). While the actual dollar sums and number of criminals involved are disputed, there is simply no question that large-scale transnational crime has a serious negative effect on the capacity of states to raise taxes (and hence supply public goods), banking transparency, and so on. Moreover, the greater the sums involved, the more there is available to corrupt officers of the state, which in turn can result in delegitimation of particular regimes and even political and economic systems. Given the significant problems posed by human trafficking, it is surprising that the international community has focused on the issue in a serious way only since the late 1990s. Since other chapters provide details on the major international agreements designed to curb trafficking, only two documents – one international, the other national – will be mentioned here. Thus it is of symbolic significance that the most frequently cited – and hence arguably most important – international document relating to trafficking, the Palermo Protocol referred to above, dates only from 2000; even then, it did not enter into force until December 2003. It is equally telling that the United States (US) did not adopt a document specifically aimed at assisting victims of trafficking until 2000 either (United States’ Trafficking Victims Protection Act, or TVPA). Most other states have also introduced targeted anti-trafficking legislation only in the 2000s, while, as noted above, several countries still have no laws specifically addressing trafficking.
METHODOLOGICAL PROBLEMS IN MEASURING THE SCALE OF TRAFFICKING There are many reasons why it is impossible to measure the scale of global trafficking with any degree of precision. Most relate to the reporting situation. For instance, unlike what is the case with most crimes, the victims of trafficking typically have what are in many ways sound reasons not to report their situation to the authorities. Occasionally, trafficked persons will see their situation
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from a relativistic perspective, as the lesser of two evils. It must not be forgotten that most trafficked persons come from poor backgrounds, have low levels of education, and have very poor prospects in their home country. From this perspective, they sometimes believe that their sorry situation could be even worse, so that there is a disincentive to report it. Almost certainly a more common reason is that many internationally trafficked persons are illegal migrants, and fear that they will themselves be punished if they approach the state authorities. Moreover, many trafficked persons are very wary of the police and other agents of the state anyway. In addition to the point about the legality of their own status, there are two further aspects to this. First, among those trafficked persons who are reasonably aware of the situation in their destination country, there is often a perception that the authorities would do little or nothing to help them. Since prosecution rates against traffickers are very low in most countries, conviction rates even lower, and penalties typically mild, such perceptions are in many cases justified. But another fear – again, one that is all too often legitimate – is that corrupt police officers might be colluding with their traffickers or pimps. Since evidence will be produced in this volume of police collaboration with crime gangs – sometimes for pecuniary benefit, sometimes in return for free use of prostitutes – it is completely understandable that many trafficked persons will think twice before approaching the authorities. Not only might their allegations be dismissed but, worse still, officers might reveal to the trafficked persons’ keepers that the former have tried to blow the whistle on them. This could result in violence, sometimes fatal, being used against the trafficked person.5 A third factor is that many trafficked persons are basically unaware of their rights. Many have little in the way of a social network within which they could discuss their situation. This is often related to the fact that many internationally trafficked persons have a limited command of the language of the country in which they are working. This obviously renders it more difficult for them to develop networks there and to discover more about their rights. There are also often very personal reasons why trafficked persons can be reluctant to approach the authorities. Many trafficked persons working as prostitutes are ashamed of the fact, and would be horrified to think that their family might learn about their situation. Thus, if a trafficked prostitute believes that reporting her situation to the police might mean she has to be a witness at a court trial and that news of this will sooner or later reach her family, she will often opt to remain silent. Given the generally unsympathetic attitudes of families in Albania (see Chapter 6) and in numerous other countries towards daughters and sisters who have been involved in sex work, the decisions by many trafficked women to remain silent is understandable, if regrettable. The point about the trafficked persons’ relationships with their families can
Introduction: the issue of human trafficking
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operate in a quite different way. Depressingly often, young women are sold to traffickers by members of their families – and not only male members – in the first place; trafficked persons are unlikely in such cases to want to do anything that will see them returned to the very people in whom they have now lost all trust. Yet another factor is the so-called Stockholm Syndrome. This term was originally coined by Swedish psychiatrist and drugs expert Nils Bejerot to refer to the attitudes of bank employees taken hostage by robbers during a bungled raid on a Swedish bank in 1973; following their release, the hostages revealed considerable sympathy for their captors. The term thus refers to a situation in which captured people – victims – warm to their captors. Nowadays, the term is often used more broadly, to refer to situations in which victims not only sympathise with their captors, but also become highly dependent on them – not merely in a material sense, but also emotionally and psychologically (Sethi 2001). Trafficked persons sometimes even fall in love with their captors. Readers who find this difficult to believe need only recall that many women married to violent husbands put up with the physical abuse; while this is often because of perceived economic necessity and no clear exit strategy, some women apparently continue to love and forgive their violent partners. Psychologists sometimes explain such behaviour and attitudes in terms of cognitive dissonance: perceiving themselves to be unable to overcome their situation, such as by exiting, some people learn to accept – live with – what others see as their unacceptable situations. It should by now be clear why it is impossible to provide accurate and reliable data on the scale of trafficking. But, since these figures are sometimes used in policy-making and are the best available, it is worth at least noting some of the most frequently cited estimates of the scale of trafficking. According to an official US government-sponsored research project completed in 2006, the total number of people trafficked internationally each year is approximately 800 000 (US Department of State 2008a: 7). The ILO estimates the global average number of people in forced labour because of trafficking at 2.4 million persons (ILO 2008: 1 and 3), while some estimates of the total number of trafficked persons at any one time (including those trafficked domestically) run to 4 million (Wagley 2006: 5). Bales (2004: 8–9) has estimated that there are some 27 million slaves worldwide; but this figure includes a large number of bonded labourers in the Indian subcontinent who ‘give themselves into slavery as security against a loan’ and are technically not being deceived, so that they do not fully accord with most definitions of trafficking. The ILO believes that up to 1.2 million trafficked persons are children or adolescents (under 18 years old) (ILO 2008: 3). Whatever the precise figures, it is clear that vast numbers of people are the slaves of our times. Since we cannot be certain of the numbers of people trafficked, it follows that data
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on the amount of revenue generated by trafficking must also be soft (unreliable). But a 2006 US Federal Bureau of Investigation (FBI) intelligence report estimated that trafficking in persons for either sexual exploitation or forced labour was generating circa US$9 billion profit per annum globally,6 while the ILO estimates that the profits generated from human trafficking could be as high as US$32 billion per annum (ILO 2008: 1).
REASONS FOR THE RISE IN TRAFFICKING: SOME INITIAL OBSERVATIONS More detailed analyses of the reasons for the increase in trafficking since the late 1980s will be provided in the following specialised chapters; this is appropriate, since the factors, and particularly the relative weight of each of these, vary from place to place, and often over time. Only a general overview is provided here (see too Okereke 2005). One of the many reasons for the rise in trafficking is the impact of globalisation. As borders have become more porous – with the advent of what Kenichi Ohmae (1990) has called the ‘borderless world’ – so it has become easier for people to cross them. This point about greater mobility is a general one. But there is a closely connected point that relates specifically to the post-Communist world. This is that the overwhelming majority of the former Communist states – Yugoslavia was an exception – had highly restrictive regulations on foreign travel. While most citizens in Eastern Europe were able to visit neighbouring Communist countries, it was usually very difficult to obtain permission to visit the West. This has all changed for the better. Yet while this might suggest less demand for people smuggling and trafficking, the reluctance of affluent countries to grant residence and work visas to foreigners with few if any formal qualifications explains why such outsiders often seek to enter and work in these countries illegally. This conundrum is reflected well in the fact that at the same time as many European countries were opening up the frontiers between themselves via the Schengen process, commentators began talking about ‘Fortress Europe’ and arguing that this encouraged illegal migration (for example Glenny 2005). But the greater mobility does not only apply to smuggled and trafficked persons. Sadly, one of the major growth areas in international travel in recent years has been in sex tourism. While tourism is claimed by some (Douglas 2003, cited by Kneebone and Debeljak in Chapter 8 in this volume) to have a beneficial effect, in that it can promote both economic development – with its positive spinoffs – and greater government transparency, there is no question that it can also have a dark side. Sex tourism from affluent Western states to countries such as Cambodia and Thailand has played a major role in increasing both adult and child prostitution in recent years.
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A second factor is technology and the greater use of this for advertising (as well as for laundering the proceeds of trafficking). Criminal organisations have been highly successful in using the internet to entice gullible and/or desperate people with little or no chance of obtaining residence visas through legal channels to seek better earnings in more affluent societies with the aid of those organisations. Often, job advertisements for waiters, dancers, childcarers, secretaries, and so on in affluent countries are very attractive to people with limited or no qualifications, whose gullibility and despair is easily exploited by unscrupulous operators. Third, all the (often subjective) indicators available suggest that there has been a substantial increase in corruption in most parts of the world since the end of the Cold War; one of the most lucrative areas for corrupt officials is to collude with crime gangs in people smuggling and human trafficking (see Zhang and Pineda 2008). A fourth factor has been the prevalence of both civil and international wars in recent times, which has acted as a major ‘push’ factor for people understandably trying to flee their troubled lands. In later chapters, examples of this from South-Eastern Europe and the Greater Mekong Subregion will be cited, though the point also applies to various parts of Africa, the Middle East, Latin America and other parts of Asia. While some seek to escape from war-torn countries, others have sought to flee from highly oppressive regimes. Thus Burma, for instance, has been a major source of trafficked persons over recent years, especially for the sex industry in Thailand (Thomas and Jones 1993; TED Case Studies 1997). The legalisation of many forms of prostitution in the affluent West appears to have increased demand, since many basically law-abiding men who might think twice about running the risk of being arrested for using a prostitute will not hesitate to use one if this is legal. Criminal gangs can now find it more attractive to trade in people than in drugs, since they are less likely to fall foul of the law where prostitution is legal. While not universally accepted (Caldwell 1998), this is a point made by several analysts (for example Hughes 1998): legalisation can and usually does increase demand for sexual services, so that those who control such services will seek a greater supply of sex workers. Ceteris paribus, this will increase the demand for trafficked persons – especially if demand exceeds the supply of non-trafficked sex-workers – as traffickers seek higher profits. While this might suggest that prostitution should be illegal, as argued by abolitionists, such a simple equation is misleading. But the reasons for arguing this are complex, and are best elaborated in the concluding chapter, following a number of empirical chapters. Leading on from this, simple cost–benefit analyses reveal to many criminals that, even in countries or particular situations where their activity is illegal, the ratio of the potential pay-offs from human trafficking to the
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disincentives are typically much higher than the ratios relating to drugs or arms trafficking. Compared with the punishments meted out for the latter two, the punishments for human trafficking are usually very mild. Moreover, human trafficking has two additional advantages over drugs and weapons trafficking. One is that there is an almost limitless supply of the ‘product’; sadly, it is unlikely that there will be a shortage of impoverished and desperate people in the world in the foreseeable future. In contrast, as governments have dramatically increased their monitoring of weapons’ movement in the wake of 9/11, arms trafficking has become more difficult. Equally, and in part also related to the so-called War on Terror, many governments have been making more concerted efforts in recent years to destroy coca and opium poppy crops in Colombia, Afghanistan and elsewhere, which reduces the supply of illicit drugs. The second benefit is that, whereas the return on a particular batch of illicit drugs or weapons is a one-off, trafficked persons can generate income for the traffickers for several years. Indeed, the income is not always only from the trafficked person’s sex work; in some cases, traffickers have the gall to charge their ‘slaves’ interest on debt and late repayments, which can build up to sizeable sums (Repetskaia 2005: 53–4). A number of cultural factors also contribute both to the demand for prostitutes and to the desire of women to escape their homelands. A prime example of the former is the emphasis in many traditional cultures on the importance of marrying a virgin; this tends to increase the demand for prostitutes, as unmarried (though possibly engaged) men seek to satisfy their sexual desires, and even to learn sexual technique. As for the latter phenomenon (women seeking to leave their home states) – it is also in some traditional cultures that dominant male attitudes towards both education and going out to work mean that women are treated as second-rate citizens. Unequal gender rights is a serious issue in many developing and some transition states, and unfortunately again plays into the hands of traffickers. All these factors – and the list is far from complete – help to explain why, according to some analysts, the net return to criminals from human trafficking is now higher than the return on drugs trafficking, and hence why the scale of human trafficking appears, by most of the soft methods available for measuring this, to be increasing.
TRAFFICKING AND HUMAN RIGHTS Most of the world’s states have long since ratified the 1948 UN Universal Declaration of Human Rights, and hence in principle accept the various freedoms and rights contained in it. Several of the 30 articles comprising the Declaration relate directly to human trafficking, with others being less directly
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relevant. Thus Article 3 (‘Everyone has the right to life, liberty and security of person’), Article 4 (‘No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’), Article 5 (‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’), Article 6 (‘Everyone has the right to recognition everywhere as a person before the law’), Article 7 (first part – ‘All are equal before the law and are entitled without any discrimination to equal protection of the law’) and Article 23 (concerning ‘free choice of employment’ and ‘just and favourable remuneration’) can all be invoked to demonstrate various ways in which trafficking constitutes a serious and multiple abuse of human rights. But there is another article that will be considered later in this book, and which is open to interpretation. This is Article 13, which relates to the freedom of movement and residence. According to part one of that article, ‘Everyone has the right to freedom of movement and residence within the borders of each state’. Since the wording does not specify within the borders of their own state, but rather ‘each state’, a case can be made that there should be no such concept as illegal migration. Again, this is more appropriately considered in more detail in the concluding chapter. Reference was made above to the conundrum of the so-called borderless world that has developed simultaneously with Fortress Europe. The fact that formerly Communist states have now liberalised travel rights should represent a net improvement in human rights. But the actual situation cannot be described as a positive-sum one. The reluctance of many Western states to accept responsibility for the victims of trafficking must be seen as a human rights issue. All too often, destination states place legal issues and civic (civil) rights ahead of basic human rights, full ownership of which, in practice, they prefer not to accept. This point requires elaboration. Many internationally trafficked people are sooner or later illegal migrants: even if they have entered a destination country legally, they typically do so on tourist visas that are both temporally limited and do not permit employment; once they overstay their visas and/or are in some way employed, they have broken the law. As illegal migrants, they do not enjoy even minimal legal rights, let alone full civic rights, in their destination countries. Since so many of them are abused in various ways by their traffickers and/or local pimps and other exploiters, their need to exercise what should be their human rights are typically at least as great as anyone else’s. Societies cannot claim to be truly civilised or developed when they wittingly permit widespread abuse of human rights, or even when they are simply too indifferent to investigate situations that look suspicious from a human rights perspective. Again, the point about states not only not accepting full ownership of what are generally known as universal human rights obligations but even contributing to the abuse of such rights is further explored in the ‘Conclusions’ chapter of this volume, with reference to ‘quadruple victimisation’.
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STRUCTURE The logic of the layout of this book is relatively straightforward: more general precedes more specific, and European case-studies precede Asia-Pacific ones – though some chapters straddle these categories. In the Chapter 2, Polish criminologist Zbigniew Lasocik explores various social and legal aspects of human trafficking, with particular reference to the European Union (EU) and its member-states. In an interesting comparison, he considers the ways in which the situation of a footballer transferred between teams is both similar to and different from the situation of a trafficked person. This leads into an analysis of some of the many grey areas in the concept of trafficking, not all of which can be adequately addressed through legislation. This point emerges clearly from the distressing case of a teenager from Togo and her problems in France, cited by Lasocik. He argues strongly in favour of public consciousness-raising if trafficking is to be brought under control, and argues that the media have a crucial role to play in this; at present, they still tend to prefer to provide sensational and salacious details on trafficking, which works against the development of more sympathetic and mature public attitudes towards the problem. Lasocik’s chapter also provides a useful overview and analysis of the most important anti-trafficking legislation in Europe, with a special focus on by far the largest (population-wise) new member of the EU, Poland. In a provocative analysis, Sanja Milivojevic and Marie Segrave deconstruct and problematise much of the writing on trafficking, and many of the statistics, in Chapter 3. By reference to the world soccer championships in Germany in 2006, they demonstrate convincingly that predictions and estimates regarding trafficking are often wildly inaccurate, which unfortunately leads to the adoption of misguided perceptions and policies. Milivojevic and Segrave make a persuasive plea for an approach to trafficking that emphasises prevention and protection, rather than prosecution and law-based approaches, which often disadvantage trafficked persons at least as much as their traffickers. They strongly criticise patronising approaches, whether by states – they focus on the repatriation polices of Australia and Thailand – or by feminist abolitionists (those who would criminalise all aspects of prostitution), and instead argue for an approach to trafficking that is neither as gendered nor as overly focused on sex-related exploitation. One of their principal arguments is for a more open migration process and less restrictive approaches to borders and citizenship. In this context, they highlight many of the contradictions in the current approach to globalisation that actually promote both trafficking and illegal migration more generally, and they deconstruct policies that are in fact much less about protecting trafficking victims than about protecting borders. Chapter 4 examines the trafficking situation within, from and through Central and Eastern Europe (CEE), which is interpreted very broadly here, to
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include all of the Soviet successor states. Many Western authorities, such as the German federal police, have identified CEE as the primary source in recent years of women trafficked for the purposes of prostitution. The chapter includes original survey data on attitudes towards people smuggling, as well as material directly on trafficking. Given the point made above concerning the frequent mutation of smuggling into trafficking, and the relative paucity of mass survey material on trafficking, these data provide useful insights into popular perceptions on illegal migration, human rights and other issues directly related to trafficking. The analysis includes a focus on the dynamism of the situation in CEE, and argues that there are some reasons for very cautious optimism that the situation will improve in the future. In Chapter 5, Olivera Simic´ focuses explicitly on the role of peacekeepers in the Balkans vis-à-vis trafficking. The reference in the title of her chapter – ‘boys will be boys’ – is intentionally ironic, and encapsulates nicely the tolerant attitude of so many states and international organisations (IOs) until very recently towards members of international peacekeeping forces paying for sex from women who they should in many cases suspect of having been trafficked. The nature of such peacekeeping forces changed in the 1990s, becoming much more directly involved with local populations across a wider range of activities. Their existence and sometimes inappropriate activities provide another part of the explanation for the rise in trafficking since the early 1990s. Simic´ highlights the problem of immunity, meaning that most peacekeepers have not been subject to laws and regulations that could land them in trouble with local authorities; they have thus almost always been able to use prostitutes without having to concern themselves about possible retribution. This, plus the de facto attitudes of even many advanced Western authorities towards the use of sex workers by their own personnel (both military and civilian), has increased demand for prostitutes in areas under peacekeeping control, which in turn has resulted in more human trafficking. While Simic´ welcomes the belated change of heart of many governments and IOs on this issue, and the resulting new legislation and regulations, she points out that it is a change of culture – attitudes – towards women and sex work that is really required. The focus of Chapter 6 is Albania. In a study based heavily on original fieldwork carried out in Albania in 2008, Stephanie Schwandner-Sievers highlights the dilemmas faced by many trafficked Albanian women. All too often, Albanian cultural traditions still treat Albanian women as the property of Albanian men. One of the most unfortunate ramifications of this is that women who have been trafficked to other countries and who then hope to escape their trafficking situation by returning home often find that they are unwelcome, since they are deemed to have brought ‘shame’ on their families. Western governments need to be much more aware of the dangers to which they often subject repatriated trafficked persons.
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Sweden is often cited as the prime example of a state that has made the use of prostitutes, rather than prostitution itself, illegal – and many countries are now following or considering following the Swedish lead. Details of the Swedish approach are provided by Kevin Leong in Chapter 7. Given the Australian base of most of the contributors to this volume, it is not surprising that he also considers the implications of the Swedish model for Australia. But most of his findings have resonance in many Western (developed) states, and invite consideration by legislators and police authorities everywhere. Like several other contributors to this volume, Leong argues that trafficked persons should be treated as victims of crime rather than illegal immigrants, and should thus be accorded far more rights than most states are currently prepared to recognise. Yet the Swedish approach is ‘the ultimate prosecution model’ rather than a human rights model, and this means that it has a number of negative implications, which Leong elaborates; they include an increase of violence against sex workers, for reasons which he explains. He concludes that, while there are interesting lessons to be learned from the Swedish approach, there are also several aspects of this model that are problematic and need to be addressed. In Chapter 8, Susan Kneebone and Julie Debeljak compare the trafficking situations in two neighbouring states – one formerly Communist (Cambodia), the other still Communist (Laos). They demonstrate that both local authorities and the international community tend to concentrate on two of the ‘three Ps’ often cited in policy approaches to trafficking, and based on both the UN’s Convention against Transnational Organized Crime and the US Department of State’s approach – prevention and prosecution (punishment). Conversely, there is not nearly enough focus on the dehumanising aspects of trafficking, and hence insufficient attention to the third ‘P’, protection; approaches need to be more victim-centred. Moreover, simply passing legislation, without having adequate state capacity to implement it or a genuine commitment to the concept of the rule of law, is unlikely to have much positive effect on the trafficking situation. One of the counter-intuitive findings of their research is that, if the data are reliable, more people are trafficked from Laos for non-sexual employment than for sex work. Moreover, their research in both Laos and Cambodia reveals how opaque much of the trafficking process remains – but also that mass organisations in Communist Laos and official recognition of the problem of corruption can play a positive role. In contrast, mass organisations essentially collapsed when Cambodia began its transition from Communism, while corruption is so pervasive throughout the state mechanism that it is hardly recognised, contributing to a worsening of the trafficking situation in and from that country. Although non-governmental organisations (NGOs) are playing a generally positive role in Cambodia, there are also drawbacks if these are unable to cooperate well with state agencies, for reasons that Kneebone and Debeljak elaborate.
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Sallie Yea’s focus in Chapter 9 is on domestic trafficking in the Philippines. Having provided a neat and insightful analysis of the abolitionist (gendered violence) versus the sex work perspective in the prostitution debate, Yea herself adopts a more nuanced approach than either position. Based largely on her own fieldwork research into the domestic trafficking situation in Cebu City in the Philippines, she argues that neither the abolitionist nor the sex work argument fully addresses or explains how women who have been coerced into prostitution – trafficked – often choose to return to it after having managed to escape their trafficking situation. In adopting this position, she essentially agrees with those, such as Sandy (2006), who argue that the coercion–choice dichotomy in the prostitution debate is too stark and simplistic. For Yea, it is not a black-and-white issue of complicity or constraint, but rather that individual situations can be located along a continuum between these two, and different explanations of why a particular woman is a prostitute may be necessary at different points in time. While she does not claim that non-trafficked prostitutes make completely free choices to engage in sex work, she does argue that they can become used (normalised) to prostitution, and – in a context of ‘constrained choice’ – opt to return to sex work even when they have managed to escape from a trafficking situation. The concluding chapter highlights and engages with some of the key findings and arguments presented in the preceding chapters, and identifies the dynamic factors in the trafficking issue. It also demonstrates how trafficked persons are subject to victimisation not merely by their traffickers, but also by corrupt officials, the media and, whether wittingly and intentionally or not, all too often by states too. In short, they are subjected to quadruple victimisation. In response to this recognition, policy proposals are made at the end of the chapter designed to overcome – or at least reduce – this victimisation and improve the rights and lot of trafficked persons. Before concluding this analysis of the structure of this collection, its parameters – limitations – need to be identified. The primary focus is on transnational human trafficking for the purposes of sexual exploitation, though the book does include material on both domestic human trafficking and human trafficking for non-sexual purposes. Given the collection’s principal focus, there is a heavy emphasis on the trafficking of women, and to some extent children, rather than on adult males. Unfortunately, as Surtees (2008a) points out, trafficking of adult males has been much less researched than trafficking of women and children. But inasmuch as the admittedly questionable data available suggest that more women and children are trafficked than men, and that trafficked women are more likely to be subjected to gross physical abuse than men are, the focus here can be justified. This said, most of the theoretical arguments apply equally to men and women; the overwhelming majority of human rights are not gender-specific.
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A second limitation is the collection’s geographical coverage. The main European countries and regions analysed are Germany, Poland, Sweden, South-Eastern Europe (principally Albania, Bosnia and Hercegovina, and Kosovo), and Central and Eastern Europe including the Commonwealth of Independent States (CIS). According to the ILO, more than 55 per cent of the world’s trafficked persons being forced to work are located in the Asia-Pacific region (ILO 2008: 3), so that a particular focus on that part of the world is justified. The Asia-Pacific countries and regions examined in depth in this volume are the Philippines and the Greater Mekong Subregion (especially Cambodia, Laos and Thailand) and Australia; some material is also included on China, Malaysia and elsewhere. However, while the limited coverage of this book means that many parts of the world are barely mentioned, or else not referred to explicitly at all, the selection does provide what, for want of better terms, can be called developed, transitional and developing states; one of the last of these is a Communist state, while the others are now essentially antiCommunist. It also means that the collection includes detailed analyses of source, transit and destination countries. In short, many of the observations and recommendations either have universal applicability, or else apply to many other examples of a similar type of state. One final point to note here is that, after deliberation, it was decided not to remove all duplication of materials where data, definitions, and so on appear in two or more chapters. The reason is a pragmatic one; since most readers of edited collections read only selected chapters, not the entire text, some chapters might appear incomplete were there to be such pruning. This said, the duplication is minimal; mainly, it is the UN’s Palermo Protocol definition of trafficking that has been repeated – albeit in varying levels of detail – in various chapters.
CONCLUSIONS On one level, this collection paints a depressing picture of life for so many people in today’s world. But in that it analyses underlying causes – seeks to understand the dynamism – of the processes being studied, and examines and assesses the methods that have been and could be used to combat trafficking, it is not a book without hope. As noted above, the concluding chapter explores both the internal dynamism of the trafficking situation and the measures that are being or could be taken by states and IOs to combat it. The fact that the international community has begun to focus seriously on the issue of human trafficking since the beginning of the millennium is itself welcome and encouraging. Nevertheless, it will become very obvious from the following pages that this momentum must be maintained and intensified if the serious
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human rights abuses inherent in human trafficking are to be eradicated or severely reduced.
NOTES 1.
2. 3. 4. 5.
6.
There are in fact two Palermo Protocols – the one cited here concerning human trafficking, and one specifically concerned with people smuggling. But to minimise confusion, and because this is a common practice in the literature on trafficking, references to the trafficking protocol will be referred to as ‘the Palermo Protocol’ in the rest of this volume. The Italian Ministry of the Interior reported in 2000 that 168 foreign prostitutes had been murdered the previous year, mostly Albanians and Nigerians who had been killed by their pimps (Renton 2001: 6). Readers who would appreciate a ‘bitter-sweet’ (that is, funny–sad) literary approach to this should see Lewycka (2008). It was only in September 2009 that the Australian government introduced legislation requiring employers to pay foreign ‘guest-workers’ at the same rates as Australian workers. It is not always that the police corruptly collude with crime gangs; sometimes they offer women who have escaped their traffickers the choice between being returned to the brothel they have just escaped, or remaining in custody. For evidence of this, and of a girl returning to the brothel from a police station and being beaten by the brothel owner, see Thomas and Jones (1993): 72–3. At http://www.fbi.gov/page2/june06/human_trafficking061206.htm, accessed July 2009.
2. Human trafficking: a challenge for the European Union and its member states (with particular reference to Poland) Zbigniew Lasocik Trafficking in human beings is a phenomenon that reveals the worst side of the human condition – true evil (Bales 2005: 27). Without piling on unnecessary pathos, we can say that, at a time when the experiences of several decades of atrocities have shaped the collective memory, the phenomenon of one human being selling another defies humanity. This is why it is imperative that we continue to analyse and redefine this phenomenon by asking certain fundamental questions. At first glance, the concept of human trafficking appears to be an unambiguous one that refers to a small number of easily identified and defined practices. However, situations occur that raise difficult dilemmas. We accept certain facts without much reflection; but further analysis reveals that they are more complex and controversial than is commonly appreciated. Two concrete examples will demonstrate this point. Early in July 2005, the Polish media reported that: Maciej Z˙urawski, a player with Wisl⁄ a Kraków, a Polish football club, was sold for the record sum of £2mn (c. 12mn Polish Zl⁄ oty) to Glasgow Celtic, a Scottish club. Before this most expensive transfer in the Polish league was finalised, the clubs carried out long negotiations. On Wednesday, the documents were completed and Z˙urawski underwent medical tests. The next day, on Thursday, late in the evening, the contract was signed, and the player became the new club’s property for the next three years. Celtic was not the only club interested in buying Z˙urawski.1
On 27 February 2006, the Polish Press Agency revealed that: Romanian player Marius Cioara was sold by the second league team UT Arad to Regal Horia, a fourth league team, for 15 kg of meat. However, the new club had no chance to celebrate the transfer, as the player refused to play and decided to finish his [soccer] career and move to Spain to pursue a new career in farming or construction.2
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Human trafficking: a challenge for the EU and its member states
19
Provocatively, it could be asked whether the first of the above-mentioned cases would be of interest to Polish prosecutors, since it certainly involved selling a human being. The two parties concluded the terms of a transfer without the player’s participation. The ‘object’ of the transaction was required to take medical tests, a contract binding the player was signed, and a price was paid. Is this a criminal case, as stipulated in Article 253.1 of the Polish penal code? To forestall possible doubts and arguments that the player agreed to these actions, it must be emphasised that, under both Polish and international regulations, the consent or lack of consent of an interested party is of no relevance. Romanian prosecutors could also be asked the very same question. It is obvious that nobody would want to prosecute individuals trading in football players. Quite the contrary: everybody is happy, and shakes hands. The media publicise the transaction, and football associations celebrate. Supporters of one team lick their lips, since they have just acquired a great player, while supporters of the other mourn the loss of the very same great player. Nobody considers the issue of human trafficking. This seems appropriate from the formal viewpoint of illegal activities. But if we examine this issue from the human sensitivity perspective, or consider the use of language in such cases, the situation changes. What is human trafficking? Why is it sometimes seen as a major problem and at other times not even acknowledged? It is worth reflecting on this issue in order to find satisfactory answers to our questions. If this is to be done, we need to consider three different aspects of the phenomenon of human trafficking. First, it is a contemporary form of slavery. Second, it is among the most serious of crimes. And third, it is an instance of serious human rights violations. Every aspect of this so far preliminary and symbolic definition results in certain consequences. With the first aspect of our discussion, we move into the area of the most universal conditions of human existence. Even though slavery as a model of social structure was not always perceived in a clearly negative way (Biez˙un´ska-Mal⁄ owist and Mal⁄ owist 1987), we have no doubts nowadays that a situation in which a human being is enslaved, treated like an object and deprived of autonomy contradicts humane values. And we would readily call a social and political system that accepts or popularises such activities inhuman (Nowak 1996). The second aspect of our discussion takes us into the field of criminal law. The selling of a human being for the purpose of sexual exploitation or forced labour is seen as striking at the heart of fundamental values that led to the establishment of modern society. This is why we expect that, with the help of criminal law that was designed to defend these values, we will be able to react accordingly. If unlawful deprivation of liberty is seen as evil, unlawful deprivation of liberty intensified by enslavement and exploitation must be seen as intensified evil. Criminal law qualifies this as a crime, given the perpetrator’s
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guilt and the negative social and individual consequences of the deed, which allows for the imposition of appropriately severe punishment. The third aspect places the discussion in the domain of human rights, as seen and defined in the context of the state’s obligations towards an individual (Henkin 1988: 89). The selling of a human being must evoke some reaction, since it involves so many forms of fundamental human rights violations, rights that are immanently associated with human dignity. It is therefore obvious that a state that allows such practices and tolerates them, or ‘only’ underestimates their scope, must be stigmatised and consequently bear responsibility. If there is a consensus that human rights shield us from a brutal and greedy state, then in the case of human trafficking, human rights protect us from a state that remains idle in the face of activities that deny the humanity of a trafficking victim. Although this is now changing, researchers and journalists for a long time showed little interest in the ways in which states tackle the problem of human trafficking; yet we should be grateful for what little interest there has been, since this means that the phenomenon has not been totally marginalised (Pearson 2002). It is encouraging to see state agencies now examining the problem not only because of their portfolios. It is also encouraging to see conferences being organised at which experts can pose fundamental questions and analyse the problem from diverse viewpoints. After all, and as already indicated, there are still many questions to which we have not yet found answers. For many years most of us in relatively affluent societies lived in a comfortable situation, where we believed that human trafficking was a remote and alien notion that posed no threat to us. Now we know how wrong we were. Human trafficking has become a widespread activity around the world. We could still ignore it and believe that ‘the world’ refers to remote, distant places; but human trafficking occurs throughout Europe, including Poland. We could probably live with the fact that it has existed for a long time; but we now have to face the fact that it has grown into a more serious problem with regard to its scope and, moreover, to its newly disguised and more sophisticated forms. International tools used for combating human trafficking are considered below. It is necessary at this point to quote a definition of human trafficking from one of the most widely-cited documents, namely the definition included in Article 3 of the ‘UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime’, often referred to as the Palermo Protocol. An almost identical definition can be found in Article 1 of the ‘EU Council Framework Decision of 19 July 2002 on Combating Trafficking in Human Beings’ (OJEC 2002: 1). There are subtle yet significant differences between these two definitions, but for the purposes of our core discussion they are of marginal relevance. What is important is that, in the
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Polish context, both are legal definitions: under the Polish Constitution, the Palermo Protocol has become a part of the national legal order, while the other document belongs to the European Union (EU) legislation, and Poland has been an EU member state since 2004. According to Article 3 of the Palermo Protocol (UN 2000a): ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring 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 of 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; The consent of a victim of trafficking in persons to the intended exploitation as described above is irrelevant where any of the means described above have been used; The recruitment, transportation, transfer, harbouring or receipt of a child (any person under eighteen years of age) for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means described above.
It is worth noting that, in Article 4 of the Protocol, international legislators described the scope of the document’s application by adding two relevant elements to the issue of human trafficking, stating that the Protocol’s provisions should apply when: (1) an offence is transnational in nature; and (2) it involves an organised crime group. These are particularly important caveats, and it is worth considering them in some detail. It is especially important with respect to the first issue, which is not as obvious as the provisions of Article 4 of the Palermo Protocol suggest. Human trafficking is by definition severe exploitation of a human being for the purpose of achieving financial, personal or other benefits. In criminology and sociology, human trafficking is most often seen as a transnational and international phenomenon. But in order to be classified under criminal law as a crime, human trafficking does not have to involve an international dimension. In view of the latest developments in international regulations, which are described below, human trafficking should be criminalised even when it is committed within the boundaries of one state. During the preparatory work for the UN Convention against Transnational Organized Crime, some of the participants raised the issue that the states-parties should prosecute offences listed in both the Convention and the Palermo Protocol not only when they are ‘international’ in their nature; this goes beyond the provisions of Article 4 of the Palermo Protocol. It is also worth noting that the latest major document on combating human trafficking, that is, the European ‘Convention on Action
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against Trafficking in Human Beings’, determines in its Article 2 that the provisions should apply to all forms of trafficking in human beings, at both national and international levels; this exceeds the scope of the Palermo Protocol. When considering the nature of human trafficking, it is important to be aware of its ties with organised crime. Trafficking in human beings has become such an attractive activity for organised criminal groups that they have grown to control a major segment of it. For these groups, a simple profit and loss calculation results in the obvious conclusion that human trafficking is much safer than trafficking in narcotics or arms, and that even illegal transportation of persons is less risky than transportation of narcotics. Moreover, the so-called prime costs appear to be low, since it is not necessary to invest large sums of money in order to be able to find women, in contrast to the situation with narcotics or arms. Finally, proceeds from human trafficking do not need to be a one-off source of income, as often happens in the case of trafficking in arms, so that it is possible to generate profits over a long period of time without suffering the negative consequences of some types of retail sale. It must be remembered, however, that this issue also has another dimension. Not only has human trafficking been controlled by organised criminal groups, but as a crime of great complexity it also requires a high level of organisation. As a criminal activity, human trafficking is virtually unique; it requires the successful coordination of numerous elements and entities, typically both legal and illegal, as well as numerous participants, often based in several countries. Hence, it often requires the highest level of organisation of criminal activities on the part of numerous individuals. Final success depends not only on the efficiency of recruiting individuals, traffickers and couriers who act under the umbrella of organised criminal groups, but also on the trustworthiness of individuals who harbour victims, and of transportation companies that move victims across national borders. How serious the problem is can be seen by the number of investigations either run or supported by Europol (the European Union Law Enforcement Organisation) and Eurojust (the European Union’s Judicial Cooperation Unit), which usually deal with more than one state or one organised criminal group (Vermeulen 2002); for instance, the number of human trafficking cases dealt with by Eurojust has been steadily rising in recent years – from 14 in 2004 to 71 in 2007 and 83 in 2008 (Eurojust 2009: 25–6). Article 2 of the European Convention mentioned above exceeds the provisions of the Palermo Protocol also in this respect, since it stipulates that the Convention should be applied to human trafficking in all cases, whether or not they are connected with organised crime. This is an especially relevant point for the prosecution of human traffickers. There is a widespread consensus among authors of scientific literature and numerous reports prepared for the purposes of policy-making that trafficking in human beings encompasses a wide variety of activities including:
Human trafficking: a challenge for the EU and its member states
• • • • • • • •
23
forcing a person into prostitution to make a profit; other forms of sexual exploitation; forcing a person into labouring activities; using the services of a person who was forced into providing them; slavery and similar practices; various forms of enslavement and dependence; removal of organs; prostitution and child pornography.
Even such a simple listing demonstrates quite clearly that any criminological analysis of human trafficking has to be a complex one. From a legal point of view, the issue of human trafficking is equally complex, since it can involve many practices that can be categorised as criminal activities, including unlawful deprivation of liberty, grievous bodily harm, fraud, rape and battering. But it can also involve other practices, such as legal prostitution or legal labour, which are neutral from a legal perspective. Moreover, some activities related to human trafficking are perceived as morally unacceptable, but are neutral from a legal point of view; examples include taking advantage of a person’s vulnerability, or dependence. It needs to be borne in mind that there exists a vast array of activities and practices that, from a formal legal perspective, do not meet the definition of any crime, but which are in fact forms of human trafficking. Special attention should be paid to the issue of forced labour, as one of the most common forms of trafficking in human beings. According to data gathered by the International Labour Organization (ILO), as of the mid-2000s, some 12.3 million people were victims of forced labour, of whom 360 000 were in highly developed countries and 210 000 in transition countries such as Poland (ILO 2005: 10, 12–13). Furthermore, the ILO estimated the average annual profits generated by trafficked forced labour globally to be almost US$32 billion (ILO 2005: 55).
EXAMPLES OF TRAFFICKING The question arises: is it possible that, in countries such as Poland, people are forced to work? Recent articles in the Polish press concerning the exploitation of Korean welders at the Gdan´sk Shipyard (Gazeta Wyborcza 2005), or describing incidents of exploitation of workers in the Biedronka chain of grocery stores (Rzeczpospolita 2006; Wrota Podlasia 2006), have shed new light on this problem. It appears that instances of forced labour can be found all around us, and that such practices have been carried out in accordance with legal regulations and have been widely accepted by the public. Unfortunately,
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many similar examples could be cited. Not everyone in Poland realises that exploitation of domestic workers, who come mostly from Ukraine, is also a form of human trafficking. These women usually work for more than ten hours a day, usually earning very little money. Sometimes they do it because they have no choice, as they have loans to repay, cannot afford to return home and sometimes do not even have identity papers (Siedlecka 2005). In this context, reference should be made to the first decision of the European Court of Human Rights in Strasbourg on the issue of forced labour and slavery.3 A 15-year-old citizen of Togo, Siwa Siliadin, flew into France in 1994. A woman who accompanied her promised to regulate her immigration status and take care of her education. Siwa was supposed to help the woman with her housework, and in this way reimburse her for the money spent on purchasing the ticket. But the woman took away Siwa’s passport and forced her to work as a servant for free. After a few months, Siwa was ‘rented out’ to another family to work in their house and take care of the children. The rental period was supposed to last only a few days. But Siwa stayed in the new family for a prolonged period. She worked every day from dawn to dusk. Only occasionally was she allowed to go to church on Sunday. She slept on a mat on the floor in the children’s room. She wore old clothes. She did not receive any money for her work. After four years in France, a neighbour of her ‘owners’ who had become interested in her fate notified the Committee for Combating Modern Day Slavery about her situation, and the Committee in turn informed the prosecutor’s office. Following lengthy court proceedings, Siwa’s ‘owners’ were acquitted. All the victim received was a small compensation for her free work. In her appeal to the Court, Siwa Siliadin claimed a violation of Article 4 of the European Convention on Human Rights. She argued that she was not well protected by French criminal law against servitude or forced labour, and as a result became a house slave. The Court accepted the plaintiff’s arguments. Referring to the United Nations (UN) documents and the ILO Convention, as well as to several recommendations of the Council of Europe, the Court ruled that Siwa Siliadin had been deprived of her right freely to decide about issues pertaining to her life, and that the married couple she worked for treated her like an object that they felt they owned. When Siwa came to work for them, she was still a minor and worked more than ten hours a day. Being so young, she was deprived of an alternative source of income. She felt vulnerable and isolated. As she needed work, she was dependent on the two families she worked for. Since her presence in France was not legalised, she feared being stopped by the police. Consequently, she could not move around freely, so that she had no free time and did not attend any school. According to the Court, she was fully dependent on her ‘employers’, which constituted an example of servitude as described in Article 4 of the Convention. The Court also exam-
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ined whether French law protected Siwa. It transpired that it did not, which meant that France had violated provisions of Article 4 of the European Convention on Human Rights (Nowicki 2006: 109). During the summer of 2005, the Polish press reported what soon developed into an infamous case of exploitation of a group of Polish workers on a tomato plantation in Italy. They were treated like slaves. They worked in the fields in the heat without water or food, lived in barracks and were supervised by armed guards. They were severely punished for every minor violation of rules, and were required to pay the costs of transportation to work (Borowiec 2005).4 A year later, the case reappeared in the press. The Polish media wrote much about the liquidation of other labour camps in southern Italy. This time, however, they reported instances of rapes, suicides and even killings (Zielin´ski 2006). It could of course be argued that it was the workers’ own decision to work in this way, so that they were in a sense responsible for what happened. But such thinking may lead to a distortion of the meaning of the universal ban on slavery and enslavement. We may also feel confused when analysing phenomena that do not clearly fall into any category of human trafficking, yet which – we have no doubt – should attract our concern. A prime example of such a phenomenon is socalled forced marriages, which are in fact a commercial transaction, in which the most common commodity is a young woman ‘sold’ to her fiancé’s family. Forced marriages are very often the result of an agreement between parents. In such cases, both the bride and the groom are victims. Such marriages can be a result of a bargain or a financial settlement between two families; but they can also be a financial settlement between businesspeople, or a form of settling long-standing conflicts. Here, too, both spouses are victims. How serious the problem can be, especially in Muslim communities, is revealed in the fact that a new federal law was drafted in Baden-Württemberg (2004) that prohibits forced marriages and penalises those arranging them with up to ten years’ imprisonment (Jendroszczyk 2006). A slightly different problem arises in the case of marriages that are not forced, but which mutate into forced ones when, for example, wealthy farmers or petty industrialists from Western Europe marry women from the Soviet successor states or South-East Asia. These women are generally very young and attractive, but completely inexperienced and uneducated. They do not know the local language and become financially dependent. They usually live in villages or small towns, and are deliberately isolated from the local communities and deprived of friends. Even though formally they are wives, they are in fact treated like slaves, and certainly not like partners. They usually do all the housework, are sexually exploited, beaten and even raped. It is very hard to identify these victims, and even more difficult to describe such cases and analyse them in detail for criminological purposes.
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Trafficking and human rights
At this point, it is appropriate to examine the complex issue of parenthood and the desire to have a baby regardless of the costs, which here has nothing to do with in vitro fertilisation, but rather has taken the form of a phenomenon that is sometimes referred to as ‘womb rent-outs’ or ‘belly rent-outs’ (Kowalska et al. 2004; Vidalie 2005). This refers to a situation in which a woman agrees to be inseminated to bear a child for others. The intention here is simply to signal the presence of other related phenomena, such as selling children (Filipowska and Jendroszczyk 2005) and fake adoptions (Zielin´ska 2005: 53); but since they are somewhat different in character, they will not be expanded upon here.
TRANSNATIONAL TRAFFICKING As already mentioned, a very important element in the analysis of human trafficking is its frequent cross-border character and its direct relation to migration. It is surely incontrovertible that if people had no reasons to migrate, people smuggling – which, as shown below, often mutates into human trafficking – would be a marginal activity. The reasons for migration are numerous, and include military (the impact of wars and armed conflicts), political (dictatorships and discrimination against minorities) or social and economic (poverty, unemployment, lack of educational opportunities, lack of social benefits, social exclusion). All of these factors can make people want to migrate. Moreover, there exist additional factors, so-called ‘pull’ factors, which make people want to migrate to particular destinations. Pull factors include the need for a cheap workforce in certain types of jobs, or demand for sexual services provided by women and children. Regardless of what types or models of migration we consider, it has for centuries been overwhelmingly in the same directions: from Africa, Latin America and Asia towards Europe and North America. Smuggling women and children from Central and Eastern Europe and Commonwealth of Independent States (CIS) countries to Western Europe is a relatively new activity. Human trafficking has often been identified as people smuggling, and these terms are frequently used interchangeably. But even though these phenomena are similar, there are significant differences between them. Human trafficking can be described as a secondary activity to migration if it occurs across borders, and in this sense it can overlap with smuggling, which is necessarily international. However, human trafficking mostly encompasses exploitation of individuals against their will, for the financial profit or other benefits to other people, and, as noted above, does not necessarily entail crossing of a border. In a typical smuggling situation, a smuggled person is a contracting party who
Human trafficking: a challenge for the EU and its member states
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commissions a smuggler to perform a certain task. The two parties stand on an equal footing, and their relationship ends at a border crossing or upon reaching a destination; at that point, the smuggled person is no longer dependent on the smuggler – even though a smuggled individual might sometimes prefer it to continue. However, crossing of a border in a typical transnational human trafficking case marks the beginning of a special relationship between a trafficker and a victim. Before a border is actually crossed, a victim often does not know the true intentions of a trafficker, and enjoys freedom to act. A victim’s dependence begins upon crossing the border, when a smuggler takes away the victim’s identity papers and enforces a form of enslavement, for example by raping the victim. This has been clearly depicted in the film Your Name is Justine,5 which portrays a young woman who was taken to Berlin, then brutally raped and exploited in the sex-business. Such mechanisms of dependence are typical. But recently, more and more examples of atypical situations have been reported. Nowadays, it is much more difficult to organise illegal migration than it was a decade or more ago, since certain procedures have to be followed and financial resources found for issuing new documents, for example. Moreover, it has become a more risky pursuit, so that the costs have increased. As a result, migrants are often forced to seek help from various organisations. These organisations sometimes lend money to those wanting to migrate, enabling them to travel; but there are usually enormous commission fees involved. Migration is extremely costly, so that migrants usually decide to stake everything on one roll of the dice. In order to finance their trip, they sell all their belongings, take out loans that are never to be paid back, and burn their bridges. Yet this is often still not sufficient, and consequently migrants will have to be paying off their debts to traffickers for years. This leads to a situation in which, if a migrant is expelled from a country, he or she has no choice but to try to return to that country. Due to the increase in migration and illegal smuggling costs, smugglers have begun to exploit migrants – who, by burning their bridges, have become vulnerable victims abused by smugglers. Migrants are generally an attractive target for criminals, whose sole motivation is to make a profit. Smugglers make migrants financially dependent, and resort to physical and psychological violence. This is how people smuggling mutates into human trafficking. (Vermeulen 2001). In view of such developments, we need to determine what criteria to use in order to distinguish between human trafficking and people smuggling. Are we in fact already dealing with human trafficking when a perpetrator deprives a migrant of the right to decide freely about his or her fate? The answer is not completely unambiguous, so that it is necessary to distinguish a typical situation
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Trafficking and human rights
from an atypical one. In a typical situation, a trafficker consciously commits fraud, pressures or threatens a migrant, or applies physical strength in order to make a profit – and the ultimate goal of the transaction is contrary to the victim’s interest. A smuggler, on the other hand, does not apply any of these methods, since everything happens for the benefit of the migrant, who cannot be treated as a victim. If we were to compare human trafficking and people smuggling to a commercial contract, we could say that in the case of human trafficking a perpetrator deliberately violates the contract, whereas in the case of smuggling the contract’s obligations are carefully fulfilled. So much for typical situations. But nowadays, atypical situations have become the rule. As already pointed out, stricter control of national borders in destination countries, coupled with more restrictive immigration policies, have led to a situation in which people smuggling seems to be much more risky and potentially much less profitable. That is why smugglers, in order to increase profits and minimise risks, resort to numerous forms of contract violation. Each violation brings people smuggling closer to human trafficking. Let us consider some examples. Let us imagine a migrant who is being transported to an agreed location for an agreed price, and who, while on the territory of a transit country, learns that the price has risen and that, if the additional sum is not paid, the journey will be terminated. Precisely at this moment, the smuggled person, who is fully dependent on the smuggler, becomes a victim of trafficking. When, for example, a migrant is abandoned in a transit country or a destination country, but in a different place than initially agreed, he or she ends up in a very difficult situation, especially when the smuggler takes away the migrant’s identity papers. In another scenario, a smuggled person accepts imposed conditions and is transported to a destination country, where the problems start – because the imposed financial conditions of the contract greatly exceed the smuggled person’s financial means. It is impossible for an illegally working migrant to make enough money to pay an elevated fee. In a situation like this, a migrant, who at the outset of the journey was an equal party to a ‘civil legal’ contract, becomes financially dependent on the perpetrator, and thereby a trafficking victim. Such a sudden change of roles can occur in matter of hours or days. An actual example of this was a Vietnamese citizen in Poland, who by working illegally tried to pay back a constantly growing ‘transportation’ loan (Karsznicki 2006: 257). What a victim should do in this case is go to the police or notify other law enforcement agencies; but this often appears to be an unrealistic and even dangerous option for many trafficked people.
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TRAFFICKING, HUMAN RIGHTS AND POPULAR PERCEPTIONS In order better to understand the nature of human trafficking, it is imperative to consider it from the human rights point of view, and see it as a form of violation of an individual’s fundamental rights. The human rights perspective opens up completely new areas of interest, especially when used to analyse the phenomenon of human trafficking, as it immediately directs our focus to the scale of fundamental rights violations and the scope of a state’s obligations towards a victim, as well as a victim’s unique situation. So far, human trafficking perpetrated in the form of forced labour has been seen as a violation of the anti-slavery regulations contained in Article 4 of the European Convention on Human Rights, which was referred to above in the Siliadin vs. France case. However, a cursory analysis of the list of human rights violations provided by the Convention (Harris et al. 1995) with respect to human trafficking cases soon reveals how long it is, and that it comprises: the right to live, in Article 2 of the Convention; a ban on torture, as well as inhuman and cruel treatment or punishment, in Article 3; a ban on slavery and forced labour in Article 4; the right to personal safety of an individual in Article 5; and the right to protection of personal life in Article 8 (OSCEODIHR 2001:16). As mentioned above, consideration of the human rights dimension is necessary in the process of formulating a state’s obligations (CEELI 2005: 77). The decisions of the Court in Strasbourg, and the practices of those countries that treat human rights issues with respect, have proven that the human rights dimension allows us to place obligations on state authorities with respect to: • writing legislation that criminalises human trafficking; • adopting and enforcing the legislation; • adopting laws guaranteeing protection to trafficking victims; • providing victims with real protection; • preparing social services for the provision of such care; • allocating resources for the implementation of these tasks; • raising social awareness about human trafficking. In other words, it should be a state’s obligation to provide the necessary conditions for state agencies to be able to react properly to cases of human trafficking, and to respect the right of a victim to be treated not like a victim of just any crime, but rather as a victim of a crime that involves human rights violations (ICMPD 2005: 64). From the criminal law perspective, combating human trafficking and people smuggling is indifferent to gender differences. Both women and men
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Trafficking and human rights
can become victims of various forms of human trafficking. However, it is hard to deny that, due to the widespread phenomenon of prostitution, the feminisation of poverty, gender discrimination and the lack of educational and professional opportunities in the source countries, it is mainly women and children who fall victims to trafficking. This is a fact. It must also be acknowledged that the development of the relatively well-researched phenomena of trafficking in women for sexual exploitation and child pornography, and the development of sexual services and a prostitution market (the so-called sex-business), have occurred in tandem. Due to the existence of direct links between these phenomena, it has often been emphasised by international public opinion that all efforts should be directed towards the prosecution of prostitution exploitation cases or profiteering from child pornography. But most important of all is the effective combating of these activities and the protection of trafficking victims. Let us now return to the human rights perspective and its necessary re-evaluation. The argument has often been made recently that the general concept of human rights may be inadequate to define accurately the obligations of a state in the areas of penalisation and prosecution of certain behaviours and the protection of trafficking victims. Consequently, human trafficking and related activities should also be seen as violations of women’s rights (Cook 1994); according to supporters of such reasoning, a reappraisal vis-à-vis trafficked women will bring about a change in attitudes towards women more generally (Zielin´ska 2001). For instance, a woman would no longer be routinely blamed for provoking rape by way of dress or visiting an improper place, which is often insinuated by public opinion or law enforcement (Bien´kowska 1984). The same accusations are often made about victims of domestic violence. Did she really do her best to fulfil her domestic duties? Was she understanding and compassionate to her husband who beat her up regularly? Why would she talk about it to others – does she want to harm her family? Such naive questions clearly demonstrate what we know about various social phenomena and how we see women – whether victims of rape, domestic violence or human trafficking. Numerous examples of such oversimplified and stereotypical attitudes could be cited, but the focus here is on the social perception of trafficking victims, who are usually women. Let us consider two social dimensions of a human trafficking crime: social attitudes towards a trafficking victim, and a victim’s image in the media. When asked about human trafficking, Poles appear to have basic knowledge; that is, they have heard about it. However, when asked in a mid-2000s poll about who should be taking care of women – often prostitutes – who are trafficking victims, one in three Poles maintained that there was actually no need to do anything for them (CBOS 2005). Respondents typically repeat what they have often heard, namely that trafficking victims are naive women who
Human trafficking: a challenge for the EU and its member states
31
seek employment abroad and groundlessly assume that the work offers of interesting and well-paid jobs they receive are genuine. If they are so naive, respondents say, why would a state or a society have special obligations towards them? The situation is even clearer when a woman knows or suspects that she is going to work in prostitution. The average respondent says that once she chooses such a profession, she has to bear the consequences, and there is no need either for the state to unfurl a protective umbrella over her head or for non-profit organisations to help her. In a situation where the problem of human trafficking is uninteresting to educators and journalists, we should not be surprised to hear such opinions. Controversial as it may seem to some, schools should broaden their prophylactic programmes, and not restrict themselves to such obvious issues as alcohol, narcotics, smoking, early sex, violence or – a topic that recently became popular in Polish schools – patriotism. There are two reasons why youth should also learn about human trafficking. First, it is a rampant problem affecting millions of people across the globe. Second, young people should be aware of how easy it is to become a trafficking victim or a perpetrator of this crime by, for example, disseminating child pornography, exploiting somebody else’s slave work, buying a life-saving kidney, or setting up the illegal adoption of a child. However, it is not only schools that have an important role to play. The media are equally important. In this connection, it is worth considering certain critical issues pertaining to our attitudes towards the law, social reactions to law-breaking, and attitudes towards the victims of crime. Lawyers and criminologists often express dissatisfaction with the quality of information and reporting on criminal activities, as they believe that what the media present on the subject has little in common with reality. The media, in Poland and in too many other countries, have a tendency to present a distorted image of criminal activities, as being more brutal and bloody than they actually are, only because such is social and market demand. This is what can be called the commercialisation of evil (Lasocik 2003: 267): the more bloody the images, the better sales will be. This pathology is clear in the history of the Polish monthly magazine, ZLY. – 6 With regard to human trafficking, the media have committed yet another cardinal sin. Human trafficking has clear connections with prostitution, so that publications on this theme usually concentrate on various aspects of the sexbusiness.7 There are some negative aspects to publications on human trafficking. Most articles published on the subject chase after hot stories and resemble pieces from a gossip column; they offer neither a true analysis of the problem nor a discussion of the sources of the problem, its consequences, or the state’s obligations. When an article on trafficking in human organs appears in the press, the most popular subject for analysis and speculation is the price.
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Trafficking and human rights
Journalists’ attention is usually drawn to a sensational context of events or unusual circumstances that led to the acquisition and transplantation of an organ. The fact that the conveyed message usually has nothing to do with medical facts is of little importance.8 Moreover, the language used in the articles causes secondary victimisation of women. Women who are already suffering as crime victims suffer the further ignominy of being referred to as a ‘commodity’, or sometimes as a ‘living commodity’ or a ‘commodity with long legs’. Women are also portrayed as cunning individuals geared towards profit-making, who upon failure want to be treated as victims. Moreover, the media looking for sensational news have little if any concern about victims’ privacy. The same women who have already endured the nightmare of total dependence and degradation, and dream about erasing these memories, are now shown publicly, often by name or in a way that makes them fully recognisable. Newspapers sometimes publish authentic photographs, not even trying to blur victims’ facial features, in order to make the material as attractive and realistic as possible. Another problem is the visual arrangement of the text and the publication’s context. Articles on human trafficking are usually made more attractive with photos or graphics that leave no doubts as to the content. Such an effect is usually achieved by provocative titles like ‘Trading in Charms’ or ‘Business with Slim Legs’, or by adding photographs of undressed women in unambiguous poses, or showing female legs with price tags attached. What also matters is where in a newspaper or magazine such articles are published; it is frequently in the section on oddities or strange events.
INTERNATIONAL ANTI-TRAFFICKING MEASURES Given the low level of social awareness described above, as well as the level of education and the quality of publications on human trafficking, it comes as no surprise that for at least the last 15–20 years, women’s groups have lobbied for a public debate on the true social sources and consequences of human trafficking, and for the adoption of laws that would take into account the special position of women and minimise the gravest consequences of this activity. These efforts have not been in vain; just a few examples of successful efforts that have influenced international public opinion will be cited. At the 1993 UN Human Rights Conference in Vienna, women’s groups set up a court dealing with violence against women. Women from all over the world came to testify in this court of the harm done to them. Thanks to this initiative, violence against women as a form of human rights violations entered the main agenda of public debate (Nowakowska 1998: 20). In the same year, on 20 December 1993, the UN adopted the Declaration
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on the Elimination of Violence against Women, which defines the term ‘violence against women’ as ‘any act of gender-based violence’,9 emphasises that violence is a human rights issue, no matter whether it happens in public or in private life (as in the case of domestic violence), and recommends that states should provide women who are victims of violence with proper care and protection. The first results of this soon appeared. A year later, at the 1994 International Conference on Population and Development in Cairo, the conference’s participants urged states to adopt every possible measure to eliminate all forms of violence against women. The authors of this appeal emphasised that this required taking the necessary preventive measures as well as providing victims of violence, including victims of trafficking, with protection, support and help to promote their rehabilitation efforts to return to – or lead for the first time – a normal life. However, the most important development was the 1995 Fourth World Conference on Women in Beijing. One of the highlights of this conference was the adoption of the Platform for Action, in which the participants identified areas of threats against women’s rights, set out strategic goals, and proposed concrete measures to be taken at national, regional and international levels. The conference participants identified gender-based violence, especially human trafficking, as one of the major threats to women’s rights (Zielin´ska 2006: 177). It is worth noting in parenthesis that in 1994, as part of the preparation process for this conference, the UN Commission of Human Rights appointed a Special Rapporteur, who was to analyse the problem of violence against women, including human trafficking. Not many people realise that she also did research on the subject in Poland.10 Another important document that deserves to be mentioned is the Statute of the International Criminal Court,11 established to combat the most serious crimes: war crimes, crimes against humanity, genocide and also, in the future, the crime of ‘aggression’ listed in Article 5, which has yet to be defined. As a result of lobbying by women’s organisations, the definition of crimes under the jurisdiction of the Court included also those criminal activities that usually victimise women (for example mass rapes), and now made it possible to categorise human trafficking as a crime against humanity or a war crime (Gawl⁄ owicz and Wasilewska 2004: 155). Our analysis of human trafficking in the context of human rights and women’s rights has highlighted the most important international documents on the issue. The documents that are specifically relevant to law enforcement agencies in Poland can now be enumerated. The three key players in the international debate on trafficking in human beings are the UN, the European Union and the Council of Europe. It is also important to acknowledge the role
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of the Organization for Security and Co-operation in Europe (OSCE), whose achievements in the field are evident (see OSCE-ODIHR 2001, 2004); yet in the creation of so-called hard law, the role of the first three institutions just listed is crucial. The following acts of international law on combating trafficking in human beings prepared in the UN institutions are especially important: 1.
Convention for the Suppression of the Trafficking in Persons and of the Exploitation of the Prostitution of Others, opened for signature 21 March 1950 in Lake Success, ratified in Poland in 1952. 2. United Nations Convention against Transnational Organized Crime, adopted by the UN General Assembly 15 November 2000, ratified in Poland in 2001 and entered into force in Poland 29 September 2003. 3. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (also known as the Palermo Protocol), which was adopted by the UN General Assembly 15 November 2000, ratified in Poland in 2002. 4. Protocol against the Smuggling of Migrants by Land, Sea and Air, also supplementing the United Nations Convention against Transnational Organized Crime; the Protocol was adopted by the UN General Assembly 15 November 2000, ratified in Poland in 2002, entered into force 28 January 2004. 5. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, adopted in New York 25 May 2000, ratified in Poland 10 September 2004. The first initiatives on combating trafficking in human beings in the European Union appeared at the beginning of the 1990s, but at that time usually surfaced as an addition to other issues, such as the Schengen Implementation Convention from 19 June 1990, or as EU internal documents, for example the European Commission Statement on Trafficking in Women for Sexual Exploitation of 20 November 1996, as well as programmes supporting actions to combat trafficking in human beings, such as the Special Trafficking Operations Program (STOP) or the DAPHNE Initiative. The most important legal document on human trafficking in the European Union is the Council Framework Decision of 19 July 2002 on Combating Trafficking in Human Beings (OJEC 2002: 1). This Decision obliges member states to include in their national legislation a possibility to prosecute and punish deeds encompassed by the proposed definition of trafficking in human beings. This definition in fact simply reiterates what was written in the Palermo Protocol. Moreover, in this document the EU legislators referred to
Human trafficking: a challenge for the EU and its member states
35
the above-mentioned legal regulations of the UN international legal acts. Mention should also be made here of two further legal acts of the EU: 1.
2.
Council Framework Decision 2004/68/JHA of 22 December 2003 on Combating the Sexual Exploitation of Children and Child Pornography (OJEU 2004a: 44); and Council Directive 2004/81/EC of 29 April 2004 on the Residence Permit Issued to Third-Country Nationals who are Victims of Human Trafficking or who have been the Subject of an Action to Facilitate Illegal Immigration, who Cooperate with the Competent Authorities (OJEU 2004b: 19).
The second of these required EU member states other than Denmark, Ireland and the United Kingdom (UK) to introduce legislation by August 2006 that would grant trafficking victims a residence permit for at least six months, so long as the victim is prepared to cooperate with state authorities in instigating proceedings against traffickers. The Council of Europe’s achievements in combating human trafficking can be divided into two groups. One comprises recommendations and other nonbinding documents, in which the Council abounds; their non-binding nature means they will not be discussed here. The second ‘group’ actually comprises only one document – which is, however, significant. This is the Council of Europe Convention on Action against Trafficking in Human Beings.12 It is significant because it is the first international legal Act of such importance that is at the same time regional in its character. Unlike the legal Acts of the EU, the Convention may be signed by any European or non-European state. One of the most important achievements of the Convention’s authors, even if not satisfactory to all parties, is that the Convention emphasises the effectiveness of state and social institutions in providing assistance to victims of human trafficking, and proposes mechanisms for monitoring of these activities. What is most important for Poland is that the Convention was opened for signature during the Council of Europe’s Third Summit held in Poland on 16–17 May 2005 (the Convention entered into force on 1 February 2008). The Republic of Poland was among the first signatories of the Convention, but did not ratify it until November 2008, and it did not enter into force in Poland until May 2009.
CONCLUSIONS This chapter has considered some of the many definitional aspects of human trafficking that have still to be resolved. It has also outlined much of the most significant anti-trafficking measures that have been adopted by the interna-
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tional community, and shown how Poland has reacted to and embraced these. But it is clear that there is still much to be done in terms of both the international and the Polish fight against human trafficking, and that the human rights aspect of trafficking, while better recognised than it was a few years ago, is still not being taken sufficiently seriously in the actual practice of many states and societies.
NOTES 1. At http://pl.wikipedia.org/wiki/Lipiec_2005_w_sporcie, accessed February 2007. 2. At http://sport.wp.pl/kat,32272,wid,8206210,wiadomosc.html, accessed February 2007 3. Siliadin vs. France, 26 July 2005, Chamber (Section II), complaint no. 73316/01. 4. In 2008, 23 people were sentenced by the Italian authorities to between four and ten years’ imprisonment for trafficking 113 Polish tomato pickers (US Department of State 2009: 168). 5. Your Name is Justine (Masz na imie˛ Justine), dir. Franco de Pena, Poland/Luxemburg, 2005. 6. ZL⁄ Y (‘Evil’ in English), a monthly magazine, appeared in Poland in the 1990s. Its Editor-inChief was M. Daniszewska. It focused on the pursuit of the sensational in criminal and court cases, and illegally published photos of shocking criminal cases. Its last edition appeared in 2000. 7. Based on an analysis of press information published in Poland in the years 1995–2005. This was part of the ‘Trafficking in Human Beings. Training for Law Enforcement Officers in Poland’ project carried out by Warsaw University between 2003 and 2006. 8. Professor Wojciech Rowin´ski, National Consultant for Transplantology, has frequently emphasised that the information on transplantations taking place on a train, for instance, are of course untrue and contradict elementary medical knowledge. 9. The Declaration is available in Polish at http://kampania.amnesty.org.pl/docs/deklaracja. pdf. 10. The Special Rapporteur was Ms Radhika Coomaraswamy from Sri Lanka. 11. The text of the Statute is available in Official Journal of Law, No.78, 2003, item 708. 12. At http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=197&CM=8&DF =1/19/2008&CL=ENG, accessed February 2007.
3. Responses to sex trafficking: gender, borders and ‘home’ Sanja Milivojevic and Marie Segrave INTRODUCTION Human trafficking, particularly the trafficking of women into the sex industry, is an issue that continues to gain traction as a major concern for the global community. Estimates that thousands, even millions of women have been kept as sex slaves (Raymond et al. 2002) have dominated the trafficking debate since the late 1990s (see also Kelly 2005). These estimates continue to be used despite their variability and the questionable nature of the research upon which they are based.1 A body of criticism has recently emerged that has called for the recognition that these broad statistical claims are problematic (Doezema 2000; Agustin 2005; Kelly 2005; Kempadoo 2005). This call, however, has largely gone unnoticed, as estimates continue to play a pivotal role in fuelling global anti-trafficking responses. Reflecting the emphasis on quantifying the issue and approaching trafficking as a crime with identifiable (and quantifiable) victims, the policy responses that have emerged internationally operate almost exclusively within a law and order framework. The burgeoning scholarship and reporting in this area also privilege criminalisation and victimisation as the central tenets of this issue – where trafficked women are victims of crime, and the role of the state and of other anti-trafficking bodies is that of ‘rescuer’. As a consequence, concerns around this issue have translated into efforts within three key areas: preventing trafficking, prosecuting trafficking offences and protecting victims.2 The focus of the analysis in this chapter is on prevention and protection, rather than prosecution. Since the late 1990s we have witnessed the coalition3 of a broad range of groups and actors – from Western governments to religious and non-governmental organisations to feminist abolitionists – who have concentrated on protecting women envisioned as victims from being ‘lured’ across national borders into the sex industry. Recently these ‘protective measures’ imposed by nation states and the international community to prevent the ‘disastrous human right abuses’ (Crouse 2006) associated with ‘modern slavery’ (Bales 1999; Bertone 2000; Hughes 2001; Jeffreys 2002a) have materialised in a range of 37
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new arenas. Two sites that have not to date been the subject of examination within one concentrated analysis are the focus of analysis here:4 campaigns around the risks associated with major sporting events; and national policy responses to trafficking. The 2006 Federation of International Football Association (FIFA) World Cup exemplifies how the dominant logic has been applied to identify specific global events as sites for the potential escalation of trafficking in persons. While destination nations across the globe vary considerably, particularly in terms of the patterns of trafficking, we have witnessed an international investment in similar responses to this phenomenon, based upon an expectation that victims will be repatriated back to their country of origin. As responses have developed around law and order frameworks, borders and the policing of national border regimes have played a critical role in determining the limits and the operation of responses to trafficking. This chapter examines and challenges the adoption of the ‘logical’ and ‘natural’ law and order response. We locate the emergence of a range of forms of exploitation, including human trafficking, within a framework that takes intersectional considerations into account (see Langevin and Belleau 2000), and reject the popular tendency to focus exclusively on gendered sexual exploitation. Within this framework, trafficking is recognised as involving issues of ethnic, social and economic disparity or inequality that impact upon migration and labour opportunities, whereby exploitation occurs in many locations and many levels. While this chapter focuses on efforts to address the trafficking of women into sexual servitude, the analytical lens we bring to the examination of these efforts is one that is immediately suspicious of the specific focus upon this one form of gendered exploitation. To contextualise this position, we must identify our starting point, which is not with trafficking itself, but with the documented feminisation of the labour force and the transversal, migrating population. This chapter brings to the fore women’s migration status as the critical factor driving many of the responses currently being developed and implemented by nation states. We recognise that while mobility has been celebrated as a central pillar of globalisation, it has not translated into increased mobility for all; rather, it has become highly stratified and accessible only to members of particular groups and populations (Bauman 1998; Soguk 1999; Berman 2003; Wonders 2006). Mobility has become a commodity through which many have seized upon opportunities to profit, by assisting irregular and illegal migration processes and exploiting the labour of those ‘on the move’ (see Sassen 1998; Wonders and Michalowski 2001). Thus, another major pillar in this framework is the regulation of migration. This chapter draws upon a gendered analysis of the role of the border in framing global responses to trafficking. In the first section, we are concerned
Responses to sex trafficking: gender, borders and ‘home’
39
with how the debates on sex trafficking can be understood in the context of the international spectacle of the 2006 World Cup. We focus particularly on how this event served as a trigger for increasingly punitive approaches to women considered vulnerable to trafficking, and how it contributed to the enhancement of border controls for specific groups. The discussion is based on an analysis of media coverage of sex trafficking and the World Cup in the six months prior to and during the event.5 In the second section, we shift our focus to the South East Asian region, to examine how Australia and Thailand have structured their repatriation policies. In particular, this analysis examines how the limited temporality of the status of ‘victim’, compared with the inescapability of the status of ‘non-citizen’, translates into policy frameworks designed to assist victims beyond the criminal justice process. Initially these two sites appear to be quite separate. However, we develop a broad analysis that encompasses both practices, in order to identify the points of intersection and continuity. In our conclusion, we point to the ways in which trafficking in persons is currently conceptualised, and identify emerging implications of the dominant agenda.
PREVENTING TRAFFICKING: THE 2006 WORLD CUP6 Young women will arrive in Germany thinking that they will be waitresses and dancers; instead, they will likely find themselves without documentation and at the mercy of international networks associated with organised crime (Crouse 2006).
Case Study: Football, Magic Numbers and Vulnerable Women’s Bodies The staging of the 2006 FIFA World Cup brought into focus some of the key debates on sex trafficking in Europe and the pressing issues it raises relating to the representation of women, human rights and mobility. Several months before the football festival in Germany (literally) kicked off, various organisations and groups estimated that the World Cup would be likely to accelerate sex trafficking, with estimates that between 30 000 and 60 000 women could be trafficked to Germany (CARE for Europe 2006; Council of Europe 2006; IOM 2006; Neuwirth 2006; Salvation Army 2006a; Sparre 2006). It is unclear how these estimates were reached, as none of the authors or institutions that announced these projections clarified their methodology or sources. Despite efforts by some advocacy and outreach groups who readily dismissed these numbers as exaggerated (Daily Times, 10 March 2006), and although the police of one of the host cities – Munich – suggested that such figures were ‘plucked from the air’ (Haape 2006), various activists, experts and the media
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Trafficking and human rights
continued to refer to thousands of women in danger of being trafficked for the World Cup. A closer analysis of media reports prior to and during the World Cup revealed that such estimates originated from the number of sex workers expected to travel to Germany for the biggest sporting event in 2006 (Deutsche Welle, 10 June 2005; Paterson 2005; Iglesias 2006). Within the supply and demand equation, the proposed number of migrant sex workers needed to fulfil expected demand during the World Cup was intriguingly translated into the number of women who might be trafficked, by establishing at first potential, and subsequently an explicit connection between sporting events and the increase in demand for commercial sex: ‘It is critical that the German government, civil society and the international community look seriously at the potential links between this major sporting event and the potential increase in the demand for sexual exploitation of women and children’ (Ashley Garrett in IOM 2006: 30–31; emphasis added); and ‘Experiences show that at every big sporting event where a large number of men gather, there is a spectacular rise in the demand for sexual services. (Ulrike Helwerth, spokeswoman for the NGO Deutscher Frauenrat [transl. German Women’s Council], cited in Iglesias 2006; emphasis added). The claim that some women among those expected to migrate and address the demand might be trafficked – that is, be forced into the sex industry or be deceived about the conditions of work – was transformed into the argument that most of, or indeed all migrant women will be victims of trafficking: ‘The German Women’s Council has estimated that an additional 40 000 women will be brought into Germany … Many of these women are likely to be victims of trafficking’ (Janice Shaw Crouse, Concerned Women for America, in Jalsevac 2006; emphasis added); and ‘During the World Cup around 40 000 young women are expected to be imported to Germany for sexual trafficking’ (Salvation Army 2006b). In addition, women perceived to be in danger of being trafficked were portrayed in the media as young, innocent and naive girls from Eastern and Central Europe, who would be forcibly introduced to the sex industry (Bindel 2006; Ekklesia 2006; Haape 2006; Neuwirth 2006; Tzortzis 2006). Absent from these dominant narratives was any recognition of women’s agency – either as individuals willingly engaging in the sex industry or as transnational migrants willingly seeking expedient cross-border opportunities. In place of such accounts were narratives that constructed women as weak and vulnerable, and thus considered in need of ‘rescue’ (Milivojevic 2007): ‘Many women will say this is the life they chose, but economic desperation or the breakdown in social structures that constrain women into prostitution doesn’t leave them many options’ (Duncan MacLaren, Secretary General of Caritas International, in Catholic News, 25 May 2006).
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Consequently, as we will demonstrate below, the anti-trafficking intervention around the 2006 World Cup targeted both women identified as potential victims, and illegal migrants/workers in the German sex industry. This is not to say that the coverage was exclusively engaged in reporting on trafficking and sex work without any clear distinction. For example, recognizing that ‘forced prostitution … is a very real and serious problem in Germany’, Spiegel Online (26 May 2006) stated that ‘much of the foreign coverage seems to deliberately conflate [trafficking and sex work]’. Similarly, German law enforcement officials argued in vain that there was ‘no major upsurge in prostitution-related criminality’ during the sporting events this country hosted in the past (Haape 2006). A few days before the opening ceremony, German police issued a statement stating that there were ‘no signs of any explosion of forced prostitution that had been warned of in the months leading to the opening day’ (Christian Post, 11 June 2006). However, these counter-claims were largely silenced; the dominant assumptions were unshaken, and the new moral panic7 was under way, led by a strong collective force with a broader moral agenda. The Framework: Moral Panic and the Abolitionist Agenda Ever since Germany legalised sex work in 2001, it has attracted the occasional scrutiny of the abolitionist coalition. Yet it was Germany’s initiative to open new brothels for the World Cup that drew increased attention. Soon after the first media headlines about ‘sex huts’8 and a possible increase in the number of sex workers during the competition were published, the abolitionist coalition of women’s groups, religious communities and human rights organisations joined forces to protect women from exploitation in the sex industry. From the beginning, however, this new moral panic explicitly targeted sex work, claiming that ‘prostitution is to sex trafficking what coal is to steam engines’ (Christianity Today website, accessed 2 July 2006). The leader in the anti-trafficking movement, based on opposing all sex work, is the current United States (US) administration.9 Soon after the estimates about the number of sex workers expected to travel to Germany for the World Cup had been announced, Congressmen Christopher H. Smith (Republican – New Jersey) chaired a Special Hearing, in which he argued that: Since the matches are being held in Germany, which legalised pimping and prostitution in 2001, the World Cup fans would be legally free to rape women in brothels … Of the approximately 400 000 prostitutes in Germany, it is estimated that 75 percent of those who are abused in these houses of prostitution are foreigners, many from Central and Eastern Europe. We know beyond reasonable doubt that so many of these women are coerced and they are there because of force, fraud or, like I say, coercion. (Smith 2006: 7; emphasis added)10
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The US Secretary of State’s advisor on human trafficking, John Miller, has been especially vocal in linking women’s migration, sex work and trafficking, claiming that: ‘All the research and evidence available shows that when you have large flows of women for sexual purposes, there is going to be trafficking. There is a link between prostitution and sex trafficking’ (Agence France Presse, 10 June 2006). As will be explored later, such criticism is significant, since the US Department of State assesses countries’ performance in combating trafficking in its annual Trafficking in Persons (TiP) Report.11 In this anti-sex work campaign, focus was particularly on prevention, targeting both potential clients and ‘victims’. Abolitionist feminist organisations, led by the Coalition Against Trafficking in Women (CATW), joined the partnership by launching the campaign ‘Buying Sex Is Not a Sport: No to Germany’s Prostitution of Women during the World Cup Games’ (CATW, 2006).12 Religious communities and faith-based organisations also directly targeted Germany’s policy towards sex work: the Catholic Family and Human Rights Institute launched a motion called ‘Stop World Cup Prostitution’, the German Lutheran Church distributed leaflets aimed at reducing the demand for sex work during the World Cup (Ohmynews, 27 May 2006), while nuns in Poland issued anti-prostitution leaflets in Eastern European languages (Luxmore 2006), aimed at warning young women of the dangers of sex work and trafficking. Claims of possible mass human rights abuses triggered similar responses by the international human rights community. Amnesty International urged European governments to launch prevention campaigns in countries of origin, and ‘all states with football fans travelling to Germany to raise awareness of the fact that many sex workers present in Germany during the World Cup may have been trafficked’ (Amnesty International 2006a). Salvation Army and CARE volunteers travelled to Germany with leaflets designed to stop men from going to brothels (Salvation Army 2006a; CARE for Europe 2006), while the International Organization for Migration (IOM), the Swedish International Development Cooperation Agency (SIDA) and MTV Europe Foundation produced a ‘TV announcement addressing the demand side of sex trafficking … directed at both potential clients of prostitutes as well as those most vulnerable to becoming trafficked’ (IOM 2006).13 The participating national teams and football federations were also under scrutiny. Thus CARE urged ‘all football teams playing at the World Cup … to publicly condemn Germany’s acceptance of the exploitation, trafficking and pimping of women for sex’ and called ‘upon high-profile players to make their opposition to the “Mega Brothel”’ (CARE for Europe 2006).14 As a result of this pressure, the President of the German Football Federation, Theo Zwanziger, stated that the Federation needed to reconsider its position on sex work (Spiegel Online, 8 March 2006).
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After receiving a warning from its closest allies,15 a German delegation to the Organization for Security and Co-operation in Europe (OSCE) issued a statement that: ‘we must assume – even if there are no reliable figures – that women will be forced into prostitution and will perhaps be brought to Germany solely for this purpose’ (Delegation of Germany to the OSCE 2006). The anti-trafficking intervention that followed, driven by guesstimates, stereotypes and moral panic, and gravitating around the notion of repairing injured women’s bodies by reinforcing the concept of ‘home’ and restoring borders, was twofold: prevention of potential victims and ‘rescue’ of those already ‘exploited’. The following section will explore how this intervention impacted on women’s lives. The Outcome: Policing Sex Workers and Stopping Migration Although the European Union (EU) stated that its campaign was not going to be a ‘campaign against normal prostitution’ (Expatica, 8 March 2006), what has been done in the name of anti-trafficking constitutes a concentrated effort to police women working in the sex industry. As a part of the crackdown on sex trafficking in Germany prior to and during the World Cup, hundreds of sex workers were questioned by police, while nearly 100 people were arrested in brothels in four German states, 74 of whom were sex workers (Associated Press, 1 June 2006). The Interior Minister of Hesse province directly linked these raids with ‘concerns expressed by human rights organisations and other groups that thousands of women, mostly from Eastern Europe, could be smuggled into Germany and forced to work as prostitutes during the World Cup’. In the neighbouring province of Rhineland-Palatinate, 22 people were arrested and 34 were issued citations: ‘mostly for immigration violations and failure to comply with business regulations’ (Associated Press, 1 June 2006). Thus, bringing women (mostly illegal migrants and/or undocumented workers) home, through the criminal justice system and via the border, represents the outcome of anti-trafficking initiatives around the World Cup. In addition, this campaign has had a significant impact on the lives of those sex workers who were lucky enough to escape incarceration or deportation (Landler 2006). Finally, this intervention impacted on women from the assumed countries of origin who, for whatever reason, wanted to visit Germany during the World Cup. If they ignored anti-trafficking messages highlighted earlier, suggesting that staying at home is an ultimate prevention strategy, women from the Global South faced tough visa regime and border controls: Visa requirements should be slapped on all non-EU citizens travelling to Germany … as a part of a drive to prevent an expected increase in the trafficking of sex workers … We need to introduce and re-introduce temporary visas for all third countries
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Trafficking and human rights – even those not requiring visas so far – but which are possible origin countries for trafficked women and children. (EU Chief Justice Franco Frattini, Expatica, 8 March 2006; EU Observer, 9 March 2006; Bianchi 2006)
EU Chief Justice Frattini’s key argument for such measures was, again, the ‘protection’ of women – but also the protection of ‘public order’ within the EU, since women cannot be trusted: Each and every application for a visa from women in the suspected countries of origin for forced prostitution should be checked, as a lot of the times women lie … in the application … The authorities [need to] ensure that people potentially ‘compromising public order’, one of the grounds for refusal of entry into the Schengen area, are indeed refused such entry. (EU Chief Justice Franco Frattini, Expatica, 8 March 2006; EU Observer, 9 March 2006).
Thus, the danger of being trafficked and/or exploited has been utilised as a tool effectively to restrict women’s mobility and agency, whether in preventing women from travelling or returning them ‘home’, in which process maintaining the border regime plays the critical role. Coincidentally or not – but certainly ironically – these visa restrictions for non-EU women were introduced on 8 March 2006, International Women’s Day. Contrary to the media frenzy prior to the World Cup, reports and assessments after the final whistle were scarce. The IOM’s report confirms that ‘dire predictions of tens of thousands of victims were unfounded and unrealistic’16 and that ‘more accountability is needed among right-wing groups and media when citing figures’ (Associated Press, 8 May 2007). Yet the report praises ‘[p]revention campaigns and increased law enforcement efforts’, arguing that they ‘may have reduced the risk of trafficking’ (Hennig et al. 2007: 6). On the other hand, the impact of anti-trafficking intervention on those they were supposed to protect – women in the German sex industry and potential victims – has not been critically assessed. Moreover, we witness the moral panic shifting towards upcoming sporting events, such as the 2010 Olympic Games and the FIFA World Cup in South Africa, as events that carry potential risks of trafficking (IOM 2006; Canadian Press, 1 June 2006; Perrin 2007; News24.com 2009). Challenging the Framework The case study just outlined indicates that across Europe (and elsewhere), ‘some (mostly male) bodies enforce borders, while other (mostly female) bodies are subject to border enforcement’ (Wonders 2006: 66). What is apparent from our review is that the bodies that enforce borders are not only those agents that patrol the physical border, but also those (male and female) agents
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that patrol moral borders around the acceptability of sex work. The moral panic that snowballed around the 2006 FIFA World Cup resulted in the construction of women as victims and the state as the ‘rescuer’. While conflating the issues of sex work and trafficking, anti-trafficking initiatives that followed brought the curtailment of (some) women’s mobility in the name of securing their protection (from themselves as well as from traffickers) and has seriously undervalued women’s agency. The (gendered, moral) order has been restored by ensuring women are ‘home’ (by preventing their flight or returning them) where home is presumed to be a safe sanctuary. Yet the actual impact of such an intervention, both on the trafficking phenomenon and on women’s lives, has not been assessed. Importantly, these issues and concerns have consequences beyond the development and implementation of ‘protection’ efforts. We witness the repetition of these narrow moral frameworks and gendered narratives in policies designed to assist victims once they have been identified by authorities in the country of destination, and in the quiet, yet insistent, policies of repatriating victims back to their country of origin.
RESPONDING TO TRAFFICKING: REPATRIATION While the World Cup and the associated media frenzy around the potential for thousands of women to be trafficked to Germany captured the attention of an international audience, the less sensational aspects of anti-trafficking efforts are rarely the subject of close examination. Critically, however, the issues and concerns that were identified in the examination of the mobilisation of the 2006 World Cup anti-trafficking campaign are pertinent within all aspects of current policy frameworks. For this reason, we now turn to examine policy frameworks around repatriation. While the first case study demonstrated how the dominant ideologies underlying anti-trafficking responses translate into front-end prevention efforts, we now turn to examine how (gendered, sexualised) law and order responses influence the final stages of anti-trafficking efforts. The Framework: Supporting Victims through Repatriation The international framework for responding to trafficking in human beings, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN 2000a; the Protocol entered into force on 25 December 2003), outlines a three-part approach to be adopted by states parties to the Protocol. This framework has been translated into a popular policy ‘formula’ approach, whereby organisations and governments align their efforts within the ‘three Ps’ model, identified (most often) as prevention, protection and prosecution (see, for example, Millar 2004; Askola 2007: 418).
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The wide adoption of this approach is reflected in a range of contexts and programmes, including, as just discussed, the planning efforts for the World Cup in 2006. The Trafficking in Persons report, produced annually through the United States Department of State’s Office to Monitor and Combat Trafficking in Persons, plays a significant role in maintaining this ‘formula’. It monitors nations and reports on their anti-trafficking efforts, according to ‘minimum standards’ within these three key areas. While there has been growing criticism directed at this model and at the self-appointment of the US as the unilateral ‘watchdog’ (see for example Berman 2003; Chuang 2006; Women’s Commission for Refugee Women and Children 2007), these standards, together with the Protocol framework, play a significant role in influencing governments to introduce anti-trafficking laws and policies (see US Department of State 2002a; Carrington and Hearn 2003; Coomaraswamy 2003). Here, however, we are concerned with the unequal prioritisation of the three elements: the development and implementation of domestic and cross-border criminal justice efforts, and particularly law enforcement outcomes, are emphasised as the most critical (and most tangible) indication of progress in addressing trafficking (see Berman 2003). As a consequence of the focus on law and order, the processes beyond criminal justice efforts are rarely the subject of close attention. The focus here is to examine the repatriation (or ‘safe return’) of victims back to their country of origin, a process that most often follows the ‘rescue’ of victims and the pursuit of criminal justice outcomes. Within the ‘three Ps’ formula, repatriation is most often discussed in relation to ‘protection’. While Section 9 of the Palermo Protocol outlines a broad framework for repatriation processes, efforts have largely concentrated upon the implementation of repatriation, rather than whether repatriation should be the final requirement of destination countries in assisting or supporting victims of trafficking. Little is known about the process and policies governing how repatriation operates. Nor has there been any examination of why the return of victims home is inherent to anti-trafficking responses, and what underlies such a policy framework. In the following section, we seek to attend to issues rarely addressed in discussions around trafficking responses, and to bring a migration and citizenship framework to the analysis of repatriation, an aspect of trafficking most often sidelined (Chuang 2006). As argued below, repatriation policies are located within victim-oriented policy commitments; yet trafficking responses are driven primarily by the migration status of victims. To explore this, we turn to repatriation policies operating within two very different contexts: Australia and Thailand. Case Study: Repatriation in Australia and Thailand Thailand and Australia are two nations within the South-East Asian Pacific region with considerable disparities – politically, socially and economically.
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Thailand is resource limited compared to Australia, and faces considerable challenges in the wake of the political instability following the September 2006 coup.17 The challenges of responding to trafficking are further intensified in Thailand by its geographic location, the scale of cross-border population flows, and the disparity (economic, political) between Thailand and its neighbouring nations of Laos, Cambodia, Malaysia and Burma. There are a myriad of complex forces impacting on migration flows into and out of Thailand. Consequently, people trafficking manifests itself differently in both nations: while Australia is identified as primarily a destination country, with estimates ranging from 100 to 1000 victims annually (Carrington and Hearn 2003; Maltzahn 2004), Thailand is identified as a source, transit and destination country, where the magnitude of incidents of trafficking is many times that of Australia (UNODC 2006). Despite the considerable differences between Thailand and Australia, many victims of trafficking in both nations, reflecting global patterns, are also non-citizens, and often come to the attention of authorities as illegal or irregular non-citizens. Consequently, they are at risk of deportation prior to being identified as potential victims of trafficking (Carrington and Hearn 2003; Segrave 2007). Thus there is some similarity in the way in which trafficking is identified in both countries, and in the role of immigration authorities. Further, the anti-trafficking efforts introduced in both nations are also very similar, as both countries have embraced the rhetoric and model of ‘comprehensive’ whole-of-government law and order approaches. This translates into an emphasis on developing legislation, pursuing prosecutions, and providing victim support to those victims who assist with the criminal justice process. Within this context, repatriation in both Australia and Thailand is linked to victim support, where repatriation is equated with returning victims ‘home’ safely.18 Much of the focus within Thailand and Australia (and the region more broadly) in relation to repatriation has evolved around developing cooperative agreements between nations to ensure the smooth relocation of victims (see Bali Process 2006). This has translated into numerous Memorandums of Understanding (MoUs) between destination and source countries to establish agreed protocols for the return and repatriation of victims (including agreements on intelligence-sharing between law enforcement agencies), and to protect victims from prosecutions for any offences they may have committed immediately before or during their exploitation (Bali Process 2006).19 Yet the public rhetoric emphasises the link between repatriation and the victim welfare orientation of the policy response, for example: ‘the Australian Government shares community concern about the welfare of victims of trafficking and has responded by introducing a comprehensive victim support package’ (Commonwealth Attorney-General’s Department 2004: 13).
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Repatriation is associated with victim support and imagined as a seamless, linear process that logically concludes with the provision of assistance and support to victims by ‘benevolent’ nations. However, in examining the response in both Australia and Thailand, and the operation of repatriation policies, it becomes clear that a driving concern within the policy broadly, and the repatriation process specifically, is the maintenance of the authority and legitimacy of the migration regime. To support this claim we need to link the way in which victims most often come to the attention of authorities, how they are managed within the country of destination, and how repatriation operates. In 2004, Australia introduced a visa system to enable potential victims of trafficking to remain legally in the country while their case is being investigated. This visa system is a temporary one that empowers Australian authorities at each point (that is, from the initial investigation, to the decision regarding prosecution, through to prosecution) to determine whether the victim can assist with an investigation. If the victim cannot or will not assist in criminal justice proceedings, they will no longer be eligible for the temporary visa (for more detail see Segrave 2004; Burn and Simmons 2005). In order to ensure that victims who are no longer involved in the criminal justice process are not automatically detained and deported, based on their migration status as illegal non-citizens, a repatriation process was introduced. This was designed to be accessible to all potential or suspected victims, not only those whose cases are prosecuted successfully. Rather than being ‘deported’ (a return process with different legal implications as per the Migration Act 1958), women are ‘repatriated’ to Thailand where information regarding options for further ‘reintegration’ assistance is (ideally) provided. Repatriation has been developed as the primary mode of victim support post the criminal justice process. While a further set of visas was introduced to enable the Minister for Immigration to grant trafficking victims the right to remain in Australia, this is a conditional and discretionary visa, and there is no certainty of accessibility or eligibility.20 There are two key points to note here. First, such a visa regime ensures that at no point are victims of trafficking automatically entitled to remain in Australia for any length of time once the prosecution is complete. Second, the rights of victims of trafficking and sexual servitude are limited by their concurrent status as non-citizens. The processes are based on the understanding that the majority of persons identified as potential victims of trafficking in Australia will be repatriated. This was outlined and identified as problematic by one member of a 2004 Federal Senate Committee inquiry related to the Australian response to people trafficking: it struck me that [in the past] the fundamental problem was that these women were being perceived as illegal immigrants and were being dealt with in that way … I
Responses to sex trafficking: gender, borders and ‘home’
49
think that over the last few months we have been able to turn that around, and the community debate is now more about seeing the women as victims instead of criminals … [but] It troubles me that the way that the support packaging seems to have been structured is a reversion to that ethos of seeing the women as illegal immigrants …
The Senator went on, however, to identify that the key challenge for the nation in responding to trafficking is the dual status of women as both victims and (illegal) non-citizens: what happens to those women who are of no use to the authorities or to the Federal Police? [It was] said that they would be sent home, that they would be treated as unlawful entrants … It worries me that perhaps we could be doing something better there but we are not. [However], I accept the point that there is no easy answer to that, because they are here unlawfully. (Senator Greig, Committee Member on the Parliamentary Joint Committee on the Australian Crime Commission (JCACC) Inquiry into the trafficking of women for sexual servitude; JCACC 2004a: 17–18)
In Thailand, the process operates similarly and is essentially driven by the same two principles. Currently the people trafficking focus is almost exclusively directed towards women and children trafficked into Thailand. However the process from the point of identification differs slightly to Australia, as there is no equivalent step-by-step visa framework accessible for victims once they are identified. Most often, potential victims of trafficking will be identified initially as illegal non-citizens and taken to an Immigration Detention Centre before being deported to their country of origin.21 Thai Immigration Police identify potential victims of trafficking in the Detention Centre, interview them, and separate them from the larger population of illegal non-citizens, who are detained and deported (Segrave 2007). Victims of trafficking are provided with shelter and assistance while their case is being investigated. Similarly to the Australian situation, at the end of the case the majority are repatriated. The extent to which this differs from deportation practices is less clear, as there is no detailed policy framework. However, there is a similar commitment to ensuring that those who are returned to their country of origin are treated differently from those who are deported (UNIAP 2005). The complexity of this process is heightened by the numbers of potential victims and the diversity of their citizenship status. Most often, though, the Thai government will work with a non-governmental agency to assist with the return of victims of trafficking; an example is World Vision, which helps in repatriating Burmese victims of trafficking back across the border. Thailand’s policy commitment is not, however, so comprehensive as to include a visa system to protect those who may be at serious risk if they are returned to their country of origin. There are also fewer legal alternatives to remain in the country than exist in Australia (see US Department of State 2007).
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Trafficking and human rights
While the processes involved in repatriation raise a number of issues worthy of further analysis, critical here is the examination of the basic principles underlying repatriation processes. In Australia and Thailand, the border regime determines both the rights of victims within the (destination) nation and the responsibility of that nation to victims. This has been clearly affirmed by policy-makers in both countries: ‘the situation [victims] are in … whatever immigration status they have, either having come here legally or illegally … [is that they] will be dealt with according to that regime’ (Joanne Blackburn, First Assistant Secretary, Criminal Justice Division, Australian AttorneyGeneral’s Department; in JCACC 2004b: 23); and: ‘Of course many of them [women we work with] say they don’t want to go back, but I say if you’re here we don’t have the law to accept you, so you are illegal person’ (Saisuree Chutikul, Chair of the Committee on Combating Trafficking in Children and Women, Thailand and Chair of the World Vision Foundation, Thailand – cited in Segrave 2007) The policy response can be understood as effectively rewriting and simplifying trafficking into a linear journey (Tiuriukanova 2005), such that the return ‘home’ signifies the completion of this journey. Repatriation, then, as a necessary process, becomes an outcome in itself – an outcome arguably far removed from addressing or combating trafficking. Challenging the Framework This reading of the commonality in the design and operation of anti-trafficking efforts, particularly the investment in repatriation, reveals that victims of trafficking are always, first and foremost, positioned as ‘other’ – as non-citizens to whom the country of destination has limited responsibilities. The logic underlying the operation of the repatriation process as victim-supportive requires further interrogation. We need to acknowledge the gendered nature of this approach and the focus on women’s needs and desires as ‘victims’, while also drawing upon gendered notions and expectations of women according to their citizenship status. There is a need to challenge the presumptions of the ‘commonsense logic’ that the return of women ‘home’ is the final stage in the restoration of order. Such logic is premised upon notions of home as ‘sanctuary’, where it is assumed women will be safer or better off in their country of origin. However, this is a ‘forbidding task’, as it requires challenging takenfor-granted truths (see Hogg and Brown 1998: 18). As repatriation policies are instituted in Australia and Thailand (and beyond), we are witnessing the effective silencing of women’s agency and (potential) status as transnational actors in the global community. Currently a wide range of complex issues impacting on women’s lives and experiences of migration and labour lie outside policy frameworks. Trafficking is not identi-
Responses to sex trafficking: gender, borders and ‘home’
51
fied as being part of a larger, more complex transnational journey. The assumption that women simply return home and remain there has been challenged by research that recognises the fluidity of people’s migration journeys, the necessity for some women continually to seek labour opportunities outside their country of origin in order to survive, and/or for other reasons (such as to support their families). In the name of ‘protecting’ and ‘supporting’ victims, women’s mobility is being contained, and their identity maintained, in relation to the border-bound status of citizen. What makes this logic more difficult to dislodge is the way in which it buys into a popular myth around trafficking: the logic of the ‘return home’ appeals to a broader, gendered narrative around victimisation, where victims are most often seen as naive, third-world victims kidnapped and forced to work in the sex industry. As we identified in relation to the ‘moral panic’ around the fear of increased trafficking in relation to the 2006 World Cup, such narratives are at odds with the reality of contemporary transnational migration processes in which many women trafficked for sex are involved.
CONCLUSIONS This chapter has sought to challenge the dominant anti-trafficking movement and the unwavering investment in the overarching logic of law and order. This is a critical juncture at which to do this, since we are witnessing the expansion of groups and actors involved in developing and instituting anti-trafficking efforts – from individual nations to international event organisers. The structure of legally oriented anti-trafficking efforts continues to focus primarily on the point of exploitation, where trafficked women are treated as victims of crime within a trauma and welfare-oriented framework, and where trafficking practices are identified as crimes against the person. It is a structure in which the prosecution of traffickers is recognised as an essential tool in working towards eradicating human trafficking and in measuring the success of these efforts. As identified in our discussion above, this model does not incorporate the impact of migration and labour regulation, or the increasing number of people willing (and needing) to undertake dangerous and/or clandestine migration journeys. Instead, the realities of women’s lives, including their efforts to negotiate restrictive migration regimes and the regulation of ‘appropriate’ forms of work and labour, are absent from the concerns and commitments of anti-trafficking campaigns. In part, these issues are neglected because of the broader acceptance of, and investment in, the logic of home (or nation) as a ‘safe’ place (Neocleous 2003). Such an assumption can negate all the potential reasons that women are on the move, and draws upon a dominant gendered and misguided notion that women
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Trafficking and human rights
are safest when they are ‘home’. Critically, any attempt to challenge this notion is refuted by reference to the migration status of victims of trafficking and the reassertion that they have few, if any, rights within the country of destination. We argue that while these issues are generally neglected in the public sphere, they have significant consequences for the implementation of efforts to address trafficking. This chapter indicates the need to challenge this dominant framework, by engaging with current policies and assessing their impact on the lives of those they are supposed to protect. We challenge the ‘imaginary identification’ of home as ‘sanctuary’ (Neocleous 2003: 120), where it is assumed women are most likely to be protected from exploitation and the place where they should be returned as victims of exploitation. We have brought to the fore how equating prevention and protection into an emphasis on the importance of women being at ‘home’ enables gendered, restrictive border-related policies to operate that may restrict women’s rights and their freedom of movement, and which may also increase their vulnerability to potential exploitation. Further, we identify that citizenship defines the boundaries and limits on anti-trafficking efforts. From prevention to victim assistance to repatriation, we are witnessing the utilisation of increased border controls under the guise of protection and support. Such efforts serve effectively to deny women’s past, current and future transnationality. Simultaneously, these efforts reinforce the logic that border-bound citizenship is a key determinant of an individual’s rights within any location, thus reaffirming that power remains concentrated within and tied to the nation state (Cunningham 2004). These points give rise to a number of concerns that include the following three considerations. First is the concern that the responsibility of destination countries begins and ends at the border, such that the role of the state is to maintain or restore order through keeping or returning women home; that is, in their rightful place (Berman 2003). There is no engagement with alternative possibilities, such as the responsibility of nations to increase the accessibility of low-skilled migration visas, or ensuring that migrant labourers in all aspects of the labour force are adequately protected from exploitation, or that countries of destination should be responsible for providing a range of short- and long-term options to those who have been exploited within their jurisdiction. A further concern is that the current framework effectively dislocates the exploitation that women experience from the broader social, political and economic context in which such practices are occurring. Finally, we wish to identify that, ultimately, the concomitant efforts of nations, non-governmental organisations, international sporting bodies and others are effectively upholding and further entrenching the connection between responding to trafficking and the reassertion of the inherent right of the state to exercise its prerogative to control who may cross its borders and
Responses to sex trafficking: gender, borders and ‘home’
53
the way in which they will do so. While beyond the scope of this chapter, there is a need to question the potential inequality of these border regulation regimes and/or how these policies are impacting on practices of exploitation, such as people trafficking, and on women’s lives. Further, there is a need to examine the engagement of a ‘victim-centred’ policy rhetoric as a strategic tool that inhibits the potential for critical analysis. Challenging the appropriateness of the dominant response to trafficking has too often produced a counter-attack that we are neglecting the ‘trauma’ experienced by victims of trafficking. It can also be met with the response that we must be mindful of the ‘threat’ posed by increasing the accessibility of support mechanisms and visa support – that is, the threat that this would result in a ‘flood’ of false claims to victimisation by ‘undeserving’ non-citizens. However, such responses point to the fact that controlling migration and delimiting trafficking into an issue of victimisation (and criminalisation) is at the core of current responses. It is only through adopting a broader perspective that we can begin to shed light on the problematic consequences of the implementation of anti-trafficking efforts that are far removed from the stated focus of combating trafficking in persons. The issues raised in this chapter point towards a new agenda for future research and scholarship. A key tool in working towards this new agenda is to address the absence of women/victim’s voices, and to seek to give women a platform upon which to articulate their experiences as women, as migrants, as non-citizens, as labourers and as victims of trafficking. As interest in trafficking in persons continues to expand and reach a wider global audience, we must seek to ensure that so-called ‘best-practice’ efforts around prevention, prosecution and protection continue to be challenged. For as long as the border regime and the interests of the nation state drive responses to trafficking, efforts to address trafficking in persons will continue to have limited, if any, impact in working towards the eradication of all forms of cross-border exploitation.
NOTES 1.
For example, in 2002 the US Department of State (2002a: 1) estimated that between 700 000 and 4 million people are trafficked worldwide annually, while the 2007 Trafficking in Persons (TiP) Report reduced this estimate to 800 000 (US Department of State 2007: 8). Women and children are identified as particularly vulnerable categories: the UN representative in 2000 stated that 1 million women have been trafficked worldwide annually (Farr 2005: 4), while the US Department of State (2006, 2007) estimates that 80 per cent of all trafficked victims are women. Regional estimates vary as well: the International Organization for Migration (IOM) estimated that 300 000 women were trafficked to and within Europe in 1998 (Konrad 2002); the European Commission (2001) suggested that the number of trafficked women within Europe in 2001 was 120 000; while in 2004 the European Union estimated that around 200 000 women had been brought to Europe that year
54
2. 3. 4. 5.
6. 7.
8. 9.
10. 11.
12.
13. 14.
Trafficking and human rights (Spiegel Online, 8 March 2006). The picture is not much clearer on the local level and, as a result, the IOM stated in 2001 that there is no European country that could provide reliable data on the scope and characteristics of trafficking (Kelly 2002a: 7). These efforts tend to operate independently. While prevention efforts are valued, prosecutions are a major focus, as criminal justice efforts can yield tangible ‘results’, and thus can be identified as major markers of success (Goodey 2003). US Ambassador John Miller coined this coalition ‘the 21st century abolitionist movement’ (US House of Representatives Subcommittee on Africa, Global Human Rights and International Operation Hearing 2006a: 27). There has been much attention devoted to both issues separately. On the World Cup and sex trafficking see GAATW (2006), Loewenberg (2006), Hennig et al. (2007) and Milivojevic and Pickering (2008). On repatriation policies see Burn and Simmons (2005) and Segrave (2007). This included English-language newspapers and media outlets such as Reuters, World Net Daily, Associated Press, Agence France-Presse, International Herald Tribune, New York Times, Washington Post, Independent Online, Guardian, BBC News Service, Sunday Herald, Deutsche Welle, Spiegel Online, Expatica, and religious websites Christian Science Monitor, Christian News Wire, Christian Post, Christianity Today, Catholic News, LifeSite News, Ekklesia, Whitehaven News and Baptist Press News. It did so using online news search engines and identified in excess of 46 articles on the topic. We then used textual analysis to identify the key arguments and speakers within the media studied. This section draws upon Milivojevic and Pickering (2008). As Stanley Cohen (2002: 1) writes: ‘Societies appear to be subject, every now and then, to periods of moral panic’, as ‘ [a] condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media; the moral barricades are manned by editors, bishops, politicians and other right-thinking people; socially accredited experts pronounce their diagnosis and solutions; ways of coping are evolved or (more often) resorted to; the condition then disappears, submerges or deteriorates and becomes more visible.’ Moral panics in trafficking have been linked to the issue of sex work; see, for example, Doezema (2000) and Weitzer (2005). Wooden mobile facilities built to satisfy expected increases in demand for commercial sex during the World Cup. In 2003, President George W. Bush issued a National Security Presidential Directive opposing sex work as ‘inherently harmful and dehumanizing’ (Office of the Press Secretary 2003). The US position on sex work impinges on anti-trafficking initiatives worldwide: between 2003 and 2010, the United States Agency for International Development (USAID) stopped supporting projects that endorsed the legalisation of sex work (Ditmore 2005; Kempadoo 2005). There has, however, been a slight easing of restrictions under the Obama administration. It is interesting to note that this section of Congressman Smith’s statement appeared in the news reports, for example on LifeSite website at http://www.lifesite.net/ldn/2006/may /06050108.html, but later disappeared in the print version of the hearing. Classified in four categories (three tiers, the second of which subdivides into Tier 2 and Tier 2 Watch List), countries in Tier 1 are those assessed to fully comply with the minimum standards for combating trafficking set by the US Trafficking Victims Protection Act (2000). For more information go to: http://www.state.gov/g/tip/rls/tiprpt/. This campaign was supported by women’s groups in other European countries with similar agendas: in Ireland, the National Women’s Council of Ireland launched ‘Buying Sex is not a Sport’ campaign (Crouse 2006); while in Germany anti-trafficking and anti-sex work campaigns ‘Final Whistle – Stop Forced Prostitution’, ‘Red Card for Forced Prostitution’ and ‘Responsible Johns’ were announced (Deutsche Welle, 23 February 2006; Spiegel Online, 26 May 2006). This campaign can be viewed at http://comps.mtv.co.uk/comps/streaker/index.jhtml. In response, the President of the Swedish Football Association, Lars-Ake Lagrell, promised that Swedish players would not use brothels during the World Cup (Bindel 2006), while Swedish Equal Opportunity Ombudsman Claes Borgström called on his team to withdraw from the World Cup as a protest against ‘prostitution and the human trafficking associated with it’ (Spiegel Online, 12 April 2006).
Responses to sex trafficking: gender, borders and ‘home’ 15.
16.
17.
18. 19.
20.
21.
55
The European Union expressed its concern about the issue on 17 January 2006 and put it on the agenda for the European Parliament plenary session in March. Christopher Smith (US House of Representatives Subcommittee on Africa, Global Human Rights and International Operations Hearing 2006b: 5) warned Germany to change its policy toward sex work to avoid losing Tier 1 status. German police reported only five cases of trafficking during the World Cup, one of which was a man, while another was a woman from Germany. Only two victims – young women from Bulgaria – fit the ‘profile’ (IOM 2006; German Delegation to the Council of the European Union 2007). In September 2006, a military coup followed the national election, which was boycotted by the opposition for a range of reasons including allegations of corruption by Prime Minister Thaksin Shinawatra. During this time the constitution was abrogated and martial law declared (see IISS 2007). In January 2008, following elections in December 2007, a new coalition government was formed. However, there was further crisis and instability from late 2008 into 2009. This discussion does not suggest that many of those who have been trafficked will want to return home, some of them immediately (see Milivojevic 2007). Thailand and its immediate neighbours have also been involved in a more formal Coordinated Mekong Ministerial Initiative against Trafficking (COMMIT) process that has focused on developing clear processes, protocols and agreements between neighbouring countries in the region trying to manage this issue. Both the Bali Process and the COMMIT process are focused on in-principle agreements, rather than on developing binding commitments or identifying enforceable targets. Specifically, these are the temporary and permanent Witness Protection Visas (Trafficking). The Minister must be satisfied that the victim has played a ‘significant’ role in the criminal justice process and/or is ‘in danger’ if she returns to her country of origin (Department of Immigration, Multicultural and Indigenous Affairs, ‘New visas for witnesses in trafficking cases’, Legislation change update, 1 January 2004), at: http://www.immi.gov.au/legislation/amendments/2004/040101/lc01012004-05.htm (accessed 1 February 2008). It is important to note that within Thailand there are a number of non-governmental organisations that also undertake ‘raid and rescue’ efforts in collaboration with Thai authorities to ‘rescue’ suspected victims of trafficking. However these practices are not part of formal Thai policy and do not constitute the way in which the majority of trafficking victims will be identified (Segrave 2007).
4. People smuggling and human trafficking within, from and through Central and Eastern Europe Leslie Holmes The fall of the Berlin Wall in November 1989 was initially accompanied by a widespread belief that a wonderful new era was dawning, in which people throughout Europe would be freer and more prosperous than ever.1 The subsequent reality has been rather different. While some citizens have indeed prospered, others have lost out in the transition. One ramification of this has been a rise of organised and transnational crime in Europe since the beginning of the 1990s. A particularly sad aspect of this development has been a marked increase in the number of people trafficked both domestically and to other countries and forced into servitude, most commonly in the sex industry. The growth in human trafficking has serious negative implications not only for the people directly involved – other than the criminals themselves – but also for the populations more generally in virtually every European country. This chapter provides an overview of human trafficking, primarily within, from and through post-Communist Central and Eastern Europe (CEE), which is here very broadly understood to include the Soviet successor states that comprise the Commonwealth of Independent States (CIS); analysis of the reasons for this; a brief summary of some of the various measures being taken to counter this phenomenon; and speculation on likely future scenarios. It also includes survey results from four European states – two in CEE, two in Western Europe – on attitudes towards people smuggling. It will be argued that, while there are some signs of improvement in the region, any optimism must be very cautious, given the numerous negative pressures.
THE TRAFFICKING SITUATION As with most forms of crime involving crime gangs and corrupt state officials, it is impossible to produce reliable data on the scale of human trafficking within, from and through CEE. But a rough sketch can be drawn on the basis 56
People smuggling and human trafficking within, from and through CEE
57
of the patchy evidence available on organised crime and corruption in the region, criminal statistics relating to trafficking, and legislation. At one time, it was possible to identify predominant people smuggling and human trafficking routes across Europe, and some researchers produced useful ‘maps’ of these (see for example Center for the Study of Democracy 2002: 50–52; Hajdinjak 2002: 47–55). However, the routings have become so diversified in recent years – for reasons ranging from changing laws and anti-trafficking approaches in different countries to the increasing availability of cheap airfares (Nawrot 2006) – that it would be misleading nowadays to identify just a few ‘main’ routes. On the other hand, criminal statistics from major target (destination) countries such as Germany and the Netherlands provide pointers to the principal source countries in CEE and the CIS of both trafficked persons and traffickers. Thus the Federal Criminal Office in Germany provides data on the number of trafficked persons detected each year. In the period 2001–05, the top four source countries of prostitution-related trafficking victims detected in Germany were Russia (747 victims), Ukraine (520), Bulgaria (432) and Romania (425) (Bezlov and Tzenkov 2007: 91). Of the 1225 sexual exploitation-related trafficking victims discovered in the Netherlands in 2000–2003, there were 166 from Bulgaria, 122 from Nigeria, 67 from Romania, 73 from Russia and 49 from Ukraine (Bezlov and Tzenkov 2007: 90). It is clear from these figures that the principal source countries for trafficked persons to both Germany and the Netherlands were Bulgaria, Romania, Russia and Ukraine – and that only one non-post-Communist state (Nigeria) ranked among the principal sourcecountries in the Netherlands. Moreover, the Dutch statistics reveal that other CEE and CIS states were the source of many of the other victims. For instance, and contrary to what might be expected, there were apparently many more victims from Lithuania (42), Czech Republic (31), Moldova (30), Poland (28), and Albania (19) than from Thailand (12).2 As would be expected, the German and Dutch patterns are not precisely duplicated across Europe. However, Polish criminal statistics reveal that the situation in Poland, while not identical, has been remarkably similar to that in Germany and the Netherlands. Thus the Polish Ministry of the Interior reports that, over the period 1995–2007, the principal source of trafficking victims was Belarus (245 victims), which was not a major source country for the other two states just considered. However, there were also 198 victims from Ukraine, 28 from Bulgaria, 18 from Romania, 17 from Moldova and 12 from Russia (Sarrica et al. 2009: 269).3 This small difference between the two Western European states and the one Central European state can be readily explained in terms of geographical proximity. One of the aspects of it identified in the major (155 countries and territories) United Nations (UN) analysis of trafficking conducted 2007–08 is that much of this phenomenon occurs
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between neighbouring countries (Sarrica et al. 2009: esp. 60); while Western media often emphasise its ‘global’ nature, much human trafficking occurs either domestically or across adjacent borders, with no long-distance on-selling. The situation changes somewhat when the origin of the traffickers is considered, as distinct from the origin of the traffickees. The picture of human trafficking painted by many of the Western media – in which the traffickers are typically members of Central and, even more so, Eastern European organised crime gangs – appears from the available data to be at least distorted, perhaps even misleading. In the Dutch case, for example, by far the largest number of persons convicted of trafficking in 2001–05 held Dutch citizenship (272); well behind these were citizens of Turkey (89), Bulgaria (76), Romania (61), Yugoslavia (38), Morocco (37) and Albania (35) (Sarrica et al. 2009: 266). The situation was broadly similar in Germany: of the 2061 persons suspected of human trafficking in 2005–07, 909 were German citizens, compared with 181 citizens of Turkey, 114 Bulgarians, 112 Romanians, 85 Poles, 33 Nigerians, 29 Lithuanians and 20 Serbs (Sarrica et al. 2009: 252). The situation in Italy was slightly different, in that for the period 2003–07, prosecutions for human trafficking were initiated against more Romanians (217) than Italians (203) – though the latter were the second-largest group; the next-largest groups were Albanians (176), Nigerians (144), Chinese (49) and Poles (36) (Sarrica et al. 2009: 258). The fact that ‘natives’ in the three Western European countries analysed here constituted either the largest or the second-largest group among traffickers is less surprising when two facts are borne in mind. One is that trafficking often involves more than one group. The trafficking process can be divided into at least three distinct components or stages. The first is the acquisition of traffickees; the second is their transportation to another part of their own country, or to another country; and the third is their actual sexual exploitation. In most cases, locals (natives) initially acquire the traffickees in the victims’ home countries; in cases of transnational trafficking, the transportation process may be undertaken by either non-natives or natives of the source country; whereas the final stage is often managed primarily by people living within the destination country. The second point is that some of the traffickers who are citizens of the destination countries may originally hail from source countries. While the publicly available data on trafficking in Germany do not specify the source countries, they do disaggregate German citizens into those born in Germany and those born elsewhere. Thus, of the 344 Germans (out of a total of 714 suspects) formally suspected in 2007 of trafficking in persons, 71 – or just over 20 per cent – were born outside of Germany (Bundeskriminalamt 2008: 7); the corresponding figures for 2008 were that 50 (or some 16 per cent) of the 316 German citizens (out of a total of 785) suspected of traffick-
People smuggling and human trafficking within, from and through CEE
59
ing had not been born in Germany (Bundeskriminalamt 2009: 7). It is also likely that some of those born in Germany were not ethnically German, though this must remain speculation. One peculiarity about the trafficking situation in the region is that, particularly in some of the Central Asian and Transcaucasian states, more women are convicted of trafficking than men. Thus, in the period 2003–06, 86 per cent of the people convicted for human trafficking in both Azerbaijan and Georgia were women; the percentages in Tajikistan, Armenia, Kyrgyzstan and Latvia were 78, 69, 60 and 53 respectively (Sarrica et al. 2009: 46–7).
PUBLIC ATTITUDES TOWARDS PEOPLE-SMUGGLING, 2004–06 While it is impossible to provide a comprehensive picture of the actual trafficking situation in CEE and the CIS (or anywhere else), it is possible to identify and measure public perceptions. In an effort to uncover and compare popular attitudes towards people smuggling, the author conducted surveys in four European countries – Bulgaria, Germany, Italy and Poland – over the period 2004–06. This selection meant that there were two clear destination countries (Germany, Italy), one country that was primarily a source and transit country (Bulgaria), and one country that was experiencing a transition from having been primarily a source or transit country to one that was primarily a transit or even destination country (Poland). The survey questionnaire comprised 13 questions relating to immigration and people smuggling, the results of which are analysed below.4 The surveys were conducted at an early stage of research into people smuggling, before it became clear to me that the project would have to be skewed more towards trafficking than smuggling; this is why the questionnaire focused on smuggling. These surveys were conducted as part of a research project specifically into people smuggling. But surveyors indicated that many respondents essentially blurred or confused people smuggling and human trafficking, despite the fact that they (respondents) were read a definition of people smuggling at the start of the survey. This, plus the fact that there are very few survey data specifically on attitudes towards human trafficking in most European states, led to the decision to include the aggregate survey results here. In the following tables, all figures are rounded to the nearest whole, so that totals may not be exactly 100. Poland is included twice because of an unexpected but small additional research grant that permitted a second survey of one of the states; Poland was the only country that marginally changed status during the period, from having only just been admitted to the European Union (EU) in 2004 to being clearly a member state by 2006.
Trafficking and human rights
60
Table 4.1
Attitudes towards immigration
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Strongly disagree
Disagree
Agree
Strongly agree
Don’t know, or Neither agree nor disagree
27 56 37 38 47
37 31 40 24 23
11 2 4 12 13
2 4 3 2 5
23 8 17 23 12
Our first question sought to determine general attitudes towards immigration (Table 4.1): ‘Reactions to the suggestion that a given country needs more immigrants for its own future’. Table 4.1 reveals that most citizens in all four countries did not accept that their country needed more immigrants; the percentages (totalling ‘strongly disagree’ and ‘disagree’) ranged from 62 per cent in Germany in 2006 and 64 per cent in Bulgaria in 2004, to 87 per cent in Poland in 2004. At first glance, the situation in Poland looks encouraging, since the figure had dropped a full 10 per cent in just two years; but this was because more than twice as many respondents in 2006 were either unsure or had no clear opinion on this issue. At the other end of the spectrum the Italians, followed by the Germans, were most likely to agree that their country needed more immigrants; but even there, less than one-fifth of respondents in 2006 accepted this proposition. In short, the general public in all four countries did not believe that immigration was important for the future of the country. Given declining birth rates and the greying of populations, such an attitude might be misguided; but that is not our concern here. The next question took respondents directly to the issue of people-smuggling, and concerned their perceptions of its scale (Table 4.2): ‘Reactions to the suggestion that the number of people smuggled into a given country has been increasing in recent years’. Table 4.2 reveals that at least half of the respondents in three of the four states believed that people smuggling into their country had increased in recent years, with sizeable majorities of Germans and Italians holding this view. The only case in which this percentage fell below 50 was Poland in 2006. But this was not because there had been any significant change in the percentage of respondents that did not believe there had been an increase. Rather, and as with the first question, it was because of a substantial increase
People smuggling and human trafficking within, from and through CEE
Table 4.2
61
Perceptions of the scale of people smuggling
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Strongly disagree
Disagree
Agree
Strongly agree
Don’t know, or Neither agree nor disagree
5 5 4 1 3
11 10 12 9 4
39 42 36 36 23
11 22 12 29 66
33 21 36 25 3
in the number of respondents who were either unsure or who had no clear opinion on the matter. In any case, the proportion of those who believed the numbers of smuggled people had increased in recent years was only just below half, at 48 per cent. Question three was designed to elicit perceptions about the involvement of organised crime in people smuggling (Table 4.3): ‘Reactions to the suggestion that most people illegally entering a given country do so with the help of organised crime gangs’. Table 4.3 demonstrates that clear majority of respondents in all cases other than Poland 2006 believed that organised crime was involved in most cases of people smuggling; this said, even the Polish figure for 2006 was only just under 50 per cent. But it was also clear from the responses that, whereas most Table 4.3 Perceptions of the involvement of crime gangs in people smuggling
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Strongly disagree
Disagree
Agree
Strongly agree
Don’t know, or Neither agree nor disagree
2 6 4 1 8
7 8 8 4 8
43 37 37 39 27
15 22 12 40 44
33 27 38 16 14
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Table 4.4 Perceptions of the collusion of corrupt state officials in people smuggling
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Strongly disagree
Disagree
Agree
Strongly agree
Don’t know, or Neither agree nor disagree
3 5 3 3 9
7 8 7 13 11
42 32 35 28 28
13 22 15 12 26
35 34 40 44 25
Germans and Italians were convinced that crime gangs were involved, there was considerable uncertainty about this in both of the post-Communist states. The fourth question focused on perceived collusion between crime gangs and corrupt state officials (Table 4.4): ‘Reactions to the suggestion that organised crime gangs that smuggle people into a given country do so with the corrupt assistance of state officials’. One of the most unexpected results in Table 4.4 was that Italians were the least likely of the four countries’ respondents to assume that corrupt officials were collaborating with crime gangs in people smuggling. But even in Italy, as everywhere else covered by the surveys, far more respondents believed that officials were colluding than did not. On the other hand, it testifies to how little is known about collusion that substantial minorities in all cases – ranging from 25 per cent in Italy to a very high 44 per cent in Germany – were unwilling to express an opinion on this issue. Our fifth question asked respondents to suggest which branches of the state apparatus they believed were most deeply involved with organised crime in people smuggling (Table 4.5). Perhaps the most striking result from this question was that substantial majorities of Southern Europeans – including a staggering 92 per cent of Bulgarians – had essentially no idea as to which types of officials were most likely to collude with crime gangs. In contrast, less than a quarter of Poles in 2006, and even smaller numbers of Poles in 2004, as well as Germans, were uncertain about the types of official most likely to be corruptly involved with gangs. In the cases where respondents did have a view on this, customs officers and border guards were universally identified as the group of state officials most likely to be corruptly involved with gangs in people smuggling.
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Table 4.5 Perceptions of the types of state official that cooperate most with organised crime gangs in people smuggling Customs Border Police guards
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
3 3 42 23 37 24 24 33 12 (combined with Customs)
1 9 6 5 2
Tax
1 1 1 2 2
Local Others government 1 4 5 16 8
0 5 3 2 3
Don’t know
92 16 23 17 72
While this perception may be misguided, it is also possible that this intuition-based perception (after all, smuggling primarily involves illegal movement of goods or people across borders, so that selecting border guards and customs officers makes eminent sense) accords with reality; unfortunately, our research methodologies for determining this are still too imprecise to provide an authoritative answer to this question. On the other hand, it might initially seem that the perceptions are at odds with the reporting of corrupt officials colluding with organised crime, since there are many more official reports of collusion by police officers than by border or customs officers. But this apparent mismatch might be better explained by once again focusing on the differences between people smuggling and human trafficking. It could well be that customs and border officers are more likely to be involved in people smuggling, and that police officers are more likely to be involved in trafficking. Moreover, if media reports rarely mention police collusion and focus more on transnational than on domestic trafficking, it is understandable that public perceptions would not generally identify the police as primary culprits. The next question sought to ascertain whether or not respondents believed that their fellow countrymen and –women were more likely than foreigners to be involved in gangs engaged in people-smuggling (Table 4.6). The responses to this question produced a reasonably clear distinction between respondents in the mature democracies (Germany, Italy) and those in the transition states; the one exception to this was Poland in 2004, where respondents were more likely to believe the gangs primarily comprised foreigners than Poles. Judging from the official statistics on convictions of traffickers cited above, this particular perception may be very much at odds with the actual situation.
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Table 4.6 Perceptions of the dominant nationality among members of organised crime gangs involved in people smuggling Indigenous
Not indigenous
Don’t know
47 30 32 9 25
15 39 22 71 43
38 31 46 19 32
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Question seven focused on what respondents expected smugglees to do once they were in their country (Table 4.7). Once again – if unsurprisingly – there was a clear distinction between the German and Italian responses on the one hand, and the Bulgarian and Polish responses on the other. Whereas most Germans and Italians expected the smugglees to seek to stay in their country, many Bulgarians and Poles expected them to attempt to move elsewhere – presumably to more affluent countries. It is interesting to note here, however, that Poles were less likely to expect this in 2006 than in 2004, probably suggesting that they perceived their country’s accession to the EU as likely to make Poland more attractive as a final destination state. This inference about the effect of (future) joining or being a member of the EU stimulated our eighth question (Table 4.8). In the cases of Poland and Bulgaria, respondents clearly assumed that becoming a member of the EU would make their country more attractive to illegal migrants and hence people smugglers; this finding was in line with a priori assumptions. However, a comparison of the German and Italian results produced a counter-intuitive finding, in that the results were so different Table 4.7 Presumed intentions of people smuggled into your country
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Remain in country indefinitely
Move to another country as soon as possible
Return to their original country
Don’t know
27 16 13 82 55
42 67 50 8 21
6 3 8 4 14
25 14 28 6 10
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Table 4.8 Anticipated or assumed impact of EU membership on people smuggling
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Increase
Decrease
Stay about the same
Don’t know
42 52 49 33 21
22 9 18 28 62
14 21 11 29 7
22 17 23 11 11
between these two long-term EU member states. Germans divided almost equally into those who believed that their country’s membership of the EU made it more attractive to illegal migrants, those who believed it made it less attractive, and those who believed it made little or no difference. In marked contrast, only a fifth of Italians believed that their country’s membership of the EU made Italy more attractive than it otherwise would be, while almost twothirds of respondents believed it made it less attractive; a tiny 7 per cent believed it essentially made no difference. It is difficult to determine how best to interpret this result. If other surveys suggested that most Italians were hostile to the EU and believed that their country would fare better outside it, the results of our eighth question would be compatible with this. But since Eurobarometer surveys repeatedly indicate that, while less enthusiastic about EU membership than the Germans, more Italians than many other Europeans are Europhiles, our finding is baffling. Given our interest in attitudes towards people smuggling as an abuse of human rights, the responses to question nine were encouraging (Table 4.9). Table 4.9 People smuggling as an abuse of human rights
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Strongly disagree
Disagree
Agree
Strongly agree
Don’t know, or Neither agree nor disagree
4 9 5 0 14
6 9 8 5 16
44 31 27 28 23
27 34 44 55 30
18 16 16 12 18
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While the strength of support for this proposition varied across the four countries – that is, between ‘strongly agree’ and the weaker ‘agree’ – clear majorities in all four states basically agreed with the notion that people smuggling is an abuse of human rights. This said, the figure was only just over half of respondents in Italy, compared with over 80 per cent in Germany (with Bulgaria and Poland located in-between these extremes). Moreover, almost a third of Italians disagreed with the notion that people smuggling constituted an abuse of human rights. But it would be dishonest scholarship not to point out that respondents may have interpreted this question in different ways. While some may have focused on the rights of the smugglees, others may have had the rights of their fellow countrymen and women in mind, or even the rights of those in source countries who would like to migrate, but are prevented from doing so because of lack of funds, respect for the law and due process, or other reasons. Unfortunately, the fact that our survey was an omnibus one, so that the permitted number of questions was limited, meant that we were unable to unpack this issue further. The tenth question was far less problematic. Respondents were asked whether or not they believed that state authorities were doing enough to counter people smuggling (Table 4.10): ‘The authorities are not doing enough to counter people smuggling’. The responses to this question were rather similar across all four states. If the ‘agree’ and ‘strongly agree’ responses are aggregated, the range is between 61 per cent (Bulgaria) and 67 per cent (Italy). These results are unsurprising; most people in most states believe that the authorities could and should do more to combat all sorts of misdemeanours and problems. Our next question concerned attitudes towards illegal migrants who are prepared to cooperate with the authorities with a view to identifying and prosecuting people smugglers (Table 4.11): ‘Levels of agreement with the proposal Table 4.10
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Perceptions of the authorities’ approach to people smuggling Strongly disagree
Disagree
Agree
Strongly agree
Don’t know, or Neither agree nor disagree
2 5 3 1 8
10 11 10 9 13
43 34 32 34 26
18 25 22 30 41
28 25 33 26 13
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Table 4.11
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
67
Attitudes towards whistleblowers Strongly disagree
Disagree
Agree
Strongly agree
Don’t know, or Neither agree nor disagree
8 8 6 7 10
15 14 10 14 9
36 28 33 33 28
8 19 18 13 35
33 31 33 32 18
to change the law so as to grant residence rights to illegal migrants who whistleblow on people smugglers’. On this question, there was a high level of similarity of responses across three countries, with both sets of Polish results, the German results and the Bulgarian responses being very similar. While the percentages of respondents who agreed and who disagreed that the law should reward illegal migrants who help the authorities to track down people smugglers were rather similar across all states – though Italians were clearly the group that most agreed with this – the Italians were far more certain about their views than were the respondents in the other three states. While the question in all four countries emphasised that respondents were not expected to know their government’s current policy on this matter, it is likely that many Italians were at least vaguely aware of their own state’s sympathetic policy towards smugglees (see the brief discussion of Italy’s Article 18 in Chapter 10), and that this at least partly explains the apparent anomaly of the Italian results. The twelfth question was designed to map the extent to which respondents perceived people smuggling to be a problem in their country (Table 4.12). Table 4.12
Perceptions of the problem of people smuggling Serious problem
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
41 60 48 55 81
Problem Not an important issue 35 29 30 34 14
13 3 6 9 3
Don’t know 10 8 15 3 2
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Once again, there is a high level of agreement across the four states: substantial majorities of respondents – ranging from 76 per cent in Bulgaria to an extremely high 95 per cent in Italy – believed that people smuggling into their country was either a problem or a serious problem. Moreover, there was generally much less uncertainty about this issue than about many of the others examined. The final question sought to determine the extent to which respondents could identify with smugglees, in the sense that they could imagine acting in a similar fashion if they found themselves in a similar situation (Table 4.13): ‘Likelihood of desperate respondents seeking the assistance of crime gangs illegally to enter another country with better opportunities’. Again, there is a reasonably high degree of resonance across the four states, inasmuch as a majority of respondents in all cases would either definitely or probably not approach a gang to help smuggle them into another (more affluent and secure) state. But an interesting feature here is that far more Bulgarians and Poles indicated that they would not approach a gang than did Germans or Italians. Indeed, despite their reputation for being highly law-abiding, Germans were the most likely of the four groups to contemplate approaching a gang to help them commit an illegal act, with almost 40 per cent of respondents indicating that they would definitely or possibly do this if they were to find themselves in the type of situation most smugglees find themselves in. This can be interpreted in various ways. But our preferred interpretation is that the German responses suggested a higher level of empathy with smuggled persons because German living standards and conditions are higher and more comfortable, affording Germans more leeway for tolerance and empathy.
Table 4.13 Levels of empathy with those seeking assistance from people smugglers
Bulgaria 04 Poland 04 Poland 06 Germany 06 Italy 06
Definitely would
Possibly would
8 10 9 10 12
8 11 13 29 21
Probably Definitely would not would not 11 19 20 23 13
61 50 50 28 42
Don’t know 12 10 8 10 13
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CAUSES OF TRAFFICKING A general analysis of the causes of trafficking – including the effects of globalisation, the contradictions between the so-called borderless world and Fortress Europe, neoliberalism, and mild sanctions – was provided in Chapter 1. Here, therefore, those factors more specific to Central and Eastern Europe are the primary focus. This said, a little evidence of more general factors is also cited, mainly to provide concrete examples of actual trafficking cases in and from the region. There have been many specific drivers for the growth in human trafficking from, through and increasingly into Central and Eastern Europe. The most obvious one is the multiple ramifications of the collapse of Communism. The end of Communist power in the region between 1989 and 1991 resulted in an ethical vacuum, a desperate economic situation, legislative lag, a weak and in some cases disintegrating state, and in some parts of the region even civil war. Each of these factors can be briefly examined. Communism was unusual among twentieth-century ideologies in seeking to define not only political, social and economic institutions, but also individuals’ ethical codes. In most countries, both developed and developing, the state allows citizens to choose their own ethical codes, often from a religious source. With the exception of Albania, no Communist state ever formally banned religion. But the atheism that is such a key feature of Communism meant that citizens were strongly discouraged from practising religion. In its place, Communists encouraged a moral code based on the ‘new socialist person’. This is not the place to explore this concept. Rather, the relevant point is that the collapse of Communism also meant that the ethical code associated with it was discredited for most people. Some citizens in post-Communism were able to turn or return to religion; this was clearly the case in Poland and is arguably true of some of the Central Asian states, for example. But many others initially found it difficult to create a coherent new moral code for themselves, and were thus less constrained by their own values from engaging in criminal and anti-social behaviour. This condition was exacerbated by the fact that all post-Communist states initially suffered from substantial economic problems. Thus, as suggested by Tables 4.14, 4.15 and 4.16, economic growth rates during the 1990s were typically either negative or else only weakly positive, while inflation and unemployment rates were high. When considering the data in Table 4.14, it is important to note that although growth turned positive – sometimes strongly so – in several states by the mid- to late 1990s, this was from a much lower activity base than it would have been based on gross domestic product (GDP) figures from the late 1980s. Even so, the World Bank estimated the average annual GDP growth rate in
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Table 4.14
GDP growth rates in selected CEE and CIS states 1990
1992
1994
1996
1998
2000
2002
2004
2006
Albania –10.0 –7.2 8.3 9.1 Belarus –3.2* –9.6 –11.7 2.8 Bulgaria –9.1 –7.3 1.8 –9.4 Moldova –2.0 –29.0 –30.9 –5.9 Poland –11.5 2.5 5.3 6.2 Romania –5.6 –8.8 3.9 3.9 Russia –2.1 –5.0 –12.7 –3.6 Ukraine –3.6* –9.9 –22.9 –10.0
9.0 8.4 4.0 –6.5 5.0 –4.8 –5.3 –1.9
6.7 5.8 5.4 2.1 4.3 2.1 10.0 5.9
4.2 5.0 5.6 7.8 1.4 5.1 4.7 5.2
5.7 11.4 6.6 7.4 5.3 8.5 7.2 12.1
5.5 10.0 6.1 4.8 6.2 4.2 7.7 7.3
Sources: For Belarus, Moldova, Russia and Ukraine 1990: Economist Intelligence Unit Country Reports; all others: UN statistics at http://unstats.un.org/unsd/snaama/dnlList.asp, accessed 17 July 2009. Note: * Net material product.
Eastern Europe and Central Asia in 1990–99 at –2.5 per cent – well below that even of the next worst-performing region, sub-Saharan Africa, at –0.4 per cent (Soubbotina 2000: 25). Unfortunately, the situation was even worse for many citizens than the unemployment figures suggest. Even if the figures are accurate – and there have been suggestions that the data substantially under-reported the real situTable 4.15 Annual inflation rates (consumer price increases – %) in selected CEE and CIS states 1990 Albania Belarus Bulgaria Moldova Poland Romania Russia Ukraine
1992
n.d. 226.0 4.5 971.2 21.6 91.3 4.2 1308.0 585.8 45.3 5.1 211.2 5.0 1354.0 4.2 1485.8
1994
1996
22.6 12.7 2219.6 52.7 96.1 121.6 486.4 23.5 33.2 19.8 136.8 38.8 307.6 47.7 891.2 80.2
1998
2000
2002
2004
2006
20.6 0.0 73.2 168.9 18.7 10.3 7.7 31.3 11.7 10.1 59.1 45.7 27.7 20.8 10.6 28.2
5.5 42.8 5.8 5.3 1.9 22.5 15.8 0.8
2.3 18.3 6.4 12.5 3.6 11.9 10.9 9.0
2.4 7.0 7.3 12.8 1.1 6.6 9.7 9.1
Sources: All 1990 figures and 1992 Russian figure: Economist Intelligence Unit Country Reports; all other figures: UNECE online statistical database at http://w3.unece.org/ pxweb/Dialog/varval.asp?ma=0_MECCPriceInterestY_r&ti=Price+Indices+by+Indicator%2C+ Country+and+Year&path=../DATABASE/Stat/20-ME/4-MEPI/&lang=1, accessed 17 July 2009.
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Table 4.16 Average annual unemployment rates in selected CEE and CIS states 1990 Albania Belarus Bulgaria Moldova Poland Romania Russia Ukraine
1992
1994
1996
1998
2000
2002
2004
2006
9.5 27.0 18.0 12.4 17.7 16.8 n.d. 0.5 2.1 4.0 2.3 2.1 n.d. n.d. 20.2 14.1 14.1 16.4 n.d. 16.7 n.d. n.d. n.d. 8.5 n.d. n.d. 14.4 12.4 10.2 16.1 n.d. n.d. n.d. n.d. 5.4 7.3 n.d. 5.2 7.8 10.0 13.2 10.6 n.d. n.d. n.d. n.d. n.d. 11.6
15.8 3.0 18.2 6.8 20.0 8.6 7.9 9.6
14.4 1.9 12.1 8.1 19.0 8.1 7.8 8.6
13.8 1.2 9.0 7.4 13.9 7.3 7.2 6.8
Sources: Moldova 1992: US Department of State Country Report on Moldova, http://dosfan.lib.uic.edu/ERC/economics/trade_reports/1994/Moldova.html, accessed 17 July 2009; UNECE online statistical database http://w3.unece.org/pxweb/Dialog/varval.asp?ma=40_ MEUnRateY_r&ti=Unemployment+Rate+by+Country+and+Year&path=../DATABASE/Stat/20ME/3-MELF/&lang=1, accessed 17 July 2009.
ation in some countries – it must be borne in mind that the welfare state was very poorly developed in most early post-Communist states. While the reasons for this cannot be explored here, the sorry condition of welfare – the virtual absence of a safety net – meant that there was widespread poverty and despair. These were ideal preconditions for a rise in criminality. The poor and often deteriorating conditions of early post-Communism meant that many citizens from the region attempted to flee to more stable and affluent countries. Unfortunately, those who sought to do this by claiming refugee or asylum-seeker status often found that they were unwelcome in many of the affluent Western states. For example, more than 23 000 requests for asylum were submitted to the Italian authorities in 1991; of these, almost 21 000 were examined, and nearly 20 000 were rejected. Only 944 asylumseekers – or a little over 4 per cent of requests – were granted refugee status. The situation was hardly any better by the end of the decade. In the two-year period 1999–2000, Italy received almost 52 000 requests for asylum; nearly 33 000 of these applications were examined, and a total of 2458 – or 4.8 per cent of requests – resulted in refugee status being granted (Pittau 2006: 510). Of the top five source countries for asylum-seekers applying to Italy in 1990–2000, three – Albania, Yugoslavia and Romania – were post-Communist (Pittau 2006: 510).5 These statistics help to explain why so many people from these countries sought to enter Italy via illegal means – sometimes with the hope of eventually being able to move further west.
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What of the traffickers’ motives? It is usually impossible to distinguish whether the primary material motivation to engage in criminal activity is poverty and desperation, or simply straightforward greed. Certainly, the rewards from trafficking can be significant, and can act as a magnet to those for whom neither their own ethical code nor the state’s sanctions act as a deterrent. Some idea of the potential profitability of trafficking is provided by the Prosecutor’s Office in Rzeszow (Poland), which revealed that a Ukrainian woman who managed a trafficking gang had sold approximately 60 women to owners of escort agencies for an average of US$200 each – but then received an additional US$100 per month for each woman (Polish Council of Ministers 2006: 5); when the relatively low costs of living in Poland and Ukraine are borne in mind, the attraction of such a relatively low-risk enterprise becomes even more obvious. One aspect of post-Communist transitions that distinguishes them from transitions in other parts of the world is that they were far more wide-ranging. Thus, the ‘multiple and simultaneous’ post-Communist transitions involved fundamental changes not only to the political systems, but also to the economy, the legal system, the educational system, the social structure and international allegiances. The sheer scope of change was bound to result in legislative lag – lawmakers being unable to keep up with all the legislative changes that were needed in the new order. The problem was compounded by the often profound differences between lawmakers on the appropriate paths to take, and the lack of a tradition of political compromise. It is therefore not surprising that there were loopholes and contradictions in laws; indeed, in many areas of life it was unclear which laws – if any – pertained. These ambiguities and gaps in the law were fertile ground for exploitation, and rendered it that much easier for criminals and those operating in what can be called ‘grey areas’ to get away with much more than they would in a more established and stable rule-of-law state. The confused state of legislation was just one of many factors that meant that a number of post-Communist states were initially weak, here meaning that they were often unable adequately to perform the basic tasks expected of a modern state. The problem was compounded by the sorry economic state in which these countries found themselves, which meant that governments were often unable to pay their own officials in full, on time – or at all. This situation was highly conducive to the rise of official corruption, and collusion between criminals and corrupt officials – including in human trafficking. One other factor that has been highlighted by, inter alia, Donna Hughes (for example Hughes 2005: 223–6) is the notion of ‘Western glamour’. Most Communist states were drab and grey by Western standards, with little in the way of colourful and creative advertising, glossy magazines, and so on. When Communism collapsed, many women were attracted to what they perceived to
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be the glamour and freedom of Western lifestyles; this attraction was only strengthened by the deteriorating conditions in their own countries. Often, this glamorous ‘other’ related directly to sexuality, and many women were keen to explore and display their femininity in ways they felt had been largely repressed for decades. Unfortunately, this combination of idealising the West and seeking a more glamorous and ‘sexy’ world rendered all too many women susceptible to the deception of traffickers, with their promises of jobs in more affluent and freer societies. But the early post-Communist conditions described above – poor and often negative growth rates, high inflation and unemployment rates, inadequate welfare, legislative lag, the attraction of ‘the West’ – applied to a greater or lesser extent to every post-Communist state; many of these states were also weak and at least partly dysfunctional. It is therefore not surprising that crime and corruption rates appear to have risen substantially in all of them in the 1990s (for data see Holmes 2009a). However, since human trafficking became far more of a problem in some states than in others, we need to identify factors more specific to the countries in which human trafficking appears to have been particularly common. One factor is simply the intensity of the problems of early post-Communism; the economic situation, for example, was far worse in some countries than in others. Thus, the fact that Moldova is officially the poorest country in Europe is almost certainly part of the reason why human trafficking has been a significant problem there. But two other important variables to consider when attempting to explain differing trafficking rates are opportunities and culture. One obvious opportunity factor is geography, that is, the close proximity of a source country to a transit and/or destination country. An example of this was cited above, in explaining the high number of trafficked Belarusian women in Poland. Another example is that the proximity of Albania to Italy – an established EU member state – is one of many factors explaining the significant rise in trafficking from Albania during the 1990s. In this case, however, the geographic factor helps to explain the emergence but not the subsequent development of trafficking practices. By the time the Italian and Albanian authorities had formally agreed to cooperate to combat this problem (1997), the Albanian trafficking structures had largely crystallised. Thus, even though the joint efforts of the Italian and Albanian law enforcement agencies appear to have been very successful in reducing human trafficking between the two countries, the Albanian traffickers were by that time sufficiently organised that they were able to redirect their activities further afield, to other parts of Europe. Another opportunity factor specific to certain post-Communist states is civil war. The violent disintegration of Yugoslavia was understandably accompanied by increased demand for illegal migration, and hence people smuggling. As
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explained elsewhere in this book (see especially Chapter 2), people smuggling all too often mutates into human trafficking. But another ramification of the various civil wars in former Yugoslavia was the arrival of international peacekeeping forces. This was accompanied by a significant increase in the demand for prostitutes, and hence – almost necessarily – a rise in human trafficking for the purposes of sexual exploitation (see Chapter 5 for further details, and Chapter 10 for an exploration of the implications of this). A third opportunity factor relates to legislative loopholes and bureaucratism in many post-Communist states. A prime example of this problem is provided by Russia. While citizens of CIS states have been permitted visa-free entry to post-Communist Russia, they do need to register, both for temporary residence and if they want to work in the country. Such permits are expensive, and can be difficult to obtain. This encourages bribery and corruption, and makes illegal migrants (that is, people who want to stay and work in Russia, but who do not have the relevant permits, even though they have entered the country legally) easy prey for human traffickers who promise to secure the necessary documentation in return for substantial fees. There is considerable evidence of this happening on a regular basis with Tajik construction workers, for example (Olimova and Bosc 2003). Cultural attitudes towards crime, property and gender also help to explain why some countries appear to be more prone to human trafficking than others. Thus, as demonstrated in Chapter 6, traditional Albanian attitudes towards gender – in which women are often perceived to be the property of men – helps to explain the lack of respect too many Albanian men have towards their womenfolk, and hence their propensity both to sell and to coerce them. While centuries-old sexist traditions that have resurfaced in postCommunism often help to explain human trafficking in parts of CEE and the CIS, it appears that changed attitudes in some parts of the region, and particularly different attitudes across age groups, may also contribute to the problem. Thus, whereas Donna Hughes and Tatyana Denisova (2001: 61) claim that attitudes towards prostitution have not fundamentally changed in Russia and Ukraine for hundreds of years, Lyubov Romanovna Vertinskaya, a Russian consultant to the Governor of Murmansk on family, youth and children’s issues, claimed in the late 1990s that 70 per cent of tenth-graders in a 1997 Russian survey wanted to become prostitutes for hard currency, and contrasted this with the very different responses a decade earlier (Vertinskaya 1999; also cited in Karina 1999). Hughes and Denisova themselves (2001: 62) cite a survey conducted by the IOM in Ukraine in the mid-1990s that revealed that, whereas none of the older female respondents considered being a dancer or a stripper in another country an acceptable job, all of the respondents in the 15–17 age group did. As argued in Chapter 2, even if people choose to become prostitutes or to
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work in other areas of the sex industry, the reality is that they all too often finish up being deceived and coerced, and hence trafficked. It appears that many younger females from the region have been particularly naive about this. This might be understandable, given that citizens from the region were for so long largely cut off from the West, including from some of its harsher realities; but it is very unfortunate from the perspective of wanting to reduce trafficking. The earlier reference to Tajik construction workers briefly alluded to an aspect of post-Communism that needs to be considered in its own right. While collusion between corrupt officers of the state and criminals can be found in most countries, the problem appears to be more acute in many CEE and CIS states than elsewhere. It is impossible to produce reliable and comprehensive data on the scale of such collusion. But concrete examples can be cited. There have been several reports of cases in Europe involving corrupt police and customs officers colluding with organised crime gangs in people smuggling and human trafficking. A relatively recent case of corrupt police officers colluding with criminals in human trafficking is of two Wroclaw-based police officers who sold women for prostitution purposes to an ex-prostitute (female) based in Wroclaw and a Polish man based in Vienna. At the time of their arrest (spring 2006), this group was alleged to have been involved in the trafficking of 440 women, mostly Polish and Romanian (Gazeta Wyborcza, 12 May 2006). Another Polish example reported in the press in March 2004 constitutes an example of domestic trafficking involving corrupt officials. Thus a police sergeant from Katowice recruited teenage girls from a child shelter, and supplied these to a local gang in return for free (sexual) use of the girls (Gazeta Wyborcza, 24 March 2004). The Albanian authorities have also reported cases of corrupt officers of the state being directly involved in trafficking. For example, five Albanian officials (a police officer and four border guards) were arrested in 2006 for alleged involvement in trafficking, while the number increased to 12 in the following year (US Department of State 2007: 52; 2008a: 54). Corruption generally appears to have been far more of a problem in recent years in Belarus and Ukraine than in the Baltic States, for instance, which almost certainly provides part of the explanation for the greater number of women trafficked from the former to various European countries, such as Poland. This said, Latvia was – according to Transparency International’s Corruption Perceptions Index – consistently perceived to be more corrupt than Lithuania until the mid-2000s, and has invariably been seen as considerably more corrupt than neighbouring Estonia. This factor probably helps to explain why trafficking appears to be more of a problem for Latvia than for Estonia. Finally, there is a simple relativity issue. Russia and Ukraine have considerably larger populations than any of the other CEE and CIS countries, so that,
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ceteris paribus, it is not surprising that the number of people trafficked from and within these countries appears to be higher than in many other states in the region. The explanatory force of this factor should not be exaggerated, however, given the relatively high numbers of Albanians, Bulgarians, Moldovans and Romanians trafficked internationally.
METHODS FOR COUNTERING TRAFFICKING Like governments in so many other parts of the world, it is only recently that most CEE and CIS states have begun to focus seriously on human trafficking. And as elsewhere, the primary focus has been on trafficking relating to sex work. This new focus is closely correlated with the signing and ratification of the UN’s so-called Palermo Protocol by countries in the region. Yet the approaches adopted for countering trafficking have differed. For instance, both Serbia and Albania have introduced legislation that enable a trafficked person to claim compensation from funds confiscated from traffickers; unfortunately, at the time of writing in 2009, no cases of such awards being made by the courts had been reported. Some CEE countries have followed the Swedish lead and criminalised the use of prostitutes, in part as a way of countering human trafficking. A good example is Latvia, which introduced legislation to this effect in January 2008. The Bulgarian authorities have also indicated their intention to introduce such legislation (International Herald Tribune, 9 October 2007). But, for reasons given in Chapter 10, criminalising the use of prostitutes can have a number of negative repercussions. It is therefore more important to use the weight of the law against traffickers than against clients (‘johns’). Surprisingly, most European states did not introduce explicit anti-trafficking legislation until the 2000s, so that one commentator on Ukraine’s 1998 anti-trafficking law could justifiably claim that Ukraine was ‘one of the first countries in Europe to formally criminalize’ human trafficking and was by the early 2000s ‘at the forefront of criminalization of human trafficking in Europe’ (Pyshchulina 2005: 115, 117).6 At present, the sanctions used against convicted traffickers globally are still typically very mild. A special feature of CEE and the CIS is that this region has by far the highest percentage in the world of states that mete out ten or more convictions per annum for human trafficking (Sarrica et al. 2009: 40). While punishments for those convicted of trafficking in CEE and the CIS also appear to be harsher, on average, than in most parts of the world, the number of convictions relative to what appears by all our imperfect measurement methods to be a significant problem is still very small. Moreover, there is a common trend in the region for the number of prosecutions and convictions to rise following the adoption of targeted anti-
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trafficking legislation, but then to decline. This could reflect an initial ‘cleanup’ period of a backlog of cases that had not clearly been illegal before, or – less encouragingly – a declining interest in the problem on the part of the relevant authorities. This situation must be changed.
THE FUTURE The fact that many states and international organisations (IOs) are devoting more attention and resources in the 2000s to combating human trafficking should bode well for the future. Moreover, the improved conditions in many CEE states – better GDP growth rates, lower inflation and unemployment rates, developing welfare states, and so on – is likely to make ‘the West’ a less attractive proposition to many than it once did. And the growing awareness of trafficking and its horrors that has been demonstrated in the case of Albania can be found in many other post-Communist states. However, while these and other developments encourage cautious optimism, there are also several factors operating in the opposite direction. These include the tightening up of immigration policies in many Western states, which is likely to result in increased people smuggling and, as has been argued, the mutation of this in many cases into human trafficking; the Global Economic Crisis, which has negatively impacted upon many transition states in CEE even more than on more affluent developed states; and the possibility that many states will lose interest in the whole trafficking issue, which is a difficult problem to address. While the second of these variables might be only temporary, the others could well be longer-term impediments. It is thus clear that there is no room for complacency, and that efforts by non-governmental organisations (NGOs), individual politicians, IOs and others will have to continue and be intensified if the human trafficking situation in and from CEE and the CIS is to be contained and then improved.
NOTES 1.
I wish to thank both the Australian Research Council (Project No. DP0558453) and the University of Melbourne for research funding that enabled me to investigate this topic; inter alia, I would have been unable to run the surveys cited in this chapter without such support. I also wish to thank my research assistants – Shaorong Baggio, Adam Berryman, Ben Buckland, Kasia Lach, Katia Malinova and Janine Pentzold – for their hard work on my behalf. 2. The term ‘apparently’ is used here because the country of origin of 161 of the 1225 victims could not be determined. 3. This pattern of source-countries is also very similar to that identified by Simic´ in the cases of Bosnia and Kosovo (see Chapter 5). 4. The surveys were conducted in November 2004 in Bulgaria by Vitosha Research; in
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5. 6.
Trafficking and human rights November 2004 and September 2006 in Poland by Centrum Badania Opinii Spol⁄ecznej (CBOS); in October 2006 in Germany by TNS-Emnid; and in September 2006 in Italy by TNS-Infratest. The number of respondents (N) was 1001 in Bulgaria; 988 in Poland in 2004; 937 in Poland in 2006; 1030 in Germany; and 1027 in Italy. The other two were Iraq and Turkey. The earliest anti-trafficking law in Europe appears to have been the Dutch one (1911). This was followed by explicit anti-trafficking laws in Germany (1973), Belgium (1995), Portugal (1995) and then Hungary, Lithuania and Ukraine in 1998. At the other end of the spectrum, Ireland and Spain did not introduce specific anti-trafficking laws until 2007 and 2008 respectively. Only two CEE and CIS states had no specific anti-trafficking law as of mid-2008 – Estonia and Turkmenistan. All information from Sarrica et al (2009).
5. ‘Boys will be boys’: human trafficking and UN peacekeeping in Bosnia and Kosovo Olivera Simic´ We drove out of the barracks as usual in our military jeep … with a driver’s pass so that no one could become suspicious of us…we drove around and waited until 11 pm, and then drove to the brothel as fast as we could. We called the brothel’s owner that we are coming … the owner opened the gate so we could drive straight into the garage.1
INTRODUCTION The end of the Cold War and the 1990s saw a dramatic increase in United Nations (UN) peacekeeping operations.2 Peacekeeping operations became more ambitious, larger in scale and scope, and more complex to carry out. Consequently, more people have been deployed in peacekeeping operations, and the interactions with local populations respectively increased (UN DPKO 2000: 14). While peacekeeping operations prior to the 1990s were largely military and conducted within a certain political environment, post-Cold War multidimensional operations involve more direct interactions with the local population as a result of its peacebuilding activities. Known also as ‘the second generation’,3 multidimensional peacekeeping operations include social, humanitarian, political and economic components that require relief workers and civilian experts to work alongside soldiers (UN DPKO 2003: 42). Thus, soldiers serving within peacekeeping operations are joined by an increasing number of civilians who are deployed on the mission by the UN or other international or regional agencies.4 The increase in peacekeeping operations was, however, accompanied by the first reports expressing concerns about sexual activities between UN peacekeeping personnel5 and local women and girls, which appeared in almost all countries where peacekeeping operations were being conducted (Higate 2003: 2; Prince Zeid 2005: 7). The first allegations were made in 1992 and concerned the peacekeeping operation in Mozambique (Fleshman 2005: 17). These were followed soon after by concerns about the sharp rise in prostitution, as well as trafficking for the purpose of forced prostitution, that accompanied UN 79
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missions in Cambodia, Somalia, Bosnia and Herzegovina (BiH) and Kosovo (Phal 1995; Lupi 1998; HRW 2002a, 2002b; Amnesty International 2004; Martin 2005). These were followed by other reports describing peacekeepers’ alleged involvement in different forms of sexual exploitation and abuse in West Africa (Liberia, Sierra Leone and Guinea – Nduna et al. 2002: esp. 48–50), the Democratic Republic of Congo and Eritrea, as well as East Timor (Deutsche Presse Agentur 2005; Barker 2006). By now, the links between the presence of UN peacekeeping personnel and sexual exploitation and abuse of women and girls have been documented across the range of peacekeeping operations. This chapter examines the existing and credible evidence of UN peacekeeping personnel’s involvement in human trafficking in two peacekeeping missions in the Balkans: BiH and Kosovo. It begins with a brief background on conflicts in the Balkans, and then analyses the peacekeeping–trafficking nexus during the peacekeeping operations in BiH and Kosovo. Although accessing documentation of UN peacekeeping personnel’s misconduct remains a real challenge because of a lack of transparency, reporting and record keeping by institutional employees and international agencies (Vandenberg 2005: 151), every effort has been made here to find as much data as possible. The chapter goes on to explore UN responses to human trafficking, by examining policies developed in these two peacekeeping operations. The analysis then focuses on accountability and distinct sets of rules that apply to particular categories of UN peacekeeping personnel: military forces, civilian police and individual contractors. Each of them is governed by different rules, codes of conduct and disciplinary procedures, although they share one important attribute: all of them possess relative immunity for crimes committed while involved in the peacekeeping operation. I will conclude this chapter by arguing that new laws and policies are welcome in combating human trafficking – but that without changes to the institutional, cultural and behavioural patterns that promote the ‘boys will be boys’ attitude, no real progress will be made. In short, the UN and the international community need to act on their rhetorical commitment to protect vulnerable populations – in particular women and girls – from sexual abuse, including trafficking, and waive the immunity of those accountable for serious breaches of human rights.
CONFLICTS IN THE BALKANS, SEX TRAFFICKING AND PEACEKEEPING The breakdown of civil order and transitions to a market economy in Central and Eastern Europe have provided an ideal environment for crime to flourish,
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with both organised networks and independent traffickers being allowed to prosper. Legal and economic reforms, civil war in BiH, and ethnic conflict in Kosovo provided a fertile milieu for developing black market economies, trafficking in arms, drugs and humans. The survivors of armed conflict who suffer violence, economic and physical dislocation, and other consequences of war, are impoverished and vulnerable to being recruited into prostitution (Bedont 2005: 83). The Balkans provide an example of how a combination of war, post-war militarisation and economic transition pushes women into accepting virtually any kind of work, including sex work – which all too often results in them being trafficked. Indeed, traffickers know all too well how to exploit to their own advantage the existing market demand, official corruption, the breakdown of law and order, and the women’s own need for financial security – to support themselves and, often, their families (Nikolic-Ristanovic 2002: 3). Trafficking for forced prostitution, especially in women and young girls, follows market demand, and in post-conflict situations that demand is often created by UN peacekeeping personnel (Mendelson 2005: 1). The presence of thousands of international workers in conflict areas, and a surge of foreign capital, fuelled trafficking in women. The peacekeeping personnel are usually stationed in post-conflict countries where the state has collapsed, the justice system is almost non-existent, and crime is rampant (Bedont 2005: 83). They are also relatively wealthy in comparison to the population they are ‘assisting’. Post-conflict militarisation and the presence of a highly paid international peacekeeping civilian and military community often require a number of women to sell their bodies voluntarily or forcibly and thus respond to demand. As a result, the sex trade becomes central to predatory war economies, while the peacekeeping context creates demand for the development of this lucrative and appalling trade. By participating in the sex trade, as either clients or traffickers, UN peacekeeping personnel support war economies and thus maintain instability in the region, perpetuate abuses of women’s human rights, and prevent a return to peace and security (Mazurana 2005: 35). Although a majority of UN peacekeeping personnel work honourably in peacekeeping operations (UN 2000b: 5) and are not engaged in human trafficking, numerous allegations as well as hard evidence suggest that a link does exist between trafficking in post-conflict countries and exploitation by some peacekeepers.
UN MISSION IN BiH (UNMIBH) The Dayton Peace Accords signed in 1995 ended three years of bloodshed in BiH, one of the former republics of Yugoslavia. Deployment of UN peacekeeping personnel was authorised by UN Security Council Resolution 1035,
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which brought approximately 35 000 soldiers from the North Atlantic Treaty Organization (NATO) and non-NATO countries into the country. They served alongside a number of civilian staff employed by agencies such as the Organization for Security and Co-operation in Europe (OSCE), the Office of the High Representative (OHR), the Office of the High Commissioner for Human Rights (OHCHR) and numerous other intergovernmental and nongovernmental agencies. The trafficking in humans was a relatively unknown phenomenon in the region until the mid-1990s, when the sex industry was fuelled by the arrival of tens of thousands of predominantly male UN peacekeeping personnel (Rees 2002: 61). Although the first night clubs with women ‘dancers’ from Eastern Europe had been established in the early 1990s, it was not clear at the time whether women were trafficked or arrived to work voluntarily in prostitution (Radovanovic with Kartusch 2001: 10). With the arrival of UN peacekeeping personnel, women – primarily from Ukraine, Romania and Moldova (US Department of State 2001a: 82) – also arrived in the region to entertain soldiers and other international staff who served in the BiH peacekeeping operation. BiH soon became a major destination country for women trafficked for the purpose of sexual exploitation. The arrival of the UN mission was followed by the diversification of prostitution venues and the women’s nationalities that filled them. Bars and brothels with women trafficked from Central and Eastern Europe mushroomed in the proximity of UN bases, in response to the demand of UN peacekeeping personnel (Mendelson 2005: 10). Another factor used to establish a direct correlation between women trafficked for prostitution and UN peacekeeping personnel was the number of females trafficked into the region, which would increase with the rise in the number of peacekeeping arrivals (Mendelson 2005: 12). Indeed, while at the height of the mission estimates by non-governmental organisations (NGOs) were that 900 brothels were spread throughout the country (UN Interregional Crime and Justice Research Institute 2002: 11), as of April 2002, a few months before the mission ended, the UN estimated that between 750 and 1000 women and girls remained trapped in brothels in BiH (Vandenberg 2002). There were two types of peacekeeping personnel involvement in human trafficking. Firstly, evidence surfaced in interviews with women victims of trafficking that peacekeeping personnel were their ‘clients’ in the brothels (Limanowska 2003: 107). Former private contractors who served in the BiH mission also confirmed that some of their colleagues used to park UN vans in front of brothels and use them to transport trafficked women to their homes or bases.6 Secondly, at least three individuals who served in peacekeeping operations actually purchased women and their passports from traffickers (Vandenberg 2002). Some civilian peacekeeping personnel have purchased women and girls, asserted ownership over them, and used them for sex and
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housework.7 An internal memorandum sent to the US Secretary of the State on 10 December 2001 recounted a case that involved a US International Police Task Force (IPTF) officer who was fired from the mission in BiH. The summary stated: In a fairly clear-cut case, an American officer was fired after he admitted that he had ‘bought out the contract’ of a 19-year old woman trafficked from Russia with whom he co-habited for six months. This officer also admitted bringing sensitive documents about forthcoming IPTF raids to his residence, where this woman may have had access to them. (US Department of State 2001b)
In addition, some of the UN peacekeeping personnel were even active in organisational aspects of human trafficking crime, by forging documents to transport young girls across borders (McElroy 2002). The most serious allegations were against several Romanian IPTF officers who were accused of recruiting women from Romania, purchasing forged documents, and then shipping them off to Bosnian brothels (Lynch 2001: 17). Finally, it has been reported that IPTF officers were patronising brothels and nightclubs where trafficked women were held as prostitutes and forced to dance naked and perform sex acts (Vandenberg 2002; Payne 2002). In 2001, the IPTF estimated that 30 per cent of those using brothel services were UN peacekeeping personnel, mainly soldiers from the NATO-led Stabilisation Force (SFOR) in BiH (Limanowska 2003: 107). However, almost 70 per cent of the brothel business profits were generated by internationals (Mendelson 2005: 7). While profit was a significant factor that contributed to the flourishing trafficking in the region, another was that, until 1998, the UN mission in BiH did not consider the issue of trafficking in humans as a priority concern (Radovanovic with Kartusch 2001: 22).
THE UN MISSION IN KOSOVO (UNMIK) The United Nations Interim Administration Mission in Kosovo (UNMIK) was created by UN Security Council Resolution 1244 in June 1999. UNMIK performs the role of the government as an interim arrangement, under the leadership of the Special Representative of the Secretary-General (SRSG). UNMIK has the authority over the territory of Kosovo, which includes all legislative and executive powers, and the administration of the police, judiciary and domestic security.8 The NATO peacekeeping force (Kosovo Force – KFOR) deployed almost 50 000 men and women in Kosovo (Wilson 2006: 154) who serve, as in BiH, alongside a number of intergovernmental and nongovernmental agencies and their expatriates. Soon after their deployment, Kosovo became a major destination country for women and girls trafficked
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into forced prostitution, primarily from Bulgaria, Moldova and Ukraine (Amnesty International 2004: 5). A few months after their deployment, the UN Development Fund for Women (UNIFEM) reported on organised prostitution in several locations close to major concentrations of the peacekeeping troops (Wareham 2000: 94–5). Similarly to the situation in BiH, most of the sex industry clients were reported to be members of the international military community, while some soldiers were also involved in the trafficking process itself (Wareham 2000: 94–5). Indeed, as the International Organization for Migration (IOM) Chief of Mission in Kosovo argued: ‘the large international presence in Kosovo makes trafficking possible’.9 Additional factors that support the trafficking industry in Kosovo are a lack of sufficient and experienced police officers, a weak criminal justice system and Kosovo’s proximity to source countries, as well as established trafficking routes via Albania to the European Union and cooperation between Albanian, Serbian, Kosovo Albanian and Macedonian organised criminal networks (Amnesty International 2004: 8). There are two types of organised crime activities in relation to trafficking in women in Kosovo. The first is the informal networks that exist, structured around small groups of individuals within families and ethnic communities. The second is formal organised crime networks, linked through South-Eastern Europe, that control every aspect of trafficking, from recruitment and transport to the administration of the premises where abuses take place (UNMIK 2004: 5). Nightclubs, bars and restaurants suspected of carrying out trafficking activities are officially off limits to all peacekeeping personnel.10 Their number escalated in recent years, however, with only 18 establishments identified in late 1999, while as of 1 January 2004 there were 200 bars, restaurants and cafes on the off-limits lists (UNMIK 2003). The clubs and cafes that operate as undercover brothels have been concentrated in the neighbourhood of peacekeeping military bases, and soldiers find ways to visit them;11 in some cases, trafficked women and girls from these undercover brothels were taken onto military bases (Mendelson 2005: 11). These establishments are suspected of involvement in prostitution but fronted as legitimate business, so that the police are in most cases unable to shut them down (UNMIK 2004: 18). As in BiH, in Kosovo in 1999 and 2000 almost 80 per cent of the clients of trafficked women were internationals (Amnesty International 2004: 39). Although the majority of clients in 2002 were local men, members of the international community, mostly soldiers, still constituted 30 per cent of the clients (Amnesty International 2004: 39). More importantly, they generated 80 per cent of the industry’s income.12 Also as in BiH, international soldiers in Kosovo are often clients of women trafficked into forced prostitution or traffickers:
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In a report broadcast on German television last night [17 December 2000], a 16-year old Bulgarian girl said she was sold to a night club in Tetovo (near Macedonia’s northern border with Kosovo) and that hundreds of German soldiers were among her clients. In the televised report, a German soldier acknowledged being with the same girl, and said that he knew other KFOR soldiers who frequented brothels in FRY of Macedonia where underage girls are being kept.13
In addition, a Hungarian sex worker who worked mainly in Pristina (Kosovo) reported that ‘the Russian KFOR were bringing women in for sex work’.14 Thus, some women victims were trafficked explicitly for KFOR’s use by arranging for them to meet soldiers in KFOR camps, since US KFOR personnel are prohibited from leaving their bases (Amnesty International 2004: 17). On the other hand, their colleagues – civilian police officers – live in local housing within local communities and have freedom of movement; it is more difficult, perhaps even impossible, to monitor their movements, especially since they are dressed in civilian clothes after working hours. In June 2002, a UNMIK Internal Affairs investigation found that at least one of the US civilian police officers ‘was involved with a known criminal and brothel owner and accepted gifts from him in the form of “girls” ’ (US Department of State 2002b). Moreover, in an internal memorandum sent to the US Secretary of State on 25 June 2002, UNMIK reported that: ‘this is not the first time that US and other CivPol [civilian police] have been found to be engaged with prostitutes, nightclub owners, and/or other activities related to the sex trade’ (US Department of State 2002b). It was not the first time, but certainly not the last time either. In January 2005, a Pakistani peacekeeping staff member was arrested in Kosovo for being involved not only in sexual but also ‘other activities’ such as ‘narcotics related charges involving minors’.15
THE UN RESPONSES TO TRAFFICKING IN BiH AND KOSOVO peacekeeping personnel may have condoned the establishment of brothels and been complicit in the trafficking of women and girls (UN 2002: para 268)
Until 1998, UNMIBH did not consider the issue of trafficking in humans a priority concern (Radovanovic with Kartusch 2001: 22). Official and formal responses to trafficking in women started in 1999, following numerous local and international media reports on trafficking in BiH. The OHCHR and UNMIBH jointly launched the ‘Trafficking Project’ (Callamard et al. 2001: 77). Under pressure from increased public attention and the cases that emerged, UN officials eventually decided to take the problem of trafficking in women more seriously and devised measures to address it.
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In May 1999, UNMIBH issued its first legal guideline on trafficking, which provided a definition of human trafficking and banned it on the grounds that it was an organised crime activity (HRW 2002a: 43, 64). Moreover, in the same year, UNMIBH developed its first protocols for the treatment and repatriation of trafficked victims; in 2001, it established the Special Trafficking Operations Program (STOP) to handle trafficking cases.16 As of October 2002, UNMIBH suspected 227 bars and nightclubs in BiH of involvement in trafficking in women (HRW 2002b: 1). However, the STOP did not have a clearly developed policy, but rather operated on an ad hoc basis. Nor did it have any funds to cover the expenses of victims of trafficking after ‘rescuing’ them from brothels. In 2001, one IPTF officer interviewed by Human Rights Watch stated: ‘I try to help them [victims]. We dip into our own pockets … We feed them, get them coffee, and get them cigarettes … The UN gives us no funds to take care of them … We make it possible for the UN to do nothing’ (HRW 2002a: 44). At the same time, an initial training programme for BiH local police officers by UN civilian police on combating trafficking in humans was developed and delivered across the country. Simultaneously, massive raids started to be performed jointly by local and international police officers throughout the country.17 Although they succeeded in closing down the brothels, they did not stop the business of trafficking; rather, trafficking moved underground. Traffickers shifted the commercial sex trade into private homes and escort services to avoid detection (US Department of State 2007: 5) and thus made the task of preventing and combating trafficking in humans even more difficult. UNMIBH shut down 31 December 2002 and was replaced by the European Union Police Mission (EUPM), which took over the policing function from the UN in BiH.18 According to EUPM representatives, UN personnel took hundreds of files that recorded trafficking cases with them when they left Bosnia – files that were either archived in New York or burned, and were not available to the EUPM officials. The EUPM requested these files countless times, but received nothing (all from Mendelson 2005: 63–4). This indicates a clear lack of transparency and cooperation between departing UNMIBH and incoming EUPM officials that resulted in ‘no proper exchange of information and intelligence about organised crime and trafficking in persons’ (IOM Counter-Tracking Service 2004: 44). This in turn meant the loss of ‘details [for] approximately 1500 potential victims and hundreds of potential traffickers’ (IOM Counter-Tracking Service 2004: 50). There were speculations by experts that the reason for the lack of transfer was that information contained in these files either implicated or proved the involvement of IPTF officers in trafficking (Mendelson 2005: 64). The first Office of Gender Affairs (OGA) was established in Kosovo in 1999 by the Department of Peacekeeping Operations (DPKO). One of the
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OGA’s goals is to assist victims of sexual violence, as well as to deliver training to police and judicial officials on forensic investigation of sexual violence (Olsson and Tryggestad 2001: 58). In 2000, UNMIK established five regional units that focused on gathering information on trafficking cases, female victims, and establishments where trafficking activities were occurring (UN 2002: 88). It also has the task of gathering substantive evidence for successful prosecution in the courts (UN 2002: 88). The involvement of UNMIK police officers in trafficking in women came to light as early as 2001.19 Trafficking victims stated that they ‘were brought from Mitrovica to Kosovo Polje in a white UN vehicle driven by a Russian UN Staff member’.20 As a result, two police officers were repatriated because of their ‘professional misconduct’ following an UNMIK investigation into charges that four of its police officers were involved in ‘the movement of women for the purpose of prostitution’.21 An UNMIK Anti-trafficking Regulation was promulgated in January 2001 by the Special Representative of the Secretary-General (SRSG).22 The Regulation represented a considerable improvement on the May 1999 UNMIBH official legal guideline on trafficking. In particular, UNMIBH had failed in its earlier document to define trafficking in accordance with international law: its guideline emphasised the element of ‘consent’, which could be used to deny trafficked status, and gave inadequate consideration to elements such as force, coercion and deception.23 The implication of such legal failure was highly significant, since gender officers who were charged with determining trafficking status in BiH denied it to ‘persons who knew that they were going to be engaged as sex workers’ (HRW 2002a: 42). The fact that no person can consent to debt bondage and the conditions of work imposed upon the women was not really being considered (HRW 2002a: 43). UNMIK appeared to acknowledge this failure in the early 2000s by specifically devoting a paragraph in its 2001 regulation to the irrelevance of the victim’s consent if there were ‘means or the threat of 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’ used ‘for the purpose of exploitation’.24 Indeed, such a stipulation is in accordance with Article 3(b) of the Palermo Anti-Trafficking Protocol that establishes that the consent for the victims is irrelevant where any of the above-mentioned means have been used (United Nations 2000b). Harsh convictions have been determined by the SRSG Regulation. Punishments for individual persons engaged in trafficking are up to 12 years’ imprisonment, while for trafficking of victims under the age of 18 imprisonment is up to 15 years.25 Any person who organises a group of persons for the purpose of committing the crime shall be liable to imprisonment of up to 20 years (Limanowska 2004: 132). In 2003, a shelter for victims of trafficking was established by the Victims’
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Advocacy and Assistance Unit of the Department of Justice on behalf of UNMIK (Limanowska 2004). Although the number of identified victims was decreasing by 2004, there was evidence that the overall scale of trafficking was not actually declining, but rather changing its nature, with more internal trafficking occurring within the country (Limanowska 2004: 136). According to the 2007 US Trafficking in Persons Report, the number of internally trafficked girls is still on the rise, even if it has become less visible; as in BiH earlier, traffickers in Kosovo simply moved their business underground in response to an increasing number of raids on restaurants and bars by UNMIK’s Trafficking in Human Beings Unit (THBU) and the local police (US Department of State 2007: 180).
ATTITUDES, IMMUNITIES AND IMPUNITIES Privileged by immunities while on peacekeeping operations, UN peacekeeping personnel have managed to escape prosecution and accountability for committing serious crimes. A range of granted immunities and privileges, combined with a lack of political will to prosecute on behalf of the states contributing to peacekeeping operations, has been used as a shield from criminal liability. Moreover, since the early 1990s senior UN officials have not hidden their view that peace operations are mostly a ‘boys club’, where officials often turn a blind eye or even publicly support some of the hideous crimes committed against local women and girls. When addressing complaints regarding the United Nations Transitional Authority in Cambodia (UNTAC) personnel’s behaviour in 1992, the mission’s SRSG, Yasushi Akashi, reportedly replied that: ‘it was natural for hot-blooded young soldiers who had endured the rigors of the field to want to have a few beers and to chase young beautiful beings of the opposite sex’ (Whitworth 2004: 71). Likewise, the arrival of thousands of victims of sex trafficking in post-conflict regions is seen as a ‘natural occurrence’ by former US Ambassador to the UN Richard Holbrooke, who said: ‘Where peacekeepers go, they attract women who are working full-time or part-time as prostitutes’ (CNN 2000). Thus, women ‘willing’ to have sex with male soldiers and international civilian staff are seen as a ‘natural and harmless, transitional phenomenon’ (Mazurana 2005: 34) rather than victims of serious human rights abuses. However, there have in the last few years been significant official acknowledgments by the UN that allegations of UN peacekeeping personnel’s involvement in trafficking in humans have left a stain on UN missions around the globe. In 2004, the DPKO stated that: ‘peacekeepers’ use of trafficking victims for sexual and other services has been a source of major embarrassment and political damage to UN PKOs’ (emphasis added; UN DPKO 2004: 5).
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Likewise, in December 2006, outgoing Secretary-General Kofi Annan admitted that UN peacekeeping personnel had committed crimes ‘such as rape, paedophilia, and human trafficking’ in missions around the world (BBC News 2006).26 Although different legal regimes govern each category of UN peacekeeping personnel, authority to investigate and prosecute military personnel rests exclusively with their home countries.27 Thus, if military personnel are accused of committing a crime, they will be subject to the law applicable to their contingents, such as military discipline law.28 The reasoning behind such a legal system lies in the fact that UN peacekeeping personnel are often deployed in post-conflict countries where the justice system does not exist or operate fully (Bedont 2005: 83). To ensure that the host country cannot prosecute peacekeeping personnel, trilateral agreements between the UN, the host state and the contributing state include a clause that the host state’s judicial officials cannot prosecute them, since the UN enjoys absolute immunity from local laws.29 The UN is bound by a Status of Forces Agreement (SOFA) between a host country and a foreign nation stationing military forces in that country. A SOFA ensures that peacekeeping personnel cannot be tried for crimes they commit during the mission except by their own country, leaving the UN little room for action. Thus, the exclusive responsibility lies with troop-contributing countries to prosecute anyone accused of committing a trafficking-related offence. In BiH, under the terms of the Dayton Peace Accords (DPA), IPTF monitors had enjoyed complete immunity from prosecution, while NATO civilian and military personnel retained only functional immunity.30 When civilian members of UN peacekeeping operations break the law, the Special Representative or commander of the mission is to conduct an inquiry and then agree with the accused civilian’s home country whether criminal proceedings will follow.31 Moreover, peacekeeping personnel enjoy a general immunity from prosecution, unless explicitly waived by the UN SecretaryGeneral ‘in any case where, in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the United Nations’.32 The Trafficking in Persons Unit (TPU) in Kosovo reported to Amnesty International in 2001 that waivers for the purposes of prosecution were either not requested or not granted in most cases (Amnesty International 2004: 35). However, the TPU made a controversial statement in 2004 by saying that: ‘in all cases in which UNMIK requested a waiver of immunity, it was promptly granted by the Secretary General’ (UNMIK 2004: 18). In a majority of cases, if peacekeeping personnel commit a crime in the host country, they will most likely be rapidly repatriated to their country of origin. Any disciplinary action, further investigation and prosecution after repatriation lies with the capability, preferences and political will of the country of
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origin. Although some countries take various forms of disciplinary or criminal action, many do not bring charges against their repatriated personnel, thus leaving them without penalties for crimes committed (US Department of State 2007: 230–33). Indeed, a majority of countries have little or no interest in seeing their peacekeeping personnel prosecuted for organised crime or sexual abuse issues while doing ‘good deeds’ around the world. Some of the contributing countries have poorly developed legislation to prosecute personnel upon repatriation, so that exclusive reliance on contributing states’ legislation is not the best solution. For example, the Italian military was unable to respond to the crimes committed by Italian military peacekeeping personnel in Somalia in 1997. Natalia Lupi, in her study of Somalia, points out that crimes of ‘violation, torture and maltreatment against civilians’ are not covered by the Military Panel Code that regulated the behaviour of Italian peacekeeping personnel (Lupi 1998: 376). Thus, the soldiers were disciplined but not prosecuted (Bedont 2005: 90). In addition, military courts are less transparent than civilian courts. As a male-dominated institution, the military is not a suitable agency for prosecuting individuals for crimes against women. The crimes that arise in peacekeeping operations are problems of militarised masculinity, where masculine aggression is rewarded rather than punished (Bedont 2005: 90). When contributing states fail to act, the UN does not have the authority to correct national malfunction or even follow up on the actions of contributing states, if any have been taken. Indeed, the UN is not capable of securing legal liability, but can only seek to ascertain that contributing states ensure justice is done. The best the UN can do is to undertake administrative measures such as disciplinary action, including summary dismissal for serious misconduct.33 In 2000, a cable entitled ‘US IPTF monitors implicated in trafficking in women case: accusation and disciplinary action’ confirmed that: ‘a very small number of American monitors have been accused of improper conduct in connection with prostitution and trafficking in women’.34 Those monitors were repatriated voluntarily or through disciplinary repatriation for ‘sexual misconduct’, but have not faced criminal investigation or prosecution.35 Needless to say, symbolic punishment for egregious crime does not provide a deterrent to other peacekeeping personnel who might be tempted to take part in traffickingrelated offences. Although there is strong evidence that peacekeeping personnel have been involved (consciously or unconsciously) in the use of sexual services by trafficking victims, the DPKO has claimed that very few cases have been fully investigated and proven so far (UN DPKO 2004). The absence of a consistent policy, combined with blanket immunity, created an atmosphere of impunity for international peacekeeping personnel (Vandenberg 2007: 88). Thus, despite serious allegations of involvement of IPTF officers in trafficking in
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women in BiH, no member of UNMIBH has ever been criminally prosecuted for trafficking or trafficking related crimes (Vandenberg 2002). The most serious (and only) punishment that UN peacekeeping personnel faced in BiH is rapid repatriation and so-called ‘reliability on legal fiction’ (that is, a promise that the contributing countries will take legal action). As a result, peacekeeping personnel go unpunished for serious crimes they commit, and none of the law enforcement efforts so far has resulted in a single trafficking conviction. Moreover, as a consequence of lack of any accountability for the crimes committed, some UN police officers who have been ‘expelled from one CivPol [civilian police] operation for suspected involvement in illegal activities, had later been deployed to UN CivPol missions in other parts of the world’ (US Department of State 2001c). Although UNMIK in 2001 openly acknowledged involvement of peacekeeping personnel in trafficking in women, in 2004 it denied the existence of such cases: ‘to date, no such [criminal] case has involved trafficking or any other related offence’ (UNMIK 2004: 18). However, by the end of 2002, at least ten UNMIK police officers had been repatriated in connection with allegations related to trafficking in humans (Amnesty International 2004: 13). Although UNMIK police had been informed by repatriated police officers from their home countries that they would be prosecuted or disciplined, two years later they were not aware of any charges having been raised by contributing states in any of the cases (Amnesty International 2004: 14). Also, 52 KFOR soldiers, eight international civilians and three international police officers were found in ‘off-limits premises’ between 2002 and 2004 (UNMIK 2004: 18). The KFOR soldiers were handed over to military police, and civilian personnel to their departments, for further investigation, while the international police officers were repatriated (UNMIK 2004: 18). In order to improve investigations and prosecutions in trafficking cases, it has been proposed that a ‘Whistleblowing Hotline’ be established by UNMIK TPIU (UNMIK 2004: 27). Although this recommendation should be welcomed, lack of transparency and fear of retaliation are understandable concerns among UNMIK officers. In 2001, Kathryn Bolkovac, an American IPTF officer serving in BiH, was unfairly dismissed for disclosing evidence that some IPTF officers had had sex with trafficked women, and that UN personnel and international aid workers were linked to prostitution rings in the Balkans (McGrory 2002). In addition, other IPTF monitors in BiH who attempted to alert their superiors to involvement in trafficking by fellow IPTF monitors have claimed that they faced retaliation. David Lamb, a former UN human rights investigator in BiH who was leading investigations into sex trafficking, admitted: ‘I have to say there were credible witnesses, but I found a real reluctance on the part of the United Nations … leadership to investigate these allegations’ (HRW 2002a: 37).
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CONCLUSIONS The direct and indirect involvement of peacekeeping personnel in trafficking related offences has been recognized by the DPKO and by the UN as a whole. The DPKO has acknowledged that ‘peacekeepers have come to be seen as a part of the problem [when it comes to trafficking in humans], rather than the solution’ (UN DPKO 2004). Indeed, in the last few years the UN has raised the alarm and responded to the phenomenon of human trafficking and peacekeeping by institutionalising measures aimed at combating trafficking. Recognising the problem of accountability of UN peacekeeping personnel, the UN issued a policy statement in November 2007 urging all contributing states to hold their peacekeepers accountable for serious crimes (UN 2007). Although it appears that the UN is struggling to find the best ways to respond to the problem, it is argued here that there are more obstacles in their way than achievements. While the UN mission in Kosovo went a few steps further than the mission in BiH in developing mechanisms to respond to the phenomenon of trafficking, there is still a lack of transparency and political will to hold accountable those who were involved in the trafficking related offences. Concern for ‘political damage’ and the international image of contributing countries prevails over concern for the human rights of women victims of trafficking and the course of justice. As demonstrated, internationals alleged to have participated in trafficking enjoyed impunity and evaded prosecution altogether (Vandenberg 2007: 95). Appallingly, some of them have been deployed in other missions. Thus, new laws and policies are certainly welcome in combating human trafficking by peacekeeping personnel. But without institutional, cultural and behavioural changes that confront the ‘boys will be boys’ attitude, no real progress will be made. In addition, the UN and the international community need to act on their rhetorical commitment to protect vulnerable populations, in particular women and girls, from sexual abuse. The UN also needs to waive the immunity of those accused of serious breaches of human rights.
NOTES Interview with German soldier who served in Kosovo peace mission, ARD Weltspiegel, broadcast 17 December 2000. 2. Scholars and researchers often use terms such as UN peacekeeping operations, peacekeeping missions, missions and operations interchangeably, a practice adopted here. 3. After the end of the Cold War, the proliferation of peacekeeping brought a new categorisation of peacekeeping operations, which are now divided into: traditional or first-generation or Cold War peacekeeping; and new or second-generation or multidimensional peacekeeping (Katayanagi 2002: 42). 1.
Human trafficking and UN peacekeeping in Bosnia and Kosovo 4.
5.
6.
7.
8. 9. 10. 11. 12. 13. 14. 15.
16.
17. 18. 19. 20.
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For example, in 1989 there were 11 121 military, police and civilian personnel deployed in peacekeeping operations and the annual budget was US$230.4 million. In December 1994, 77 783 personnel were deployed; in 2006 the total number amounted to 97 007. The estimated total cost of operations from 1948 to 30 June 2007 reached approximately US$47.19 billion. Further details from United Nations Peacekeeping Operations at http://www.un.org/ Depts/dpko/dpko/bnote.htm, accessed 12 August 2007. There are three main components of ‘peacekeeping’ forces: the military, police and civilian components. But, in line with common practice among scholars, the generic term ‘UN peacekeeping personnel’ will be used here – except when other scholars are cited – to refer to anyone employed in a peacekeeping operation: any uniformed service member serving as a military member of national contingents, UN civilian police and military observers, UN volunteers, and individual contractors and consultants working within a peacekeeping operation (see Prince Zeid 2005). Testimony by Benjamin Johnston, an aircraft mechanic formerly contracted to DynCorp with the UNMIBH; see Hearing before the Subcommittee on International Relations and Human Rights, ‘The UN and the Sex Slave Trade in Bosnia: Isolated Case or the Larger Problem in the UN System?’ Testimony by Benjamin Johnston, 24 April 2002 at http://commdocs.house.gov/committees/intlrel/hfa78948.000/hfa78948_0f.htm, accessed 13 December 2007. Benjamin Johnston testified that many of his colleagues ‘owned’ and traded girls aged 12 to 15, talking about and treating them as sexual and domestic slaves. He said that this was a norm among the men he worked with, and that he was encouraged by others to buy a girl and was offered opportunities to do so. Source as in note 6. Resolution 1244 (1999) adopted by the Security Council at its 4011th meeting, 10 June 1999, at http://www.nato.int/Kosovo/docu/u990610a.htm, accessed 7 June 2007. ‘Group launches campaign against forced prostitution in Kosovo’, AFP, 24 May 2000, cited in Amnesty International (2004): 9. UNMIK Police Directive for Off Limits Premises, issued by Police Commissioner Christopher Albiston on 31 January 2001, is distributed by UN Security to all UNMIK staff members for compliance (see UNMIK 2004: 17). See the BBC movie Boys Will Be Boys, in which a taxi driver in Kosovo talks about driving soldiers back and forth from their military bases to night clubs and bars. He says that they usually change their clothes in the cab from military to civilian. A trafficked girl reported that KFOR soldiers paid DM100 for one hour while local men would be charged the same amount for a night (Amnesty International 2004: 12). The message received through STOP TRAFFICK @ friends-partners list, 24 December 2000. The message received through STOP TRAFFICK @ friends-partners list, 10 February 2000; see also Amnesty International (2004): 24. Russian KFOR troops were allegedly involved in bringing Moldovan and Ukrainian women into Kosovo for sexual exploitation. Rashid Doon Khan, a Pakistani staff member in the office of the High Commissioner for Refugees, was arrested in Kosovo on 28 January 2005 by an international prosecutor in Kosovo, pending a pre-trial investigation; at http://www.washingtonpost.com/wp-dyn/ articles/A30286-2005Mar12.html, accessed 20 June 2007. STOP included 50 IPTF officers and 140 members of the local police (HRW 2002a: 53). In 2004, DPKO also criticised the STOP model practised in BiH, and said that it should not be replicated in other missions. Some of the major concerns and failures were the model’s failure to integrate legislative reforms, criminal justice, and victim support programmes (UN DPKO Human Trafficking Resource Package 2004). Between 25 July 2001 and October 2002, STOP teams conducted 720 raids (HRW 2002a: 4). EUPM operates in accordance with Annex 11 of the Dayton Peace Agreement. For further details see http://www.eupm.org/Our%20Mandate.aspx, accessed 12 October 2007. UNMIK Press Briefing, 13 August 2001, at http://www.unmikonline.org/press/2001/trans/ tr130801.html, accessed 10 July 2007. Report from OSCE mission in Kosovo (March 2001) in Cerone (2002): 47.
94 21. 22. 23. 24. 25. 26.
27. 28. 29.
30.
31. 32. 33. 34. 35.
Trafficking and human rights Two other officers have received letters of reprimand. Whilst the four committed professional misconduct to varying degrees, evidence was not found to support criminal charges (Cerone 2002). UNMIK/REG/2001/4; for the full regulation see ‘Regulation No 2001/4 on the prohibition in trafficking in persons in Kosovo’ at http://www.unmikonline.org/regulations/2001/reg0401.html, accessed 9 November 2007. UNMIBH Legal Office, Guidance no. 21, ‘Trafficking in Persons’, May 1999. UNMIK/REG/2001/4 Sec 1.2. UNMIK Regulation Section 2.1 and 2.2. The UN’s own figures show that 316 peacekeeping personnel in all missions have been investigated, resulting in the summary dismissal of 18 civilians, repatriation of 17 members of Formed Police Units and 144 repatriations or rotations home on disciplinary grounds. In this article, the UN admits that about 80 per cent of 100 000 people serving in its peacekeeping operations cannot be prosecuted because the UN lacks authority to do so. UN Model SOFA para 47 (b). Ibid. Under Appendix B to Annex 1A of the Dayton Peace Agreement, NATO military personnel are under the exclusive jurisdiction of their respective nations. See OHR (1995), Appendix B to Annex I-A, sec.7. Under Article VI, paragraph 11 of Annex I-A, all IFOR (now SFOR) personnel retain the privileges and immunities set forth in Appendix B. SFOR civilian personnel, although in principle possessing only ‘functional’ immunity from prosecution (immunity only for acts related to their official duties), have been effectively extended full immunity by the Bosnian government. See OHR (1995) and Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly of the UN on 13 February 1946, Article VI, Section 22. United Nations staff serving on peacekeeping operations have functional immunity to ensure that they are able to undertake their functions in connection with the United Nations in an independent manner. UN Model SOFA para 47 (a). See Article V, Section 20 of Convention on the Privileges and Immunities of the United Nations. UN Staff Regulations, Disciplinary Measures Regulation 10.1 and Regulation 10.2 UN doc. ST/SGB/2003 (2003). HRW at http://www.hrw.org/reports/2002/bosnia/1101cable.pdf, accessed 11 January 2007. HRW at http://www.crin.org/docs/resources/treaties/crc.39/Bosnia_HRW_ngo_report.pdf, accessed 15 January 2007.
6. Between social opprobrium and repeat trafficking: chances and choices of Albanian women deported from the UK1 Stephanie Schwandner-Sievers Many people may have little idea about Albania, a small country in SouthEastern Europe with a population of 3.6 million, bordering the Ionian and Adriatic Seas. It emerged in the early 1990s from one of the most totalitarian Communist regimes as one of the poorest countries in Europe. During the nearly two decades following the dramatic regime changes in Eastern Europe, when Europe remained divided between ‘Western’ European Union (EU) and ‘Eastern’ non-EU member states (the latter including Albania2), the prosperous West became the recipient of a mass influx of informal Albanian labour migrants.3 Strong Albanophobic stereotypes have developed in response.4 Media and popular perceptions, particularly in the major European host countries – Greece, Italy and, further away, the United Kingdom (UK) – continue to associate Albanians in general with crime, violence and prostitution, regardless of the fact that most jobs in which Albanians have engaged abroad, typically low-skilled and below their qualifications, were not per se criminal, and that most Albanians are believed to have integrated successfully into their host communities (Vullnetari 2007). These Albanophobic stereotypes are usually gendered, in that ‘Albanian women have been presented as a particularly vulnerable nationality among trafficked women in Europe … [while] Albanian men are presented as dominating the new and violent mafias that have arrived in the EC from the Balkans’ (J. Davies 2009: 22). Unsurprisingly, given their criminal and hidden nature, there exist no reliable statistics on either of these two stereotypes that would allow the separation of myth from fact. Available figures and estimates regarding the Albanian trafficking issue sometimes appear to be stretched in opposite directions, according to conflicting political or other interests and sometimes to moralising attitudes that often bear little relation to the actual situation of transnational Albanian trafficking victims and sex workers. However, stereotypical attitudes, image anxieties and politically driven estimates can have a profound effect on the situation of those 95
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attempting to extricate themselves from their predicament and hoping to be given protection by the authorities back home after trafficking episodes. They can also be symptomatic of deeper problems, such as weak governance, that may affect the likelihood of protection. In particular, in Albania – as with many other countries – there still exists a problem of social ‘shame’ that causes discomfort within families, in wider society, and even on the national level, resulting in a preference for silence over open discussion of the serious issues being examined here. Fatos Lubonja, known in Albania and beyond as one of its most candid observers of society,5 explained (in an interview in early October 2008): We don’t want to touch the issue of prostitution here: it’s embarrassing, it’s large profit for many, it’s against the image. The traffickers keep a low profile. We pretend it is not our problem, it’s against the image of ourselves. It’s like a monster: it’s not like us, but in fact the monster is inside us. If the prostitutes come back they will be three or four times prosecuted: it’s the moral code that’s in place here. They have no chance of being reintegrated into this society. They have a dark mark; they are like dead persons in Albania. They cannot undo their past. They will be forced to continue their trade. Trafficking of women by Albanians is a very controversial issue. People here, when they speak of kanun6 and honour, that people should kill their daughter [for such shame] and so on, this is their rhetoric, their myths; but on the other hand they treat her like a commodity, sell and buy her, she is an object, so you can kill her … They behave like a merchant. The extreme cases are in the north, but this is true even for our urban society today.7
Given this background, many of the current official anti-trafficking efforts in Albania appear remarkable. However, as this chapter will demonstrate, they are compromised by severe problems of governance, such as high degrees of corruption and systemic neopatrimonialism, and endorsed by highly conservative concepts and patriarchal attitudes that are still prevalent in wider Albanian society. They are also international donor-dependent and donordriven. This chapter aims to describe the ways in which specific neopatrimonial forms of governance, corruption and sociocultural factors in Albania, such as prevailing familism and severe stigma for women outside male protection (or control), have on the one hand empowered the criminal traffickers and, on the other hand, restricted choices and options of protection and alternative life paths for their (former) victims. The focus of this chapter is on the character and effects of the situation that Albanian women face on returning home from trafficking and sexual exploitation abroad, and the retrafficking risks this situation incurs. However, this country focus should not distract us from the wider geopolitical context and its effects. Albanian migration to other European countries is, for many Albanians, still only possible by illegal means. As John Davies has explained in detail, such a structural context has exposed Albanian women – particularly
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those without family support (whom he classifies in terms of their ‘weak social networks’) – to exploitation by informal cross-border entrepreneurs. Davies has further argued that countries deporting asylum-seeking women who were trafficked and sexually exploited are complicit with the traffickers and engaged in ‘reverse trafficking’ (Davies and Davies 2008; J. Davies 2009). Equally, the geopolitical context – beyond culturalist explanations of shame – must be considered when discussing heightened national image anxieties in Albania that have led to the downplaying of the problem. The country has for many years been exposed to regular EU assessments, such as the annual EU ‘progress reports’ regarding its human rights and democratisation development, which have determined the chances for and speed of the EU accession process. The present chapter relies on predominantly qualitative analysis based on open sources, plus research interviews conducted in autumn 2008 with stakeholders of Albania’s pronounced anti-trafficking fight.8 These interviews were conducted in preparation for a cross-examination by the UK immigration tribunal, and for an expert witness report in a ‘country-guidance case’9 on the return situation of adult female Albanian victims of trafficking. My research was guided by and sought to address three contested observations among national and international stakeholders (Lesko and Puka 2008: 6–8; Republic of Albania 2008a; US Department of State 2008a). The first was that failed and returned Albanian asylum seekers who have been trafficked are highly likely to follow repeat trafficking patterns. Second, internal trafficking has been increasing significantly in recent years and thus poses an additional risk to this category of returnees. And finally, many of them would re-engage in prostitution ‘both willingly and voluntarily’, particularly if they are beyond the traffickers’ priority target groups of very young women and children.10 Given these observations, the question of free choice of Albanian sex workers versus the nature of socioculturally restrictive circumstances in Albania, which would frame such ‘choice’, has become paramount in the ongoing country guidance case (in early 2009). Aware of wider policy and scholarly debates that suggest a risk of discursive reproduction of victimisation and the implicit denial of agency for sex workers through the categorical use of the term ‘victim’ for trafficked persons in general (Doezema 2002; Ditmore and Wijers 2003; Surtees 2008b: 41), the term ‘victim’ is used in this chapter only when explicitly intending to imply the objectification of specific sex workers, either by their traffickers (not smugglers) or pimps. In short, the term is used only when processes of commodification, deceit and abuse are claimed or documented, or as a result of decision-making processes within the wider structures of policy and power. The latter might include the asylum process itself, or formal and informal (including corrupt) domestic governmental practices that categorise and assign
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statuses such as ‘victim’ or ‘criminal’ to the women concerned (see Shore and Wright 1997: 4). Increasingly in recent years, many Albanian women have consciously chosen migration for sex work as a route to aspired life improvement. But such a strategy does not always work out, and many ‘end up deceived or coerced and exploited, rendering their situation one of trafficking’ (Surtees 2008b: 43; see also J. Davies 2009). It is also understood that Albanian traffickers have increasingly resorted to less violence-dependent strategies of recruitment and ensuring compliance (CARPO 2007; Leman and Janssens 2008: 444; Surtees 2008b: 55). The variety of possible experiences among Albanian women transnationally involved in sex work has been well documented (J. Davies 2009), and there exists an undisputed ‘continuum from lesser to greater use of deception, coercion and force … in a range of different contexts’ (Surtees 2008b: 43). The UN’s so-called Palermo Protocol of 2000 has been seen as pivotal in (implicitly) recognising ‘the existence of both coerced and non-coerced participation in sex work’ (Ditmore and Wijers 2003: 87). The present study is particularly concerned with a specific group of women (child trafficking is excluded for the purposes of this chapter) situated at the most disadvantaged end of such a continuum. Its aim is to explore Albanian women’s security, protection and exit options, as well as the retrafficking risks they face within Albania. It is based largely on the reports by women who have testified in UK asylum procedures, recounting stories of sometimes extreme violence, deceit and coercion. Some of these women have been diagnosed by clinical psychologists with ‘complex post-traumatic stress disorder’ (Herman 2001). All have requested protection through the UK asylum process, and this is where I encountered their stories, through both detailed interviews and their so-called case ‘bundle’ (approximately 20 cases in all). In the ongoing country guidance case, two such women face the imminent possibility of being deported to Albania, based on Home Office suggestions that there is a general sufficiency of protection in Albania for those women who base their asylum or human rights claims ‘on the fear of being trafficked or their fear of those who trafficked them if they return to Albania’ (OGN 2008: para. 3.9.16). This chapter illustrates that Albanian women deported to Albania after being trafficked to the UK face social opprobrium that exposes them to a high chance of retrafficking. Clear-cut categorical distinctions between ‘coercive’ and ‘voluntary’ engagement in sex work appear not to match ambiguous realities, in which circumstantial coercion, resulting from societal stigma, widespread familism and entrenched corruption leave many women little choice other than, at best, aiming to assert agency within the retrafficking process.11 For women who have already chosen a foreign asylum system as an exit strategy from prostitution, ‘the return to their places of origin, facing the impossibility to adapt and reintegrate, forces them to exploit themselves in daily
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prostitution until they find a way in which to leave Albania again’ (Lesko and Puka 2008: 9–10). Applying rigid categories to the situation after deportation – such as coercive versus voluntary, or victim versus criminal – only further objectifies and victimises these women and disenfranchises them from making free choices, possibly in contradiction with EU human rights legislation.12 And yet these simple binary categories inform the wider debate, Albanian governmental strategies and perceptions, and even UK asylum procedures.
IMAGE POLITICS, FIGURES AND TRANSFORMATIONS In its Evaluation Report (Republic of Albania 2008b: 4, 12) on the implementation of the first National Anti-Trafficking Strategy (2005–07), the Albanian government claimed that ‘the number of trafficked persons in Albania has decreased considerably’ in Albania, and that there had been ‘a continual reduction. This is a fact shown also by national and regional statistical data … Albania is no longer considered as a transit or destination country, but only as an origin country for the trafficking of human beings’. The same report suggested that local non-governmental organisations (NGOs) may inflate figures because victims of trafficking (VoTs) ‘are transferred from one centre to another, thus artificially increasing the real number of victims of trafficking’ (Republic of Albania 2008b: 43). At first sight, such an argument seems to correlate with those international commentators who have pointed to a widespread ‘moral panic’ regarding the trafficking phenomenon in general, with sensationalising and inflating effects regarding the problem of Albanian sex work in Europe (J. Davies 2009: 38–42). Yet the true numbers of women and men involved or at risk are not known to anyone, neither the Albanian government nor local or international NGOs, nor other observers, not least because returned sex workers might try their utmost to avoid identification by any means so as not to fall prey to corrupt police officers and/or NGO policies of family reunion and security detention, and thus to further impositions on their free will (J. Davies 2009; the reasons for this are considered below). The 2008 US Trafficking in Persons (TiP) Report found that, for Albania, ‘the overall decline in victims identified [was] due to inappropriate application of the national referral mechanism for several months [in 2007] by anti-trafficking police’ (US Department of State 2008a: 54). This suggests a quite different reason for the lower figures than a real reduction of numbers in trafficked persons. This interpretation is corroborated by Amnesty International’s 2008 Annual Report, which states that: ‘According to police sources, the trafficking of women and children decreased sharply in 2007, with 13 reported cases in which the victims were women and seven cases involving children.
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However, NGOs apparently suspected that considerably more cases went unreported’ (Amnesty International 2008). USAID suggests in its 2008 report that proper recording, based on the numbers of referrals by border police, has taken place in Albania only at moments of immediate international oversight (USAID 2008: 16). Jennifer Hollinger, who in her capacity as fellow of Churches Alert to Sex Trafficking Across Europe (CHASTE) conducted four months of research into Albania’s anti-trafficking situation in late 2007, observed: This obsession with comparison and surface appearances has dire consequences in the case of trafficking. For example, the police in Albania have cut down on their referrals of trafficked women through the proper channels because they want to keep the number of victims, particularly those returned from abroad, low. In their aspirations of entering the European Union, it is in their interests that the phenomenon appears to be decreasing. In a recent visit to the United Kingdom, some officials from the Albanian government declared that trafficking abroad was no longer a problem for Albania. Not only is this untrue, it is dangerous. When donors hear this news, they shift their funds elsewhere and efforts to prosecute the traffickers, as well as others responsible, are hampered. This preoccupation with outward appearance, with reputation and the view of one’s family in the eyes of others, also contributes to shame and stigma against the girls who do return home from trafficking for sex work. (Hollinger 2007)
Internationally influential sources such as the 2008 TiP Report (US Department of State 2008a: 53–4) severely challenged the Albanian government assessment. Not only did it criticise the Albanian government for its failure to identify, refer and protect VoTs effectively and consistently – because it relied on proactive self-identification only – but it also pointed to a significant rise in internal trafficking in Albania. In early 2008, Albania was demoted in the TiP Report from a Tier 2 (out of three possible tiers) to a Tier 2WL country (placed on the ‘watch list’).13 A recent EU progress report (November 2008) similarly states in regard to Albania’s pronounced anti-trafficking fight that ‘the lack of reliable statistics and of a proper capacity for identifying victims is hampering progress’; it also pointed out that ‘the national referral mechanisms are not yet operational’ and that there is a ‘rise in internal sex trafficking of women and children’ in Albania (CEC 2008: 49). Meanwhile, Albanian women in the UK are among the majority national groups14 of women assisted by the Poppy Project; this is the major UK government shelter offering support to trafficked women forced into prostitution, subject to certain conditions, including the willingness to cooperate with the police and being above 18 years of age (US Department of State 2008a: 255). These women are mostly referred to Poppy after police raids on saunas and massage parlours, but also by customers identifying a coercive background, as well as through self-referral (Hibbert 2007).15
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Albanian NGOs and shelters, such as the International Organization for Migration (IOM)-sponsored Different & Equal in the capital city of Tirana, or the internationally best-known shelter Vatra in the southern Albanian port city of Vlora, provide statistics based on their support work that further contradict the government assessments cited above. According to its annual assessment for 2007 (Different & Equal 2008), this NGO assisted 77 trafficking victims as well as their 24 children. Of these, the assessment states, 52 per cent of beneficiaries had been externally and 48 per cent internally (domestically) trafficked (Different & Equal 2008: 17). The latter represents an increase from 2006, when it reported supporting 42.2 per cent victims of internal trafficking, 8.9 per cent of both external and internal, and 48.9 per cent of external trafficking (Different & Equal 2006: 25). In 2006, ‘79.5% of the beneficiaries had been trafficked only one time before coming to the shelter, while 11.4% of them have been trafficked two times … and 9.1% have been trafficked three times before participating in the shelter programme’ (Different and Equal 2006: 25). Vatra reports for 2007 that it assisted 126 women and children. Of these, 45 were first-time VoTs and eight had been accommodated more than once in the shelter, 23 were regarded as ‘at risk’, 29 as ‘clandestine’, eleven as ‘abused’, nine were children, and there was ‘one male child regarded at risk of being trafficked’ (Lesko and Puka 2008: 13–14). Vatra further highlights that ‘neither the NGOs nor the state have come up with a study on the number of women and girls included in this phenomenon [of increased internal trafficking]’ (Lesko and Puka 2008: 6). The report identifies as categories at highest risk: ‘1) Women and girls, married and divorced, with many children and extremely poor, who come from rural areas; 2) Minor girls between the ages of 14 and 18 years old; 3) Students, living on campus, descending [sic] from other cities or rural areas; 4) Trafficked women and girls repatriated by EC countries’ (Lesko and Puka 2008: 8; emphasis added). Even the ‘students’, Vatra suggests, who aspire to work independently and for their own profit, are at risk of ‘traffickers or agents monitoring their daily activity and making threats and use blackmail to oblige the victim to “work” for them’ (Lesko and Puka 2008: 9). Different & Equal also highlights the risks of internal trafficking when stating that ‘Tirana – the capital of Albania – continues to flourish as a centre of internal trafficking of Albanian girls and women. They are attracted towards Tirana by different means of recruitment, and are later exploited in selected settings such as hotels, motels, street corners, etc.’ (Different & Equal 2008: 13). According to my interviews, whether returned formerly trafficked Albanian women will end up being retrafficked abroad or internally may simply depend on the connections of their new traffickers and their ‘business’ strategies.16 The boundaries between one and the other are fluid: internal exploitation can serve as preparation for external trafficking and vice versa.
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In reaction to these strong, contradicting international and local voices, the new Albanian National Strategy On Combating Trafficking in Persons 2008–2010 acknowledges a ‘disconcerting increase in internal trafficking of women and children … mainly for prostitution or labour exploitation, and especially in the new informal areas of the urban centres’ (Republic of Albania 2008a: 4). The new Strategy provides self-critique, identifies challenges, and offers visions and target priorities, such as the improvement of the national referral and identification mechanisms, and of prevention, protection and statistical mapping programmes. It also promises to secure sustainable funding, aware of the phasing-out of funds from external donors. Visions, however, are not yet results, and the implementation of what are on paper often impressive reforms, including one of the best legal frameworks in Europe, has been widely regarded as a major problem in Albania. Part of the problem is that Albania has one of the highest corruption rates in the world. This not only directly affects the ways in which trafficked persons experience support and the chances of protection from the government, whatever the formal laws proclaim, but also exposes them to the risk of double, if not triple victimisation (see below). In general, a corrupt system advantages traffickers because their purchasing power is normally much higher than that of their victims. Corruption, in general, ‘erodes victims’ confidence in law enforcement’ (Surtees 2008b: 49) and forfeits fair access to justice and protection by the authorities.
THE EFFECTS OF CORRUPTION AND NEO-PATRIMONIALISM According to Holmes (2009b: 85), trafficked persons, ‘[a]ll too often … are victims not only of criminal gangs, but also of officials who cannot be trusted to help them counter the first form of victimization. And if states turn a blind eye to their own officers’ corrupt involvement in trafficking and/or treat trafficked persons as criminals rather than victims, there is a third form of victimisation’.17 Trafficking-related phenomena of corruption in South-Eastern Europe have been summarised to include: ‘document falsification, illegal border crossings, overlooking prostitution venues in identifying victims, compromising criminal investigations, lack of investigation and judges dismissing cases or imposing minimal sanctions’ (Surtees 2008b: 49). In general, positions of authority and insider knowledge and experience are abused to support criminal ventures with impunity (Surtees 2008b; see also Holmes 2009b). According to the 2007 Global Corruption Barometer (Transparency International 2007: 21, Appendix 4, Table 4.1), Albania was topped only by
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Cameroon (79 per cent) and Cambodia (72 per cent) as the most corrupt country assessed in 2007, with 71 per cent of respondents having paid bribes during the previous year in order to obtain public services. Even though overtaken in the 2007 world ranking – Albania held first place in 2006, with 66 per cent of respondents stating that they had to pay bribes during that year – the Albanian figure represents an increase in incidents of bribery since the previous assessment. Typical of many international sources, the Wall Street Journal’s ‘Index of Economic Freedom’ (2008) suggests that: Albania’s judicial system enforces the law weakly and is one of the country’s most tainted institutions. Judges are often appointed strictly for political reasons and are sometimes corrupt. Organized crime is a significant obstacle to effective administration of justice. Judges are subject to intimidation, pressure, and bribery, and the pace of judicial reform remains very slow.
Local expert respondents interviewed during the fact-finding mission in autumn 2008 reported that corrupt practices had become more sophisticated and less visible in the judiciary since Albania began systematically combating trafficking and organised crime following the last change of government in 2005 and under the scrutiny of the EU. According to some of my local interlocutors, bribery in Albanian courts dealing with trafficking cases includes – as with other cases – situations in which a prosecutor may accept a bribe in order not to advance a case to court at all. Theoretically, bribes can also be offered to reduce the charges, for example for illegal border crossing. By the same token, anti-trafficking NGOs offering legal assistance to victims found that the evidence for their beneficiaries, even though compelling, was frequently rejected as insufficient. If a case advances to court, local respondents suspected that bribes may be paid to judges either to include or to ignore certain evidence, or to identify procedural mistakes to invalidate evidence – whichever is in the interest of the person seeking to buy justice. According to the staff of the Centre for Legal and Civic Initiatives,18 a local NGO offering legal advice to trafficked women, in 2008 judges usually separated the criminal from the civil procedure in trafficking-related trials, which – although such separation is allowed according to Article 62(3) of the Albanian Criminal Code – was interpreted as another strategy aimed at disadvantaging formerly trafficked women seeking justice. This separation was originally intended to speed up criminal proceedings if the civil aspects of a case are complicated and would cause a delay in the criminal proceedings. But other NGO respondents also suggested that this has led to the civil procedures becoming such long and risky processes that the supported women typically withdrew their charges against their former traffickers, for fear of exposure to harm. Even though recent legal reforms support victims’ claims to compensation from monies confiscated from their former traffickers’ assets, such rights have yet
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to be granted in practice. According to the Albanian solicitor working as the legal advisor for the Vatra shelter, speaking of its formerly trafficked beneficiaries who had denounced their traffickers: their life is extremely in danger because they are witnesses against their traffickers. Their risk is related to purposefully prolonged trials (so the judges have a chance to better fill their pockets). This is because of the corruption in the judiciary. Hearings last two, three, four years and then to infinity … the VoTs have to apply to the Prosecutor’s Office for witness protection. In order to do so, they have to prove that they are in danger. The prosecutors simply refuse to accept the evidence.19
Low procedural standards and the frequent, unacceptable prolongation of criminal trials have long been noted as a persistent and typical problem with the Albanian judiciary (for example OSCE 2006). An analysis of Albanian newspaper and web reporting over more than two years on just one, albeit high-profile and prominent trial against an infamous, previously internationally operating Albanian traffickers’ gang – the so-called Durrës Gang20 – suggests that prolongation may even be used as a systematic strategy. The weekly scheduled hearings in this trial, which started in summer 2007 and was ongoing at the time of writing in early 2009, involved 19 defendants, and for months on end has been adjourned from one week to the next for reasons such as the repeated absence of defendants’ counsels and overfilled court rooms. Regardless of the ongoing trial, killings associated with the gang’s internal rivalries and revenge interests occurred outside the courtroom, with the most recent being in September 2008. The evidence of the prosecution’s key witness, a repentant former gang leader whose family has been granted witness protection, has yet to be heard in full. Moreover, none of the many other witnesses lined up by the prosecution had been heard at the time of writing, while the available number of these witnesses appeared to be dwindling. Often, the impressively high number of anti-trafficking trials in Albania is noted as an indication of success in the anti-trafficking fight. For example, in ‘Albania in 2004 there were 257 trafficking-related criminal proceedings against 262 defendants, with 121 traffickers convicted’ (Surtees 2008b: 41). In 2005, Albanian police referred 362 cases related in one way or another to the trafficking problem to the Prosecution; the numbers in 2006 and 2007 were, respectively, 356 and 398 cases (Republic of Albania 2008b: 91–3). However, ‘concluded cases’ (sometimes incurring severe sentences of up to 25 years’ imprisonment) for ‘trafficking in women for prostitution’ amounted to only 23 in 2005, 17 in 2006 and a mere six in the first nine months of 2007 (Republic of Albania 2008b: 97–102). By way of contrast, verdicts for ‘illicit border crossing’ were much more frequent: 130 in 2005, 149 in 2006 and 65 during the first nine months of 2007 (Republic of Albania 2008b; for the ways in which such sentencing patterns reflect the criminalisation of the trafficking
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victims, see the next section). Here the successful prosecution figures are of interest, not least because the Albanian government prides itself on having ‘referred to the prosecutor’s office 175 criminal complaints against 244 police officers of relatively high rank in 2007 for trafficking-related offences, and 71 of them were arrested’ (Republic of Albania 2008b: 29). Arguably, such figures are themselves indicative of the deep entrenchment of crime and corruption within the Albanian authorities. However, in October 2008, the representative of the Organised Crime Directorate of the Albanian State Police – perhaps guided by national image anxieties (see above) – refuted the possibility that any Albanian police officer would ever have been involved in the crime of trafficking.21 Indeed, in Albania as in many other weak, often post-socialist states, there exists an apparent parallelism of both formal and informal structures, that is, both ‘rational bureaucratic’ and ‘patrimonial’ (that is, personalistic, clientelist and patronage-based) forms of governance coexist, with the latter penetrating the former (Erdmann and Engel 2006). Such neopatrimonial systems of governance result in a political and judicial culture characterised by unreliability, uncertainty and unpredictability. They also result in competing systems of moral reference and legitimacy that are called upon, respectively, according to both political actors’ particularistic interests and their respective purchasing power at a given time. Stephan Hensell, who conducted research into the Albanian state police administration and the Ministry of Public Order/Interior between 1997 and 2005, found this logic applying in politically motivated rotations in the state administration and police. During this period, the office of the Minister of the Interior was changed eight times, each time prompting the change of the Chief of State Police (or General Director of Police) and all the District Police Directors. The changes even trickled down to lower levels, resulting in transfers and sackings among junior officers according to party affiliations (there are two major opposing parties in Albania, the Democratic Party or DP, and the Socialist Party or SP). He concluded that ‘the fact that [soon after the elections in December 2005] the ruling DP [was] recruiting police officers again, who had last served eight years previously, precisely when this DP was last in government, indicates above all a continuation of clientelism’ (Hensell 2005: 42–3; transl. from German). Such neopatrimonial logic underpins the direction of police investigations and prosecutions, both of themselves and others, to the present day. Without having space here to explore current allegations of entrenched corruption in the DP government (for examples, see Likmeta 2008), the previously introduced example of the Durrës Gang trial illustrates systemically politicised prosecutions. According to the above-mentioned Albanian news reports,22 the Durrës Gang’s main leaders were connected by both kinship and friendship to high government leaders of the SP. Indrit Dokle, leader of one of two rival
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factions within the Durrës Gang, is known to be the nephew (or grandson – both nipi in Albanian) of Namik Dokle, Socialist Party MP for Durrës, a highranking SP party leader, and Deputy Prime Minister 2004–05. Namik Dokle also attended the funeral of the previous gang leader, who had been executed by rival factions within the same gang in 2005. In Albania, such participation is a strong symbolic message of friendship and support, and indicates a relationship of patronage. One of DP leader Sali Berisha’s first actions on assuming power on an anticorruption and anti-organised crime platform following his election victory in July 2005 was to order Operation ‘Top Secret’, which led to the first arrests of gang members in October 2005, and further arrests in March and April 2006. Formal criminal investigations were declared completed in early summer 2007, when the above-mentioned trial at the Serious Crimes Court began. The trial has since been cited in political pronouncements of success in the fight against Albanian organised crime, regardless of the successful obstructions in the interests of the SP-related defendants noted above. Observers suggested that there was a political interest in this prosecution that helped if not to eradicate, then to weaken the SP rivalry over assets and influence in the criminal economy of Albania. Where justice must be purchased and the authorities’ support requires personal connections (even if only in the opposition now), criminal entrepreneurs or gangs such as the Durrës Gang are strongly advantaged, while their formerly commodified victims are at a severe disadvantage. However, the problem goes beyond restricted chances of obtaining protection through the authorities. Neopatrimonialism compromises professionalism within the state support structures, including that offered in the name of the national anti-trafficking effort. As one expert interviewee stated in regard to the existing antitrafficking shelters and NGOs: The non-governmental centres employ better qualified staff than the state centre. For example, a psychologist there would have graduated as a psychologist, but in the state centre he could be anything – a teacher, technical engineer … this is because in the state institutions they are employed for political reasons. It is always like this. For example, in order to be employed by the Ministry of Labour, you have to be a member of the same party as the minister.23
The above-mentioned state centre, however, is the only centre that has benefited from financial support from the government (Republic of Albania 2008b: 52). Privileged employment, micro-credit and vocational training programmes, part of the national anti-trafficking strategy (Republic of Albania 2008a, 2008b: 53), are similarly compromised. As Vullnetari (2007: 42) affirms, in Albania political changes at either the local or parliamentary level result not just in rotations of staff – based on party loyalty – in high adminis-
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trative and bureaucratic positions, such as in the police and customs, but they also affect medical and educational positions from the highest to the lowest specialisation, right down ‘to the school cleaner in a village’. This informs migration patterns, in that those who are sacked or politically harassed migrate, while those previously disadvantaged might return from abroad (Vullnetari 2007). Anti-trafficking NGOs such as Vatra found that their regional employment office, entrusted by the government to support disadvantaged groups – including previously trafficked women – in finding jobs, ‘would rather employ a cousin or sister [of staff] than a victim of trafficking. Reality is contrary to the programmes on paper. The beneficiaries of these programs are the local government employees who employ their own relatives.’24 Despite this tendency to employ relatives, a total of 20 beneficiaries of Vatra assistance were employed in 2007 (Lesko and Puka 2008: 19). Yet these employees still faced stigmatization, discrimination, social isolation and ostracism at their working place. The anti-trafficking NGO Different & Equal found that even ‘the staff employed in governmental structures [of anti-trafficking support] … is biased towards the victims of trafficking’ (Different & Equal 2008: 41). This NGO also battled with high turnover rates after successful job placements (Different & Equal 2006: 28), presumably due to similar problems of prejudice. Both NGOs resorted to finding jobs for their beneficiaries amongst their own personal acquaintances and, for a limited number, in their own facilities (Different and Equal 2006: 27; Lesko and Puka 2008: 20). However, by resorting to familism as a strategy of inclusion, they inadvertently reproduce a cultural norm that explains exclusion and stigma for women placed outside of traditional means of family support in Albania to the present day. This culture informs attitudes towards women as either ‘wives’ or ‘whores’ that still underpin values and practices within both wider society and its state institutions.
VICTIMS OR CRIMINALS, ‘WIVES’ OR ‘WHORES’ Albanian law considers prostitution a ‘criminal act against morality and dignity’ and it is punishable by a fine or up to three years’ imprisonment, according to the country’s Criminal Code (Republic of Albania 2001: section VIII, Article 113). Illegal border crossing is similarly punishable by a fine or up to two years’ imprisonment (Article 297). Exploitation of prostitution and related violence, coercion into sex work, or trafficking for such purposes (Articles 114 and 114/a, 114/b) incur much higher sentences of up to 7, 10, 15 or even more years, as does assistance in illegal border crossing (Article 298).25 Transnational Albanian sex workers who cannot prove that they were coerced into prostitution (for example by denouncing their traffickers) are thus
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at risk of criminal prosecution. According to a juridical expert respondent in Tirana, there is still a widespread lack of familiarity with the relatively new trafficking article,26 as well as a prevalence of more conservative attitudes among members of the judiciary. This is particularly so at District Court level, where most such cases are tried, so that large numbers of cases are treated as ‘illegal border crossing’ and the involved women thus criminalised. In order to qualify as ‘victims of trafficking’, who are formally eligible to protection as well as privileged reintegration and employment programmes, trafficked women must therefore self-identify in interviews at the border crossing points. All deported asylum seekers from EU member states are interviewed by specially trained border police and must explain themselves, particularly if they are not in possession of regular Albanian identity documents.27 They are fingerprinted (except for minors) and there are checks with local police from the returnee’s home region regarding possible criminal records; the home address and family background are also verified. As we learnt from border police, ‘the Albanian identity system is thorough and cannot be faulted’; there is ‘no way that they can lie to us’, because they would otherwise be taken to the wrong home location – which, the respondent indicated, would be both impossible and an unsustainable situation in Albania. Often the family is informed and arrives to pick up the deportee. However, if the deportee identifies herself as a victim of trafficking, she will be transferred to special units of the anti-trafficking police (presumably for questioning) and can then request shelter protection. Perhaps not surprisingly, Albanian women involved in sex work abroad were found to fear exposure upon identification to corrupt or abusive border police upon deportation, and violent revenge on the part of their former traffickers. But they also feared community stigma and the wrath of a family concerned about social ‘shame’, even though the family is precisely the support mechanism that should be helping them in Albania (all from J. Davies 2009: 53, 100, 120–23, 146–7). The shelters indeed aim to ‘sensitise’ the women to ‘voluntarily cooperate with the police and punish [that is, denounce] their traffickers’ (Lesko 2005). Among Davies’s respondents – 58 Albanian sex workers in Lyon, France, interviewed between 1999 and 2001 – only those considered ‘socially inept’ were regarded as ‘unable to avoid detection’ upon deportation to Albania. Such avoidance was seen as imperative, because they regarded remigration as the only promising long-term strategy and best exit option to escape their predicament. Through remigration, they hoped eventually to acquire a foreign husband. Such remarriage would allow them to recuperate lost social status and thus, one day, an honorable reapproach to their parental families. Without exception, the anti-trafficking agents interviewed in Albania, including those from the government, NGOs, associations and shelters, advo-
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cated family mediation and reunion. They engaged in family reintegration programmes, as this was regarded as the only chance for trafficked women of acquiring long-term security and protection within Albania, even though ‘conflict based relationships within the family account for double the risk of individuals being trafficked in the first place’ (Different & Equal 2006: 36). According to Different & Equal, ‘in more than half of the cases, the families of the beneficiaries don’t accept them back home’ (Different & Equal 2006: 35). Previously, shamed women returned to their families via NGO initiatives or police action were found to be ‘locked away by their families because of shame’, or else the families contacted the shelter to take the victim back. Others (40 per cent) simply disappeared, presumably having been retrafficked (since their reputation and their value as a ‘marriageable’ woman had been lost) after such a family reunion (Surtees 2005: 106). One of Vatra’s beneficiaries was successfully reunited with her family, soon married and had a child; but when her husband discovered that she had lived in the shelter – that is, once worked as a prostitute – he divorced her for the unbearable shame involved.28 An ex-trafficked Albanian asylum seeker testified in a UK court that she feared being married off by her father to someone against her will upon return. She suggested with a shudder that this could be a man of bad repute in the village (involving an immediate retrafficking risk), or an aged widower or a disabled or disfigured man – someone who would otherwise not easily acquire a wife in Albania. Yet regardless of such risks, 80 per cent of anti-trafficking NGO beneficiaries were reintegrated into their families between 2007 and 2008 (USAID 2008: 21). Local and international respondents often refer to historical Albanian customary law, usually subsumed under the term kanun, when explaining the Albanian cultural concept of shame. The historical kanun concept of kurvnija (from kurva, Albanian for ‘the whore’) is similarly enlightening. The English translations of this concept encapsulate three differentiated concepts: ‘adultery’, ‘rape’ and ‘prostitution’.29 In the historical cultural context in the northern Albanian mountain villages, just one term might have sufficed because it was not the notion of female consent that mattered culturally. Rather, significance was given to the fact that sexual intercourse occurs outside the protection or control of the family men: their father and brother(s) before marriage, and their husband after marriage. In other words, culturally, a ‘whore’ was a woman categorically falling outside the Albanian norms of the family and the gendered social roles assigned to its members. According to the historical source, kurvnija requires either the killing of both partners involved in the act outside of marriage, or else the expulsion of the woman, since only death or exile can avert ‘her’ shame from the family in most traditional conceptions. Although sociocultural changes and modernisation processes do not permit the generalised use of kanun as an explanation for Albanian culture today, Amnesty
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International published a survey in 2006 that suggested that the same cultural concept of shame still prevails in large parts of Albanian society. Accordingly, the concept still informs notions such as that violence against women is entirely an internal family affair and that ‘disobedient’ or ‘unfaithful’ women can legitimately be beaten or expelled (Amnesty International 2006b). Among all my research respondents, cultural attitudes of shame, ‘mentality’ or ‘fanaticism’, were held responsible for the severe problems of family reintegration and the typical family rejection faced by NGOs seeking to reintegrate their beneficiaries with their families. Yet it was also because of the culturally rooted social stigma and resulting harassment faced by women who fend for themselves without visible male family protection in contemporary Albanian society – and who are thus, by cultural definition, regarded as (potential) ‘whores’ – that family was seen as the only viable option for the long-term security and sustenance of these women. Many scholars (for example Anthias 2000: 17–18) have argued that migration, in general, has offered women from a culturally patriarchal background an exit option to a life outside male domination and control. Yet part of Albanian women’s predicament is that if they do not command any family male support while making such a choice, they are particularly exposed to the likelihood of ending up in another coercive situation, that is, being sexually exploited after consenting to being smuggled. As John Davies (2009; see also Mai 2001) has argued, Albanian women thus remain controlled within transnationally extended gendered patterns of violent domination, because the Albanian traffickers and pimps export these across borders and simply adapt traditional means of controlling women to the trafficking situation. Davies has empirically demonstrated the ways in which contemporary Albanian women in search of a better life, and as a long-term strategy of family reintegration (particularly after previous trafficking episodes and if facing the social opprobrium of lacking male family support), feel induced consciously to enter ‘contracts’ with traffickers. He has also shown how the associated men enforce compliance – in ways other than violence – through culturally informed types of control, such as promoting co-dependency, self-surveillance and the use of threats (for example disclosing these women’s engagement in sex work to their families and communities at home). Davies’s study further reveals that, both consciously and involuntarily, (re)trafficked Albanian women themselves are not free from these cultural attitudes. This is evident in the ways in which they relate to the associated Albanian men who control their income, but also to each other. He identified an internal distinction among his female respondents between ‘wives’ of their traffickers or pimps, and ‘whores’. This difference was determined by whether the individual woman was aware of the exploitative character of her relationship to the associated man.
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‘Wives’ were not, or did not want to be, aware of their exploitation; this was because of psychological reasons of ‘co-dependency’,30 also known as a ‘relationship addiction’, comparable to the Stockholm Syndrome (that is, where victims of kidnapping become loyal and sympathetic towards their kidnappers). Through this phenomenon, the associated men can maintain control over the women through their ‘voluntary’ submission, regardless of normally severe initial incidents of violence related to coercing them into sex work. Many of these ‘wives’ had fallen prey to Albanian traffickers’ main form of recruitment, which to the present day continues to be ‘marriage under false pretenses or other false romantic relationships to lure victims abroad for sexual exploitation’ (US Department of State 2008b). In earlier years, numerous cases of criminal kidnapping were reported (Renton 2001). Yet Albania has also long been regarded as unusual in that: ‘a particularly high percentage of recruiters were men with whom the victim was in an intimate relationship – husbands, lovers, fiancés and boyfriends’ (Surtees 2008b: 52). Davies (J. Davies 2009: 139) found that the Albanian term for ‘kidnapping’, rrëmbej, has two meanings: it ‘can be used to describe the violent kidnapping of someone against their will … but its equally common usage is to describe the elopement of a daughter against the will of her father’. This practice is reminiscent of historical descriptions of consensual practices of ‘bride robbery’, which thus can equally qualify as recruitment through false relationship promises and abuse of trust. Although these women’s ‘husbands’ went to great lengths to uphold the illusion of an existing ‘marriage’31 and deliberately nurtured emotional dependency, Davies’s male interviewees clearly showed both cunning and conscious deceit. For example, he found that these pimps would consider only ‘untainted’ Albanian virgins, who they could introduce to their parental family as regular future wives and mothers for their children. In contrast, the ‘whores’ – this is the name they were given by the ‘wives’ among the Albanian prostitutes in France – had no illusions about the relationship with the involved Albanian men. They had in common that they had usually been induced by a situation of rejection and social exclusion at home, and thus sought out their traffickers on their own initiative. The ‘whores’ all considered themselves as either ‘divorced’ (if a previous relationship with a man – real husband or pimp, recognised as such in the social home environment – had fallen apart) or ‘abandoned’ by their family (J. Davies 2009: 171–8).32 As explained above, ‘divorce’ (that is, a woman without a husband) or ‘abandonment’ (that is, a woman without a father or brother to protect her), in any case amounts, in the traditional cultural context, to societal assumptions of being a whore (kurva). According to Davies’s sample, these ‘whores’ were women who deliberately approached traffickers in order to find avenues of eventually rehabilitating themselves socially by marrying a foreigner abroad (J. Davies 2009: 133,
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134, 148, 149, 165, 251). ‘Consenting’ to, and ‘voluntarily’ entering sex work was thus understood to be a necessary but only temporary means to an end. Such women normally entered 50–50 ‘contracts’ with their prospective pimps, involving agreements of time limits, smuggling (that is, consensual crossborder movements) and protection (J. Davies 2009: 135). However, Davies’s respondents usually found themselves eventually unable to control their own labour once abroad, ‘because of the abusive and arbitrary nature of the 50 per cent contract and the demands of the çuna’.33 Typically, the pimps/traffickers invented minimum standards of what the originally agreed 50 per cent should amount to and, in consequence, absorbed the entire income of these women. Alternatively, they invented various debt obligations resulting from their services or transport and protection (J. Davies 2009: 174, 187, 195). While the ‘whores’ thus had (re-)entered prostitution ‘willingly’, ‘voluntarily’, and consciously after being faced with the social opprobrium at home, they ended up in a coercive situation of trafficking regardless. They were retrafficked after all. In e-mail correspondence, Davies clarified: Knowing about trafficking does not reduce risk/migration motivation, it only allows more nuanced negotiation to access the trafficking network ... because the ‘risk’ is not trafficking, but the total social opprobrium of being ‘divorced’ or ‘abandoned’ in Albania ... using trafficking to escape such social oppression is often judged the price to be paid for a chance to rehabilitate through foreign marriage.34
EPILOGUE The findings presented in this chapter are but a few of the available indications of the effects of deeply culturally embedded familism and corresponding stigma for Albanian women outside family protection and control, which effectively trap them in a ‘social opprobrium’ that renders the question of ‘willing’ or ‘voluntary’ retrafficking redundant. The notion of victimhood in relation to trafficked women appears as the result of modernisation processes in Albania. Attitudes informed by cultural ‘shame’ that both criminalise and direct the blame onto the ‘whores’ themselves, regardless of a history of coercion or consensus, are still ubiquitous in wider social attitudes. Yet because of the prevalence of engrained corruption in conjunction with cultural familism there appear, so far, to be no alternative forms of societal or state protection and security options available to trafficked persons after their return to Albania – other than family reintegration. This is seen by all Albanian stakeholders in the anti-trafficking fight, as well as by the women themselves, as the only long-term option apart from remarriage or success in the asylum system. However, a (new) marriage relationship based on free choice and honesty appears impossible for most former sex workers in Albania. As
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Davies’s (J. Davies 2009) study suggests, the only effective means of achieving family reunion and taking control and agency over one’s fate are currently through the women’s own long-term strategies that involve a conscious choice of re-engaging in prostitution after previous trafficking experiences, in order to find either a foreign husband or asylum abroad. The categorical distinctions into either victims or criminals, voluntary or coerced forms of retrafficking, do not stand up to the ambiguities of circumstantial coercion in which trafficked Albanian women are most likely to find themselves after deportation, given that seeking asylum in that case emerges as a failed strategy of exiting the social opprobrium awaiting them at home.
NOTES 1.
I would like to thank John Davies, who came up with the poignant term of ‘social opprobrium’ in personal e-mail discussion, for inspiring the title of this chapter. I am also grateful for discussion, support and inspiration to Neritan and Egin Ceka, Frank Dalton, Rigels Halili, Jennifer Hollinger, Leslie Holmes, Fatos Lubonja, Garry Marvin, Nicola Mai, Artan Puto, Julie Vullnetari and the immigration and human rights lawyers associated with the UK’s Anti-trafficking Legal Project (ATLeP). Special thanks go to the Office for Democratic Institutions and Human Rights (ODIHR) and the Organization for Security and Co-operation in Europe (OSCE) for facilitating and hosting a fact-finding mission regarding the antitrafficking efforts in Albania in late September and early October 2008, in which ATLeP, a representative of the UK’s Poppy Project, and myself as an independent scholar, participated. The patience and cooperation of our local interlocutors has been invaluable and cannot be acknowledged sufficiently. These included the national anti-trafficking coordinator, Iva Zajmi, and the head of office of the government’s anti-trafficking unit, Irena Targa; Vera Lesko and her team of the Vatra shelter and NGO in Vlora; Aurela Anastasi and her team at the Centre for Legal and Civic Initiatives; Xheladin Qahi and his team at the National Reception Centre for the Victims of Trafficking; Bajana Ceveli of the Durrës Association for Women with Social Problems; Rezarta Abdiu of the Centre of Integrated Legal Service and Practices; Leonard Guni of Children of the World –Albania; representatives of the local NGOs and shelters Tjetër Vizion (‘Another Vision’), Elbasan; Different & Equal, Tirana; and Life & Hope, Gjirokastër; Anila Trimi of the Organised Crime Directorate of the Albanian State Police; and Mr Boshniaku, director of the readmission centre and border police at Rinas International Airport. Opinions expressed and possible errors of interpretation in this chapter are entirely my own. 2. Negotiations regarding the Stabilisation and Association Agreement between Albania and the EU, a precondition for initiating the longer-term accession process, were initiated in September 2003. This Agreement was ratified by the last remaining EU state, Greece, in January 2009. Full accession is not expected for several years. 3. Initially pushed by poverty, almost every Albanian family (a population of just above 3 million in 1992) sent at least one member into labour migration as an economic family survival strategy. By 2005 the estimated numbers of Albanian migrants amounted to 600 000 in adjacent Greece; 250 000 in Italy (easily in reach by speedboat across the narrow – only 70 miles wide – Strait of Otranto); 150 000 in the USA (from 12 000 in 1999); between 50 000 and 100 000 in the UK (from 5000 in 1999) and between 1000 (Netherlands) and 15 000 (Germany) in many other, mainly European, countries. Apart from predominantly economic motives (migrant remittances are regarded as the major pillar of the economy), push and pull factors have also included: political harassment and other forms of social and political exclusion; aspirations for personal liberation, self-expression and educational advancement; flight
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4. 5.
6. 7. 8. 9.
10.
11. 12. 13.
14. 15. 16. 17. 18. 19. 20.
Trafficking and human rights from blood feuds and other conflicts; and formal and informal trade, including the sexual exploitation of women (Vullnetari 2007: 36–43). There exists a considerable array of Albanian migration studies and host-country attitudes, many of which have been synthesised in Vullnetari (2007). Lubonja is the editor of Perpjekja (‘Endeavours’), Albania’s leading social and political journal, a writer and former political prisoner. Among other honours, he has been awarded the Herder prize for literature in Germany (2004) and the Alberto Moravia prize for international literature in Italy (2002). The Ottoman term for an historical Albanian customary term associated with classic codes of honour and shame; the concept is elaborated below. Interview with Fatos Lubonja, Tirana, 2 October 2008. For details see note 1. In a way similar in fact, but not identical to precedents in other areas of law, ‘country guidance’ decisions are supposed to provide authoritative guidance for UK immigration adjudication in respect to specific categories of asylum claims from selected countries. Country guidance decisions usually remain valid for several years, until the country situation is deemed to have changed. This particular case was still ongoing at the time of writing in early 2009; for an update on the outcome see Chapter 10, this volume. Interview with Vera Lesko, Vlora 30 September 2008; see also Lesko (2005) and Lesko and Puka (2008: 6–8). Vera Lesko was the winner of the prestigious Anti-Slavery International award in 2003. She is the director of the internationally most prominent Albanian anti-trafficking NGO and shelter, Vatra, in the southern Albanian port city of Vlora, and is known for her tireless lobbying of the government for improvements in its anti-trafficking efforts. These theoretical considerations do not fundamentally differ from Davies (J. Davies 2009), except that his research did not focus on the specificities of the situation in Albania upon return, but rather on Albanian sex workers during their trafficking episode abroad. The European Convention on Human Rights grants a person the right to liberty and security (Article 5), prohibition of discrimination (including on the basis of a person’s sex, Article 14), right to freedom of movement (Protocol 4), and so on. ‘Countries on [the Watch List of] Tier 2 require special scrutiny because of a high or significantly increasing number of victims; failure to provide evidence of increasing efforts to combat trafficking in persons’; a Tier 2 assignment is ‘based on commitments to take action over the next year’ (OMCTP 2005). Other source countries for trafficked persons in the UK include Lithuania, Russia, Ukraine, Malaysia, Thailand, the People’s Republic of China, Nigeria and Ghana (US Department of State 2008a: 255). Also information presented by Poppy’s representative during a fact-finding mission to Albania in 2008 (see note 1). For a variety of characteristics of Albanian traffickers, ranging from small-scale ‘private’ entrepreneurs to large transnational and, increasingly, interethnic organised criminal groups, see Leman and Janssens (2008) and Surtees (2008b). Holmes has now added a fourth type of victimisation to his taxonomy – see Chapter 10. Interview/meeting with the Centre for Legal and Civic Initiatives (CLCI), Tirana, 29 September 2008. Legal advisor of Vatra, present among staff at the interview/conversation with Vera Lesko in the Vatra drop-in centre, Vlora, 30 September 2008. Balkanblog 19 June 2007; Balkanweb of 17 August 2007, 17 December 2007, 24 January 2008, 31 January 2008, 2 May 2008, 25 May 2008, 30 May 2008, 12 June 2008, 26 June 2008, 4 September 2008, 24 September 2008, 2 October 2008, 30 October 2008, 20 November 2008, 27 November 2008, 4 December 2008, 11 December 2008, 18 December 2008, 29 December 2008; Forum Shqiptare between 22 March 2006 and 21 June 2006; Gazeta Metropol of 7 April 2006, 13 June 2008; Gazeta Shqip of 12 October 2007, 13 June 2008, 16 December 2008; Gazeta Shqiptare of 18 April 2008, 13 June 2008; Koha Jonë of 26 August 2008, 5 December 2008, 16 December 2008; Shekulli of 20 March 2006, 19 June 2007, 16 December 2007, 30 August 2008, 2 September 2008, 24 November 2008, 15 December 2008; Tirana Observer of 7 April 2006.
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21. Joint meeting, including Anila Trimi of the OC Directorate of the Albanian State Police, at the OSCE Tirana headquarters, 1 October 2008. 22. See note 20. 23. Anonymous, in interview, Tirana, 1 October 2008. 24. Interview/conversation with Vera Lesko in the Vatra drop-in centre, Vlora, 30 September 2008. 25. Despite certain changes made in 2004, the Albanian Code currently states that if, inter alia, the victim is abused, then 15 years is a minimum. There is also a provision that exploitation of a state function increases the penalty by 25 per cent. Seven years’ imprisonment is prescribed for assisting in illegal crossing of borders for the purpose of profiteering. If this involves collaboration with others, it could result in ten years’ imprisonment. If such activity results in death, it could even be punished by life imprisonment. I wish to thank Frank Dalton, head of the OSCE’s Rule of Law and Human Rights Department in Tirana, for pointing out these legal details to me. 26. The Albanian Criminal Code was first ratified in 1995. Article 114/b on ‘trafficking of women for prostitution’ was added by Law No. 8733, dated 24 January 2001, Article 30. 27. All deportees from the UK arrive at Albania’s only international airport, Rinas, in a charter flight every Thursday. 28. Interview with Vera Lesko and staff, Vlora, 30 September 2008. 29. This is a text-critical analysis of Gjeçov (1989 [1933]); see particularly pp. 39–40, 179. 30. For a summary of some of the available literature on this concept and application to the Albanian case, see J. Davies (2009): 174–8. 31. Culturally and socially, living with a man amounts to ‘marriage’, irrespective of existing civic registration. 32. The Albanian term for ‘orphan’, jetim, applies to persons whose parents abandoned them or are dead, as well as those, in particular, who lost their father, traditionally seen as the sole breadwinner of a family. On the trafficking risk disproportionally affecting female ‘adult orphans’, see Amnesty International (2007). 33. ‘Boys’, the term used by the female sex workers for the men ‘protecting’ and controlling them; more formally, the term tutor is used in Albanian for ‘pimp’. 34. Private e-mail correspondence of 30 November 2008.
7. Trafficking in human beings for sexual purposes: Sweden’s anti-trafficking regime and the lessons for Australia Kevin Leong1 INTRODUCTION Sweden has a pioneering approach to combating trafficking in women for sexual purposes. Since 1998, Sweden has criminalised the purchase, rather than the sale, of sexual services. This law shifted criminal liability away from prostitutes and trafficked victims used for sexual slavery to the purchasers of sex, in an attempt to address what Sweden claims is the root cause of trafficking for sexual purposes and prostitution – that is, the male demand for female sexual services. Anti-trafficking laws, introduced in 2002, initially focused on criminalising trafficking for sexual purposes, and were expanded in 2004 to cover trafficking for other forms of exploitation. Sweden claims much success in the operation of these laws to reduce trafficked persons entering their country, through the deterrence effect on the purchasers of sexual services. How persuasive are these claims? This chapter is an evaluative survey of available published and unpublished literature. It will outline the laws, explain the reasons given for their introduction, and evaluate them in respect of their impact on various stakeholders in the criminal justice process (law enforcement officers, Swedish sex workers, and trafficked persons). Finally, it will endorse the view that trafficking should be seen as a relationship of exploitation, rather than a transmigratory crime, and in that way emphasise trafficked persons as victims of crime rather than as illegal immigrants.
SWEDEN’S ANTI-TRAFFICKING REGIME In 1998, Sweden’s parliament passed the ‘Act Prohibiting the Purchase of Sexual Services 1998:408’ that criminalised prostitution through penalising the purchasers of sexual services, rather than the sellers, in an attempt to attack the demand for prostitutes (Ministry of Industry, Employment and Communications – MIEC – 2004: 2). This Act created the offence of ‘purchase 116
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of sexual services’, whereby a person who, for payment, has casual sex, even if the act is not a penal offence under Sweden’s Penal Code, can be fined or sentenced to a prison term of six months maximum.2 Attempts to purchase sexual services were also punishable under this Act (Görtzen 2002). On 1 April 2005, this offence was incorporated into the Swedish Penal Code (at Chapter 6, Section 11) and extended the purchaser penalty provisions to those who are provided sexual services through payments by other persons (see also Ministry of Justice 2005: 3). Evidently, much procurement was by proxy in situations involving the purchase of sexual services by businesspersons for their clients or for purchase of sex workers for stag parties (Ekberg 2004: 1203–4). Regarding children (persons under 18 years old), any inducement of a child to undertake or endure a sexual act in return for payment can result in a fine or imprisonment for at most two years, including payments promised or made on behalf of another person (Swedish Penal Code at Chapter 6, Section 9). These penalty provisions operated in tandem with the ‘trafficking for sexual purposes offence’ that was introduced into Sweden in 2002 (MIEC 2004: 3). On 1 July 2002, the ‘Prohibiting Trafficking in Human Beings for Sexual Purposes Act 2002:436’ came into effect, after a review by a Parliamentary Committee focusing on sexual offences legislation determined that more stringent measures were required (National Criminal Investigation Department – NCID – 2003: 11). Thus a new trafficking offence was established, whereby a person who uses unlawful coercion, deception or other improper means to induce a person to go or be transported abroad, for the purpose of sexual offences, prostitution or other forms of sexual exploitation, is breaking the law (MIEC 2004: 3). This includes persons who transport, harbour or receive persons who have arrived in a country in such conditions; and for victims aged under 18, improper means do not have to be proven for the offence to apply. Punishment for the new offence ranged from two to ten years’ imprisonment (MIEC 2004: 3). But this legislation proved to be inadequate, due to the requirement of cross-border transportation or harbouring of a trafficked person to constitute the offence. Therefore, on 1 July 2004, the legislation was amended to include intranational trafficking, while continuing to carry an imprisonment term of between two and ten years (MIEC 2005: 3; see also Ekberg 2004: 1213, note 18). The 2004 amendment also expanded the scope of trafficking to include other forms of exploitation, such as forced labour, organ removal or other distressing acts: punishment continues to range from two to ten years’ imprisonment (MIEC 2005: 3; see also Ekberg 2005: 22, note 28). For activity that does not satisfy the elements of the trafficking offence, Swedish law contains two alternative offences that can capture various other aspects of trafficking. Firstly, there is a gross procurement offence, which can be used as a subsidiary offence against traffickers where there has been a lack
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of ‘improper means’ in the trafficking process, or an inability to prove this element with evidence (Ministry of Justice 2005: 3). The gross procurement offence is an aggravated procurement offence, which criminalises persons who promote, or improperly financially exploit, a person’s engagement in casual sexual relations in return for payment, on a large scale, or for significant financial gain, or where ruthless exploitation of another person is involved (Swedish Penal Code, Chapter 6 Section 12). The gross procurement offence also criminalises persons who lease out their premises to persons who use them for casual sexual relations for payment on a large scale, for significant financial gain, or where ruthless exploitation occurs; the gross procurement offence carries the penalty of imprisonment of two to eight years (Swedish Penal Code, Chapter 6, Section 12). Secondly, there is an offence of unlawful coercion or deceit, which provides for imprisonment of between one and ten years. This applies where unlawful coercion or deceit by a person leads to another person entering into work, service or other similar condition of restraint, or induces a person to go or remain in a place abroad where they may be in danger of being exposed to persecution, or exploited for casual sexual relations, or otherwise of falling into distress (Swedish Penal Code, Chapter 4, Section 3).
WHY TARGET PROSTITUTION? Sweden maintains there is a strong link between trafficking in persons for sexual purposes and prostitution, based on the premise that only by eliminating the demand for prostitutes can trafficking for sexual purposes be eliminated (MIEC 2004: 3; 2005: 1–2). Prostitution itself is regarded as inherently harmful: Sweden’s Ministry of Industry, Employment and Communications fact sheets compare the trauma suffered by prostituted women as comparable to that suffered by war veterans and torture victims (MIEC 2004: 2; MIEC 2005: 2). These fact sheets also argue that prostitution is harmful through objectifying women and girls and ignoring the abusive circumstances in which prostitution occurs, the risk of sexually transmitted diseases, and the gross violations of integrity and dignity that prostitution involves (MIEC 2004: 2–3; MIEC 2005: 2). Thus the harms of prostitution become a gender-specific phenomenon that is a form of male violence against women, and is a manifestation of the power imbalance between men and women that is abhorrent to a country that prides itself on promoting equality between the sexes (MIEC 2004: 1; 2005: 1; Government Offices of Sweden 2007: 1). The gender aspect of prostitution derives from the view that the overwhelming majority of prostituted persons are women and girls, who are invariably purchased by men for sexual purposes, which in turn creates a culture where male purchasers regard
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the purchase of female sexual services as a self-evident right (MIEC 2004: 2; 2005: 1–2). Two masters students at the Department of Social Work at the University of Göteborg interviewed Göteborg city officials, police officers, prosecutors, social workers and prostitution groups involved in that city’s antitrafficking efforts, and found that most respondents perceived a clear connection between prostitution and sex trafficking (Guigou and Theocharidou 2006: 27, 30). In sum, trafficking offences were introduced into Swedish law in 2002, and new links were made between prostitution and sex trafficking. Sex trafficking and prostitution were linked on the premise that demand for sexual services encourages demand for trafficked persons, and only by eliminating the demand for prostitutes can trafficking for sexual purposes be eliminated (Ekberg 2004: 1189–90; 2005: 2–3; see also Iselin 2003: 7–8). As argued by Ekberg, in an overwhelming number of cases, the trafficking of women and girls by traffickers and organised crime syndicates is to sell these females into prostitution (Ekberg 2004: 1189; 2005: 3). A key argument made by Jeffreys (2002b: 7–8) is that the legitimisation of demand for sexual services, such as through the legalisation or decriminalisation of prostitution, does not distinguish between consenting sex workers and trafficked persons: The cause of the traffic in women into prostitution is the demand by the pimps and users for more, and particularly vulnerable women who do not speak the language, who will be prepared to allow penetration without condoms because they have no choice, who will not answer back and who will work, under debt bondage, for no reward … The development of the sex industry creates the demand for trafficking and it will grow commensurately.
Similarly, Munro (2006: 320) argues that the Swedish legislation against trafficking was driven by ‘a pragmatic conviction that quashing the demand for prostitution would provide the most effective means of dealing with the supply dynamics implicated in trafficking activity in this context’. It should be noted that combating prostitution appears to be the sole reason for the original 1998 anti-purchaser offence.3 A Norwegian government report that assessed the Swedish government’s prostitution laws indicates that, in 1998, human trafficking had not been postulated as a reason for criminalising the purchase of sexual services (Ministry of Justice and the Police 2004: 16). The link between prostitution and sex trafficking begins to appear with the trafficking provisions promulgated in 2002 and 2004, with a police respondent claiming in an interview that: ‘We didn’t have any knowledge about trafficking cases at that time (before 1999). Trafficking was not in the agenda like it is today’ (cited in Guigou and Theocharidou 2006: 30). The retrospective linkage of Sweden’s anti-purchaser laws with anti-trafficking measures provided the Swedish government with an additional basis upon which to justify its
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continued criminalisation of prostitution, by situating it within the context of a global anti-sex trafficking regime, as embodied in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (‘Trafficking Protocol’) that supplements the United Nations Convention Against Transnational Organised Crime. This Protocol was introduced in 2000, and created a modern definition of what constitutes trafficking in persons (Blackell 2002: 117; Munro 2006: 325). The definition – cited in other chapters of this volume, but worth repeating here – contained in the Trafficking Protocol Article 3(a) is as follows: The recruitment, transportation, transfer, harbouring 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 of 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. Consent is expressly irrelevant for adults who are trafficked where the means described above are used, and children (persons under 18 years of age) are considered trafficked where any recruitment, transportation, transfer, harbouring or receipt occurs, regardless of the methods used. (UN 2000a: Articles 3(b), 3(c), and 3(d))
This international definition emphasised that trafficked persons are victims who have rights to social support and assistance (Munro 2006: 325), though this assistance is not mandatory, states being ‘urged’ (rather than required) to consider implementing these social support services (Trafficking Protocol, Article 6(3)). The Protocol also makes special provision for trafficking of women and children, as in Articles 9(4) and 9(5), and according to Ekberg (2004: 1202; 2005: 13), is the first international instrument that requires states to discourage the demand that generates exploitation of human beings, especially women and children (Article 9(5)).
HOW SUCCESSFUL HAS SWEDEN’S MODEL BEEN? Sweden’s National Criminal Investigation Department maintains that the Penal Code amendments have deterred traffickers from operating in Sweden (NCID 2003: 34). The basis of this assertion lies in reports from Europol and other European police forces that indicate that Sweden is an unattractive market for traffickers because of the deterrent effect of the penalising purchaser provisions on potential customers (NCID 2003: 34). The deterrent effect is generated through the need for pimps and traffickers to escort women to purchasers, incurring a ‘time cost’ in comparison to brothel or street prosti-
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tution, which reduces the number of ‘clients’ that women can service, and thus reduces the amount of profit a trafficker can make on a trafficked person (NCID 2003: 34). Buyers have also become fearful of discovery by law enforcement officers, which has required traffickers and pimps to utilise multiple premises on a rotation basis to ensure discretion for their clients, thus raising the costs for these criminals (NCID 2003: 34). The United States’ Trafficking in Persons Report: June 2006 indicates that in Sweden, between 2005 and the early part of 2006, 15 persons were convicted of trafficking; and that ‘over the last year’ (the period being referred to in the report is unclear), 25 persons were convicted under ‘statutes related directly to trafficking’, with traffickers receiving sentences of between two and five years and procurers receiving sentences of between two and three years (US Department of State 2006: 235). The 2007 report indicates that for 2006, 21 traffickers were convicted under trafficking and procurement laws, which was an increase of 15 convictions over 2005 (US Department of State 2007: 191). Those convicted in 2006 were all sentenced to imprisonment without suspended sentences, ranging from ten months to five years (US Department of State 2007: 191). Table 7.1 provides a collation of investigation and conviction numbers drawn from various sources available on the Internet. These figures reveal two important facts. Firstly it is difficult to compile comprehensive numbers of trafficking convictions in Sweden, given different reported numbers in published sources. Secondly, if these numbers are to be believed, they reveal conviction rates that are extremely low in comparison to the government estimate of 400 to 600 trafficked persons into Sweden (MIEC 2005: 3).4 Why are conviction numbers so low? Ekberg (2004: 1209; 2005: 18) suggests that successful anti-trafficking legislation would reduce the number of trafficked persons, thus reducing the number of recorded trafficking convictions. She emphasises that the importance of the trafficking and penalising purchaser offences lies in their combined normative value in preventing trafficking, and that there is a danger in concentrating on conviction rates, since successful legal regimes prevent crimes from occurring rather than promote excessive convictions after criminal activity has taken place (Ekberg 2004: 1209; 2005: 18). She also contends that in comparison to its neighbour Denmark, Sweden’s penalising purchaser laws appears to work as an effective deterrent – she claims that Denmark has between 5500 and 7800 women prostituted annually, with 50 per cent or more of these women estimated to be victims of trafficking (Ekberg 2004: 1199; 2005: 9). These numbers have been challenged by Vincent Clausen. In an unpublished online article, Clausen (2007: 11–12) argues that most of Ekberg’s published numbers are either unsubstantiated or inconsistent with cited sources. He argues that other numbers are distorted by definitional confusion with the term ‘trafficking’. Other reasons for low conviction numbers are
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Table 7.1 Number of investigations and convictions in Sweden for trafficking and procurement, 1998–2006 Year
1998– 2001
Number of – investigations
Number of P: 7@ convictions (number of persons convicted)
1999– 2002
1999– 2003
2002
–
–
3#
T & P!: 25 T & P!: 30
0#
2003
2004
2005 2006
T: 21 T:28 44 28 P: offences ~20 (9 suspects) P: 90 offences (29 suspects) T: 2$ T: 2 T: 4 T: 5 or 5* P: 20 or or P: 8 15^ 21¶ P: 20^
Key and Sources: T: Trafficking P: Procurement / gross procurement. # US Department of State (2003: 143): 200–300 trafficking cases were reported by Swedish Police, 3 were actively being investigated and were pending, but no convictions had been secured as at date of publication of report. @ US Department of State (2001a: 70): ‘The law does not prohibit specifically the act of trafficking, but there are a range of other relevant laws that are being used to prosecute traffickers … The Government has successfully prosecuted seven trafficking cases since 1998.’ ! The phrase used by Ekberg (2004: 1200) and Ekberg (2005: 9) is ‘trafficking-related crimes’. $ US Department of State (2004: 177). * This number is generated from my own calculations: if there were 25 convictions 1999-2002 (Ekberg 2004: 1200), and 30 convictions 1999–2003 (Ekberg 2005: 9), logic suggests there were 5 convictions in 2003. ^ Ekberg (2005: 10) reports 4 convictions. The US Department of State (2006: 235) reports that for 2005 to early 2006 there were 15 trafficking convictions, while in 2005 it reports 2 trafficking convictions in February 2005 (which are probably subsumed in the 15 convictions reported in US Department of State 2006), and reports 20 convictions for ‘trafficking-related crimes under other statutes’ (US Department of State 2005: 205). ¶ US Department of State (2006: 235) reports 25 convictions under ‘statutes related directly to trafficking’, whereas the US Department of State (2007: 191) reports 21 convictions ‘under antitrafficking and procurement statute[s]’.
posited. There are difficulties with investigating crimes under the laws, due to the wording of the legislation and the investigative effort required to prove them (Ministry of Justice and the Police 2004: 53). The difficulties in identifying ‘real’ trafficked persons are exacerbated by the unexpected impact of the anti-purchaser laws on the acquisition of evidence regarding trafficking activities: evidence required for convictions is difficult to obtain given that ‘women are exploited for the purpose of prostitution at the same time as the police carry on surveillance to secure evidence’ (NCID 2003: 32). Purchasers are
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unwilling to self-incriminate themselves by coming forward as witnesses (Görtzen 2002), and clients are less willing to provide information to police on trafficked persons they may have come into contact with during their visits to sex workers (Ministry of Justice and the Police 2004: 53). Police and prosecutors in Göteborg noted that the trafficking offence required the proving of improper means, with the element of improper means proving difficult to adduce evidence on (Guigou and Theocharidou 2006: 34). Swedish police have reported that trafficking cases are more difficult to investigate because prostitution is no longer openly solicited on the streets (Ministry of Justice and the Police 2004: 52). However the National Criminal Investigation Department (NCID 2003: 35) reports that police are still able to gather information on trafficked persons, despite the reduction in visibility of sex workers. Impacting on all these concerns, however, is the significant expense in investigating and prosecuting trafficking offences. Investigation requires not only resources for investigators, but also resources for trafficked persons, such as interpreters and accommodation for trafficked persons that are needed for evidential purposes during an investigation period; travel costs of gathering evidence in trafficking origin countries; and friction between eager prosecutors wishing to pursue preliminary investigations and police constrained by resource scarcity (NCID 2003: 32; see also Iselin 2003: 7 on the complexity of investigating trafficking, comparable in his view to investigating murders).
EVALUATING THE CONSEQUENCES OF SWEDEN’S LAWS During the conceiving and assessment of Sweden’s anti-trafficking laws, there have been unforeseen consequences that are best understood by conceiving of the Swedish anti-trafficking model as a ‘prosecution’ model as distinct from a ‘victim protection / human rights’ model: prosecution models such as the US and West European models can be contrasted with victim-oriented, pro-human rights based anti-trafficking models of other countries and some United Nations agencies (Haynes 2004: 238). Both the prosecution and human rights models developed after the strict ‘arrest and deport the victims’ practices that were occurring in the late 1980s, under which victims were arrested and deported on the basis of illegal entry and presence in countries; this approach was exacerbated in some countries by law enforcement and judicial complicity in trafficking. The prosecution and human rights models have developed as responses to this earlier severe approach taken by governmental authorities, by shifting criminality to the traffickers rather than the victims. The prosecution model conceives of trafficking
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as a form of organised crime that is a primer for illegal immigration. It thus focuses its efforts on combating trafficking through law enforcement initiatives, with victim protection measures conditioned on the ability of victims to assist with law enforcement. In contrast, the victim-oriented, pro-human rights based anti-trafficking model emphasises protecting the victim of trafficking, through emphasising the human rights of these victims, and does not require victim assistance to law enforcement to activate protection (all from Haynes 2004: 238–9, 247). The Swedish model is best described as the ultimate prosecution model. It extends its sweep to prosecuting all the elements involved with a trafficked person, including the demand drivers of these persons, that is, the purchasers of sex services. However, comparison with a human rights model reveals areas that could be improved; these include the impact on stakeholders created through the imposition of Sweden’s anti-trafficking laws, such as on Swedish sex workers and on trafficked persons themselves.
THE IMPACT ON SWEDEN’S SEX WORKERS The Swedish anti-trafficking laws have had impacts on Swedish sex workers that must be recognised. The penalising purchaser and procuring provisions penalise all sex workers, since the legislation does not distinguish between the legitimate aim of counteracting the demand for trafficked persons for sexual purposes and the controversial aim of denying legitimacy to all sex work. Concern must be raised where the new legislation affects the ability of sex workers in Sweden to access health care, engage with law enforcement or the judiciary, and where it interferes with their labour rights. Östergren (n.d.), in an online article containing material gained from interviews, conversations and correspondence with approximately 20 Swedish sex workers and published interview material with sex workers in the Swedish media, notes that these sex workers have severely criticised the penalising purchaser provisions because they perceive them as paradoxical, illogical and discriminatory. The procurement laws are criticised because by making it illegal for sex workers to work in groups (because of the ban on making profit from the sexual labour of others) they cause fragmentation in sex worker support networks (Östergren n.d.). The new laws also hamper the ability of sex workers to report to police (as they do not want to report their clients), as well as their efforts to advise each other about dangerous clients. Finally, the laws remove an avenue of reporting on trafficked persons within the industry (Östergren n.d.). The laws do appear to reduce the demand for ‘street walker’ sex work, especially in the immediate short term (see for example Ministry of Justice and the Police 2004: 9; NCID 2003: 35). The National Criminal Investigation
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Department (NCID 2003: 11) reports a 41 per cent decline in street prostitution from 1998 to 2003. Journalist Lisa Katayama claims that the danger to female prostitutes has risen due to the smaller pool of customers, with sex workers forced to accept clients they would otherwise refuse (Katayama 2005). There are similar reports from a Norwegian government report on Sweden’s laws, which found that the reduction in demand has led to a smaller clientele for sex workers and thus a rise in unprotected sex and an increase in the danger of violence against sex workers, forced to accept clients they would otherwise refuse (Ministry of Justice and the Police 2004: 13, 19). Similar results are reported by Kinnell, who noted that sex work project evaluations of two cities in the United Kingdom (UK) that attempted similar Swedish style anti-demand legislation through anti-client policing resulted in fewer clients for sex workers, thus reducing the wages of sex workers which ‘can lead to higher levels of violence, with sex workers working longer hours, later at night, and in more dangerous areas to try to compensate for reduced business’ (Kinnell 2002: 7). Ultimately, the lack of legitimacy of sex workers in Sweden prevents them from accessing labour rights and the benefits of an employment relationship status (Kinnell 2002: 4). These negative impacts are not removed through transferring criminality from prostitute to purchaser. The nature of sex work is still unlawful and sex workers become illegitimate actors with their voices ignored: the NCID reported that the Swedish judiciary has negative attitudes towards allocating resources to trafficking in human beings because many victims are ‘only prostitutes who want to be prostitutes’ (NCID 2003: 32–3). Proponents of anti-demand legislation face a choice between reducing trafficking and increasing the negative impact of demand-side anti-trafficking measures on persons they regard as victims of prostitution. Given the concerns above, a less hard-line approach should be taken that allows for labour rights and regulation of the sex industry while demand-side anti-trafficking measures are in place.
TRAFFICKED PERSONS OR CONSENTING SMUGGLED PERSONS? Prosecutorial models such as Sweden’s anti-trafficking laws have a structural consideration that regards consent, or the lack of it, as inherently crucial in identifying a trafficked person. The Trafficking Protocol’s Article 3(b) explicitly regards consent as irrelevant where trafficking-type coercion has been used, to account for trafficked persons who initially consent to the trafficking process but find themselves unable to withdraw their consent to their conditions of incarceration, which can include restrictions on movement, debt
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bondage and psychological control. However the frame of reference in the Trafficking Protocol reveals its attempts, politically motivated or otherwise, to maintain conceptions of ‘consent’ as a distinguishing factor between trafficked persons and smuggled persons (Doezema 2002). The Protocol invalidates consent to the trafficking process where exploitation or vulnerability is exploited: Article 3(b) is an express provision that consent to exploitation is irrelevant where the threat or use of force, or other forms of coercion, are used. Additionally the travaux préparatoires to the Protocol reveal that the reference in the Protocol to abuse of a ‘position of vulnerability’ as a form of coercion refers to situations where trafficked persons have no real and acceptable alternative but to submit to exploitation (Blackell 2002: 118–19). Thus the Trafficking Protocol is part of a concerted effort by the international community to distinguish between trafficked persons and smuggled persons (Munro 2006: 325) such that, despite the express provisions against consent as an exoneration mechanism for traffickers, persons subjected to illegal migration are still distinguished as either ‘true’ victims (trafficked persons) or ‘false’ victims (smuggled persons). Sweden’s legislation continues to use manifestations of consent as a requirement for establishing trafficking offences through the requirement of force, coercion or non-consent for adult trafficked victims. By requiring improper means to be shown for trafficking offences against adult victims – a requirement that does not apply to child victims – Swedish law assumes some agency on the part of adult trafficked persons that is somehow lacking from child trafficked persons. Munro (2006: 330) notes the illogicality of this position for a country that regards prostitution as itself a form of violence. If prostitution is a form of violence, and prostituted persons are thus victims of violence, why does the requirement for unlawful coercion or deception, by exploiting a person’s vulnerability or by any other similar improper means, persist in Swedish legislation? A preferable construction would be to remove the distinction between adult and child trafficked persons: the element of control over a person that is used to subject them for trafficking purposes should be enough to establish criminal liability. The benefit of such a construction would be to remove any trace of consent from the legal conception of a trafficked person. Removing the lingering notions of consent would improve the response of law enforcement authorities by removing distinctions between ‘real’ or ‘true’ trafficked persons and ‘false’ ones. Such modes of thinking exist in law enforcement officials from diverse regions of the world: Munro (2006: 331) and Haynes (2004: 254) provide examples drawn from UK, Italian and Bosnian interviews that emphasise the concern of law enforcement to identify the real trafficked victims who require social support, as opposed to those persons who are only ‘victims to a degree’ or are ‘acting with some degree of agency’ (Munro 2006: 331). Other law
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enforcement officials may not be able to distinguish how the nexus between consent and exploitation or vulnerability operates, as envisaged by the Trafficking Protocol. Thus, journalist Nina Shapiro relates an interview with a United States law enforcement official who initially believed that the only requirement for a woman to be classified as ‘trafficked’ was being smuggled into the United States for sex work (Shapiro 2004: 5). When queried about the requirement for fraud and deceit, the official consulted some official papers on the subject and, when correctly apprised, he expressed concern regarding how to discern the use of fraud: Where do you draw the line between smuggling and human trafficking? A person is smuggled in and put to work in the orchards. Are they being held against their will? They may have come here with a debt to pay and knowingly did that. So were they forced or coerced? I don’t know. (Shapiro 2004: 5)
Munro (2006: 329) describes an alternative proposal that views exploitation as the primary element of trafficking, with trafficking occurring with the exploitation of a person after their arrival (legal or illegal) into a country. This approach avoids using consent as a definitional and distinguishing mechanism between smuggled and trafficked persons (Munro 2006: 329). This emphasis on exploitation is the basis that should be used to reply to those who propose that, without the requirement of coercive means to establish trafficking, we are undermining the autonomy of migrants by ignoring the tokens of their consent, and that we are promoting racist stereotypes based on domestic sex workers whose consent is accredited and migrant sex workers whose consent should be ignored, thus drawing attention away from the exploitative conditions of many domestic sex workers. As Munro points out, these concerns may be valid, but they do not make sense in the broader context of trafficking; if persons travel to a foreign country and are exploited, then they are victims of trafficking all the same: To conceive of them as non-victims only affrays the remedies they gain. The question is not of taking attention away from our domestic workers but revealing the conditions sex workers work in and the harder questions of how to improve these conditions, whether through regulation or legalisation. (Munro 2006: 331)
Haynes (2004) proposes a similar model, based on accessing a trafficked person’s situation at each stage of the trafficking cycle; if, at any stage, the victim was unable to exercise consent or control over their conditions, then they should be considered a trafficked victim, and would qualify for protection benefits. Such an approach, in Haynes’s words, would ‘help more people, would harm no one, and would not require significantly more state resources’ (Haynes 2004: 254). It would also extend protection to persons not regarded
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as real victims by authorities (that is, persons who chose to remain in prostitution after being trafficked, or persons who initially consent to prostitution but are unaware of the conditions they will be subjected to), as well as promoting positive benefits to both victims and countries of destination by reducing the incentives for persons to retraffick themselves (Haynes 2004: 254). Such a model also limits the danger of unsuccessful prosecutions against traffickers because of consent arguments, with trafficking prosecutions sometimes failing because of the unavailability of evidence needed to establish the nature of a person’s consent (UNODC ROSA 2007). While the United Nations Office on Drugs and Crime’s Regional Office for South Asia (UNODC ROSA 2007) notes that many countries have to allow the possibility of raising consent as a defence because of constitutional or human rights protections, there are important policy considerations for not allowing the raising of consent as a defence or mitigating factor for trafficking-related crimes. No one should be able to consent to being a slave, and issues of consent merely obscure the protections that should be afforded to all trafficked persons. As Haynes (2004: 271) points out, trafficked persons are not just victims – they are persons whose human rights have been infringed, and as such have legitimate claims to state protection.
IMPACT ON TRAFFICKED PERSONS: AUSTRALIA AND SWEDEN COMPARED Trafficked persons discovered by Swedish law enforcement agencies find themselves as illegal immigrants unless they can procure residency permits. Sweden provides 30-day temporary residence permits regardless of assistance to investigations (US Department of State 2006: 235). After this period, trafficked persons must rely on a time-limited residence permit under the Aliens Act 2005:715, Chapter 5, Section 15; this allows access to health care, medical attention and social welfare, but is dependent on police or prosecutors deeming the victim or witness necessary for an investigation or for criminal proceedings, with the length of stay being extendable on application by prosecutors for situations such as complex investigations or appealed court actions (MIEC 2005: 3). Such permits are also dependent on victims willing to cooperate in these investigations (US Department of State 2006: 235). Indeed, the 30-day grace period itself has been criticised because it does not provide sufficient time to assist trafficked persons effectively with counselling or other services (Maltzahn 2004: 13). How does this situation compare to Australia? Australia’s Temporary Bridging Visa Class F compares unfavourably even to Sweden’s 30-day temporary residency permits. This visa provides 30 days validity (Migration
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Regulations 1994, Schedule 2, Clause 060.511(3)(b)(ii)), and is granted when the Australian Federal Police or State or Territory police are satisfied the trafficked person is a person of interest in relation to a trafficking offence (Migration Regulations 1994, Schedule 1, Part 3, Clause 1306(3)(d)(i)). There is no obligation to grant the full 30 days to a trafficked person, meaning that before 30 days have elapsed, the Minister may make a determination and cease the visa (see Migration Regulations 1994, Schedule 2, Clause 060.511(3)(b)(i), (iii) and (iv)), with anecdotal evidence from Project Respect (an Australian anti-trafficking NGO) cited by Burn and Simmons (2005: 7) suggesting that Australian police often make decisions within days of granting these visas. However, both the Swedish and Australian systems suffer from the same flaws, based on their investigation–cooperation requirement. Burn and Simmons (2005) identify defects in the Australian trafficked person visa system that are applicable to Sweden: • Trafficked persons who do not feel that they can rely on law enforcement agencies or the judiciary are unlikely to come forward, hindering both efforts to measure the scale of the trafficking problem in a country and prosecution attempts against traffickers. • It operates unfairly on victims who do not have investigative value, and ignores legitimate reasons for these persons not to assist investigations, such as a fear of persecution against themselves or their families in their countries of origin. • Corroborative evidence is often required for successful prosecutions, given the nature of trafficking offences: but by focusing on the value of a trafficked person in prosecutorial terms, the wider range of benefits of trafficked person evidence – such as the value of creating profiles of traffickers, or the vagaries in weight given to various types of evidence from a prosecutor’s point of view versus a judicial officer’s point of view – is ignored. • This system may also encourage flawed or false testimony designed to be deliberately satisfying to authorities: any sort of permit granted on the basis of investigative assistance carries the danger that witness testimony can be impeached on the allegation that a witness has provided testimony in order to secure residence in a destination country (all from Burn and Simmons 2005: 7–10; see also Iselin 2003: 9). In terms of their impact on trafficking, temporary permits may in fact exacerbate trafficking numbers through the repatriation of trafficked persons unable to meet investigative value requirements. Repatriation has been criticised not just because of the threat of retaliation from traffickers, but also
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because of the risk of being recaptured by traffickers and experiencing social problems when returning to origin countries: these problems include a lack of resources provided to assist victims with the traumatic effects of being trafficked, the social stigma that can be attached to trafficked victims, and the need for assistance to reintegrate into the local workforce (Kartusch 2001: 90–91). Iselin notes that unless victims are given enough contemplation time, deportation risks sending a vulnerable person back to a country where he or she can be retrafficked: We must understand that a woman is trafficked in the first instance owing to a range of factors that make her vulnerable to being trafficked. Sending a trafficked victim back to the same milieux does nothing to address those vulnerability factors, indeed sending someone back who has lived underground abroad for three years actually sends them into a more vulnerable situation as they have little or no understanding of what they will go back to, no support network they can rely on and usually no prospects of income safe from trafficking. (Iselin 2003: 6)
An alternative proposed by Burn and Simmons (2005: 11) is to provide all trafficked persons with protection for at least 30 days regardless of their investigative value, an alternative that they argue has been implemented in countries such as Italy and has produced higher rates of trafficker prosecution success. Iselin (2003: 4–5) concurs with the proposal for an approach that would allow a reflection period, given that at the point of first detection, trafficked persons are often hostile to law enforcement, coming as they are out of a relationship of physical and psychological abuse. The role of immigration policy should also be considered. Trafficked persons are more likely to pursue trafficking when there is a lack of viable legal migration alternatives (Haynes 2004: 262). Punitive immigration practices are a disincentive for trafficked persons to contact authorities, because of fears regarding arrest and deportation compounded by their knowledge of illicit entry into a destination country (Haynes 2004: 261). Measures such as visas for sex work, giving trafficked persons information on their industrial rights, or intimidating traffickers through a range of industrial or workplace legislation should be investigated (Harriden 2003). Despite the controversy of legitimising sex work in this way, legitimisation may reduce sex trafficking (or at the least warrants further study). It should be noted that Australian prostitution operates in a context of increasing legalisation and decriminalisation of voluntarily undertaken sex work, whereas Sweden has adopted the opposite approach (Munro 2006: 330). Additionally, it must be remembered that no anti-trafficking regime should be premised merely on sex trafficking, and that any responses to trafficking that are based on such a narrow premise will not capture the full range of trafficked persons.
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CONCLUSION There are lessons to be learned from Sweden. Any examination of trafficking for sexual purposes will be contentious because it will require value judgements on the issue of prostitution, the sex industry and its legitimacy. Early analysis of Sweden’s anti-demand measures reveals that while demand-side anti-trafficking measures appear in the short term to be producing a deterrent effect on prostitution, more time will be required to see if they can reduce trafficking in the longer term. These demand-side measures are ambitious pieces of social legislation, attempting to transform cultural norms and attitudes. While we wait to see if these measures are successful, the immediate needs and concerns of trafficked persons must remain paramount. These needs include residency permits not based on investigative value; training at all levels of law enforcement, the judiciary and migration officials to ensure they understand the needs of trafficked persons as victims of crime; and recognising that trafficked persons are exploited persons rather than illegal immigrants. Ideas of consent should play no part in our conceptions of trafficked persons. To conclude, only a sensitive approach to migration and law enforcement will produce sustainable outcomes that will significantly reduce trafficking. Such an approach will require more than resources (though resources will certainly be needed); it will require framing our anti-trafficking efforts around the conception that trafficking is an abhorrent breach of a person’s human rights.
NATIONAL LEGISLATION AND DELEGATED LEGISLATION CITED Australia Migration Regulations 1994, Schedule 2, Clause 060.511(3)(b)(ii) Migration Regulations 1994, Schedule 1, Part 3, Clause 1306(3)(d)(i) Sweden Act Prohibiting the Purchase of Sexual Services 1998: 408 Aliens Act 2005: 715 Prohibiting Trafficking in Human Beings for Sexual Purposes Act 2002: 436 Swedish Penal Code, Chapter 6
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NOTES 1.
[email protected]. I would like to thank Dr Jane McAdam for her comments on an earlier version of this chapter, Professor Simon Bronitt for his assistance when I was an Australian National University Summer Scholar 2006–07, and Leslie Holmes for his comments on this chapter. Any remaining errors are of course my own. The views expressed in this chapter are personal and do not reflect the views of the Department of the Prime Minister and Cabinet, Australia. 2. Readers should be advised that the most recent (as of mid-2009), easily accessible English translation of the Swedish Penal Code is current only to 1 May 1999 (from www.sweden.gov. se/sb/d/3926/a/27777). The Interpol website has an updated version (to spring 2006) of Chapter 6 (Sexual Offences) of the Swedish Penal Code at http://www.interpol.int/ Public/Children/SexualAbuse/NationalLaws/csaSweden.asp; however some references to trafficking offences mentioned in this chapter are drawn from Swedish government fact sheets and documents where I have been unable to locate them in Swedish legislation. 3. Kulick (2003: 205–11) suggests another reason based on Swedish fear of joining the European Union, due to foreign (East European) women entering Sweden for prostitution – this sociological perspective is then provided regarding the impact of this fear on the Swedish polity. See also NCID (2003): 29–30; Ministry of Justice and the Police (2004): 20. 4. The estimate of 400–600 trafficked persons was an increase on the 2002 estimate of 200–500 (NCID 2003: 3; MIEC 2004: 3). Note that these estimates are provided with the proviso from the NCID that trafficking numbers are difficult to determine, and also that there is insufficient information to determine conclusively whether trafficking in human beings has increased or decreased (NCID 2003: 4, 29; see also Ekberg, 2004: 1209; 2005: 18).
8. Combating transnational crime in the Greater Mekong Subregion: the cases of Laos and Cambodia Susan Kneebone and Julie Debeljak1 As in other regions of the globe, attention to trafficking issues in the Greater Mekong Subregion (‘GMS’) began with a gendered focus on women and children and exploitation in the sex industry at the end of the 1990s. And as in other regions, legal responses to trafficking issues quickly became framed in a predominantly criminal justice and anti-immigration discourse when countries in the region signed up to the 2000 United Nations Convention against Transnational Organised Crime (‘CTOC framework’ – UN 2000c) including the Trafficking (‘Palermo’) Protocol (UN 2000a), which contains the ‘three Ps’: prevention, prosecution and protection. In this chapter, taking the responses of the Lao People’s Democratic Republic (‘Lao PDR’) and the Kingdom of Cambodia (‘Cambodia’) as case studies of two countries for trafficking within the GMS, we highlight lessons about the strengths and limits of criminal justice and anti-immigration responses to trafficking to this profoundly human problem. Additionally, the comparison of the Lao PDR and Cambodia demonstrates the importance of stable institutions, and of what is loosely known as ‘the rule of law’, for the success of such responses. This has implications for international programmes and assistance to such countries. We further show in this chapter that the predominant response to trafficking in the Lao PDR and Cambodia to date has focused upon prevention and law enforcement measures, including prosecutions. The third ‘P’, namely protection, has received the least attention in anti-trafficking measures. This is hardly surprising, given the limited resources available to combat the trafficking problem. But we argue that a victim-centred approach is needed in order to understand the nature of trafficking in the GMS and to fight against exploitation of individuals. We begin by explaining the patterns of movements that involve trafficking from and within the Lao PDR and Cambodia. We then describe national legal and criminal justice responses, and conclude with an evaluation of such responses in light of the problem we have described. 133
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NATURE OF TRAFFICKING PATTERNS WITHIN AND FROM LAOS AND CAMBODIA Background To begin this discussion, we locate the Lao PDR and Cambodia in the GMS, and in particular within the context of migration patterns for labour and the sex industry. The GMS comprises six countries and administrative units: Cambodia, Yunnan Province (of the People’s Republic of China), the Lao PDR, Myanmar, Thailand and Vietnam. The Lao PDR and Cambodia were respectively in positions 133 and 137 out of 182 countries on the United Nations Development Programme Human Development Index (UNDP HDI) for 2009, whereas Thailand was in 87th position (http://hdr.undp.org/en/statistics, accessed October 2009). There are two main intraregional labour migration systems in the South East Asia region. First, there is the ‘archipelagic system’, in which Malaysia, Singapore and Brunei are the major destination countries, with workers originating mainly from Indonesia and the Philippines. The second system is the Mekong Subregional system, where Thailand is the main destination for migrant workers from Myanmar, Cambodia, Laos PDR and Vietnam (Kaur 2007). Importantly, our research into trafficking patterns shows that, increasingly, women from Cambodia and the Lao PDR are destined for Malaysia as domestic or sex workers, bypassing Thailand en route. Although Thailand was a labour-exporting country in the 1970s, by the 1990s it was experiencing an economic boom and was in need of foreign workers to fill labour shortages (Pollock 2007: 172). During this period, Cambodia and the Lao PDR were opening up (see below), and many flocked to find work in the factories and agricultural industries that sprang up along the Thai border. This is hardly surprising, given the relative position of these countries on the UNDP HDI. However, such migration was unregulated and unacknowledged: the fact of outward migration was seen as a weakness on the part of governments in these countries (Pollock 2007: 175). By 1996, the Thai government had enacted cabinet resolutions allowing temporary employment of migrant workers from these countries. In 1996, 303 088 workers were admitted under this scheme, but by 2004 the figure had climbed to 1.28 million (Pollock 2007: 173). These official figures represent but a small proportion of the actual number of foreign workers in Thailand. In response to this increased demand for labour, Memorandums of Understanding (MoUs) on Cooperation on the Employment of Workers were signed between Thailand and both the Lao PDR (2002) and Cambodia (2003). In 2006, the Lao Deputy Minister for Labour and Social Welfare acknowledged that a lack of staff had prevented the Laotian government from fully
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implementing the agreement with Thailand, under which the Lao PDR had agreed to send 50 000 registered workers to Thailand (PhonNgern 2006). Despite the rapid growth of labour migration and attendant problems, antitrafficking initiatives in the 1990s were developed in the sex industry context. The literature attributes the rise of the sex industry, particularly in Thailand and Cambodia, to a number of factors, including the Vietnam War and the presence in the region of foreign soldiers, the rise of sex tourism following the conclusion of the war, and the increase in paedophilia in the region. Significant outcomes of conferences held in this period to discuss the issue of trafficking for the sex industry include the pioneering draft South Asian Association for Regional Cooperation Convention on Preventing and Combating Trafficking in Women and Children (1998) and the Bangkok Accord and Plan of Action for Combating Trafficking in Women (1999) (UNESCAP 2001). It seems that, at this stage, the trafficking dialogue in South East Asia (SEA) was caught up in the ‘sex wars’ which dominated the international scene (Sanghera 2005: 4). But the criminal justice discourse was also present at this stage, as shown by the creation of the ASEAN Declaration on Transnational Crime (ASEAN 1997), under which ASEAN members agreed to take ‘firm and stern measures to combat transnational crime, such as … trafficking of women and children’ (perambulatory para. 9). It is significant that, at this time, there was also some recognition of the need to include other issues in the trafficking discourse, such as labour migration, development and victim support. For example, in their Draft Concept Paper on Trafficking in Women, the Thai National Commission on Women’s Affairs criticised many ASEAN countries for implementing laws that ‘largely aim at prosecuting the criminals and their networks rather than providing protection and redress for trafficked persons’ (ASEAN-Thailand and Thai National Commission on Women’s Affairs 2000: 4). Other studies at this time also recognised the connection between trafficking and labour migration policies. It is therefore important to note that the implementation of the CTOC framework in the region led to a focus upon trafficking in the context of migration, and produced a predominantly law-enforcement response. The criminal justice response stems from the Trafficking Protocol. All states signing up to it are required to adopt its definition (Article 5). Further, they are required to ‘prevent and combat’ trafficking and to cooperate with other states (Article 2). In this process, the countries of the region have been assisted by various regional mechanisms including the ‘COMMIT’ process, which is important to the national legal responses described below. COMMIT stands for the Coordinated Mekong Ministerial Initiative against Trafficking, and involves the six countries of the GMS. The discourse that has emerged from the COMMIT process, whilst focusing upon the prevention of trafficking, has led
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to regional initiatives that have broken down cultural and historical barriers that have existed for decades between countries in the region. For example, MOUs now exist between countries in the region on trafficking; this includes agreement on all aspects of cross-border cooperation, such as return and reintegration of victims. The Lao PDR: Who Goes Where, and How? The implementation of the New Economic Mechanism in 1986 by the Lao PDR spurred great changes to both internal and external migration. The border with Thailand was reopened in 1986, and in 1994, restrictions that had prevented Lao people from migrating internally were lifted (ARCPPT 2003: 17). These changes, together with the improvements in infrastructure, made migration much more feasible. Several significant factors influence the pattern of migration from the Lao PDR. First, there is the demographic factor. The Lao PDR has a population of 5.6 million, of whom 45 per cent are below the age of 15 and 55 per cent are younger than 19 years. Every year approximately 60 000 young people try to enter the workforce, but there are limited employment opportunities in the Lao PDR. Secondly, gender is an important factor. There is evidence that more girls (aged between 10 and 17 years) than boys migrate and that, in that cohort, the girls face higher risks – are more likely to be trafficked – than the boys (UNICEF-MSLW 2003). But overall, approximately equal numbers of male and females migrate from the Lao PDR. A third factor is the cultural one. The Thai and Lao people have similar physical features and understand each other’s language. Thus Laotians can readily disappear into Thai society. Moreover, there is a tradition of seasonal migration from Laos to Thailand, which some patterns of migration replicate. In terms of trafficking, the Lao PDR is mainly a country of origin for trafficked persons, although there is anecdotal evidence that trafficked persons (including children) transit the country en route from China to Thailand and also come to Lao PDR from Vietnam. There is also anecdotal evidence of Lao women being trafficked to China and to other SEA countries through Thailand. There is internal trafficking (mostly from rural to urban centres), but a reluctance on the part of the authorities to admit it. Phil Marshall (2005: 145) identifies the main trafficking pattern for the Lao PDR in the context of migration to neighbouring Thailand, and maintains that: ‘women and girls are more likely to be trafficked into forced prostitution or domestic servitude, while men and boys are more likely to be held captive on fishing boats. Both male and female victims may end up in forced labour in sweatshops, on plantations or construction sites.’ It is difficult to estimate the number of people trafficked from Laos. One
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reliable source is the Ministry of Labour and Social Welfare (MLSW), which has collected statistics on the number of returnees under the official return programme operating between Thailand and the Lao PDR. This mainly involves victims of trafficking for the sex industry who have been processed in the official government-run shelter in Vientiane. Between 2001 and 2007 there was a total of 807 official returnees, of whom 84 per cent were under the age of 18 years. Another source estimated that approximately 1000 people were trafficked annually within the GMS. A third source suggests that 200 000 to 300 000 women are trafficked into Thailand annually for sexual exploitation (Senta 2003: 3). The problem of reliable data on trafficking is not exclusive to the Lao PDR, but the problem in this instance is compounded by the fact that a national birth registration system does not exist, and a database on exits at international border points has only recently been introduced. If this is coupled with the fact that trafficking is generally underreported, it seems that the problem is potentially large. One estimate (which does not give a source) is that the number of women and children trafficked into the East Asia region per year is between 250 000 and 400 000 persons (UNICEF-MSLW 2003: 11). Interviewees overwhelmingly reported that the largest site of exploitation at destination for those migrating from the Lao PDR is in labour outside of the sex industry. It is now widely acknowledged by Laotian authorities that trafficking for the sex industry accounts for less than 50 per cent of the problem. The government has recently turned its attention to the approach of recruitment agencies and the need for proper departure training in the case of women who are leaving to work as domestics (interview with spokesperson from the United Nations Development Fund for Women – UNIFEM, 7 February 2007). This shift in attention is reflective of changing understanding of and responses to trafficking. Initially, anti-trafficking measures revolved around prevention strategies designed to discourage people from moving or migrating. In abandoning this essentially anti-migration approach of ‘prevention’, the authorities and experts now appear to recognise that a distinction needs to be drawn between the causes of migration and the vulnerability factors that lead to exploitation (Ginzburg 2002). From interviews conducted in Vientiane in February 2007, it is clear that the factors that motivate people to migrate range from extreme poverty and necessity to, as one interviewee coined it, the temptations of ‘materialism’. But as Phil Marshall (2005: 150) points out, factors such as poverty cannot be blamed as the cause of trafficking. Rather, trafficking involves exploitation, and a ‘lack of education, lack of legal status and problematic individual situations, certainly contribute to the vulnerability of individuals and groups to being trafficked, but they cannot be said to “cause” it’ (Marshall 2005: 151). Marshall (2005: 151) goes on to suggest that an emphasis on factors such as poverty and education shifts the focus from
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destination countries to countries of origin and ignores the role played by the middle actors, such as traffickers and other exploiters. A similar message was echoed by Mr Leka Kanya (Acting Minister of Labour and Social Welfare), who stated in a speech during the media campaign against human trafficking that: The reasons behind the migration among Lao people going back and forth to Thailand are because of the convenience of similarity in language, family and relatives relationship among people who have been connected with one another for a long time as family members and visit and help each other including helping each other to find jobs. Because of these facilitating conditions there exists the problem of migration without proper travelling documents among people who go to work in Thailand which cause them to get trapped in the pool of human trafficking. (Kanya 2005; see also Vientiane Times, 11 July 2005)
However, information about how people are moving – whether they are ‘recruited’ by people who are part of a chain of traffickers – is unclear. For example, some interviewees found it difficult to say whether brokers or recruiters at the Laos end were part of large international networks. Other interviewees suggested that brokers and recruiters in Laos are generally people known to the victims. As one interviewee expressed it, ‘the big fish are in Thailand’. Further, it was suggested that there was no place for money-laundering laws in the Lao PDR, as brokers operate on a cash basis. The profile gained from the interviews was that victims move willingly from the Lao PDR, but that exploitation occurs at destination. In accordance with these trends, the Laotian authorities have placed a new emphasis on addressing factors that lead to reliance upon brokers and possible end exploitation. For example, whereas previously fines were inflicted for migrating without permission, in early 2007 a new decree from the Prime Minister’s office means that it will no longer be necessary to have a passport to exit the Lao PDR. This removes one vulnerability factor – the opportunity for forged documents to be provided. The emphasis on ‘safe migration’ includes educating people about the risks of using brokers. The Laotian authorities recognise that people seek assistance to migrate because they lack knowledge. But as we will explain, the laws that are based upon the assumptions behind the CTOC framework are not conducive to this approach. Before turning to the Cambodian situation, it is important to note one other essential distinguishing feature of the Laotian landscape. This refers to the important role of the ‘mass organisations’ of the socialist People’s Democratic Republic – the Lao Youth Union (LYU) and the Lao Women’s Union (LWU), which work through the grassroots to instil ‘Lao values’ in young people. The LYU focuses on research, awareness-raising and vocational training. The LWU runs two shelters for returned victims of trafficking. Both organisations
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are very influential and significant in providing a certain amount of ‘social control’ over young people and women through their awareness-raising activities in schools and villages. Cambodia: Perceptions and Realities Cambodia, which has a population of 14 million, is currently in transition from a communist or socialist one-party legal system of over 20 years to a liberal democratic system based on a constitutional monarchy. From the mid-nineteenth to mid-twentieth centuries, Cambodia was colonised by the French. Cambodia became independent from its French colonisers in 1953, but the legal system remained largely unchanged until the turbulence of the 1970s and beyond (Coghill 2000: 2.10–2.12). This turbulent history has had major detrimental effects on Cambodia’s economic, social and human development. The economy of Cambodia still suffers from the effects of decades of war, with the average Cambodian being poorer and less educated than his or her neighbours in surrounding countries, as Cambodia’s position on the UNDP Human Development Index indicates (ARTIP 2005). In addition to the challenges associated with establishing a liberal democratic state, the government of Cambodia has overwhelming economic, social and human development issues to address. The crime of trafficking was unrecognised in Cambodia until the late 1990s. The literature links the crime to the expansion of the sex industry, economic liberalisation, uneven economic development and increased tourism. Cambodia is a country of origin, transit and destination for trafficked men, women and children. Women and children are trafficked to Thailand and Malaysia for sexual exploitation, as well as for labour exploitation in factories and as domestic servants, whilst men are trafficked for labour exploitation in the agriculture, fishing and construction sectors. Women are trafficked to Taiwan for false marriages. Children are trafficked to Vietnam and Thailand for begging and street selling, and are trafficked around the world for adoption. In terms of Cambodia as a country of destination, women and children are trafficked there for labour and commercial sexual exploitation from Thailand, Vietnam, China and Malaysia. There is also internal trafficking from the rural areas to the cities for sexual exploitation. Cambodia is a transit country for mainly Vietnamese victims (see ARTIP 2005; UN 2006; US Department of State 2007). As in the Lao PDR, there is a large number of young people coming onto the labour market each year. One estimate puts the figure at 100 000 (confidential interview). Although trafficking into the sex industry is perhaps the most well-known occurrence of trafficking within Cambodia (to the extent, as one interviewee said, of sex work becoming ‘normalised’), it is also recog-
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nised that trafficking occurs into other industries. According to the Asia Regional Cooperation to Prevent People Trafficking (ARCPPT) report, 14 000 women work in the sex industry in Cambodia (ARCPPT 2005: 15). Many are lured into this work through the false promise of legitimate work in the city. Others are kidnapped and forced to work in brothels. But equally as many (mainly men) are trafficked into other industries, such as factories, the agricultural sector and fishing industries. Men, women and children can be forced into becoming domestic workers, fisherfolk, farm workers, factory workers or construction workers. They are forced to work long hours with little or no pay. Such exploitative labour also exposes them to other risks, such as rape, abuse, drug use and debt bondage (ARCPPT 2005: 17). There are other factors contributing to the trafficking issue in Cambodia that distinguish it from the situation in the Lao PDR. First, there is a large population of ethnic Vietnamese living in Cambodia whose legal status is not acknowledged by the Cambodian authorities. There is evidence of a high proportion of trafficking amongst this group – both traffickers and victims. Second, there is evidence of a cult of virgin sex in Cambodia. Eleanor Brown discusses in depth the existence and popularity of the virginity trade in Cambodia. She argues that this trade ‘clearly shapes the patterns of trafficking within Cambodia, and given the extensive cultural links between virginity loss … and the sex industry, it is arguably the largest factor contributing to entry into commercial sex’ (Brown 2007: 57). One interviewee suggested that between 30 per cent and 40 per cent of parents sell their children for sex. Further, with the AIDS/HIV (acquired immune deficiency syndrome / human immunodeficiency virus) epidemic increasing, more and more babies are being put up for adoption. However, agents have been known to visit poor, vulnerable people with offers of money and food in exchange for their babies (ARCPPT 2005: 19). It is claimed that corrupt government officials then arrange the necessary paperwork and allow the adoption to proceed (ARCPPT 2005: 19). Unlike the Lao PDR, where there is an appearance of ‘social control’ by the ‘mass organisations’, the situation in Cambodia suggests a breakdown of social norms and a lack of central control. According to one development worker, the use of pornography among young people is high. Attitudes towards women and sex are said to account for the high level of sexual exploitation. Despite the growth in areas such as tourism, which is a positive measure for development and transparency of government, corruption continues (Douglas 2003: 3). It is important to note that, according to Douglas (2003: 4), not only do government officials turn a blind eye to trafficking, but some are even directly involved in the trafficking of human beings. As in the Lao PDR, the picture of who the traffickers are in Cambodia is unclear. According to some reports, the networks range from small-scale, ad
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hoc, opportunistic arrangements, to well-organised and profitable ones; begging and the selling of flowers is usually organised by crime rings who exploit ‘workers’ (see generally ARTIP 2005; UN 2006; US Department of State 2007). But more information is available on trafficking routes. Most trafficked women and children work in Thailand, and generally come from Cambodian towns close to the Thai border, in which case they may use wellknown routes. Derks et al. (2006: 32) describe trafficking as a ‘cottage industry’ in the Mekong region. They point out that no specific studies have been conducted of the criminal networks, and suggest that research points to involvement of family members, neighbours and friends (as in Laos). It seems that in Cambodia, as in the Lao PDR, the traffickers range from small- to large-scale networks. Conclusions on Laotian and Cambodian Trafficking Patterns In both countries, it appears that at least a high proportion of the trafficking ‘problem’ arises from labour exploitation outside of the sex industry, and that both young men and young women are the principal targets. It also appears that many victims of trafficking are moving of their own accord across the borders of their country. In relation to both countries, evidence about how victims of trafficking move (whether as part of a large network or otherwise) is hazy. These conclusions point to various issues concerning the application of the trafficking definition to the Laotian and Cambodian situations. The definition of trafficking in the Palermo Trafficking Protocol can be broken down into three interlinked elements: 1. 2. 3.
conduct associated with moving people (across or within borders); involving coercive or deceptive means; for the purpose of exploitation.
This definition depends on a clear distinction between smuggled and trafficked persons that may not be entirely appropriate to the Laotian and Cambodian situations – that is, stage 1 may not occur. This suggests that the focus of anti-trafficking measures should be upon preventing the end exploitation (stage 3 of the definition as set out above). It is for this reason that the talk in Laos and Cambodia has turned to ‘safe migration’, to minimise the risk that people will be persuaded to move through ‘coercive or deceptive means’ (stage 2), and to minimise the role that intermediaries can play. In Laos, in response to that concern, the government has moved to relax the requirements for leaving the country. Another consequence of the Trafficking Protocol definition in this context
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is that too much focus on movers and intermediaries (at stages 1 and 2) can be counterproductive. As we explain below, this flows from a predominantly criminal justice response. Moreover, as the debates relate (McSherry and Kneebone 2008), the definition is perceived to have a gendered focus that may not be appropriate in the Laotian and Cambodian situations, where labour exploitation that involves both sexes constitutes a high proportion of the problem. A focus on sexual exploitation may lead to overly gendered responses (such as anti-prostitution measures, or measures that apply only to women and children, as in the case of the Lao PDR), to the detriment of measures against labour exploitation.
LEGAL AND CRIMINAL JUSTICE MEASURES The main purpose of the CTOC is to promote interstate cooperation for effectively combating transnational organised crime (Article 1). It has two main goals: (1) to eliminate differences amongst national legal systems; (2) to set standards for domestic law. In complying with these goals, the Lao PDR and Cambodia have been assisted by COMMIT and other regional processes that space prevents us from examining. The specific purposes of the Trafficking Protocol as set out in Article 2 are: • To prevent and combat trafficking in persons, particularly women and children; • To protect and assist victims of trafficking, with respect for their human rights; and • To promote cooperation between states. In both the Lao PDR and Cambodia, National Plans of Action have been prepared under the regional COMMIT process, and the Trafficking Protocol has been enacted into law. Thus in both countries there is formal compliance with the CTOC framework and the Trafficking Protocol. However, the manner in which the trafficking definition has been enacted in each country reveals the difference between the systems of governance of the two countries, as described in this section. This in turn illustrates the different ways in which the rule of law operates in each country. In some ways there are broad similarities between the legal systems of the two countries. Specialist anti-trafficking units have been established in each country (through some support from the COMMIT process), but both the Lao PDR and Cambodia suffer from serious ‘capacity issues’ in their legal systems (UNDP 2003; for an analysis of the Cambodian situation see ARCPPT 2005: 48–52). There is a significant shortage of qualified lawyers, judges and pros-
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ecutors in both countries, and questions are raised about the independence of these office-holders. However, two factors help to distinguish the criminal justice response of the two countries. First, in Cambodia there is an overload of preventive work and non-governmental organisation (NGO) presence, whereas in the Lao PDR the inclusion of NGOs in anti-trafficking work is more strictly controlled by the state. Second, whereas in the Lao PDR the presence of corruption in the legal processes is acknowledged (Haughton 2006), in Cambodia corruption is all-pervasive. As we shall see, this has led to the situation in the latter country of NGOs taking over the primary prosecuting role. The Lao PDR The legal framework and trafficking laws The Lao PDR adopted a Constitution in 1991 that was reviewed in 2003. The Laotian government was still in the process of drafting a National Action Plan, as part of the COMMIT process, at the end of 2009. On 22 October 2004, the Lao Prime Minister, pursuant to a Decree Pertaining to Establishing the National Committee on Human Trafficking, established the National Committee on Human Trafficking. An anti-trafficking unit has been created, the Lao Anti People Trafficking Unit (LAPTU), situated within the Department of Police and Immigration, which is incorporated within the Ministry of Public Security. Additionally, the Ministry of Labour and Social Welfare (MLSW) handles issues concerning prevention and assists victims of trafficking. As mentioned above, the role of the mass organisations, the LYU and LWU, is also important. Although both organisations focus upon prevention, their commitment and involvement goes further than this. For example, the LWU was assigned the task of drafting the new Law of the Lao People’s Democratic Republic on Women’s Development and Protection in 2004. The LWU also operates the main shelter for rescued victims of trafficking, and cooperates with the MLSW for reintegration of victims. The 2004 Law on Women’s Development and Protection applies only to trafficking in women and children. It basically uses the CTOC trafficking definition (Article 24) and provides for a penalty of 5–15 years’ imprisonment (Article 49). Importantly it also provides a civil remedy to victims for the cost of medical treatment, mental damage, travel and board (Article 52). Most importantly, victims are provided with various rights, such as the right to ask for assistance, the right to privacy, and the right not to be prosecuted for charges such as prostitution or illegal immigration (Article 25). Articles 26 and 27 place a burden on the government and the police to investigate trafficking matters brought to their attention. At the commencement of legal proceedings, police are responsible for referring victims to support services, under Article
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28. The obvious limitations of this law are that it applies only to trafficking in women and children, and to acts that take place within the Lao PDR. The Lao government’s next measure in addressing trafficking was to review the Penal Code (1990) in 2005, and Article 134 was inserted into this Code. The new provision goes even further than the 2004 Law on the Development and Protection of Women, since it criminalises the trafficking of ‘persons’, which includes both men and women. Article 134 also addresses the prosecution of traffickers. Aside from Article 134, there are existing provisions in the Penal Code that can be applied within the trafficking context. These include Article 92 (prohibition on trading or abducting humans for ransom), and Article 69 (‘Any individual who seeks others out, misleads them and/or assists them in moving abroad’ will be subject to penalty). Importantly, prostitution is criminalised through Article 122, while Article 123 of the Penal Code prohibits procurement for the purposes of prostitution. Measuring law enforcement One consequence of the criminal justice focus of anti-trafficking measures is an intense interest by the international community in the number of successful prosecutions. In the face of serious ‘rule of law’ capacity issues, the Lao PDR has struggled to reach its ‘quota’. This is set by the findings of the US Trafficking in Persons (TiP) Report. In 2005, it was reported that the Lao PDR had five convictions for trafficking-related crimes in 2004, but that it ‘made minimal efforts to distinguish trafficking victims from returning migrants who had left the country illegally’ (US Department of State 2005: 140). In the 2006 TiP Report, it was noted that the Lao PDR had still not improved its efforts to prosecute traffickers (US Department of State 2006: 160). It appears that by 2007, significant progress had been made within Laos to disseminate information on trafficking laws. The 2007 TiP Report found: In 2006, the government reported 27 trafficking investigations that resulted in the arrests of 15 suspected traffickers, 12 of whom were prosecuted. The remaining three suspects were not prosecuted, but were ‘re-educated’ and released. Among the 12 prosecutions, three traffickers were convicted and sentenced to an average of six years’ imprisonment, five remain incarcerated pending court action, and four are in pre-trial detention pending the results of investigations … There are reports that some local government and law enforcement officials profit from trafficking, but there were no reported investigations or prosecutions of officials for complicity in trafficking. (US Department of State 2007: 133)
The figures quoted above are generally consistent with the information we received. However they conceal the reality of the situation. According to another reliable source, there were 929 persons investigated in 2005, involv-
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ing 125 victims, of whom 105 were under 18 years of age. From these investigations, there were 14 arrests and 11 convictions. Thus it can be seen that a huge amount of effort is concentrated on securing convictions against traffickers, but that the rate of success is disproportionate to the problem. What accounts for this discrepancy? The most consistent explanation that we received was the lack of public awareness of the criminality of the issues surrounding trafficking, and the lack of understanding of its meaning, which results in an unwillingness to testify against persons who may be neighbours or relatives. Another issue is the difficulty in obtaining the cooperation of victims, who until recently have been punished on return for their illegal migration. The Lao PDR has also been criticised for its lack of money-laundering laws – despite the fact that the value of such laws is questionable, due to the paucity of funds held in bank accounts. Unfortunately the TiP Report is influential in determining the level of foreign aid that a country receives, which in the case of developing countries such as the Lao PDR may be counterproductive. The criminal justice system is dependent upon a functioning rule of law, and in this context it is dangerous to penalise countries on the basis of the ‘unilateral’ TiP Report (Gallagher 2006: 140). Further, a focus on victim support (to which the Lao PDR is now turning its attention) will be more efficacious in eliciting evidence about traffickers. The Lao PDR experience demonstrates the limits of a criminal justice response in the absence of strong measures for victim support, and the danger of relying upon cultural assumptions that are not appropriate to the specific situation. Measures such as the TiP Report impose the standards of a developed country on the developing world. Cambodia The legal framework and trafficking laws Turning to Cambodia, we see the scene is much more complex. Numerous sections of the Cambodian government are addressing the issue of human trafficking. Many governmental ministries and departments are involved in the policy response to human trafficking, including the Ministry of Justice, the Ministry of Women’s Affairs, the Ministry of Social Affairs and the Department of the Interior. There are also seven national task forces on combating trafficking in Cambodia, all chaired by various ministries.2 The range of government bodies involved reflects a multisectoral approach to trafficking, which is ‘best practice’, given the many and varied issues to be considered when addressing human trafficking. However, effective coordination is required when undertaking a multisectoral approach. Unfortunately, coordination across the government bodies appears to be informal and minimal at this stage. To this end, a National Plan Against Trafficking in Persons
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and Sexual Exploitation was being drafted as of 2008. Most relevant from a rule of law perspective are the prosecution activities, which include the enactment of a comprehensive legal framework, training the police force, judicial reform, improved victim protection, and legal sector cooperation (copy on file with the authors). The Cambodian legal response to trafficking must be understood within its complex legal framework, which consists of the 1993 Constitution, laws enacted before 1993 that are saved under Article 158 of the Constitution, new laws enacted after 1993, and the United Nations Transitional Authority in Cambodia Code (‘UNTAC Code’). Specifically, the Law on Suppression of Kidnapping, Trafficking and Exploitation of Human Beings (1996) and the UNTAC Code make up the trafficking laws of Cambodia. The objective of the 1996 law is to suppress the acts of kidnapping of persons for trafficking or sale and the exploitation of persons. The UNTAC Code also contains various criminal laws that are relevant to trafficking. But the most interesting part of this story is the Draft Anti-Trafficking Law. From 1999 to 2002, a comprehensive anti-trafficking law (‘Draft Law’) was drafted by a foreign legal expert, under the guidance of the Ministry of Justice. This was funded by the United Nations Children’s Fund (UNICEF). The Draft Law criminalises a range of offences, including: kidnapping; kidnapping with special purposes; cross-border kidnapping; interference with the rights of custody; human trafficking with special purposes, such as sexual exploitation; procurement and use for prostitution; the loaning of money in connection with prostitution; child prostitution; obscenity; child pornography; and indecency. However, there are major concerns about the content of the law, and its consistency with the Trafficking Protocol and existing Cambodian laws. In addition to the major issue of consistency with the Trafficking Protocol, one concern is that the Draft Law does not comply with the current domestic criminal law, giving rise to the risk of contradictory and conflicting laws. This not only undermines the rule of law, especially in relation to certainty of the law, but also facilitates corruption within the criminal justice system – legal loopholes allow judges to be corrupt within the law. Another major concern is that the Draft Law (‘draft special law’) is not consistent with the draft comprehensive substantive criminal law (‘draft general law’). The extent of the inconsistencies brings into question the efficacy of the draft special law, and will result in legal confusion, especially when the draft special law is continually adjusted to accommodate the draft general law; again, such discrepancies will facilitate corruption. Unfortunately, this situation appears to have arisen from there being ‘too many cooks’ and too many agendas in the pot. Cambodia has many well-intentioned donors, advisers and consultants who genuinely want to solve the
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myriad of problems facing the country. It is too often assumed that the problems can be resolved by enacting specific legislation – that is, specific legislation on anti-trafficking, on domestic violence, on corruption, on disciplinary laws for public office holders, and so on. These assumptions are made by people who do not necessarily have the requisite legal expertise and understanding about Cambodia’s lack of a basic legal system within which such laws can operate. Some responsibility for the problem should also fall on the Cambodian government, especially the responsible ministries. Yet this is perhaps harsh, given their lack of experience, the deference understandably given to the views of those from donor countries with strong systems of governance and law, and their reliance on donor money for the construction of a functioning system of governance and the day-to-day running of the government. In sum, this demonstrates that the rule of law has to operate under very difficult circumstances. Law enforcement Cambodia led the way in the GMS in the development of a specialist anti-trafficking unit. In April 2000 the Law Enforcement Against Sexual Exploitation of Children (LEASEC) Project was developed within the Cambodian Ministry of the Interior, with five international donor agencies led by World Vision International and UNICEF. The major outcome of the LEASEC project was the formation of the Anti-Human Trafficking Unit. The second phase of this project, the Law Enforcement Against Sexual Exploitation and Trafficking of Children (LEASETC) Project, provided effective basic and advanced training at national and provincial levels, and established a national hotline for trafficking victims. The involvement of the international donor community in Cambodia’s antitrafficking law enforcement is a continuing theme. In Cambodia, numerous victim support agencies (which are essentially NGOs) have begun to undertake criminal investigations in trafficking cases, both reactive (victim-driven) and proactive (intelligence-driven) investigations. The victim support agencies gather information and evidence sufficient for a conviction, using techniques they claim to be based on international standards of evidence identification, preservation and collection in a manner that decreases the risk of corruption of evidence. The information and evidence is then turned over to the police for prosecution within the normal criminal justice system, with the NGO keeping duplicate copies of all the evidence, to minimise the risk of corruption. The aim of such groups is to secure ‘corruption-proof’ evidence, such as video footage of criminal activities. These investigations are not undertaken in conjunction with the Anti-Human Trafficking Unit or frontline police or other authorities, but are undertaken with their knowledge and acquiescence.
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The 2004 raid on the AFESIP (Agir pour les Femmes en Situation Précaire – Action for Women in Distressing Circumstances) shelter, however, highlights the difficulties NGOs and victim support agencies face, the high likelihood of official complicity in trafficking, and the broader consequences for the rule of law. On 7 December 2004, the Anti-Trafficking Unit rescued 84 people from a hotel in Phnom Penh that was notorious as a brothel exploiting trafficked persons, especially children. After police questioning, the victims were taken to a shelter run by AFESIP, an NGO that conducts victim support within shelters in the region. Police arrested eight brothel owners as a result of the raid. The brothel owners were released from custody the next day without charge, and allegedly went to the AFESIP shelter and took 91 women by force from the shelter – that is, the 84 victims rescued the previous day, plus seven other residents at the shelter. It was alleged that approximately 30 people, some armed with weapons, surrounded the shelter, assaulted AFESIP’s security guards and one employee, then forced the victims to leave with them in cars, some of which had military number plates (Soenthrith and Neubauer 2004; Neubauer and Thul 2004: 16). The President of AFESIP noted that two policemen from the Ministry of the Interior guarding the shelter at the time of the raid were too afraid to intervene, and that eight policemen assigned to guard the shelter the evening before left their posts a short time after arriving (Eckhert 2004; Ereli 2004; Neubauer and Thul 2004: 16; Soenthrith and Neubauer 2004). The government officially responded to the raid by a Statement of the Spokesman of the Ministry of Interior (‘Statement’) on 12 December 2004. Interestingly, the spokesperson is not named, there is no signature on the Statement, and there is no number assigned to the Statement; these facts alone raise doubts as to accountability, and willingness to accept responsibility, within government (Neubauer and Thul 2004: 16). The Statement essentially claims that it was relatives of the victims who ‘rescued’ the women and girls from the shelter, not the brothel owners and their accomplices (Spokesman of the Ministry of Interior 2004: 2).3 It further noted that the victims were filing a lawsuit against AFESIP for illegal detention and defamation, and had staged a peaceful protest outside the US Embassy ‘to seek justice and reparation for their honour and reputation’ (Spokesman of the Ministry of Interior 2004: 3; Shaw and Thul 2004: 17). The AFESIP incident and the government’s response to it extensively damaged Cambodia’s reputation for being willing and able to address official complicity in trafficking, and gave the appearance that the government was not prepared to secure a full, impartial and public investigation into the matter. Another lasting impact is the effect this incident has had on victim support agencies, especially those that run shelters. To this day, most shelters in Cambodia are run in complete secrecy, for fear of interference by both crimi-
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nals and corrupt officials. From a rule of law perspective, this is a problematic outcome, because the secret shelters essentially operate beyond legal accountability. An Agreement on Guidelines for Practices and Cooperation between the Relevant Government Institutions and Victim Support Agencies in Cases of Human Trafficking was signed on 6 February 2007. This Agreement was made between several government departments and various NGOs working in Cambodia. It outlines the roles and responsibilities of government and victim support agencies on topics such as: rescue; victim identification; protection of victims; medical and legal issues; evidence and testimony of victims; the services, conditions and staffing of shelters; the authority of shelters (including formal authority to operate in Cambodia and their authority vis-à-vis victims); the responsibilities of first-contact agencies; reintegration; and cooperation between the parties to the agreement. Although all relevant government agencies and many non-governmental victim support agencies are signatories, many groups running shelters are not – again placing them beyond governmental reach and regulation. If the role played by NGOs is disregarded, we are left with a very bleak picture of the Cambodian government’s efforts to rise above corruption and prosecute traffickers. In a report by the Cambodian League for the Promotion and Defence of Human Rights (LICADHO), Violence Against Women in Cambodia 2006, the ineffectiveness of the prosecution process was highlighted. Although Cambodian police would raid brothels to rescue victims, few arrests were made and brothels would not remain closed for very long (LICADHO 2007: 23). Only low-level pimps or traffickers were charged, as many others were able to bribe their way out of being arrested, and police sometimes persuaded victims to drop complaints against traffickers (LICADHO 2007: 21). In the 2005 TiP Report, Cambodia was placed in Tier 3 (the lowest) for its ineffective response to trafficking. This arose partly from the AFESIP shelter incident described above. Despite Cambodian police arresting 165 people in relation to trafficking in 2004, only 24 were successfully prosecuted. The report suggested that the high level of corruption within the government and judiciary appeared to be a key reason for this (US Department of State 2005: 77). The Cambodian government made significant changes to its criminal justice response to trafficking in 2006. It was thus moved from the Tier 3 to the Tier 2 Watch List in 2006 – a marginal improvement. Corruption within the government was exposed, as four police officials associated with anti-trafficking work were arrested and prosecuted. In terms of prosecutions, it was found that:
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In 2005, the Cambodian police reported conducting 67 operations, resulting in the arrest of 111 perpetrators and the rescue of 164 victims. The Ministry of Justice reported the prosecution and conviction of at least 45 traffickers during the year, double the number in 2004. (US Department of State 2006: 84)
The 2007 TiP Report also commented on the improvements made in fighting corruption and increasing prosecutions. In terms of prosecution, it was found that: Cambodia’s police investigated 49 cases of human trafficking involving 65 perpetrators, of which 10 convictions were handed down over the past year, with penalties ranging from 1 to 18 years’ imprisonment. In 2006, 37 cases were tried in the Phnom Penh Municipal Court, resulting in the conviction of 53 perpetrators, with penalties ranging from 5 to 24 years’ imprisonment. (US Department of State 2007: 74)
Moreover, more high-ranking officials were exposed for corruption: The former Deputy Director of the Police Anti-Human Trafficking and Juvenile Protection Department was convicted for complicity in trafficking and sentenced to five years’ imprisonment; two officials under his supervision were also convicted and sentenced to seven years’ imprisonment. Police arrested two military officers and one member of the military police for running brothels and trafficking; one was sentenced to a five-year suspended sentence and fined five million riels ($1250). (US Department of State 2007: 74)
Conclusions on Legal and Criminal Justice Responses The experience of both countries shows the limits of a criminal justice response in the absence of a functioning legal system and respect for the rule of law. In Cambodia, it seems that NGOs have filled the gap left by the government in relation to prosecutions, and following the AFESIP incident, in relation to victim support. The Laotian experience suggests the limits of a criminal justice response in the absence of strong measures for victim support. The Cambodian experience shows the dangers of letting that support be ‘outsourced’ by the government and beyond its control. Victim support is vital for the collection of information leading to prosecutions.
CONCLUSION As in other regions, trafficking is a recently recognised problem in the GMS and has a rapidly changing profile. A recent International Labour Organization (ILO) paper estimates that globally 12.3 million people are victims of forced labour, of which 2.4 million victims are trafficked, and of that cohort around
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43 per cent are trafficked for the purpose of commercial sexual exploitation and around one-third are in agriculture, private households and sweatshops (ILO 2008: 3). The picture in the GMS appears to replicate this pattern, suggesting that anti-immigration measures are likely to be frustrated. In the GMS, there is need for continual adaptation to the problem, which is made possible by dialogues that have developed at the regional level. Unfortunately, the process for making laws to meet the situation does not always appear to keep pace with developments. Further, the mechanisms for law enforcement are dependent on weak ‘rules of law’ and, due to the lack of effective victim-centred approaches at this stage, efforts to prevent trafficking are frustrated. As the discussion in this chapter demonstrates, criminal justice responses, which are consistent with the CTOC framework, are the dominant legal response in the GMS. But the measures for its success suggest that progress is slow. A comparison of the Lao PDR and Cambodia demonstrates the need for cohesive and coordinated responses. The Lao PDR, which is a smaller country, appears to have more cohesive social control, partly through its mass organisations. By contrast, the anti-trafficking fight in Cambodia is caught in a vicious circle: in the absence of a strong government, it appears to have been captured by outsiders, and corruption is rife. The major lesson from this account is that urgent attention is needed to ‘rule of law’ issues and to victim protection.
NOTES 1.
The research that forms the basis of this chapter was conducted in 2007 and is accurate as at February 2008. The Cambodian Draft Law discussed in this chapter was finally adopted in February 2009. Our thanks to the Australia Research Council who funded this research under a project entitled ‘Australia’s Response to Trafficking in Women: Towards A Model For the Regulation of Forced Migration in the Asia-Pacific Region’; to Madhavi Ligam for research assistance in the preparation of this chapter; and to Dani Salinger for editing assistance. 2. The COMMIT Taskforce, chaired by the Minister of Women’s Affairs; the National Taskforce on the implementation of the Memorandum of Understanding between Cambodia and Thailand on Trafficking, chaired by the Minister of Social Affairs; the National Coordination Team on Undertaking the Repatriation of Trafficked Children and Women through the Cambodian–Thai Border, chaired by the Minister of Social Affairs; the Cambodian National Council for Children (CNCC) Sub-Commission on Trafficking and Sexual Exploitation of Children, chaired by the Minister of the Interior; the Cambodian National Council for Children (CNCC) Sub-Commission on Child Labour and other Forms of Exploitation, chaired by the Minister of the Interior; the Criminal Justice Technical Working Group on Human Trafficking, chaired by the Minister of Justice; and the Cambodian National Council on Women, chaired by the Minister for Women’s Affairs. 3. ‘[T]here were reactions from [the victim] women and the families, husbands, relatives and parents for their home return, subsequently resulting [in] commotion and gate breaking for their escape. So there was no abduction of those women by armed assailant.’
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SIGNIFICANT ADDITIONAL OFFICIAL DOCUMENTS, SPEECHES AND REPORTS Bounnhang Vorachit (2004), Prime Minister Decree Pertaining to Establishing the National Committee on Human Trafficking (Vientiane: Office of the Prime Minister), 2 October. Kingdom of Cambodia (2007), Agreement on Guidelines for Practices and Cooperation between the Relevant Government Institutions and Victim Support Agencies in Cases of Human Trafficking (Cambodia: Kingdom of Cambodia), 6 February. MacLeod, K., L. Arensen and K. Keang (2004), A Study on Origins and Vulnerability Factors for Trafficked Female Sex Workers in Four Cities (PACT, US Department of State and WORTH), at http://www.no-trafficking.org/content/web/05reading_ rooms/Cambodia/a_study_on_origins_and_vulnerability_factors.pdf, accessed 5 March 2008. Memorandum of Understanding between Cambodia and Thailand on Cooperation in the Employment of Workers, 31 May 2003, at http://www.no-trafficking.org/ content/PDF/mou_cambodiathailand_on_cooperation_in_the_employment_of_wo. pdf, accessed 22 July 2008. Memorandum of Understanding Between The Government of the Kingdom of Cambodia and the Government of the Kingdom of Thailand on Bilateral Cooperation for Eliminating Trafficking in Children and Women and Assisting Victims of Trafficking, 31 May 2003, at http://www.artipproject.org/artip/05_laws/ mou/bi/MOU%20Traffcking%20Cambodia-Thai_English.pdf, accessed 7 February 2008. Memorandum of Understanding Between the Government of Lao People’s Democratic Republic and the Government of the Kingdom of Thailand on Labour Co-operation, October 2002, at http://www.no-trafficking.org/content/laws_agreement/ lao%20pdr.htm, accessed 6 February 2008. Memorandum of Understanding Between the Government of the Lao People’s Democratic Republic and the Government of the Kingdom of Thailand on Cooperation to Combat Trafficking in Persons, Especially Women and Children, 13 July 2005, at http://www.artipproject.org/artip/05_laws/mou/bi/Thai-Laos% 20MOU%202005_English.pdf, accessed 7 February 2008. Memorandum of Understanding on Cooperation against Trafficking in Persons in the Greater Mekong Sub-region, 29 October 2004 (‘COMMIT MOU’), at http://no-trafficking.org/content/commit_process/COMMIT_som2.htm, accessed 7 February 2008. UNDP (2003), Evaluation of the Implementation of the Rule of Law in LPDR, 1997–2003: Lessons and Challenges (Vientiane: UNDP). UN Inter-Agency Project on Human Trafficking in the Greater Mekong Sub-Region (2003), Project Document Version VI, November (Bangkok). UN Inter-Agency Project on Human Trafficking in the Greater Mekong Sub-Region (2005), Project of the Mekong Sub-region: Project Revision, RAS/00/Ho/C/JB/31 (Bangkok).
9. Exit, rehabilitation and returning to prostitution: experiences of domestic trafficking victims in the Philippines Sallie Yea INTRODUCTION One of the main debates helping to construct discursively the issue of sex trafficking, and responses to it, is ‘the prostitution debate’.1 The lines of this debate are drawn between those who see prostitution as legitimate work (the sex work perspective) or as harm to women (the abolitionist and gendered violence perspective). In this chapter I explore the contours and implications of this debate for understanding the lives of victims of domestic sex trafficking victims in Cebu City, the Philippines and argue that, taken collectively, this debate can restrict how experiences and circumstances of victims are understood and framed. In particular, I suggest that the preoccupation of this debate with the notion of ‘choice’ draws attention away from another, more significant question, namely how and why victims of sex trafficking with no prior experience or wish to work in the sex industry often return to it after their trafficking ends and, in many cases, after they have availed themselves of support programmes for their rehabilitation. These patterns indicate that the trajectories of the victims might shift over time and within the context of having been trafficked (see Yea forthcoming). The chapter takes its cue from some recent literature addressing the intersecting issues of migration, trafficking and prostitution. A third perspective has emerged in this literature more recently that steps outside the opposing forced–voluntary dichotomy on prostitution. For example, in her examination of the Cambodian context, Sandy (2006: 449) shows how ‘elements of individual choice and coercion are intricately intertwined in women’s experiences’. In her research she develops the notion of ‘constrained choice’ to reveal a third position in prostitution, in which the women’s decisions and motivations can be understood as neither completely forced nor voluntary. Similarly, the concept of the ‘willing victim’ has gone some way to breaking down the juxtaposition inherent in the prostitution debate by suggesting that 153
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women can enter prostitution under conditions of trafficking, but come to accept their situations and therefore may willingly remain in prostitution. Implied in these two concepts is the existence of degrees of complicity and constraint. Another related strand of recent research focuses on the psychological impacts of prostitution. This also has salience for the way the prostitution debate relates to trafficking. For example, one study focusing on minors (adolescents) in prostitution in Taiwan has found that many undergo a psychological transformation after first entering prostitution, particularly where the mode of entry is characterised by elements of deceit, debt bondage or unwillingness. They describe: ‘Four main stages of adaptation in attitudes were identified: resistance, development of interpersonal connections, self-injury and loss of hope, and acceptance of prostitution’ (Hwang and Bedford 2004: 142). This conceptualisation is useful here, since it points to the complexities in the experiences of those who engage in prostitution by adding the element of time to discussions. It is also important in drawing attention to another neglected dimension of trafficking – namely, what happens to victims after they exit trafficking situations and, in particular, what circumstances (including prior experience of being trafficked) may draw them back into the sex industry. Here Hwang and Bedford (2003, 2004) identify the importance of feelings of initial relief that are often only short-lived and that can come to be replaced by a sense of disappointment and, ultimately a return to prostitution. Drawing on this literature, this chapter explores questions of how and why victims of sex trafficking may re-enter prostitution voluntarily at a later stage, and how this might relate to their prior experiences of trafficking. Discussion in this chapter is based on one month’s fieldwork during March–April 2006 at Balay Isidora rehabilitation centre in Cebu City, where all current and several past clients participated. Balay Isidora was established with the aim of rehabilitating those girls, young women, mothers and pregnant women who are victims of commercial sexual exploitation (CSE) within the main red-light districts of Cebu City. The Centre is open to trafficking victims and those not trafficked but who nonetheless wish to leave exploitative circumstances in prostitution; nevertheless, the vast majority of clients have been trafficked into prostitution as their initial mode of entry into the sex industry. Through the rehabilitation programme offered, these women and girls are given the opportunity to leave situations of sexual exploitation, to overcome their traumatic experiences, and to start a new life. The staff accompanies and supports these clients in providing psychosocial care, medical treatment, educational and professional training programmes and preparatory courses for pregnant women. Moreover, they offer training units concerning incomegenerating activities, in order to prepare the clients for an economically inde-
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pendent existence after the period of rehabilitation in the Centre. The Centre is able to offer rehabilitation measures for 28 women and girls (including those who are pregnant, mothers with children, and singles) and 18 small children at the same time (that is, 46 clients in total) (Balay Isidora, n.d.). The chapter begins with an overview of the prostitution debate as it is applied to sex trafficking. I then introduce the context for the research in the Philippines and Cebu City. The participants and methodology for the research are briefly discussed. The main part of the chapter explores the complex positions of trafficked women and girls as they negotiate post-trafficking futures, both within and outside the sex industry in Cebu City. I also reflect on some of the limitations of recovery programmes, such as those offered by Balay Isidora, in enabling clients to realise long-term futures outside of the sex industry or to re-enter the sex industry under conditions and through decisions that are markedly different from those that characterised their initial entry.
THE PROSTITUTION DEBATE IN SEX TRAFFICKING Although sex trafficking is only one of four internationally recognised forms of human trafficking, it is the one that is most politically and morally contentious because it involves debates about prostitution. Sex trafficking aside, discussions about ‘prostitution’ and ‘sex work’ more generally are far from neutral activities. Even the simple choice to use one term over the other implies a political standpoint in relation to what prostitution means, and to become situated within moral and ideological discourses that surround it. Further, this debate has the potential to want to situate (pigeonhole) all who work with, research or support migrants in sex industries globally. More important is the ability of these discourses to pigeonhole the women in prostitution who are at their centre. As Nencel (2001: 4) rightly points out: ‘these value-laden discourses effect women’s agency profoundly and are tightly woven into their performance as prostitutes … The possibilities for change, and improvement in the situation, are limited to alternatives within these discourses’. It is for this reason that, even if one does not feel comfortable with the extreme dichotomies or moral imperatives that operate in this debate, it is important to address it for the organising potential it can exert in relation not only to prostitution but also, more importantly for this chapter, sex trafficking. Under this divide, prostitution is either viewed as inherently exploitative, harmful and risky (whether it involves trafficking or not), or that it only potentially produces these conditions of exploitation, harm and risk. In the former case, the only viable solution offered is to dismantle sex industries – for example, through criminalisation of prostitution, or provision of exit programmes. This position constitutes the core of the abolitionist perspective. Conversely,
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the latter group maintains that the potential for exploitation can be overcome through efforts to empower and educate sex workers and, in some cases, their clients. This is the sex worker rights perspective. Central to this disagreement is a broader debate about choice: fundamental to sex worker perspectives is the view that if a woman chooses to work in prostitution, her choice should be respected and efforts made to ensure safe and fair conditions of her work. Thus emerges the conceptualisation of prostitution as a (legitimate) form of work. This is a position that anti-prostitution and abolitionist feminists do not accept, instead arguing that prostitution is male violence against women, not work, and that no woman in prostitution would actively choose to be there. As Gulcur and Ilkkaracan (2002: 412) suggest, the abolitionists ‘base their arguments on the principle that women’s bodies are the site of women’s oppression, and that the male use of female bodies for sex is about power, and not about sex’. Trafficking thus clearly emerges as a central lobbying point for the abolitionists’ project. Ironically – and this is a point that is rarely conceded by those involved in this debate – despite these moral and ideological differences around choice, harm and work, both sides share the common purpose of working towards the prevention, minimisation or elimination of conditions of harm, risk and exploitation in the sex industry. Further, all those concerned would claim to act in the interests of advancing the human rights of those at their centre. Yet this is where the agreement usually ends. There are three strands to this debate that emerge from the fundamental disagreement about the meaning and experience of prostitution that are briefly considered here. These strands are: agency versus victimhood; structure versus agency; and innocence versus guilt. Here I briefly consider these strands as they specifically relate to sex trafficking, since feminist and sex worker discourses on trafficking have taken on the political overtones of debates about prostitution. Agency versus Victimhood Moral condemnation of prostitution underwrites the more conservative antitrafficking feminist organisations. Barry (1979: 40), founder of the Coalition Against Trafficking in Women (CATW), is often cited as the most outspoken proponent of this position, suggesting that trafficked women and girls can be defined as female sexual slaves where ‘women or girls cannot change the immediate conditions of their existence; where regardless of how they got into those conditions they cannot get out; and where they are subject to sexual violence and exploitation’. Whilst, on the one hand, Barry’s description is useful in highlighting the severe violence and exploitation to which trafficked women and girls are often subject, the other implication of this definition is that these women and girls are passive, powerless and have no capacity to alter or reduce violence and exploitation in their situations.
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Doezema (2000: 47), in critiquing such understandings, identifies an emerging international discourse of trafficked women, constructed largely by the media and various non-governmental organisations (NGOs), that derives from the trope of sexual slavery and revolves around images of ‘innocent, sexless, “non-adults” or as the oppressed sex of backward countries’. Contrary to the thrust of many of these images, Doezema further argues that, instead, trafficked women and girls should be seen as ‘agents endowed with the ability to think, to act and to resist’. Wijers (1998: 70) similarly recognises that: ‘women who have become victims of trafficking cannot be classified as passive or stupid’. In this sense, the critiquing of images of trafficked women and girls as passive victims is an enterprise that receives impetus from sex worker arguments that sex workers should not be viewed as somehow falsely conscious or completely lacking agency in the choice and decisions they make in their lives and for their livelihoods. Law (1998, 2000) provides one example of the ways in which the recently emerging problem of HIV/AIDS (human immunodeficiency virus / acquired immune deficiency syndrome) in sex work is unsettling the dominant representation of prostituted women in South East Asia as ‘victims’. In this case, those who work with women in prostitution, particularly in the areas of health and education, have recognised the need to see these women as agents precisely because it would be quite impossible to empower them to take control of their sexual health, as well as other aspects of their health, by continuing to view them as passive victims of male violence and exploitation. In this case, ideological divides over sexual slavery and sex work matter less than a third position, in which women’s – albeit constrained – agency is recognised and supported, and in which they are seen as part of the solution rather than at the core of ‘the problem’.2 Agency versus Structure Arguments about agency versus structure in prostitution tend to relate particularly to the motivations for women to enter prostitution. In the case of migrant women from developing countries, abolitionists generally explain women’s decisions in terms of structural conditions emerging from the dynamics of economic globalisation, national development, women’s socioeconomic status and gender roles, and the ways these are informed by patriarchal cultural precepts that together produce both a lack of employment opportunities for women in their home countries and simultaneously render more developed countries attractive destinations for work. In short, abolitionists explain Third World women’s entry into prostitution according to a range of deterministic constraints that either render (migrant) prostitution as the only job available for these women, or else make women who wish to migrate
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abroad for other work opportunities vulnerable to trafficking. In both cases, abolitionists would have it that these women have no choice other than to work abroad in prostitution. Sex worker perspectives would argue, conversely, that women’s decisions to enter prostitution abroad are made in the context of knowledge (however filtered or partial) about both the type and conditions of work in other countries. This does not discount the possibility of women being trafficked, since they are often misled about the conditions of migrant prostitution, particularly the existence of a migration debt or contract that is commonly repaid under conditions that are not initially agreed to. In short, many migrant women in prostitution are complicit, rather than compelled into their positions, and therefore do exercise choice, which does not necessarily mean that the information they receive about their work is always or completely correct. Innocence versus Guilt It is easy for abolitionists to sustain a view of sex-trafficked women, and more particularly girls, as innocent victims if they also claim that these women and girls are duped or tricked into prostitution. The more extreme the form of recruitment into prostitution and the less women and girls are able to assert agency, such as in cases of physical abduction or being sold, the easier it is to proclaim the innocence of the victim. It is far more difficult to make such claims of innocence if the victim agrees to her migration and/or if she knows about prostitution beforehand. The legitimacy of victimhood is an area of particular contestation in debates on sex trafficking: it is much more difficult to proclaim victimhood if a women knows she is entering prostitution, if she remains in prostitution under her own ‘free will’ in the destination, and/or if she knowingly uses fraudulent means to secure her entry into the destination country. This chapter does not hold to either of these two positions, which tend to oversimplify the experiences of women and girls trafficked into prostitution. It is important that research on trafficking for commercial sexual exploitation avoids the pressure to fall into line with either of these positions and make cases fit a particular view. The approach to the research is important to consider, and in this vein the research on which this chapter draws takes Lather’s (1991, as cited in Gatenby and Humphries 2000: 100) advice against ‘imposition and reification on the part of the researcher’, in which: ‘In the name of emancipation, researchers impose meanings on situations rather than constructing meaning through negotiation with research participants’. The following discussion attempts to illustrate some of the complexities in the positions of women and girls trafficked for commercial sexual exploitation which the binaries inherent in the prostitution debate do not easily capture.
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SEX TRAFFICKING IN THE PHILIPPINES AND CEBU CITY Filipino women and girls (Filipinas) have been trafficked internally and internationally for prostitution since at least the late 1980s. Many more enter prostitution ‘voluntarily’, although many of these are often initially pushed into prostitution by a range of factors of vulnerability, such as poverty or experiences of sexual abuse. Within the Philippines, prostitution districts are prolific, being concentrated around United States and Philippines military bases, ports and popular tourist areas, with the latter contributing to the Philippines’ notorious reputation as a major sex tourism destination in Asia. Cebu City is arguably the most infamous sex tourism destination in the Philippines, and its prolific prostitution industry is comprised of thousands of women and girls, both trafficked and voluntarily entering the sector.3 Further, the initiation of joint military exercises by Filipino and American military forces (known as Balikatan) recently in the southern Mindanao region of the Philippines has been cited as providing a catalyst for the establishment of a large-scale prostitution sector involving both trafficked and under-aged women and girls. The Philippines government began to pay increased attention to the problem of human trafficking in 2003, with the introduction of a new AntiTrafficking in Persons Act (Republic Act No 9208) and the establishment of a national task force on trafficking (the Inter-Agency Council Against Trafficking, or IACAT), whose task it is to coordinate, monitor and oversee the implementation of the Act. The Act makes illegal: [the] recruitment, transportation, transfer or harbouring, or receipt of a person, with or without the person’s or victim’s consent, within or across national borders for the purpose of exploitation such as sexual exploitation, forced labour services, slavery or practices similar to slavery, and removal and sale of organs or other similar acts.4
The Act closely corresponds with the United Nations (2000a) definition of human trafficking, on which it was largely modelled. In addition, in November 2003, 24 government bodies, law enforcement agencies, religious and business groups, NGOs and the transport sector formed the Multi-Sectoral Alliance against Trafficking in Persons, as also mandated in the Act. Although the Philippines is remarkably progressive in its responses to human trafficking compared with many of its Association of South East Asian Nations (ASEAN) counterparts, it is fair to say that the government has been more successful in its efforts to curb international than domestic trafficking. The situation in Cebu City certainly confirms this. Based on the estimates of two key informants, there were between 8000 and 10 000 prostituted women and girls in Cebu City at the time of the fieldwork.
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Of these, approximately 40 per cent (3000–4000) are minors (that is, under 18 years of age), and approximately 80 per cent (6000–8000) originate from areas other than Cebu City (primarily from Mindanao, but also with substantial numbers from other parts of the Visayas region, such as Bohol and Leyte) (key informant interviews with Fr. Heinz Kulueke and Belen sa Cebu staff, March 2006). The main destinations for prostituted women and girls in Cebu City are the red-light districts of Lapu Lapu City (mainly operating KTV bars, clubs and casas5); Kamangayan (a barangay or suburb in central Cebu City where most of the prostituted women and girls work from small casas); Colon Street (an area in central Cebu City close to Kamangayan where street prostitution is most prevalent); the Port area (where akyat barko or ship prostitution, and street prostitution, is prevalent); Uptown (where KTV bars are most prevalent); and the massage parlours and saunas scattered throughout the city. There are several manifestations of prostitution operating in Cebu City. These include: sexy dancers (in KTV bars); guest relations officers (GROs) (in KTV bars); freelance sex workers (FLSWs) (who generally operate in prostitution without a maintainer or pimp in street prostitution and casas); akyat barko (in port areas in Cebu); taxi girls (young girls, normally 8–12 years of age), who roam around Carbon, Port Area, Colon Street, Plaza Independencia and Fuente Osmena looking for taxi drivers to hire them and drive whilst they perform their services (hand jobs, blow jobs and touching); call girls and escort service girls (who offer services through text messages or phone calls, and who go to the place agreed to perform their service, particularly hotels and pensions); mall girls (who solicit clients from malls and petrol stations, where they pose as shoppers); brothel workers; and workers in massage parlours and saunas (where men go for sexual intercourse under the pretext of a massage or sauna). The clientele varies according to the area and the specific manifestation of prostitution. For example, in the KTV bars of Lapu Lapu City and Uptown area the clientele is primarily foreign sex tourists, with fewer Filipino customers. In Kamangayan, the clientele is a relatively equal mixture of foreign and Filipino customers, whereas for the akyat barko, taxi girls and mall girls, the clientele is almost exclusively Filipino and, in the specific case of akyat barko, foreign seamen (particularly South Asians, referred to as ‘Turkos’). For all but two of the current clients of Balay Isidora, the majority of their customers were foreigners, rather than Filipinos. All current clients had had at least one and often several bad experiences with customers. These included non-payment, verbal and physical abuse, and being humiliated. Some customers also raped or gang raped victims.6 Participants stated that some clients also refused to use condoms during intercourse. In these circumstances, victims are powerless to enforce condom use and must defer to the client because, they state, the clients are physically stronger than them and can easily hurt them (see also Law 1998; Marten 2005).
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As far as trafficking is concerned, recruiters are often persons known to the victims; they include relatives, friends or acquaintances and, in many cases, workmates or customers of victims in their place of employment. These traffickers often receive a ‘finder’s fee’ for every victim they locate and send to a prostitution establishment. Other traffickers are not known to the victims. In these latter cases, victims are recruited through ‘chance’ meetings at key points where traffickers are known to recruit victims, such as shopping malls, bus and ferry terminals, and disco houses or entertainment venues. Traffickers normally do not reveal that the victim will be engaged in prostitution. Rather, they lure victims to the destination with the promise of legitimate employment in another sector (usually as a domestic helper, nanny, waitress or salesperson). Victims are often told they will receive good wages and have their transportation fare and other travelling expenses covered by the trafficker. The trafficker often also provides the victim with an advance on their salaries. These expenditures are normally added to a ‘migration debt’ of the victim, incurred unbeknown to them at the time of recruitment. Although approximately half the victims of trafficking in any one destination in the Philippines are drawn from the local population (for Cebu this would include Cebu City and Lapu Lapu City), the other half of the victims are recruited from other parts of the Philippines. For Cebu this is primarily other areas in Cebu province and Mindanao. From these remote locations, victims are normally transported by ferry, ship or bus in groups of 5–10, although some travel alone or with just one or two companions. The large number of travel companions often makes the victims feel safe and not vulnerable. Traffickers normally divide victims into smaller groups of 5–10 so as not to attract the attention of authorities and police who routinely check these transport terminals. Victims are often told not to disclose their circumstances of travel to authorities if questioned, and are often provided with a false story to share with authorities if questioned. Victims trafficked internally in the Philippines normally end up in one of six different types of prostitution establishments: casas, KTV bars, nightclubs, in street prostitution, in massage parlours and saunas, and as call girls. The first three types of prostitution establishments most commonly use trafficking victims in prostitution. Victims are normally transferred to the prostitution establishment by the trafficker who recruits and transports them, although sometimes they are turned over to a second or even a third person. Upon arrival at the destination they are normally put to work immediately; often they are told to take a shower, get dressed and prepare to start work within a few hours of their arrival. This ensures that victims do not have the opportunity to assess their new situation and realise they have been tricked into prostitution. Putting victims to work immediately also helps ‘normalise’ them to their situations quickly. In some cases, one of the traffickers – either the owner
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of the establishment or the recruiter – may perform a rape initiation of the victim into prostitution. This is a very common occurrence for victims who are virgins at the time of their recruitment. The situations of the victims vary, normally according to what type of establishment they have been trafficked to, so that it is difficult to generalise. Nonetheless, some common tactics are employed by owners of establishments or managers of the victims. These include: introducing the victims to drugs soon after their arrival; withholding salary from victims; creating a debt for individual victims sizeable enough that they can never be in a position to repay it;7 either removing the freedom of victims completely by locking them in their place of work or residence, or monitoring and chaperoning them when they go out (this tactic will often be eliminated after a certain period of time has passed and the victim is normalised to her situation); encouraging the victim to see her owner or manager as a friend or pseudo-family member who is looking after her; and arbitrarily punishing or penalising the victim for mistakes during work (and often adding a penalty to her debt). It is very common for victims to receive virtually none of the money they earn through prostitution, with their only source of income the tips they receive from customers. This was certainly the case for the vast majority of participants in this research, whose situations and details are discussed below.
METHODOLOGY, PARTICIPANTS AND BALAY ISIDORA REHABILITATION CENTRE This research was conducted in the context of an evaluation of Balay Isidora, for which I was project evaluator, with permission for me to utilise the information gathered during the evaluation process for research purposes. The methodology included qualitative and quantitative elements.8 The qualitative part involved in-depth semi-structured interviews with all current clients (19 women and girls) and some former clients (15 women and girls). Those who were former clients included both ‘successful’ cases (meaning they did not abscond, were (re)integrated, and did not re-enter prostitution) and ‘unsuccessful’ cases (meaning, conversely, that they absconded or left without permission and subsequently re-entered prostitution) (see Table 9.1). In-depth semi-structured interviews were chosen as the primary research method since they had the advantage of recognising that whilst participants may have similar experiences and perceptions, commonalities should not be overgeneralised. Interviews allowed for the nuances in individual experiences to be documented in the research, particularly concerning experiences of support and assistance at Balay Isidora and after release. Issues of violence, recruitment, deployment and conditions in the sex industry, background of participants and
Table 9.1 Interviews with Balay Isidora clients
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Group
Number of interviews
Percentage of group interviewed
Location of interviews
Current clients
19 (of a total 19 current clients) 10 (of a total of 80 clients)
100 per cent
BI (19)
12.5 per cent
BI (8); SVD Office (2)
5 (of a total of 80 clients)
6.25 per cent
BI (3); Client’s place of residence (2)
Previous clients (returned to prostitution) Previous clients (exited prostitution)
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reasons making them vulnerable to trafficking and/or commercial sexual exploitation were discussed in the interviews. In addition to interviews with these 34 women and girls, I also conducted eight key informant interviews with other organisations in Cebu City involved in supporting trafficked and commercially sexually exploited women and girls. These included health and legal support workers and outreach workers operating in Cebu’s prostitution districts. Finally, in the one month during which I undertook the fieldwork, I lived at Balay Isidora with many of the participants; this enabled me to be a participant observer of the daily routines and activities of both the clients and the staff. Since commencing operation in 2003, Balay Isidora has received over 100 clients, including women, girls, babies and infants. The majority of the clients (approximately 70 per cent) to date (up to 2009) have undertaken the full residential programme, which is normally around two years in duration. The remainder of the clients availed themselves of the Centre’s maternity assistance only (around 25 per cent), with a small number of clients (around 5 per cent) availing of temporary shelter. However, many clients – including those taking the full residential programme and receiving maternity assistance – have left Balay Isidora before the full duration of the programme, with approximately 15 per cent absconding (meaning leaving without permission or running away) and a further 15 per cent leaving before completing the full programme (meaning being released to the care of someone, usually a partner or relative); these two groups account for 30 per cent of the total number of clients. It is their experiences that are particularly relevant to discussion in this chapter, since many of these clients subsequently re-entered prostitution. The average age of participants when interviewed was 16 years old, with the oldest participant being 29 and the youngest 13 years old. The vast majority (28 participants) did not complete elementary school, with only one participant having completed high school.9 The majority of participants were from Mindanao (16), whilst the remainder were from Cebu City and Cebu province (12), Bohol (1), and Luzon (1).10 Most clients, whether availing themselves of the full rehabilitation programme or shorter-term assistance, such as for maternity cases, entered Balay Isidora as a result of the outreach activities of the staff of Balay Isidora (see Table 9.2). Indeed, a common feeling amongst clients who entered Balay Isidora this way was that they wanted to leave prostitution, but felt that no one cared for people such as them, and it was the interest and care shown by the staff in their lives that compelled them to try rehabilitation. Only a few of the clients came to Balay Isidora as a result of having been rescued by the police (these are represented by the DSWD, or Department of Social Welfare and Development, and ECPAT, or End Child Prostitution, Child Pornography
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Table 9.2
165
Mode of detection of clients to enter Balay Isidora for 2006
Mode of detection Outreach (Fr. Heinz, Br. Paul, Sr. Conching) DSWD or ECPAT Attorney Relatives or friends Ex-clients
2006 (31 March) 8 4 1 4 2
and Trafficking of Children for Sexual Purposes category in Table 9.2). The ‘rescue industry’ (Agustin 2007) has been subject to much criticism in sex trafficking literature for removing and victimising women who are voluntary sex workers. None of the participants who were rescued experienced this, however, with all having discussed their wish to leave with a customer, an undercover police officer or a friend. Although I was differentiated from the clients/participants by nationality, class and, for the purposes of this discussion, the experience of being deployed in the sex industry, there were other sites around which some of the participants and I forged rapport over the month I was there. In particular, I had brought my own five-month-old baby daughter with me, and she also lived at Balay Isidora for the duration of my research. Experiences of being a mother of a young baby, particularly being away from home, was the subject of much discussion and mutual sharing of experiences with the participants who had babies and young children with them at Balay Isidora. In addition, because I had a Filipino husband (although from Luzon in the north, whereas most of the participants were from the southern Visayas region), there was much to talk about concerning Filipino men (as husbands, boyfriends, fathers) and family expectations and responsibilities. Trust and rapport have elsewhere been identified as pivotal in research with trafficked persons, as they help create ‘contexts of disclosure’ (Kelly 2002b), and certainly some aspects of my identity were important in breaking down barriers to disclosure and encouraging honest and mutually rewarding engagements with many of the participants. In addition, since many of the participants had already shared their experiences with other clients and staff at Balay Isidora for the purposes of their recovery, the difficulties in talking to me in a trusting and already supportive environment were further reduced. The following section focuses on narratives of what happened to participants after they left situations of trafficking and CSE, and how and why some participants returned to prostitution, as recounted to me in interviews and through a review of their case files.
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NARRATIVES OF EXIT AND RETURN TO PROSTITUTION Through discussions with participants, three sites of vulnerability that can lead to victims’ return to situations of prostitution emerged: failure to overcome drug addictions and/or adaptation to a prostitution lifestyle; economic marginalisation and mobility; and a lack of (re)integration options after finishing rehabilitation. Drugs and a Prostitution Lifestyle Some participants cited their inability to overcome their drug addiction as the main reason for leaving Balay Isidora’s rehabilitation programme and returning to prostitution.11 Melanie (20 years old – name changed) had been residing at Balay Isidora for almost two years at the time of the research, undergoing the full rehabilitation programme. She had a serious drug dependency on shabu (a local drug, derivative of cocaine) at the time she began rehabilitation. She hated prostitution, stating that: ‘I felt useless and dirty when I was in prostitution. It was almost impossible to overcome those feelings while I stayed there, so I became a drug addict. I wanted to get out, but how? I was stuck in that situation. I was worthless.’ She became addicted to shabu when she refused to go with customers, explaining the precise details of how her habit began on her first night in Cebu City: Papasan woke all the girls up and told them to eat. He gave nice food the first night and then said, ‘Here’s some nice clothes’. I said, ‘The old woman promised us that we are just working in the house [as domestics]. We all want to be working students’. Papa told us then that if we wanted to get out of there, we needed to pay him back for the boat and the nice food. But we had no money. Papa sold my friend for PP500 [500 Philippines pesos]. She was very pretty. He sold me for PP300; that’s PP150 for me and PP150 for papa. I am shocked and would not go with a customer. Three weeks it is like that. Finally Papa gave me shabu, which costs PP120 each time. But if I have shabu, I’m not shy to go with the customer.
Melanie remained in prostitution after she was released from the bar to which she was originally trafficked. By this time, she had developed a serious drug dependency and needed to earn income from prostitution to support her habit. Although she wanted to ‘get out’ and was certainly physically free to leave prostitution after her initial trafficking experience, her own state of mind (sense of self-esteem) and drug dependency (need for high income) prevented her from leaving. In fact, Melanie did attempt to leave Kamangayan twice – and consequently returned twice – before exiting to Balay Isidora where I met her. In both cases, she was still drug addicted when she attempted to leave, availing herself of the services of a halfway house in Cebu City the first time,
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and an alternative livelihood and rehabilitation programme back in Mindanao the second time. She stated: ‘Sometimes I miss the drugs and the big tips from nice customers. I think I am still processing everything for at least six months after I leave. Even now I sometimes put on makeup and sexy clothes and pretend.’ Julia (20 years old – name changed) was, like Melanie, trafficked to Kamangayan district of Cebu City and had never undertaken prostitution prior to being trafficked. She also developed a drug dependency on shabu, which was fuelled by her initial shock at her situation and resistance to going with customers. After more than a year in Kamangayan, and still in a situation of debt bondage, Julia became pregnant to one of her customers (she is unsure which one). She was approached by one of the outreach staff from Balay Isidora concerned about her pregnancy, as she was still working and addicted to shabu when she was six months pregnant. She agreed to go to Balay Isidora to have her baby (and therefore entered as a maternity assistance-only client), but decided to try and stay to undertake full rehabilitation after her baby was born. However circumstances and events soon conspired to compel Julia back into prostitution. As she was still a drug addict when she entered Balay Isidora, she had great difficulty in withdrawing from shabu before her baby was due. Not long after her arrival at Balay Isidora she went into labour and the twin babies were born in the car on the way to hospital, both stillborn because of complications induced by her drug addiction. She could not settle into life at Balay Isidora after that, and one night she jumped the fence and made her way back to Kamangayan, where she re-entered prostitution as a freelancer. As she recounted: My babies were going to make me strong and give me hope. I try to change my life for their futures. When they were dead in the car I lost hope again. I knew it was my fault they died because I’m on shabu. I cannot stand to be at Balay Isidora any more thinking about this. I want to go back and earn money and be alive again in Kamangayan.
In both Melanie’s and Julia’s return to Kamangayan, the need for money was important. Both women needed money to support their drug dependency, and prostitution was the easiest and most familiar way they knew to obtain it. Economic marginalisation and the desire to achieve economic mobility thus also emerged as an important factor explaining their return to prostitution, both in relation to drugs and as an independent goal. Economic Marginalisation and Mobility The other main reason for clients absconding from Balay Isidora related to the lack of money (and opportunities to earn money) available in the context of
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rehabilitation. This also emerged as the main reason for participants to remain in prostitution after they were notionally free to leave. These participants were often under pressure from family members to remit money to support them, and had become used to having some money in their pockets, usually in the form of tips from customers. As Julia said: My mum didn’t know I was sold into prostitution until after I’m at Balay Isidora. When I left Balay Isidora, she was the one who put pressure on me to stay in prostitution to help the family. I bought her a business of raising chickens and pigs after I went back to work in Kamangayan and helped fix up her house.
Julia may also have felt a heightened sense of duty towards her mother after her babies were stillborn, transferring her ‘hopes for the future’ to other members of her family. Family pressure for money can often act as a powerful influence on victims to remain in prostitution after their trafficking ends, since many parents and other relatives are willing to accept this sacrifice on the part of their daughters, even when they did not know they had been trafficked into prostitution before. Some participants also missed having money simply for themselves, and were afraid for their futures beyond Balay Isidora without having saved money during their stay there. Mixed with the desire or need to earn money was the anxiety that many participants felt about having sold their bodies through prostitution, and being utterly financially exploited in the process. Marie (18 years old – name changed) felt: angry that I had slept with so many men, risk catching some STD [sexually transmitted disease], and I had nothing to show for it. Imagine being a prosti [prostitute] and all your money going to your maintainer to pay your debt. The debt isn’t even real, just made up so I can’t leave. Why not go back again? I’m already a prosti now and at least I will have money to show for it this time.
Similarly, Rosanne (16 years old – name changed) stated that: I ran from Balay Isidora because I can’t do anything to help myself financially there. I can only think about my past, get some education, and try to get over the bad things that happened to me. Well that is fine, but I’m too young to be employed as a saleslady or a good job. Prostitution is the only choice for me now and I am already used to it.
Rosanne and Marie both absconded to return to prostitution in Lapu Lapu City and Kamangayan respectively. Finally, some participants – particularly those trafficked to areas where foreigners comprised the main clientele – hoped that they would develop (or continue) a ‘romance’ with a foreign customer who might be referred to as
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their ‘boyfriend’. Julia was certainly in this situation, and saw her return to prostitution as a temporary means by which she could then transcend prostitution altogether, since prostitution provided the initial context in which her relationship with her German boyfriend could be resumed and strengthened: He will come back to me in three more months and I will be his exclusive girlfriend then [meaning he will buy her time for the duration of his stay in Cebu]. He also sends me money and, eventually he will come and live with me here and then I won’t have to be a prosti any more. I can’t wait for that time.
I could not discover if Julia’s boyfriend fulfilled his promise. Much of the money he sent her – which was quite a substantial sum for her – went to support her drug habit and to remit to her mother. Without this additional money she may have been forced into more exploitative circumstances in prostitution and incurred another (drug-related) debt to a maintainer or pimp. It is impossible to frame Julia’s situation in black and white terms, and I only hoped her boyfriend would return to her as he had promised. No Place to Go For many of the clients of Balay Isidora, there is no immediate option for support or care within their home environment once their rehabilitation ends. In addition to Melanie’s drug dependency, for example, her family circumstances made return to her family home and reintegration into her community also an impossibility. Melanie painfully recounted: I can’t go back to my family. My stepfather sexually abused my younger sister and my mother just let it happen. We all slept in the one room. We only had one bed and my sister and I slept down one end and my mum and stepfather slept at the other end. One night I saw my stepfather get up and come to the other end of the bed where my younger sister was. He raped her right next to me. My mother just turned me in the other direction so I couldn’t look at what he was doing to her. I hate my mother and my stepfather for that. I am afraid that if I return home my stepfather will try to rape me too.
Angel (22 years old – name changed) had a similar dilemma. She was due to be released from Balay Isidora a few months after she participated in the research (around June 2006). She expressed some anxiety about where she would go since her uncle continually raped her when she was living with him and her aunty in Manila, beginning when she was just eight years old. As these were the only relatives she had, she felt concerned about the prospect of returning to them. In addition, Angel had a two-year-old daughter with her at Balay Isidora and was worried about how she would provide for her future, and indeed what might happen to her daughter if she took her back to where
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her uncle was living. Although Angel had not absconded from Balay Isidora or returned to prostitution, she was nonetheless in a vulnerable situation if she returned to her previous family environment, which had been pivotal in compelling her to a situation of sex trafficking previously. Although unconducive family contexts have been much discussed in the literature on causes of trafficking of women and girls, there has been comparatively little attention in the context of reintegration. Frederick (2005: 142) is one of the few who recognise that: ‘Integration is constrained by a major lack of conceptual clarity. The term ... “reintegration” (as opposed to integration), is itself problematic, implying that ... [the victim] can return to her original state, which she cannot’. Around half the women and girls in this study were in these types of situations, where they could not return to a pre-trafficking family or community context because of unconducive family circumstances. The term integration also recognises that victims of sex trafficking will be markedly different as a result of their experiences, and returning ‘home’ can be fraught with difficulties related to disclosure, shame and so on. In sum, economic factors, issues around drugs and prostitution lifestyles, as well as lack of options for future support, were important factors explaining the decisions of many victims to return to prostitution, even after having been trafficked and deployed in situations of CSE and never having undertaken prostitution previously. Further, for many of the women and girls in this study, their decisions to re-enter prostitution were made in the context of a coalescence of these factors, rather than only one or another.
EMPOWERMENT, CHOICE AND VOLUNTARY PROSTITUTION Best practice in rehabilitation and reintegration for sex trafficking and CSE victims identifies empowerment of victims as the primary aim of support programmes. Empowerment requires that a range of issues be addressed in the rehabilitation process, including physical and sexual health, environment (lack of resources, environmental problems leading to displacement), social issues (displacement in society, gender inequality and discrimination against women, gendered violence and family trauma, social stigma), and psychological problems (low self-esteem and feelings of guilt, denial, anger/hatred, sexual anxiety, self-loathing leading to self-harm). The last of these – psychological problems – are generally given higher priority than the others, since they more directly lead to disempowerment and vulnerability. This was certainly evident with participants in this study, who variously experienced lower self-esteem, loss of hope and feelings of despair, self-loathing, depression and, sometimes intertwined with these, drug dependency.
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According to the JIT (Joint Initiative in the Millennium against Trafficking in Girls and Women, Nepal) (2004: 20–21), gender-specific strategies are important to overcome these psychological problems, and these are comprised of consciousness-raising measures (reflecting on problems, sharing of problems, reconstruction of problems, legitimisation of feelings and opinions) and reconstructing identity (healing and recovery through ritual group therapy, identifying oppressive gender and social roles and relations, constructing positive identities through self-reflection). It is also commonly recognised that empowerment of prostituted and trafficked women and girls requires attention to two sets of developments taking place. The first is personal (in relation to self), and would include the nurturing and development of qualities such as self-esteem, courage, sense of control, confidence, the ability to make plans and decisions and hope or vision for the future. Second, there are social and political (in relation to society and family) measures, which would include such factors as access to resources, the ability to make decisions in independent settings, and a sense of control in relationships. Reflecting on the experiences of past and current clients of Balay Isidora, it is clear that many of those who had been trafficked received a great deal of care and attention in relation to their psychological recovery, and to some extent with regard to their positive self-development through education, skills training and social activities. Nonetheless, clients felt a sense of frustration at not being able to earn money or conceive of ways to earn money outside prostitution once their rehabilitation ended. Drug dependencies, family pressures and the opportunity to develop a romantic relationship with a customer who might provide them with economic mobility and a life beyond prostitution were also important considerations for many clients. Personal developments were thus more successfully and easily nurtured than social and political developments. Decisions about a return to prostitution were not made in ways that reflected the independent choices of participants, but rather in the context of a range of often coalescing and constraining influences. It is useful to reflect on what this means for efforts to support the human rights of victims of sex trafficking, particularly according to the sex workers’ rights perspective. Sex worker support and advocacy groups would view these women as voluntary migrant sex workers who, while still experiencing some vulnerabilities associated with such positions – particularly concerning health standards and working conditions – had knowingly chosen to work in the sex industry. Their rights would consequently be framed around such positions. This might include the right to a decent standard of work and health, and access to information about support in different languages and for different cultural groups. However, for many formerly trafficked women the improvement of these rights does not address the core issue of their initial trafficking and the reasons why they chose to then remain in prostitution – namely lack
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of alternatives to leave prostitution. None of the women whose experiences are discussed in this chapter wished to remain in prostitution, but they did so because of various reasons relating to their experiences during and after trafficking, and because their trafficking experiences had normalised them to sexual labour as a livelihood option.
CONCLUSION This chapter began with the suggestion that some victims of sex trafficking can re-enter prostitution at a later point under ‘voluntary’ arrangements, including returning to the site of their original trafficking or working in another prostitution area. This is often the case even where victims’ initial trafficking may have involved complete deception about being prostituted and/or where the victim may never have previously performed sex work. The chapter focused on exploring some of the reasons why this occurred, through a discussion of current and previous clients of Balay Isidora rehabilitation centre for trafficked and prostituted women and girls in Cebu City, the Philippines. Drawing on the narratives of current and past clients of Balay Isidora, including several who absconded and subsequently returned to prostitution and others who returned to prostitution and then exited again, I found that these decisions were not made in contexts of empowerment or autonomous decision making as in the sex worker’s rights perspective. Their return was marked by ‘constrained choice’ (Sandy 2006), and reflected changes in attitude and a transformed sense of self that developed both during and after being trafficked (Hwang and Bedford 2004). Further, it was discovered that participants returned to the same brothels or prostitution districts to which they had been previously trafficked. Thus, although the participants knew (and were therefore not deceived) about what kind of work and conditions they would be (re-)entering, the circumstances of their return to prostitution were nonetheless marked by lack of freedom (over their sexual health, decisions about refusing certain clients, terms of remuneration for their services, surveillance in their personal lives, and so on). Finally, I found that the single most salient reason for participants’ decisions to re-enter prostitution was their prior experiences of being trafficked and/or commercially sexually exploited. Even for participants who had entered rehabilitation programmes, the failure to recover fully from experiences of being trafficked and exploited, and the inability to return to a pre-trafficking lifestyle, acted as a motivation to return to sex work. Trafficking, in other words, was a pivotal context of vulnerability to re-entry into prostitution at a later point in time, and under conditions that in some ways did not differ markedly from those of their original entry into prostitution.
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The chapter attempted to reflect on the implications of these women’s and girls’ experiences for the debate about choice and the forced–voluntary dichotomy in the prostitution debate as it is applied to sex trafficking, particularly as this debate frames efforts to support the human rights of sex workers and victims of sex trafficking respectively. To this end I found that it is important to consider how the either/or of the forced–voluntary distinction can dissolve in the context of any single woman’s or girl’s experience, and that, for some of the women in this study, this ‘messy reality’ meant looking at their trafficking experiences to help explain their decisions to return, and the conditions of re-entry, to prostitution. In contesting the abolitionist’s perspectives on sex trafficking, much of the recent literature on migrant sex work has focused on transnational migrants who have demonstrated considerable agency in going abroad and attempting to craft better futures for themselves (Thorbek and Pattanaik 2002; Agustin 2007), and who generally fall outside the trafficking framework.12 The result is that geographically, sex trafficking and sex work in transnational contexts is now much more widely discussed and perhaps better documented than that which occurs domestically and often where victims are younger. Domestic sex trafficking situations can present quite different challenges to understanding and framing experiences according to the contours of the prostitution debate, including proximity of those victims of trafficking who exit to social networks, boyfriends/customers, pimps and maintainers, and so on established through trafficking. It would be useful for future research to tease out some of these differences more fully and reflect on what they might mean for debates about empowerment, choice and voluntary sex work.
NOTES 1. 2. 3. 4. 5.
6.
The other discourses that frame understandings of and responses to sex trafficking (and other forms of human trafficking more generally) are those of migration, transnational crime and criminal justice, gender and development. See also Marten (2005) for a parallel discussion on sex workers and HIV/AIDS policies in Cambodia. See Law (2000) for an overview of Cebu’s sex tourism industry and ECPAT-Philippines (2004) for a specific overview of child prostitution and trafficking in Cebu. The full text of the Act can be accessed at: http://www.trafficking.org.ph/resources/phil/ downloads/ra9208.htm. KTV is short for ‘karaoke television’ and is a type of bar offering karaoke and ‘hostess’ services to accompany men singing and drinking. Casa, a Spanish word, literally means ‘house’ but in the context of domestic prostitution in the Philippines may be defined as a closed brothel, usually containing young women who may also have had their freedom removed. Casas are commonly believed to be one of the worst types of prostitution establishments in the Philippines because of the unsavory conditions in which prostitution takes place and the exploitation of the prostitutes within these. Interestingly, at least half the current clients of Balay Isidora stated that their customers were
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7. 8. 9.
10.
11.
12.
Trafficking and human rights aware that the victim was underage and/or that she would not receive any or most of the fee for her prostitution service. This is gravely concerning, given that engaging in sex with a minor is a punishable offence both in the Philippines and in most of the countries of origin of the sex tourists themselves. This would include buying various basic needs for victims at highly inflated prices and charging similarly highly inflated prices for medicines, dental and medical visits, and so on. The quantitative component of the study involved a review of all the case files of all previous and current clients of Balay Isidora (just over 100). These data are not drawn on for discussion in this chapter. Several of the participants who were current clients were, however, enrolled in either middle or high school as part of their rehabilitation at Balay Isidora. It was my observation that equally as important as the educational attainments of graduating school for these participants was the sense of self-worth and pride that graduating from school inculcated. I had the privilege of being the ‘sponsor’ for one of the participants who graduated from middle school along with four other participants while I was conducting the research (she did not have any relative to act in such a capacity), which gave me a sense of the enormous pride these participants felt on that day. Clients of Balay Isidora exhibit some common key characteristics. These include: the majority are minors, or were minors at the time they first entered; the majority have experienced either a broken family, family trauma, rape, incest or physical abuse; the majority are either from Cebu City, Lapu Lapu City, Mindanao, or provincial areas of Cebu Island; the majority have not graduated from either elementary or high school; the majority have experienced drug addiction; the majority have been trafficked into prostitution; the majority are from impoverished families. These constitute what I call ‘contexts of vulnerability’ (see Yea 2005) that make clients highly susceptible to entry into prostitution. Without an initial, comprehensive medical examination by a doctor upon their admission to Balay Isidora, and without a psychologist to work intensively with new clients during their initial period after their admission, it is likely that serious problems (drug abuse, psychological problems, depression and so on) may remain undetected or inadequately attended to. The various policy implications of this would also disrupt an abolitionist perspective by asserting the need variously to legalise sex industries in destination countries and create migrant sex worker visas (and therefore work against contexts of seclusion that may increase workers’ vulnerability); provide (sexual and reproductive) health education for migrant sex workers; and so on.
10. Conclusions: quadruple victimisation? Leslie Holmes Human trafficking has become much more of a problem since the early 1990s than it previously was. It is possible that some of the data cited by various states, international organisations (IOs) and non-governmental organisations (NGOs) on the number of people trafficked are too high, as suggested both by Milivojevic and Segrave in Chapter 3, and more recently in a British government investigation into trafficking in the UK (N. Davies 2009) – though the highly clandestine nature of this crime means that nobody knows the real figures (on the problems of measuring human trafficking see Savona and Stefanizzi 2007). Nevertheless, the number of prosecutions and convictions globally for trafficking each year, plus the number of people cared for by victim support centres, constitute clear evidence of a serious and large-scale problem.1 And while growing awareness of the phenomenon of human trafficking may also inflate the figures, there is no question that global structural changes since 1989 have stimulated human trafficking. Two of the principal changes have been highlighted in this book. One is that the collapse of Communism and end of the Cold War created new opportunities, as well as new problems; this conflation of opportunities and problems was fertile soil for trafficking. The other also represents a conflation of new opportunities and problems. It focuses on the contradictions between globalisation’s advocacy of open borders and the tendency of (groups of mostly affluent) states to tighten immigration laws; all too often, finance capital enjoys more ‘rights’ than people do. At the same time, globalisation does not readily distinguish between legitimate and illegitimate trade and commerce; conceptual boundaries blur. As Naím (2005: 219) has argued: ‘Since 1990, the phenomenal spread of political reforms aimed to lower barriers to trade and investment, and the accelerated pace of technological change, have infused global commerce with unprecedented energy. Illicit trade received the same boost for the same simple reasons’. In this context of growing illicit trade coupled with tighter borders, Laos is to be congratulated for seeking in 2007 to reduce the opportunities for traffickers and fraudsters to prey on vulnerable people, by eliminating the need for Laotian citizens wishing to leave the country to have passports. But 175
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the attitudes and policies of destination – potential recipient – countries also have to be considered. Unless they are willing to accept people from other countries without international travel documentation, unilateral measures by source countries are unlikely to have much impact. Despite the fact that the contributors to this volume adopt differing positions and methodologies, and examine the situation in very diverse types of system, there are also some common threads running through most of the analyses. It is not intended to provide another summary of the chapters – this was done in Chapter 1; but it is worth focusing on and further exploring some of the most sensitive and controversial arguments and findings in this collection, and drawing conclusions about these. It will be argued that the current approach of most states and IOs in many ways undermines the human rights of trafficking victims, albeit sometimes unwittingly. It is in this context that the concept of quadruple victimisation will be elaborated, and used as a springboard to make policy proposals.
DRAWBACKS OF THE ABOLITIONIST ARGUMENT Several of the contributors to this volume reject the so-called abolitionists’ argument that all women in sex work are victims, and prefer to allow that some women in various forms of prostitution are simply exercising agency – that is, choose to engage in their work. This is certainly not to suggest that it would be their ideal occupation of choice. Rather, they have in many cases made a difficult choice between various unattractive options – what Yea calls ‘constrained choice’ in Chapter 9. Some hope, via prostitution, to find a husband from an affluent country who will help to lift them and their families out of their poverty; here, prostitution is seen as a potential passport to a much better life. Some are under pressure from their families to earn income for the rest of the family, who are perfectly aware of the kind of activities they are encouraging their daughter, sister or niece to engage in. Some are being sexually abused already at home, and conclude that if they are being subjected to this anyway, they may as well benefit from it by charging a fee. While some abolitionists might argue that the state or IOs should be responsible for looking after women who are desperate to feed their children and/or parents – as well as themselves – the fact is that many states do not, will not and in many cases cannot adequately care for such people. Typically, it is wellmeaning and well-educated people from affluent countries who adopt the abolitionist position. From many perspectives, they have right on their side. Yet what they advocate will not assist the thousands of impoverished women around the world who decide to engage in prostitution simply as a way of making ends meet; indeed, if abolitionist pleas result in the adoption of poli-
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cies sympathetic to the abolitionist argument, it may actually work against those they seek to help. The stance is also sometimes patronising. Such a contention requires justification. Unfortunately, while criminalising the use of prostitutes may reduce demand, it will never result in the eradication of all demand, and this fact is likely to make the situation worse for both trafficked (and other) prostitutes and society generally, for three reasons. First, criminalisation means that key components of the sex industry go deeper underground, making real victims even more invisible to both authorities and society, and hence more difficult to assist. Inter alia, this makes sex workers more prone to violence. Even Sweden’s most outspoken parliamentary advocate of criminalising the use of prostitutes, Marianne Eriksson, has acknowledged that the clients who are prepared to risk purchasing sexual services when the use of sex workers is illegal are typically those most likely to be violent with women (Alfredsson 2009).2 The detailed research project conducted by Melissa Farley et al. (2003: 49 and 63) suggested that more than half of the prostitutes surveyed in six countries believed that they were less likely to be assaulted if prostitution were legal, while approximately one-third wanted prostitution to be legalised.3 Another increased risk is that clients are more likely to be able to insist on unprotected sex; as Swedish prostitute Pye Jakobson has argued: ‘Health-wise, it is riskier because more clients ask to have sex without a condom, because they know that some women are desperate for cash and will do things they would have refused before’ (Fouché 2009). Moreover, where brothels and the purchase of sex are illegal, prostitutes usually have to work surreptitiously and individually, and do not enjoy the potential support of other sex workers, brothel owners or bouncers. Second, given the combination of greater risks and reduced demand, criminals will seek higher returns from each sex worker. Criminalisation increases the costs for traffickers, who will often seek to circumvent the law by bribing officials to turn a blind eye or collude in other ways. In short, the costs of corrupting increase. While some of this might be offset by charging higher prices for sex, it is at least as likely to mean that bondage debts of trafficked persons increase. In order to pay off these debts, trafficked persons will have to work more intensively (longer hours), or for a longer period (months and years), or both. Finally, the fact that both organised crime and corruption rates usually increase where there is a tension between official policies and society’s demands – the prohibition era in the United States (US) provides an historical example, illicit drugs a contemporary one – is clearly a negative development for both trafficked persons and the rest of society. Nor should the abolitionist argument be permitted to negate the right of some people – a small minority – who are not impoverished to seek to earn
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high incomes by engaging in sex work legally.4 With effect from January 2009, Norway emulated the Swedish policy of criminalising the purchase but not sale of sex, which appears to have substantially reduced the income of some Norwegian prostitutes. Not only has the number of clients declined, but the whole exchange can now take much longer, reducing income: ‘Now the men drive us out of town to find an empty space with no one in sight. It often takes more than an hour before we’re back. Before we would go down to the harbour and be done in 15 minutes’ (Norwegian prostitute ‘Michelle’ in Fouché 2009); and, ‘Before, you would work until you made 4000–5000 kroner. Now you have to work all night and you earn only about 1000–1500 kroner’ (Norwegian prostitute ‘Nadia’, Fouché 2009). While some may consider such work distasteful and be unable to comprehend how anyone can engage in it, it is the mark of the authoritarian, and a negation of rights, to forbid others from making sizeable incomes from engaging in activities that are legal.5 This point applies even if the motives behind the advocacy of prohibition (abolition) are well intentioned – which, as noted, they usually are. Hence, the contributors to this volume seek a more nuanced position on structure versus agency. But the adoption of such a position in no way suggests that any of the contributors does not accept the need to recognise the human rights of all people, and particularly those being trafficked. Rather, it is to adopt a more complex position than that of the abolitionists – one that will increase the rights of trafficked persons while not infringing the rights of people who have made conscious choices to engage in sex work.6
GENDERED APPROACHES AND HUMAN RIGHTS Despite significant progress in recent decades in most developed and transition states – the situation is in general less encouraging in developing states – there is still a long way to go in terms of men and women being treated equally. This is a significant aspect of the human rights issue. In this volume, one of the most glaring examples of the gendered approach in trafficking can be seen by comparing the situation of women in the case of the Federation of International Football Association (FIFA) competition in Germany with the attitude of so many states and IOs towards male peacekeepers in Bosnia and elsewhere. In the German case, many women wanting to visit Germany from troubled parts of the world were in essence deprived of agency. While the reasons for this might at first glance be seen to have been well intentioned – designed to minimise the risk of gullible and desperate women becoming victims of traffickers – a closer examination reveals that the policy was ultimately patronising and discriminatory, and prevented some women from exercising their rights to freedom of choice and to travel. Conversely, the tolerant
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attitude adopted by states and IOs until very recently towards male peacekeepers who used prostitutes – many of them trafficked – essentially prioritised male freedoms over female ones. In short, a comparison of these two cases, of which many similar examples could be cited, reveals a contradiction between the general commitment of states and IOs to gender equality and their actual policies and practices in specific contexts. There are clearly elements of hypocrisy and sexism here. But this collection has demonstrated that the repatriation policies favoured by so many destination states should also be challenged on the basis of human rights. Such policies are not only in general patronising, but also seriously misguided if the governments that adopt them genuinely believe they are helping the trafficked persons. In extreme cases, trafficked persons that are returned to their countries of origin are subject to reprisals by their traffickers or accomplices of their traffickers. More commonly, trafficked women and girls who had been prostituted and who are then returned home are stigmatised – treated as pariahs and shameful – by their families, which in turn leads many of these females to decide to return to sex work. Trafficked people who have not been engaged in sex work are generally less subject to this social opprobrium; but since most destination states have shown even less interest in them than in trafficked sex workers, their human rights are often an even lower priority for state authorities. The point about trafficked sex workers leads to what might initially appear to be a particularly problematic aspect of the trafficking issue from a human rights perspective. This is that human rights are widely seen to be universal (a point disputed by the 1990 Cairo Declaration on Human Rights in Islam), whereas the fact that different cultures often manifest different dominant attitudes towards prostitution and trafficking might suggest that policies on repatriation should be country-specific. But this potentially thorny problem can be readily resolved by again focusing on the rights of the individual. Instead of destination states arbitrarily returning trafficked persons to their countries of origin – even if this is done in a more ‘caring’ way, such as providing them with a pecuniary allowance to start a new life – traffickees should be given the option of deciding for themselves whether they wish to return to their country of origin, stay in the country of destination or move to a third country. Admittedly, this raises a number of practical issues, of which arguably the most significant is ‘procedure shopping’; this potential problem is considered below. To this point in the argument, it might appear that a libertarian position on trafficking is being adopted. This is emphatically not the case. Equally, radical neoliberal policies that treat all human exchanges as simply market activities, and in which the state should play as little regulatory or control role as possible, are firmly rejected. In order to explain and justify the position adopted
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here, it is necessary to return to the various definitions of trafficking cited in the preceding chapters. These invariably refer to deception and coercion, to which the focus now turns. It has been argued – and demonstrated from research – that some people consciously choose to engage in sex work as the lesser of various evils. To deny people such an unenviable choice is to reduce an already poor menu to an even more depleted one. If prostitution is legal in a country in which a desperate person is resident or to which that person pays to be smuggled, then for such people to be denied agency constitutes a denial of a basic human right to choose one’s employment. While states may claim that individuals who have entered their territory illegally have no work rights, this is different from the more abstract human right of freedom of choice, and is challenged below anyway. However – and this is a significant caveat – empirical research also reveals that many women who have consciously decided to engage in sex work and who have paid to be smuggled into a preferred country of destination are subsequently duped by their smugglers, who either themselves continue to traffic the women or else sell them to other traffickers in the country of destination. There is an abundance of evidence that a large number of women who were fully aware that they would be engaged in sex work once they reached their chosen country (that is, they were not being deceived at that stage of the process) subsequently discover that they have in fact become little more than slaves. In short, it is necessary to distinguish clearly between a situation in which a person chooses to be smuggled into a more affluent country in order to engage in sex work in a context in which they continue to have some control over their situation, and one in which they are deceived and coerced – often through the use of physical violence – by others, even if the deception and coercion was not evident in the early stages of the process. This is a crucial distinction in any discussion of human rights in the people smuggling and human trafficking debate. It will be recalled that Kneebone and Debeljak have argued in Chapter 8 that a gendered anti-trafficking approach is not always appropriate, since too much focus on trafficking related to the sex industry may mean that the substantial amount of trafficking that involves non-sexual labour exploitation gets overlooked. While the argument in the preceding paragraphs relates primarily to sex-workers – and hence mostly to women and, increasingly, children (on child trafficking see for example Renton 2001, 2002; Dottridge 2005, 2006; O’Connell Davidson 2005; Bechard 2006) – many of the points regarding human rights do have more general application. Hence, wherever the argument made here in the context of trafficked persons for sexual exploitation can be applied more broadly to all trafficked persons, it certainly should be. Otherwise, we would ourselves be guilty of a gendered and narrow approach to human trafficking.
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In Chapter 1, the direct relevance of various rights elaborated in the UN’s Declaration of Human Rights was briefly considered in the context of human trafficking. But in addition to those listed there, other rights, which many consider to be basic human rights, need to be considered with specific reference to trafficking. One is the right to adequate healthcare. Since trafficking so often relates to sexual exploitation and coercion, trafficked persons should have the right to access proper medical care and education if they contract or want to avoid HIV/AIDS (human immunodeficiency virus / acquired immune deficiency syndrome) or hepatitis, overcome drug dependency, or simply be treated for everyday ailments that affect the rest of the population, and that are often primarily a function of being tired and run down (on healthcare and human rights for trafficked persons see GAATW 1999: 63–9). Trafficked people should also have an automatic right to access language classes in their countries of destination, since some command of the local language is vital if they are to be better able both to understand and to exercise other rights. Neither of these rights can be exercised if trafficked persons are invisible to the state.
QUADRUPLE VICTIMISATION The stories of those who have been trafficked are depressing. Unfortunately, their already bad situations are often further exacerbated because of the approaches adopted by IOs and, in particular, states. In far too many cases, states either wittingly or subconsciously add to the already severe suffering of trafficked persons because of their approaches to illegal labour and illegal migration. Their desire to be rid of ‘troublesome’ illegal migrants means that they subject many trafficked persons to what I have elsewhere identified as ‘triple victimisation’ (Holmes 2009b): since my summary of this was cited in Chapter 6 by Schwandner-Sievers – who originally triggered the concept in my mind – it will not be repeated here. Moreover, it has become clear to me that the concept of triple victimisation needs to be expanded, and that it is more appropriate to talk of the quadruple victimisation of trafficked persons. The first of these four types is victimisation by private individuals and groups. Such victimisation by criminal gangs, or in some cases by individual criminals, has been well covered at various points in this book as well as in the literature more generally (for example Williams 2008), and focuses on deception and coercion, often involving both psychological and physical violence. Although victimisation by private individuals and groups refers here mainly to victimisation by pimps and gangs, it often also relates to friends and family members of victims. For instance, if family members sell their daughter or sister or nephew to a trafficker, they are clearly trafficking that person,
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and hence victimising them. A typical example of this is cited by Chalke (2009: 10): Wihini, aged nine, and her brother Sunni, aged seven, lived on Thane train station in Mumbai, India with their parents – both alcoholics … One day, Wihini and Sunni simply didn’t turn up [to their day centre] … [project staff] workers became worried, and went in search of their parents. The workers found the father lying drunk on the station platform. When they roused him and asked about the children, he admitted that a man had come to him one morning offering money for them. He needed money for alcohol, so he agreed. The trafficker had taken Wihini and Sunni away for the equivalent of just £20. The father was angry because he had never received his money … The children were never seen again.
The actions of the parents of this young brother and sister should also be included under the rubric of type one victimisation. Type one victimisation also refers to private citizens who exploit trafficked persons. While the most frequently cited aspect of this relates to sex work, it also applies to domestic work and various other forms of forced labour (for 37 actual case studies reported in Germany see Cyrus 2006: 27–57), and forced marriages. Some of these other forms – especially the last – can involve sexual coercion and violence, and all can involve non-sexual violence. Before considering the second, third and fourth types of victimisation, there is another aspect of the first type that has hardly been mentioned so far, and that must be acknowledged if a comprehensive understanding of the issue of organised crime and trafficking is to be gained. The brief analysis above of the gendered aspects of trafficking did not refer to the fact that traffickers are often female. In the 2007–08 United Nations Office on Drugs and Crime (UNODC) major analysis of trafficking around the world, the gender of those convicted for trafficking in persons could be determined in only 46 countries; in 14 (or 30 per cent) of these countries, more women than men were convicted, while women constituted between 10 per cent and 50 per cent of those convicted in 28 countries (61 per cent – in Sarrica et al. 2009: 46–7). Not only this, but some women traffickers are physically violent (see Elizabeth’s story at UNICEF-UK 2008). In moving towards greater degendering of the trafficking and human rights issue, this unpleasant fact must be acknowledged. Yet it must also be recognised that many of the female traffickers – and probably most of those who are physically violent – have themselves been abused and/or trafficked in the past. This has not only taught them how to run a trafficking operation, but has also typically desensitised them. In short, while the often abhorrent role of women vis-à-vis other women must be openly recognised, it is also important to understand the role frequently played by men at the start of the desensitisation process. Turning now to the second type of victimisation, evidence was provided
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principally in Chapters 4, 5 and 8 of trafficking-related collusion between criminal gangs and corrupt officials. Such collusion on the part of state officials assumes many forms, ranging from being directly involved in traffickingrelated operations, through turning a blind eye to trafficking across borders or alerting gangs to imminent raids, to preparing the paperwork for illegal adoptions. There have even been claims that police may have been involved in murdering trafficked people who have blown the whistle on their corrupt activities.7 Further evidence of trafficking-related corruption is provided by Liudmila Erokhina (2005: 91–2), who refers to a report by the head of the Border Patrol Unit in Khabarovsk (Russian Far East) in which it is claimed that Chinese police officers were directly involved during the 1990s in trafficking Russian women. According to this official, some Russian women who had been trafficked to China had managed to escape from their Chinese brothels and had turned to the local police for support – only to find that Chinese police officers either returned them to their original brothels or else sold them to other brothels (for similar allegations about the Japanese police see O’Neill Richard 2000: 56). Another useful source is Human Rights Watch, which has produced considerable evidence of the corrupt collusion between police officers and traffickers in Thailand and Burma (Thomas and Jones 1993: 75–84). In January 2001, an Albanian police officer was sentenced to seven years’ imprisonment for deceiving a 12-year-old girl so as to make her a prostitute in Greece (Renton 2001: 4; for further evidence of police involvement in SouthEastern Europe see Magistrali 2004: 67–76, 87–9). And in a more recent case, an official at the Italian Embassy in Kyiv was arrested in September 2007 for having allegedly played a facilitating role in the trafficking of young girls for prostitution (US Department of State 2009: 168). In short, officers of the state, whom trafficked persons should be able to trust, sometimes seriously abuse that trust and play a direct role in both promoting and/or prolonging the horrors of the trafficking situation. This type of involvement of corrupt officials constitutes the second form of victimisation. Unfortunately, experience or knowledge of the corrupt involvement of state officials in a source country can help to explain why trafficked persons are often frightened of approaching the authorities in a destination country. This point emerges from a comment made by ‘Sheila’, a trafficked orphan from Uganda who was eventually rescued in the United Kingdom (UK): ‘I was scared to go to the police. I thought they were like the police in Uganda and that they would take me back there [to a house where she was being sexually abused] or would kill me’ (UNICEF-UK 2008). The second type of victimisation does not manifest itself only in very obvious ways, such as the direct collusion just identified. It also happens, for example, whenever officers of the state use prostitutes they know or should suspect have been trafficked. A common site of such activity in recent years,
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as shown by Simic´, has been wherever there are international peacekeeping forces. In Chapter 9, Yea has provided evidence of this also happening where troops from one country have been based in a foreign land or have visited other countries in order to engage in military exercises with local troops. Another common scenario is where state officials – such as diplomats or politicians – employ staff who work for very low rates, yet do not bother to check the paperwork of these domestic aides, knowing that this might identify or suggest a problem. They prefer to sweep the issue under the carpet while their trafficked cleaner vacuums it. In these various cases, then, officers of the state are either directly or indirectly contributing to the exploitation of trafficked persons; inasmuch as they do so for their personal benefit, they are being corrupt. Before considering the third type of victimisation, a point made to the author by a senior person in a German anti-trafficking NGO needs to be addressed. When I informed her that I did not consider official corruption ever to be beneficial in the long term, she countered that, while she agreed with me in most cases, there were exceptions in at least two types of situation. Thus if corrupt border officials turn a blind eye to people being smuggled across frontiers, she argued, this can actually assist those smuggled persons to counter the exclusionary policies of most affluent states, and give them a better chance in life. Equally, once in a destination country, smuggled persons – including those who have chosen to engage in sex work – can bribe police officers and other officials to help them avoid deportation. She saw these two scenarios as ways in which individuals could enhance their capacity to exercise their human rights despite the unwelcoming approach of so many states – so that corruption was playing a positive role. This is a similar argument to that concerning Nazi prison guards who turned a blind eye to escaping Jews in return for bribes. While there is some weight to this argument that corruption can occasionally be beneficial, it is argued below that illegal migration is usually unfair to others who seek to migrate legally. But even putting this argument to one side for the moment, the most important point to note about this NGO officer’s argument is that it constitutes a prime example of why it is in many cases vital to distinguish people smuggling from human trafficking; while there is some mileage in her position vis-à-vis people smuggling, it is never valid in the case of trafficking. The third type of victimisation – and the one omitted in my analysis of triple victimisation – is that engaged in by the mass media. Lasocik provides evidence in Chapter 2 of the ways in which newspapers, television and other forms of mass media often exacerbate the already terrible conditions suffered by trafficked people – mainly those being sexually exploited – by their prurient presentations and use of salacious language when reporting on trafficked persons (for similar evidence from Albania see Renton 2002: 88). Since the
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media play a role in socialising the public, such biased, unsympathetic – often blatantly cruel – reporting does not help trafficked persons, and unquestionably constitutes a third form of victimisation. Many trafficked persons already have low levels of self-esteem and confidence, and being treated in this way by the media only makes matters worse. The fourth and final type of victimisation is the least recognised, but is in some ways the most inexcusable, and is certainly the one that relates most directly to human rights. The signatories to most human rights documents are neither criminals nor corrupt police officers nor journalists, but states. It is thus ultimately the responsibility of states to ensure that they and their officers are doing all they can to ensure the observation of human rights. This fourth type of victimisation, by the state, can be classified into six – arguably seven – principal forms. One is the way in which the state will in various ways support its officers when there is at least a suspicion that they have been playing either a direct or an indirect role in trafficking. A common manifestation of this is the granting of and insistence on immunity when there are reasonable grounds to assume improper behaviour by its officers, and even when there is clear evidence of such behaviour. Although the Australian government introduced legislation that permits prosecution of alleged Australian paedophiles not only in Australia but also overseas as relatively early as 1994, this is rarely applied to state officials. On various occasions when there has been a prosecution, officials have typically not been convicted, for reasons that look questionable to an impartial observer. Thus former Ambassador John Holloway was charged in 1994 with sexual abuse of male adolescents in Cambodia, but had his case dismissed when a Canberra magistrate deemed the Cambodian teenagers to be unreliable witnesses. Another Australian diplomat, former Deputy Ambassador to Hanoi Robert Scoble, was investigated twice in one year for allegedly procuring and distributing child pornography – and then received glowing job references from his employer, one John Holloway (Allard 2004). In the light of cases such as these, a Commonwealth paedophile enquiry was established by the Australian government in 1996. Yet despite its strong antipaedophile rhetoric and call for tighter controls and a code of conduct, the report (O’Neil 1997) also made it clear that since most of the allegations were over a decade old, it was inappropriate for current officers or agencies to be held responsible for any improper behaviour in investigating them. On one level, this is fair enough, since retrospective legislation contravenes the notion of the rule of law, and officers should not be held responsible for the failings of their predecessors. But what is also clear is that there should never be a statute of limitations or prescriptive period approach once legislation that can relate to trafficking has been passed, since trafficking is typically as heinous a crime as many of those that are usually exempt from such temporal restrictions.8
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Whereas the first form of state victimisation of trafficked persons relates to complicity of various kinds – supporting its own officers rather than trafficking victims – the second explicitly concerns the rights of victims. All too often, as demonstrated at various points in this book, states place border and other forms of security well ahead of the situation and rights of trafficking victims. Many states – Australia included – often refuse to abide by their own commitments to international treaties concerning asylum seekers and refugees, for instance. While this problem appears to relate more often to smugglees, it can also apply to trafficked persons. This is a clear abuse of human rights. A problem here is that rights are mostly accorded only to citizens; civil rights are frequently treated as more important than universal human rights. This said, it is important not to overlook the fact that a considerable and apparently growing amount of trafficking is internal (domestic), and that the state has the duty to protect its own citizens anyway – even if this was not, surprisingly, recognised in the Palermo Protocol. Trafficked persons are sometimes deprived by states not only of their human rights, but also of their civil rights. The third way in which states can themselves victimise trafficked persons is by treating them as more criminal than the traffickers. There have been allegations that state-run anti-trafficking campaigns in Albania have sometimes placed greater blame on the traffickees than on the traffickers (though counterevidence is provided in Renton 2002: 88). This form of state victimisation is particularly likely in strongly and overtly male-oriented cultures. A variation on this third form of state victimisation is even more widespread and can relate to the second form, in that trafficked persons who are working illegally in a given state are still frequently treated more harshly – as illegal migrants and/or workers – than their traffickers, if the latter are citizens of that state. Both the second and third forms of state victimisation resonate strongly with what Davies and Davies (2008, cited in Chapter 6 in this volume by SchwandnerSievers) call ‘reverse trafficking’. Fourth, states that do not adequately educate their own officers in what is supposed to be victim-supportive legislation – so that these officers are implementing neither the spirit nor the letter of the law – can also be accused of failing trafficking victims. This issue emerges clearly from the following comment from ‘Daniela’, who was trafficked from Albania to Italy: Italian police stopped her while she was working on the streets and asked to see her papers. She did not have any. They served her with a deportation notice and gave her 15 days to leave the country. They made no inquiry into her circumstances or offer of help. If they had asked her simple questions they may have ascertained she had been trafficked. They did not inform her about a specific law in Italy [Article 18 – see below] that gives trafficked persons who provide information to the police about being trafficked the right to stay in that country and participate in a social integration programme (Pearson 2002: 1–2)
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As will be demonstrated below, in the late 1990s Italy introduced what in many ways remains the most progressive pro-traffickee legislation in Europe. Unfortunately, it is clear that this legislation has not always been well implemented, and that access to its benefits has often depended on which region a traffickee finds her- or himself in. States cannot claim to be fully based on the rule of law when the implementation of important legislation is patchy and serendipitous. A fifth way in which states can contribute to the victimisation of trafficked persons is by being unduly slow and bureaucratic, whether this be in investigating allegations or in processing applications. In the former case, states can take so long to investigate claims made by trafficked persons that trails have gone cold – which can leave the trafficked person feeling humiliated and/or unsupported, and even endangered. This point comes out in ‘Daria’s’ case: Daria was trafficked from Poland to Germany and forced into prostitution. She escaped and was deported from Germany to Poland. She reported the traffickers to the Polish police, but the authorities did not treat her case seriously. An investigation commenced three months after Daria gave her initial statement to police but was badly conducted, with no regard for Daria’s safety … Daria’s case was dropped due to lack of evidence and inability to identify the traffickers. (Pearson 2002: 213)
In terms of processing applications, Belgium set a high standard back in 1994 by requiring immigration authorities to issue a ‘reflection delay’ (allowing a trafficked person to remain in the country for up to 45 days) within 24 hours of a formal application being made on the trafficked person’s behalf by a recognised anti-trafficking NGO. Unfortunately, this practice has not been widely emulated. In most countries, this process can be protracted, lasting months, during which time the trafficked person is in limbo and in an ambiguous legal and support situation; this only compounds a victim’s stress. Sixth, states often expose victims to increased and unnecessary danger of reprisals in the way they handle court cases. This problem is generally more acute in countries that have common law systems than those that have civil law systems, because the former operate more on what is said in court than what is written and presented before a trial. Hence, for a trafficker to be convicted in a common law system, the accuser – here meaning the trafficking victim – typically has to actually appear in court. Not only does this mean that the person’s identity is usually exposed, creating potential danger for both the victim-witness and their family, but also that they have to experience the trauma of once again being face to face with their oppressor (Pearson 2002: 22–3). While improvements in this area have been made in recent years through the use of off-site technology and a more sensitive approach to witnesses, much still needs to be done. The point needs to be emphasised yet again that while the prosecution of
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traffickers is a primary task of states, so is the protection of victims – and the latter should not be subordinated to the former. In this context, far more states should ensure that victim-witnesses have access to free legal support, as well as the right to claim compensation. While the latter right is in theory available in countries such as Albania and Serbia, they have not in practice been granted (US Department of State 2008a: 222). Even in Belgium, where a number of victims have been granted compensation, traffickers have often been able to avoid payment on the grounds of insolvency, or else make it in instalments over such a long period that it is of little real value to the victim (Moens 2005: 121–2). The final way in which states may unconsciously victimise trafficked persons is debatable, but deserves consideration. Hughes and Denisova (2001: 46) have argued vis-à-vis Ukraine – and the point could be made of many other countries – that some foreign governments support NGOs that essentially ignore the views of most Ukrainians (Hughes and Denisova express this in terms of ignoring the views of Ukrainian civil society) on trafficking and prostitution, and that instead endorse the views and policies of their donor states. It can be argued that if these foreign states pursue pro-prostitution policies, this can play into the hands of traffickers, even if the donor states formally condemn trafficking. This relates to the thorny issue of the relationship between trafficking and legal prostitution, and is considered below. Before concluding this section, however, it needs to be emphasised that, as with so many taxonomies, real-life situations do not always fit neatly into our abstract categories, and many cases involve two or more types. For instance, the Action for Women in Distressing Circumstances (AFESIP) incident in Cambodia described by Kneebone and Debeljak in Chapter 8 demonstrates how several types can overlap and interact, bordering on criminal lack of responsibility and support to trafficked persons. Another example is provided by Andreas Schloenhardt (1999: 210), who refers to the situation in which law enforcement agencies will ‘purchase’ information on criminal organisation B from criminal organisation A, in return for promising information on (for example warnings about) future investigations into organisation A. If this is done by corrupt law enforcement officers, it constitutes collusion of the sort described under our type two victimisation. Conversely, if no officers of the state are corruptly benefiting from this exchange, and assuming both criminal organisations are involved in trafficking, it constitutes one form of type four victimisation (and what is usually called ‘noble cause’ corruption, in that police officers are knowingly breaking the law, but allegedly for the general good rather than private advantage). This is not to deny that it might benefit some victims of trafficking (those controlled by organisation B); but the case as described here would work against those suffering at the hands of organisation A.
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THE ‘PIG’S TROUGH’ (PROCEDURE SHOPPING) PROBLEM Some time before the completion of this book, I met with an Australian ambassador to a European state, who invited me to describe my current research projects. I finished my brief description of this project on trafficking by referring to the approach adopted by the Italian government, and briefly outlined the salient points of what is generally known as the Article 18 policy. Under this article, which was passed in 1998 and began to be implemented in 2000, victims of trafficking can apply for permanent residence in Italy and be eligible for vocational training and other benefits, even if they are not prepared to make statements directly to the police and testify in court against their traffickers. This is the so-called ‘double path’ approach: if victims are prepared to make a formal statement to the law enforcement authorities, they apply under the ‘judicial path’ scheme, whereas if they are not, they apply under the ‘social path’ scheme. The latter scheme only requires applicants to make a verifiable statement to an accredited agency (NGO or local council); this agency then submits the statement to the police (Castelli 2002: 18; Orfano 2005: 116–17). This is a very different approach from that adopted by so many Western European states and the European Union (EU), which typically grants only short-term residence, and even then only in return for a court testimony from the trafficked person. The latter approach is more concerned with prosecuting traffickers than with protecting the victims of trafficking. The Italian approach, I argued to the Ambassador, was in many ways the most enlightened in Europe, in that it focused at least as much on protection as on punishment. The Ambassador, however, was far less impressed, and argued that the Italian approach merely created unnecessary problems for the Italian state by creating a trough that would attract ever more pigs. The issue is one that has been identified as a potential problem by the EU in its approach to human trafficking, though it uses the less loaded term ‘procedure shopping’ to describe it. The most unfortunate – and clearly derogatory – image of a pig’s trough partly overlaps with Lasocik’s finding that trafficked women are often ‘portrayed [in the Polish media] as cunning individuals geared towards profitmaking, who upon failure want to be treated as victims’.9 Such attitudes relate to an issue identified by a number of commentators, and which cannot simply be dismissed. This is the potentially serious problem that a policy that permits victims of trafficking to stay in their country of destination – even if they are unwilling to have direct contact with the police and testify in court against their traffickers – will soon be grossly abused, as non-trafficked persons wishing to secure a residence permit in an affluent state make untrue claims about having been trafficked. Such claims would be prime examples of the so-called constructed narratives problem.
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It would be ingenuous not to acknowledge that the Italian approach is susceptible to the constructed narratives problem. But the issue is not insurmountable. The most radical solution would be to accept that some – perhaps even most – tales of trafficking are either exaggerated or else outright fabrications, but work on the assumption that anyone who goes to the lengths of constructing such a story is desperate, and should therefore be treated sympathetically by a civilised and humane state. However, to expect states to act in this way is not merely naive, but also unjust. On the one hand, it is inequitable to other desperate but basically honest people who would also like to migrate to the affluent state, but who are not, for whatever reason, willing or bold enough to lie to the authorities, or in some cases, even able to access the application forms for migration. Some would claim that it is also unfair to desperate but less honest people who do not have access to sufficient funds to approach people smugglers. On the other hand, it is also unfair to citizens of the destination states to expect them to pay substantial amounts through their taxes to fund welfare for people who, though impoverished and desperate, are not actually victims of trafficking. To mix metaphors, the radical solution could well result in the so-called pig’s trough mutating into an opened floodgate. One likely outcome would be strong public pressure to close the floodgate; almost certainly, much of the public sympathy for genuine victims of trafficking – as well as for refugees and asylum seekers – would in the process at least decline, if not disappear altogether. In Chapter 1, reference was made to the ambiguity of one of the articles in the UN Declaration of Human Rights that might pertain to trafficking. Article 13 refers to the freedom of movement and residence. But what exactly does this article mean, and can it be invoked in the fight to protect victims of trafficking? It must be acknowledged that it is unrealistic to assume that advanced states are in the foreseeable future likely to allow residency to just anyone who chooses to move into them; the overwhelming majority of the world’s population enjoys a living standard well below that of the most developed states, and could in theory seek such residence. Even allowing for the fact that family ties, language, patriotism, being a ‘big fish in a little pond’ and other factors will mean that many people from transition and developing states would prefer to remain in their home state anyway, there would still be considerable numbers of people who would move to the developed world, given the opportunity. Thus, overcoming the transnational trafficking issue by opening the doors wide is not a viable option. But does that mean that there is no workable solution? In answering this question, it is important to remember that the focus of the discussion is only on trafficked persons; there is no consideration here of the lot of others who might want to live in an advanced country. Thus we are examining the rights only of people who have been subjected to significant
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abuses of their human rights, including psychological and/or physical violence, and deceit. If states are serious about protecting and assisting genuine victims of trafficking, they could investigate claims before granting permanent residence. People claiming to have been trafficked would be expected to provide names and/or addresses of their traffickers. But they would not be required to be witnesses in court, since this often places them at too great a risk. Those who argue that this could be overcome by using witness protection schemes need to examine the experiences of states that have such schemes (and many still do not). Such schemes often operate only for a limited period of time, so that those testified against – or their accomplices – could seek revenge once the protection scheme runs out. Moreover, it is far from obvious that those identified by victim witnesses will not inform the families of witnesses that their daughters, sisters, and so on had been prostitutes or other kinds of sex worker; as has been shown here, this can bring shame to many families. And in the rare cases where witness protection schemes are lifelong, they are not only expensive for the taxpayer, but can also ruin the lives of witnesses, and possibly those of their families, as new identities are created, people have to relocate permanently, and so on. Having argued that alleged trafficking victims would be required to provide some form of identification of their captors but not be witnesses, it might appear that this will result in the absence of prosecution or conviction of traffickers. But, armed with names or addresses, law enforcement agencies could then tap the telephones of those accused, and/or mount sting operations. Some might claim this is itself an abuse of human rights. But the universality of human rights does not preclude relativity. The rights of victims should take precedence over those of violent criminals. If there is nothing to hide, why should innocent people accused of trafficking be concerned? The answer is that the whole process can be abused by the state, and be an abuse of both civil and human rights. Unfortunately, no scheme is perfect. But the likelihood of such arrangements being abused is almost certainly lower in most developed states, in which commitment to the rule of law is generally much more genuine than in many other parts of the world. Since it is primarily in the countries of destination – at least in the case of transnationally trafficked persons – that such schemes are being advocated, the potential benefits of this proposed solution to the ‘pig’s trough’ problem outweigh the possible drawbacks. But one other aspect of this proposed solution needs to be addressed. It has been emphasised that, all too often, traffickers collude with corrupt state officials; indeed, the latter are sometimes traffickers themselves. Unfortunately, examples of such collusion occur even in developed states, although this appears to be on a relatively smaller scale than in many transition and developing states (for concrete allegations from the US see O’Neill Richard 2000: 15). If collusion means that even the mere provision of details on traffickers
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(that is, as distinct from being formal witnesses) could endanger trafficked persons, a viable solution is that details would be provided via a third party, very much along the lines of the Italian ‘social path’ approach. Since there is little if any evidence of anti-trafficking NGOs colluding with traffickers, such organisations would constitute appropriate mediating agencies. They could testify to law enforcement agencies that a trafficked person has provided relevant materials, and could later confirm to that person that residence has been granted. They could, in short, act as conduits. The proposed solution to the ‘pig’s trough’ problem is not watertight – no system could be – and does require some input from those claiming to have been trafficked.10 Moreover, there is the possibility that no arrests result from the information provided by those claiming to have been trafficked. While this will sometimes be because a putative trafficking victim has lied, there will be cases where the traffickers have moved to other jurisdictions, or even ceased their operations altogether by the time law enforcement authorities have begun to investigate allegations, perhaps because of a tip-off from a corrupt official. This is a limitation of the proposed approach. On the other hand, such a policy is likely to be more acceptable to many authorities, and is still likely to provide permanent residence to many genuine victims of trafficking. And just to place the Italian scheme into perspective, fewer than 4300 residence permits were granted by the Italian authorities under Article 18 between the time it became operational (2000) and mid-2004 (Orfano 2005: 115), while 664 were issued in 2008 (US Department of State 2009: 168).11 Relative to the size of the Italian population, these are modest figures.
PROGNOSIS While there are unquestionably several indicators that give rise to concerns about the future of both domestic and transnational trafficking (that is, that it will either stay at current levels or even increase), there are also more encouraging signs. One is the GEC (global economic crisis).12 If one of the longerterm ramifications of the recent response of states to the GEC around the world is to make governments more responsible for economic management, then greater regulation in the economy generally could change the overall climate in which organised crime and corruption operate, rendering it more difficult for gangs and corrupt officials to circumvent laws. But in any case, it has been demonstrated in this book that most states and IOs have become much more aware of the problem of trafficking in recent years than they were until the mid-1990s at the earliest. Thus the EU’s first major anti-trafficking program, STOP (Special Trafficking Operations Program), was launched in November 1996 (Castelli 2002: 17). The subse-
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quent UN ‘Palermo Protocol’ of 2000 was not, strictly speaking, the first international document of its kind, but has been the most effective; for example, the Convention for the Suppression of the Traffic in Persons and of the Exploitation of Prostitution of Others was passed in 1949, but did not define trafficking as such, and was neither widely ratified nor adhered to. As already noted, most states have adopted dedicated anti-trafficking legislation only since signing and ratifying the UN Protocol, that is, since 2000. Most states and IOs have also become more sensitive to the plight of trafficked persons, albeit to a limited extent. Assuming this trend continues, the trafficking situation should improve.13 If this sounds unduly optimistic and appears to be based on an unrealistic assumption about the growing sensitivity of states, there is a more realistic – cynical, even – argument to support it. This is that national governments and IOs have become much more aware since 9/11 of the bi-, tri- and occasionally even quadrilateral connections that can exist between corruption, organised crime, corporate crime and terrorism (see Holmes 2007). In attempting to control the last of these crimes, there can be positive knock-on effects in terms of reducing the other three. Another way in which states and IOs can help to reduce organised crime, and hence trafficking, is through sanctions and conditionality. While it is difficult to prove this definitively, there is considerable circumstantial evidence that the EU has scored some success in the fight against corruption and organised crime in both applicant states and, very recently, also new (since 2004) member states (Holmes forthcoming). Finally, if the scale of cybercrime continues to increase, this could also have positive effects on trafficking. While cybercrime can lead to tragic consequences, its very nature means that it is usually less directly interactive with its victims, and that actual physical violence is considerably less likely than is the case with trafficking; the two notable exceptions to this general point are where the cybercrime relates to online adult pornography involving coercion of the ‘actors’ or ‘models’, and all online child pornography. Unfortunately, there are also powerful negative factors at work in this dynamic. Since at least the 1980s, the influence of neoliberalism – as the principal economic offshoot of globalisation – has meant that governments have sought to reduce their role and leave far more to the market. This development of the ‘irresponsible state’ is just one of many factors that has contributed to the rise of trafficking. Ironically, what in 2009 appeared to be a factor that might curb the influence of neoliberalism, namely the GEC, could just as well lead to an increase in trafficking, as unemployment in many countries increases. It is difficult to predict which will prove to be the dominant factor here. Another problem is that there is little evidence that the scale of corruption – which has been shown in this volume to be a significant factor in trafficking
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– is declining in many states. The main perceptual surveys available suggest that the corruption situation is more or less steady-state in many countries, deteriorating in several others, and markedly improving in only a tiny minority. Given space limitations, only the most frequently cited survey data will be drawn upon here to indicate this (Table 10.1).
Table 10.1 Scores of selected countries in selected years on Transparency International’s (annual) Corruption Perceptions Index (TI CPI)*
Developed states Germany Italy Netherlands Poland Sweden UK Developing and transition states Albania Bulgaria Bosnia & Hercegovina Cambodia China Laos Moldova Nigeria Philippines Romania Russia Thailand Ukraine
1997**
2000
2002
2004
2006
2008
2009
8.2 5.0 9.0 5.1 9.4 8.2
7.6 4.6 8.9 4.1 9.4 8.7
7.3 5.2 9.0 4.0 9.3 8.7
8.2 4.8 8.7 3.5 9.2 8.6
8.0 4.9 8.7 3.7 9.2 8.6
7.9 4.8 8.9 4.6 9.3 7.7
8.0 4.3 8.9 5.0 9.2 7.7
n.d.*** n.d. n.d. n.d. 2.9 n.d. n.d. 1.8 3.1 3.4 2.3 3.1 n.d.
n.d. 3.5 n.d. n.d. 3.1 n.d. 2.6 1.2 2.8 2.9 2.1 3.2 1.5
2.5 4.0 n.d. n.d. 3.5 n.d. 2.1 1.6 2.6 2.6 2.7 3.2 2.4
2.5 4.1 3.1 n.d. 3.4 n.d. 2.3 1.6 2.6 2.9 2.8 3.6 2.2
2.6 4.0 2.9 2.1 3.3 2.6 3.2 2.2 2.5 3.1 2.5 3.6 2.8
3.4 3.6 3.2 1.8 3.6 2.0 2.9 2.7 2.3 3.8 2.1 3.5 2.5
3.2 3.8 3.0 2.0 3.6 2.0 3.3 2.5 2.4 3.8 2.2 3.4 2.2
Notes: * TI CPI is scaled 0–10; the higher the score, the lower the perceived level of corruption. ** The data in 1997 were presented to two decimal points; for the sake of consistency, they are rounded here to only one decimal point, with scores ending in 5 being rounded up. *** The number of countries included in the CPIs has been increasing, from 52 in 1997 to 163 in 2006 and 180 in both 2008 and 2009. This explains why several cells in the earlier years contain ‘n.d.’ (no data); the particular country was not assessed in that year.
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The Transparency International Corruption Perceptions Index (TI CPI) is not without several methodological problems (Galtung 2006), so that the data in Table 10.1 must be treated as no more than indicative. But since they often correlate well with experiential surveys, the broad patterns and relativities suggested by the table appear to be as reasonable an indicator as there is of corruption patterns in different countries. Unfortunately, Table 10.1 tells us nothing about corruption among particular types of official that have been demonstrated to be more likely than others to be directly involved in trafficking, such as police officers or border and customs officers. In light of this, it is worth considering another of TI’s methods for assessing the corruption situation across different countries, the Global Corruption Barometer (GCB). While the numerical results of this must be treated with extreme caution – the scores of some countries fluctuate significantly from year to year, to such an extent that their reliability must be questioned – the relative level of corruption between groups of officials, as perceived by the general public, emerges reasonably clearly from the GCBs. According to both the 2007 and 2009 GCB reports (Transparency International 2007: 5–6; Riaño et al. 2009: 9 and 12), more citizens pay bribes to police officers than to any other state officials. The first ever GCB (2003) also revealed that, after political parties and the courts, the police were the group in which citizens would most like to see corruption reduced (Galtung et al. 2003: 13). While such attitudes are largely explained by reference to direct experience of police corruption that has nothing to do with human trafficking, it is reasonable to infer that most people would be even more concerned about police corruption that relates to organised crime activity than to irritating but less serious forms relating, for instance, to alleged traffic (not trafficking) offences. Finally, while the potentially positive effects of sanctions and conditionality were highlighted above, sanctions can also work in the opposite direction. As Kneebone and Debeljak note, the annual Trafficking in Persons (TiP) Report prepared by the US can affect how much aid funding a country receives, which, especially in the case of developing countries, can be counterproductive in combating trafficking.14 This policy needs to be revisited.
ADDITIONAL POLICY PROPOSALS AND PROBLEMS Some of the proposals for changes in the anti-trafficking policies of both states and IOs have already been outlined above, while others have only been implied; the latter now need to be addressed explicitly and elaborated. It must be emphasised that many of these proposals have already been made elsewhere, and that no claim to originality is made for most of them.15 However,
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since states, IOs, NGOs, the media and citizens still often victimise trafficked persons – sometimes wittingly, often unwittingly – in various ways and deprive them of their human rights, no apology is made here for revisiting and re-emphasising these proposals. One of the starting points for addressing problems of human trafficking is to make states and IOs more aware than most of them appear to be of the potential blurring of people smuggling and human trafficking. While the two are conceptually distinct, it has been shown here how they can and often do overlap in practice. Moreover, many phenomena that should be classified as human trafficking are still not being officially recognised as such. Conversely, and leading on from this point, the conflation of prostitution and human trafficking must be avoided; much trafficking does not involve any form of sex work, while many prostitutes have not been trafficked. Another issue that needs to be resolved urgently is that all states should have legislation that expressly identifies and prohibits trafficking. It comes as a surprise to many to learn that, as of 2003, only just over one-third of the world’s states had formally criminalised trafficking. While the situation has improved significantly since then, approximately 20 per cent of states had still not criminalised trafficking as of 2008. Various authors in this volume have referred to the ‘three Ps’ approach (that is, prevention, prosecution and protection) encouraged by the UN and formally adopted by many states. The last of these is the most difficult and potentially most costly for states and IOs, but the one most needed now. Yet it is clear that there is still some way to go even in terms of, for instance, legislation (that is, relating to prevention and prosecution), as Lasocik demonstrated in Chapter 2 with reference to France. For instance, the Convention against Transnational Organized Crime (CTOC) focuses much more on legal measures than on protection and care. Unfortunately, even when states appear to be acting in a protective manner, they are often in fact being exclusionary and/or patronising. Indeed, they may even make the situation worse in various ways, including making it more confused. Consideration of some recent legislation and legislative proposals will demonstrate this point. In mid-2006, Finland introduced legislation that criminalised the use of a prostitute if that person was a trafficking victim. In the Finnish case, the authorities must prove that a person using a trafficked prostitute was aware that she (usually) was trafficked; this renders prosecution very difficult, as acknowledged by Helsinki’s Deputy Police Commissioner (Fouché 2009). For this reason, some states have now introduced, or have announced their intentions to introduce, legislation that will make it illegal for men to use a trafficked person for the purposes of prostitution even if they are not aware that that person has been trafficked and there is no evidence to suggest that she (occasionally he) has been.16 The UK – which has been one of many countries
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to have been slow even to recognise human trafficking as a crime, and has been criticised by the United Nations Children’s Fund (UNICEF) for this (UNICEF-UK 2009) – introduced draft legislation to this effect in November 2008, for instance; this was at its third reading stage at the time of writing in September 2009. Given the arguments here against removing the right of any adult – the case is not being advanced in relation to anyone under 18 years of age – freely to choose to earn a living through sex work, but in favour of doing everything possible to eradicate trafficking, it might be assumed that we are sympathetic to such an approach. This would be an incorrect assumption, and were it not for the seriousness of the issue, the British draft legislation could be called ‘daft’ legislation, for two reasons. First, on what grounds is a potential client supposed to assume that a prostitute may have been trafficked? Perhaps a foreign accent should be taken as a likely indicator? But this means that someone who is not a native speaker of English, but who has entered the UK perfectly legally and may even be a British citizen, and who has freely chosen to engage in sex work, will lose clients to competitors who happen to speak native English (this has happened in the Finnish case, though obviously with reference to the Finnish language rather than English – see Fouché 2009). In fact, given that there is no shortage of domestic trafficking in many parts of the world, the assumption that the native competitor has not been trafficked is as questionable an assumption as that the non-native speaker has been. The problems inherent in this approach have led the then commander of the London Metropolitan Police Human Trafficking Unit to state publicly that the law would be very difficult to implement (Times, 10 December 2008: 4; Guardian, 10 December 2008).17 Second, the important point that much trafficking does not relate to sex work must never be overlooked – and is highly germane at this point in the argument. If I happen to like seafood, and find that the price of cockles in my local market is cheaper than in my local supermarket, should I be expected automatically to assume that these have been gathered by transnationally trafficked persons? This ‘hypothetical’ example was cited because it relates to the real and sad case of 21 trafficked Chinese men who were drowned in Morecambe Bay in the UK while collecting cockles in February 2004. Even paying a little more for tomatoes (see the case of trafficked Poles in Italy cited by Lasocik in Chapter 2) or flowers in my local supermarket than I would at the market is no guarantee that trafficked labour has not been involved.18 Of course, in terms of my own role in the trafficking process, there is a difference between my purchase of cheap cockles or tomatoes or flowers and my purchase of sex; the latter case involves direct and far more intimate contact with the potentially trafficked person. Nevertheless, the difference is not a qualitative one, especially since there is no shortage of evidence that trafficked persons engaged in non-sexual labour are frequently treated like slaves,
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subjected to physical violence, have their identity papers confiscated by their traffickers, and so on. In short, the difference is one of degree, not kind. Given these boundary problems – where should the line be drawn?19 – the Swedish approach analysed in this volume by Kevin Leong is preferable, since it is much clearer, and hence much easier to police; the law unambiguously prohibits the purchase of sexual services. But since the Swedish approach is still primarily focused on punishment and may have led to increased violence against and invisibility of trafficked persons, it still does not represent an optimal approach. Indeed, while it is impossible to prove any causal relationship, it should at least be noted that the reported number of rapes – a form of violence that is not limited to trafficked and prostituted women – in Sweden has risen markedly in recent years; by 2006, according to official crime statistics, Sweden had by far the highest per capita rate of rape in Europe (Kelly and Lovett 2009). It might be objected that this can be explained by the higher propensity of Swedes to report crime, and a broader definition of rape than is used in many states. This may well be the case, but is probably only part of the explanation of why Sweden has a reported rape rate more than four times higher than Germany, for instance (the comparison here is with another country with high overall rates of crime reporting, and a broad and enlightened definition of rape). Certainly, some Swedes argue that the official rate in their country reflects a higher prevalence than elsewhere (Henrik 2006). Another weakness of the Swedish approach when it was first introduced was that the anti-client legislation related only to trafficking involving sexual exploitation, not all forms of trafficking. This loophole was closed in 2004, however, when the government at last recognised and criminalised other forms of human trafficking. Hence, while Sweden’s policy offers advantages over the flawed Finnish and proposed British approaches, it is still deficient, including in that it was initially overly gendered, and may have contributed to higher rates of violence against women. It is appropriate to note at this point that many other states still need to broaden their approach to trafficking, to include cases that do not involve sexploitation. One other problem of the basically punitive Swedish approach is that it may be simply transferring the problem to other countries. In what testifies to a cynical attitude, the person identified earlier as the main champion in parliament of the Swedish approach, Marianne Eriksson, has revealed that she is not really concerned if people who would have been trafficked to Sweden are simply trafficked to neighbouring countries: ‘There are critics who say we are exporting the problem, since some Swedish men travel to Germany to buy sex. So what? It’s better than importing the problem!’ (Alfredsson 2009). Finally, although there is evidence that the Swedish policy has deterred some traffickers (for example in Russia – see Buckley 2005: esp. 7; in Estonia – see Fouché 2009), the problem certainly did not disappear following the introduction of
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the new laws in the late 1990s. Thus, while the number of people officially suspected of trafficking in Sweden was relatively low – in single figures – for much of the 2000s, it increased substantially, to 30, in 2005 (Sarrica et al. 2009: 284).20 What other problems arise when states and IOs attempt to combat trafficking? As Kneebone and Debeljak argue vis-à-vis Cambodia, there is often a problem of too many external agencies being involved in the fight against trafficking, and of their being relatively ignorant of a given country’s legal framework, customs (culture), and so on. Ignorance of various types of information involved in migration and/or seeking work plays into the hands of traffickers, as often poorly educated persons turn for advice to ‘migration specialists’, ‘travel agents’, ‘job finders’ and other front organisations run by or connected with traffickers. One of the many ways in which states could play a positive role in this is to fund far more publicity concerning the potential dangers of these various kinds of agency. At present, it is all too often seriously underfunded NGOs that seek to get the message out. Much greater use of the Web by authorities would help, and in most cases is a relatively inexpensive way of communicating. Even if it is unrealistic to assume that poor families in developing or transition states will have their own computers, states could ensure that every village has an Internet cafe; this would, of course, be invaluable for education and communication generally, not merely for conveying messages about trafficking. There should also be more general information campaigns on television and radio regarding all forms of trafficking. The reference to multiple agencies being involved leads on to the point that, in principle, a multisectoral approach in the fight against trafficking – involving various state agencies, the media, NGOs, and so on – is best, but that this must be well coordinated. All too often, different agencies either compete with each other or else leave tasks to others, so that issues remain unresolved. Turning to the issue of quadruple victimisation, most states should do much more than they currently do to counter corruption (second victimisation) and should adopt more sensitive and nuanced approaches to the repatriation and residence permit issues. They should also address the immunity issue – not merely of peacekeepers, but also of state officials such as judges, parliamentarians, and so on. Indeed, in many cases, states and IOs that should by now know better are still not demonstrating sufficient awareness of the role of official corruption in trafficking. For instance, a November 2007 official EU overview of trafficking notes that trafficking is often linked to organised crime, but makes no reference to corruption (European Commission 2007). In addressing the role of corrupt officials in trafficking, it would be quite inappropriate to go as far as China or Vietnam, both of which have the death penalty as a possible punishment for corruption; but tougher penalties do need to be applied.21 Punishments for traffickers generally – not only for corrupt
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officials – need to be more severe than is typically the case at present and, even more importantly, regularly administered and publicised. At present, not only do many traffickers escape the state’s net altogether, but those that are prosecuted are often charged with less serious misdemeanours, such as breaking migration laws, that attract more lenient sentences (Dinan 2008: 75). The previous paragraphs focused primarily on regulatory and punitive measures that could and should be adopted by states. But internalised control is usually far more effective than external control, and states have an important role to play here too. A long-term project to transform social and cultural attitudes towards violence, and towards both sides of the prostitution equation – those who supply and those who demand – is vital. Violence, whether in the family or the brothel or the park, should be portrayed as an action of the weak; its perpetrators as losers and cowards rather than ‘real men’ or ‘tough women’. The concept of machismo needs to be deconstructed then reconstructed, with control of self, rather than of others, being seen as a positive sign of masculinity – whether in men or in women. Rather than criminalising this, use of a prostitute should in general be discouraged.22 But the target of such attempts at resocialisation should not only be prostitution (and the all-too-often related trafficking). Empirical evidence reveals that many – perhaps most – prostitutes have been subjected to sexual violence as children; in the nine-country survey conducted by Farley and her team, a mean average of 63 per cent of prostitutes admitted to having been sexually abused as a child, while 59 per cent had been physically abused in other ways (Farley et al. 2003: 43). And it must not be forgotten that trafficking that is unrelated to sex work often involves violence. Hence, educational campaigns against violence must target not only actual and would-be ‘johns’, but all adults. It has been argued that internal control and a gradual change of social attitudes is likely to be more effective in reducing trafficking than legislation alone. The sort of approach advocated here is essentially that adopted by the German NGO Terre des Femmes in a late 1999 campaign entitled ‘Men Show the Way’. The organisers of this campaign worked on the assumption that: ‘Even though contempt for and hatred of women may be inherent to some clients’ relationship to prostitutes, this is not generally the case’. Terre des Femmes sought to raise awareness among men that many prostitutes are coerced into their work and subjected to violence, and encouraged clients to be alert and report signs of violence being used against sex workers (anonymous hotlines are a simple method for implementing this). The campaign consciously avoided passing judgement on people who used prostitutes, preferring to work on the premise that positive long-term results are more likely through awareness-raising than through moralising or using the weight of the law. Apparently, the campaign largely succeeded in its aims, and was
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appreciated by sex workers as well as by clients (all from Howe 2005: esp. 101). The approach being advocated here thus combines state legislation, publicity (whether by states, NGOs or the media) and public attitudes in a dynamic, interactive relationship. While laws can and do play a role in changing public attitudes, they should not be so at odds with – or in advance of – public opinion that they lead to a backlash and undermine their own legitimacy. For those who are sceptical about the possibilities of gradually changing public opinion through incremental legislative and educational and publicity-based changes that are only one step ahead of the views of the majority, three examples from Australia can be cited. One is the compulsory use of seatbelts in cars. Initially, seatbelts were required to be worn only in front seats. Later, the law was amended to apply also to rear seats, and later still, that drivers were responsible – to the extent that they could be fined for non-compliance – for ensuring that all passengers were buckled up. By the time of the most recent change, most Australians had fully accepted the need for seatbelts, and none of the successive tightening of the law resulted in any noticeable backlash. Similarly, whereas smoking was once seen as a citizen’s right, gradual changes to the law – initially, just bans in public buildings, later also in restaurants and bars, and most recently in cars if there are any minors (below 18 years of age) in them – have seen a growing acceptance that the rights of nonsmokers trump those of smokers. Our final example could relate directly to trafficking. At one time, it was seen as part of Australian culture that one did not ‘dob in’ others (that is, report them to the authorities). But publicity campaigns on the dangers of drinkdriving, or on the anti-social nature of using excessive amounts of water (for example for gardening) during drought periods, have seen a marked change in public attitudes, with many Australians now apparently more than willing to report suspicious drivers, neighbours watering their lawns, and so on. In the case of trafficking, it is very important that states make clear the differences between people smuggling and human trafficking, and between the latter and voluntary prostitution, so as to both increase understanding of and empathy with trafficked persons, and render potential traffickees less likely to be deceived. The fact that anti-trafficking publicity in Albania (Renton 2001: 39; Abbatecola 2002: 115) and Moldova (Waugh 2006: 18) since the late 1990s has apparently been quite successful in making people more alert to the dangers of trafficking is just one concrete example of the potential effectiveness of public education. As in so many policy areas, a key element of success or failure of anti-trafficking policies is political will. However, it is too often assumed that it is only the political will of the leadership that is crucial. In fact, the will of all parts
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and levels of society is important if trafficking is to be seriously reduced. Moreover, political will is a necessary but not sufficient condition for the success of any approach; just as important is political capacity. The latter is especially problematic in developing and early transition states, in which there is often insufficient funding, experience and coordination of relevant agencies to convert political will and good policies into effective outcomes. This is one reason why it is important for affluent destination states to show the way and set a better example than most currently do.
CONCLUSIONS Trafficking is a serious and apparently growing problem in the early twentyfirst century. Having identified many of its causes, including several that are ramifications of recent policies and developments, we have also sought to propose possible solutions. Of course, there is no suggestion that trafficking can be eradicated totally or overnight; that would be naive. Nor is there any suggestion that measures proposed here can address every cause and problem identified, or that they are brand new (original). The freedom to move to and work wherever one chooses raises enormous logistical and ethical issues, and much more needs to be done in addressing these. As long as there exist substantial discrepancies between rich and poor countries, and even between rich and poor people, there will continue to be people smuggling and human trafficking. And as long as there are loopholes and contradictions in legislation and policies, there will be opportunities for criminals to exploit. On the other hand, many practical measures can be adopted that will at least reduce the incidence of trafficking. Some of these focus on legalistic approaches (both legislation and implementation), while others concentrate more on the role of civil society and awareness-raising. All of these need to be pursued more vigorously if trafficking is to be reduced. But another very important point needs to be made. While states and IOs have a significant role to play in reducing trafficking, so do citizens. Parents must not treat the use of prostitutes as part of the ‘normal’ process of growing up and learning about sex, as so many apparently do. They should also demonstrate less judgemental attitudes towards both prostitutes and all types of trafficked persons, so that their children develop more sympathy for such people; as noted above, most trafficked persons suffer from very low self-esteem, and this is only compounded if most members of society condemn them. Rather than criticise drug dependency or alcohol abuse among sex workers and trafficked persons, parents should explain to their children that these problems are usually coping mechanisms for people with traumatised backgrounds and/or who find themselves in very difficult circumstances; in the case of drug depen-
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dency, it can also be a result of having been tricked or forced by traffickers into taking addictive drugs for the first time. Some cultures need to realise that their emphasis on virgin brides can be a major stimulus to both prostitution and trafficking, and thus that they need either to relax their attitudes to sex outside marriage – assuming that this is between consenting adults – or else more clearly and strongly to condemn sex outside of marriage by males as well as by females. There cannot be double and gendered standards here. Since trafficking occurs in non-sexual spheres too, there are many other ways in which citizens can and should play a role in defeating trafficking. For example, consumers must ask themselves if the abnormally low price they are about to pay for an item in the market or the supermarket might be in part the result of trafficking; when in doubt, leave it out! Human trafficking is an appalling, vicious crime that deserves to be strongly and unambiguously condemned. We can all play a role in reducing it. But we must also be careful not to throw the baby out with the bathwater by confusing all sex-related trafficking with prostitution and other forms of sex work. There are many types of human rights, and while it might not be as simple and tidy as black-and-white abolitionist positions, a nuanced approach to these, and appreciation of the many ways in which the contradictory and sometimes blatantly hypocritical policies of states on complex issues such as migration, poverty and immunity can undermine human rights – which therefore have to be asserted in unconventional ways – is the best way to respect and guarantee them. Loyalty and respect are two-way streets: states and IOs cannot expect to command legitimacy if they pursue contradictory policies that undermine their putative commitment to human rights.
NOTES 1.
The number of prosecutions worldwide for human trafficking was almost 7000 in 2004 , while the number of convictions was a little over 3000; the corresponding figures for 2008 were 5212 and 2983 (US Department of State 2009: 47). But, in terms of the number of people actually engaged in trafficking, these figures unquestionably represent just the tip of the iceberg. 2. Eriksson has been a powerful voice for abolitionism not only in the Swedish Parliament, but also the European Parliament. As elaborated by Leong, Sweden’s approach has been to make prostitution legal, but the use of a prostitute illegal. Some of the problems inherent in such an approach, particularly as this relates to trafficked persons, are considered later in this chapter. 3. The 2003 project into prostitution by Farley and others involved research in nine countries. The detailed report on this project cited here does not explain why the aggregated responses from only six countries are provided on this issue of violence and legalisation. Initially, it appeared to this reader that this could be explained by the fact that only females were interviewed in six countries, whereas males, females and transgender persons were interviewed in the other three. However, closer inspection revealed that the six countries included one (South Africa) in which men and transgender persons were interviewed in addition to
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4.
5.
6. 7.
8. 9. 10. 11. 12.
13.
14.
Trafficking and human rights women, while Turkey – in which only women were interviewed – was excluded (Farley et al. 2003: 39 and 52). As for the apparent discrepancy between the percentage of respondents wanting prostitution to be legalised and the much higher figure that believed they would be less subject to assault, this probably reflects the fact that prostitution was legal in some of the countries and not in others (that is, one would not call for legalisation where it was already legal). The research by Farley and others into prostitution in nine countries revealed that 89 per cent of women interviewed wanted to escape (Farley et al. 2003: 34, 48 and 56). This means that 11 per cent did not express this wish. Moreover, it is unclear from the published report how many of the 89 per cent of respondents wanted to escape at all costs (that is, were willing to forego their income from sex work and be unemployed, for instance). For an interesting ‘insider’ account of a well-educated, non-trafficked British woman choosing to be a prostitute, and even enjoying her work, see Belle de Jour (2005); in late 2009, a 34-year-old medical research scientist, Dr Brooke Magnanti, revealed that she was the author of this book (Times Online, 15 November 2009). Many abolitionists include activities such as pole-dancing, strip tease, ‘telephone sex’ and risqué photo modelling as sex work, even though these do not involve direct physical contact with customers. Donna Hughes (1998: 98) favours decriminalisation of prostitution for women, but criminalisation of the purchase of sex. Parts of her argument are convincing and valid: under a non-sexist legal regime, women should not be treated as criminals for selling sex if men are not treated as criminals for purchasing it, especially since so many women are forced and deceived into prostitution. But there is a tension – arguably a fundamental contradiction – in her position: prostitution should be either legal or illegal for all parties concerned. What the law should distinguish between is not the supplier and the purchaser, but coerced and voluntary sex work, and the presence or not of violence of various kinds. Following on from this, where prostitution is illegal, laws should specify that trafficked prostitutes should be exempt from prosecution. Many of the empirical findings cited here undermine some – though not all – of the arguments against the legalisation of prostitution advanced by Janice Raymond (2003), to cite another advocate of the abolitionist position. An example is of the teenage prostitute Joana Dudushi, who was found stabbed to death in Vlora after having alleged on Albanian national television that local police were forcing her to accuse her customers of rape; corrupt police officers would then demand bribes off the clients in return for overlooking the (false) accusations (Reuters 2 August 2005; BBC Monitoring Europe 4 August 2005). In 2004, Robert Scoble was convicted by Thai authorities of distributing child pornography; he subsequently returned to Australia, where authorities cancelled his Australian passport. In a similar vein, many Russian officials see trafficked women as degenerate and/or stupid and naive, and therefore not deserving of assistance (see Buckley 2006: 201). Some have claimed that even Italy’s Article 18 now needs updating or reformulating, since trafficking techniques and structures are highly flexible, and can be reinvented so as to counter the state’s anti-trafficking measures (see Salvadorini 2008). For evidence that less than one-third of the 5577 women placed under social protection programmes in the first year of implementation of Article 18 applied for a residence permit see Ferraris et al. (2002): 87. Although many commentators still use the term GFC (global financial crisis), it was already clear by 2008 that what started as a crisis in the banking, finance and investment sectors was having knock-on effects throughout economies more generally. Growing unemployment was one clear and measurable indicator of this, negative GDP growth rates another. The term GEC is therefore preferred here. The UK country guidance case referred to in Chapter 6 was resolved in an encouraging way in 2010. The ruling accepted the claim of two Albanian women and granted them asylum. The general guideline for future decisions is that each case has to be assessed in terms of its own individual merits and context. I am indebted to Stephanie Schwandner-Sievers for this update. The US policy is summarised neatly by the Director of the US State Department’s Office to
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15.
16.
17. 18.
19. 20. 21.
22.
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Monitor and Combat Trafficking in Persons, John R. Miller (2006: 73): ‘As a result of the prostitution-trafficking link, the US Government concluded that no US grant funds should be awarded to foreign non-governmental organizations that support legal state-regulated prostitution’. It will be clear from this chapter that and why the linking or conflation of prostitution and trafficking can be problematical. For two of the most detailed sets of proposals and information on the implementation of various schemes, see Pearson (2002) and ILO (2008). A particularly useful summary of and guide to many of the handbooks on applied aspects of countering human trafficking is Stateva et al. (2007). While straight men are the most frequent clients of prostitutes and hence, sometimes, trafficked persons, it should not be overlooked that some gay men also exploit traffickees, and directly or indirectly contribute to the coercive and often violent sexual exploitation of both men and boys. A number of gay men have been convicted for engaging in sexual activities with trafficked under-age males and for accessing paedophilia websites, for example. Despite high-level protests, this unit was disbanded at the end of 2008 because of a funding shortage (Independent, 10 November 2008: 6). This constitutes yet another example of state irresponsibility regarding trafficking. The reference to flowers in the supermarket is also based on an actual case – of Roma people from Northern Greece who were trafficked to Cornwall, where they were picking flowers that were sold, inter alia, at Sainsbury’s supermarkets (see Waugh 2006: 90, citing Independent, 14 February 2004). I am indebted to Ms Marta Achler of the Organization for Security and Co-operation in Europe, Office for Democratic Institutions and Human Rights (OSCE-ODIHR) in Warsaw for first alerting me to this issue of boundaries. For recent evidence from New Zealand that legalisation of prostitution may actually improve the lot of prostitutes see The Economist (2008). Although Communist China has executed numerous officials for corruption since the first two were shot by firing squad in 1952, none of the cases appears to relate to trafficking. A number of Moslem states also allow for the death penalty for ‘corruption on earth’; but this normally refers to perceived distortion or serious criticisms of Islam, rather than to the more common meaning of corruption used here. An argument can be made that many disabled people have legitimate sexual desires too, and that sex workers – either male or female – who are in no way being coerced into providing sexual services could be employed for satisfying these. This is a highly sensitive area, and needs to be more openly debated. But it does highlight once again that prostitution – as distinct from trafficking, which must be unambiguously condemned – is not as clear-cut an issue as many abolitionists maintain.
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US Department of State (2001a), Victims of Trafficking and Violence Protection Act 2000: Trafficking in Persons Report 2001 (Washington, DC: US Department of State). US Department of State (2001b), Unclassified Memorandum 200020567, 10 December, at http://www.hrw.org/reports/2002/bosnia/1201memo.pdf, accessed 23 January 2008. US Department of State (2001c), cable 2001SARAJE01032, December, at http://www.hrw.org/reports/2002/bosnia/Scan001.PDF, accessed 10 February 2008. US Department of State (2002a), Trafficking in Persons Report 2002 (Washington, DC: US Department of State). US Department of State (2002b), Unclassified Memorandum 200103020, 25 June, at http://www.hrw.org/reports/2002/bosnia/Scan002.PDF, accessed 23 January 2008. US Department of State (2003), Trafficking in Persons Report 2003 (Washington, DC: US Department of State). US Department of State (2004), Trafficking in Persons Report 2004 (Washington, DC: US Department of State). US Department of State (2005), Trafficking in Persons Report 2005 (Washington, DC: US Department of State). US Department of State (2006), Trafficking in Persons Report 2006 (Washington, DC: US Department of State). US Department of State (2007), Trafficking in Persons Report 2007 (Washington, DC: US Department of State). US Department of State (2008a), Trafficking in Persons Report 2008 (Washington, DC: US Department of State). US Department of State (2008b), Human Rights Report 2007, released 11 March, at http://tirana.usembassy.gov/08pr_0311.html, accessed 12 December 2008. US Department of State (2009), Trafficking in Persons Report 2009 (Washington, DC: US Department of State). US House of Representatives Subcommittee on Africa, Global Human Rights and International Operations (2006a), Modern Day Slavery: Spotlight on the 2006 ‘Trafficking in Persons Report’, Forced Labor, and Sex Trafficking at the World Cup (Washington, DC: US House of Representatives), 14 June, at http://www.internationalrelations.house.gov/ archives/109/28104.PDF, accessed 8 February 2008. US House of Representatives Subcommittee on Africa, Global Human Rights and International Operations (2006b), Germany’s World Cup Brothels: 40,000 Women and Children at Risk of Exploitation Through Trafficking (Washington, DC: US House of Representatives), 4 May, at http://www. internationalrelations.house.gov/archives/109/27330.PDF, accessed 8 February 2008.
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Index abolitionism 9, 37, 54 arguments against 12, 41–3, 153–8, 173–4, 176–8, 204 arguments for 153–8, 176, 203, 204 defined 12, 15, 153, 204 adoption 1, 139, 140 adultery 109 Afghanistan 10 Africa 9, 26 South 44, 203 Sub-Saharan 70 West 80 agency vs. structure debate 157–8 Agir pour les Femmes en Situation Précaire raid 148–9, 188 aid workers 91 AIDS see sexually transmitted diseases Akashi, Y. 88 akyat barko, definition of 160 Albania and Albanians 16, 69, 76, 77, 95–115, 186, 204 attitudes towards women 6, 13, 74, 107–12, 115, 184, 186 basic data on 95 corruption 75, 102–7, 115, 194 countering trafficking from 73, 201 economic statistics 70–71 estimated number of migrants 113 and European Union 97, 100, 103, 113 law on prostitution 107–8, 115 law on trafficking 108, 115 and legal cases against traffickers 75, 76, 104, 186, 188 migration from 71, 95 murdered prostitutes 17, 204 National Anti-Trafficking Strategies 99, 102 and organised crime 84 as source country 73 stereotyping of 95 trafficking statistics 57, 58, 99–102
as transit country 84 see also kanun America Latin 9, 26 North 26 see also United States Amnesty International 42, 89, 99, 109–10 analysis, gendered 38–9 Annan, K. 89 archipelagic system 134 Armenia 59 arms, trafficking 10, 22, 81 Article Eighteen 67, 186, 189, 192, 204 Asia 9, 26 Central 59, 69, 70 East 137 South East 134, 135, 157 Southern 7 Asia-Pacific 16 Asia Regional Cooperation to Prevent People Trafficking 140 Association of South East Asian Nations 135, 159 asylum and asylum-seeking 71, 97–8, 108, 112–13, 186, 190, 204 Australia and Australians 14, 16–17, 46–50, 186, 189, 201 as destination country 47 and paedophiles 185, 204 repatriation policy 12, 39, 46–50 visas 48, 128–30 Azerbaijan 59 Baden-Württemberg 25 Balay Isidora 154–5, 160, 162–74 Bales, K. 7 Bali Process 55 Balikatan 159 Balkans 13, 80 Baltic States 75 Bangkok Accord 135 233
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Barry, K. 156 Beijing 33 Bejerot, N. 7 Belarus 57, 70–71, 73, 75 Belgium 78, 187, 188 Berisha, S. 106 Berlin 27 Wall 56 Biedronka stores 23 Blackburn, J. 50 blackmail 2 Bohol 160, 164 Bolkovac, K. 91 border guards 62–3, 75, 184 ‘borderless world’ 8, 11, 69 Borgström, C. 54 Bosnia and Hercegovina 16, 77, 80–3, 91, 94, 126, 178 corruption levels 194 ‘boys’ 115 Boys Will Be Boys 93 bride robbery 111 Brown, E. 140 Brunei 134 Bulgaria and Bulgarians 55, 57–8, 70–71, 76, 84 attitudes in 59–68 corruption levels 194 as source country 59 as transit country 59 Burma 47, 134, 183 as source country 9, 134 Burn, J. 129–30 Bush, George W. 54 Cairo 33 Cairo Declaration on Human Rights in Islam 179 Cambodia and Cambodians 14, 16, 47, 80, 88, 133–5, 139–43, 145–51, 153, 173, 185 basic data on 139 Constitution 146 corruption in 103, 143, 146, 147–50, 151, 194 as destination country 139 and donors 146–7 Draft Anti-Trafficking Law 146 legal approach to trafficking 133, 135, 145–50, 151
National Plan against Trafficking 145–6 and non-governmental organizations 14, 143, 147–50 problem of too many agencies 146–7, 199 prosecutions and convictions 149–50 raid of 2004 148–9, 151, 188 rise of sex industry 8, 135, 140 and rule of law 142, 146–9, 151 as source country 134, 139 as transit country 139 Vietnamese in 140 Cameroon 103 CARE 42 casas, definition of 173 Catholic Family and Human Rights Institute 42 Cebu City 153–5, 159–70, 174 Centre for Legal and Civic Initiatives 103 children legal documents on 34–5, 126, 135, 142–4, 146–7 see also Palermo Protocol and pornography 23, 30, 146, 185, 193 and prostitution 8, 117, 154, 160, 185 sensitisation of 202 smuggling of 26 as victims 24–5, 30 and violence 2, 200 see also trafficking, child China and Chinese 16, 134, 183, 197 attitudes 3 corruption 194, 199, 205 as destination country 136 as source country 58, 114, 136, 139 trafficking statistics 58 Churches Alert to Sex Trafficking Across Europe 100 Cioara, M. 18 Clausen, V. 121 Coalition Against Trafficking in Women 42, 156 cockle collectors 197 co-dependency 111 Cohen, S. 54 Cold War 9, 79, 92, 175
Index Colombia 10 commercialisation of evil 31 Committee for Combating Modern Day Slavery 24 Commonwealth of Independent States 16, 26, 56, 74 Communism, impact of collapse of 69, 175 Communist states 8, 14, 16 complex post-traumatic stress disorder 98 conditionality 193, 195 Congo, Democratic Republic of 80 ‘constrained choice’ 153, 172, 176 constructed narratives 189–90 contexts of disclosure 165 of vulnerability 174 Convention on Action against Trafficking in Human Beings 21–2 Coomaraswamy, R. 36 Coordinated Mekong Ministerial Initiative against Trafficking 55, 135, 142–3 Cornwall 205 corruption 98, 105, 140, 146–50, 183–4, 193–5 campaigns against 106 causes of 74, 146 costs of 177 and death penalty 199, 205 and delegitimation 5 effects of 102–6, 112, 149, 184 increase in 9, 72–3, 177 levels of 75, 96, 102 noble cause 188 perceptions of 62–3 problem of 14, 75, 98, 143 see also police, collusion; police, corruption; Transparency International Council of Europe 24 acts against trafficking 21–2, 35 countries see states country guidance cases 97–8, 114, 204 crime, organised 21–2, 56, 86, 103–6, 119, 124, 141, 182, 192, 199 collusion 62, 193
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cooperation 84 countering 135 perceptions of 61–2 rates 73, 177 types 84 çuna 112 customs officers 62–3 cybercrime 193 Czech Republic 57 Daniszewska, M. 36 DAPHNE initiative 34 Davies, B. 186 Davies, J. 96–7, 108, 110–14, 186 Dayton Peace Accords 81, 89, 93–4 death penalty 199 Debeljak, J. 14, 180, 195, 199 debt bondage 3, 7, 10, 27, 87, 112, 119, 125–6, 154, 158, 161–2, 167–8, 177 Declaration on Transnational Crime 135 Democratic Party (Albania) 105 Denisova, T. 74, 188 Denmark 35, 121 Derks, A. 141 Different and Equal 100, 101, 107, 109 diplomats 185, 189 divorce 109, 111 Doezema, J. 157 Dokle, I. 105–6 Dokle, N. 106 double path approach 189 Douglas, L. 140 Draft Concept Paper on Trafficking in Women 135 drugs 85, 162, 177 trafficking 9–10, 22, 81 dependency 2–3, 166–7, 170–71, 202–3 Dudushi, J. 204 Dürres Gang 104–6 East Timor 80 economies, problems of 69–72 ECPAT 164–5 Ekberg, G. 121–2 Eriksson, M. 177, 198, 203 Eritrea 80 Erokhina, L. 183 Estonia 75, 78
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Eurobarometer 65 Eurojust 22 Europe 26, 189 Central and Eastern 12–13, 16, 26, 40–41, 56–78, 80 ‘Fortress’ 8, 11, 69 South-Eastern 9, 16, 84 European Commission 53 European Convention on Human Rights 24–5, 29, 99, 114 European Court of Human Rights 24, 29 European Parliament 55, 203 European Union 12, 43–4, 53–5, 189, 199 acts against trafficking 20–21, 34–5, 192–3 perceived impact on people smuggling 64–5 Police Mission 86, 93 see also European Commission; European Parliament Europol 22, 120 families, role of 108–13, 140–41 familism 96, 98, 107, 112 Farley, M. 177, 200, 203–4 Federation of International Football Association see soccer, World Cup Finland 196–8 flowers 197, 205 Fourth World Conference on Women 33 France 12, 24–5, 111, 196 Frattini, F. 44 Frederick, J. 170 gays 205 Gdan´sk 23 Georgia 59 Germany and Germans 16, 39–45, 54–5, 78, 85, 184, 200 attitudes in 59–68 corruption levels 194 as destination country 59, 113, 187 Federal Criminal Office 57 Federal Police 13 rape rate 198 trafficking statistics 57–9 see also soccer, World Cup Ghana 114 Global Economic Crisis 77, 192–3, 204
Global Financial Crisis 204 globalisation 38, 69, 157, 175, 193 Göteborg 119, 123 governance 142 neopatrimonial 105 patrimonial 105 rational bureaucratic 105 Greater Mekong Subregion 9, 16, 133–52 defined 134 Greece 95, 113, 183 Greig, B. 48–9 growth rates, GDP 70, 77 Guinea 80 Gulcur, L. 156 Haynes, D. 126–8 Henke, R. 141 Hensell, S. 105 Hesse 43 HIV see sexually transmitted diseases Holbrooke, R. 88 Hollinger, J. 100 Holloway, J. 185 Holmes, L. 102, 114 Holms, P. 3 honour killing 96, 109 hotlines 91, 147, 200 Hughes, D. 72, 74, 188, 204 Human Rights Watch 86, 183 Hungary 78, 85 Ilkkaracan, P. 156 immunity 13, 80, 88–92, 94, 185, 199, 203 India 182 Indonesia 134 inflation 70, 77 innocence vs. guilt debate 158 International Conference on Population and Development 33 International Criminal Court, Statute on 33 International Labour Organization 1, 7–8, 16, 23–4, 150–51 International Organization for Migration 42, 44, 53–4, 74, 84, 101 International Police Task Force 83, 89–91 International Women’s Day 44
Index internet 9 interviews 96–7, 111, 137–40, 160 with experts 103, 106 with officials 86, 108–9, 119, 126–7, 164 with sex workers 108, 124 with trafficking victims 82, 98, 101, 162–5 Iraq 78 Ireland 35, 54, 78 Iselin, B. 130 Italy and Italians 78, 90, 183 approach to trafficking victims 126, 130, 187–90, 192 and asylum 71 attitudes in 59–68, 186 corruption levels 194 as destination country 59, 71, 73, 95, 113 murdered prostitutes in 17 Polish workers in 25, 36 trafficking statistics 58 see also Article Eighteen Jakobson, P. 177 Jeffreys, S. 119 Jews 184 Johnston, B. 93 Joint Initiative in the Millennium against Trafficking 171 judicial path approach 189 judiciary 103–4, 125 kanun 96, 109–10 Kanya, L. 138 Karaoke Television, definition of 173 Katayama, L. 125 Katowice 75 Khabarovsk 183 Khan, R. 93 kidnapping 111 Kinnell, H. 125 Kneebone, S. 14, 180, 195, 199 Koreans 23 Kosovo 16, 77, 80–81, 83–5, 89, 93 Kosovo Force 83, 85, 91, 93 Kosovo Polje 87 Kulick, D. 132 kurva 109, 111 kurvnija 109
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Kyiv 183 Kyrgyzstan 59 labour force, feminisation of 38 forced 23, 117, 136, 150, 182 Lagrelle, L.-A. 54 Lamb, D. 91 Lao Women’s Union 138–9, 143 Lao Youth Union 138–9, 143 Laos and Laotians 14, 16, 47, 133–9, 141–5 basic data on 136 Constitution 143 corruption in 143, 194 Law on Women’s Development and Protection 143–4 legal approach to trafficking 133, 135, 138, 142–5, 150–51 mass organisations 138–9, 151 migration policy 138, 141, 175 Ministry of Labour and Social Welfare 137, 143 nature of trafficking 137 New Economic Mechanism 136 prosecutions and convictions 144–5 and rule of law 142, 145, 151 scale of trafficking 137 as source country 134, 136 as transit country 136 Lapu Lapu City 160–61, 174 Lasocik, Z. 12, 184, 189, 196 Lather, P. 158 Latvia 59, 75, 76 law ambiguities in 72 civil 187 common 187 criminal 19–20 enforcement agencies see police Law, L. 157 legislative lag 72 Leong, K. 14, 198, 203 Lesko, V. 114 Liberia 80 limitations (of the analysis) 15–16 Lithuania 57–8, 75, 78, 114 Lubonja, F. 96, 114 Lupi, N. 90 Lutheran Church 42
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Luzon 164–5 Lyon 108 Macedonia 84–5 machismo 200 Magnanti, B. 204 Malaysia 16, 47, 114, 134, 139 marriages forced 25, 182 foreign 111–13, 139 Marshall, P. 136, 137 mass organizations 14 media coverage 39–40, 44, 58, 63, 85, 104, 157, 189 role of 12, 31–2, 41, 184–5 Mekong Subregional system 134 Memorandums of Understanding 134, 136 men, as victims 1, 15, 29–30, 99, 136, 139–41 Middle East 9 migrants and migration 38, 42, 46–50, 77, 199 attitudes towards 60, 65–8, 131 illegal 11–12, 27, 35, 96, 126, 181, 184, 186, 190 as opportunity 110, 173 patterns 134 policy on 130, 137, 203 reasons for 26, 137–8, 157–8 safe 141 military collusion 84, 148 courts 90 and prostitution 84–5, 93, 135, 159, 184 Milivojevic, S. 12, 175 Miller, J. 42, 54, 205 Mindanao 159–61, 164, 167, 174 Mitrovica 87 Moldova and Moldovans 201 corruption levels 194 economic situation 70–71, 73 as source country 76, 82, 84, 93–4 trafficking statistics 57 money-laundering 145 moral panic 41–3, 45, 51, 54, 99 Morecambe Bay 197 Morocco 58
Muslims 25 Mozambique 79 MTV Europe Foundation 42 Mumbai 182 Munich 39 Munro, V. 119, 126–7 Myanmar see Burma Naím, M. 175 narcotics see drugs National Women’s Council of Ireland 54 Nencel, L. 155 neoliberalism 193 neopatrimonialism 96, 105–7 Netherlands, The 57–8, 78 corruption levels 194 as destination country 113 New Zealand 205 Nigeria 17, 57, 58, 114, 194 9/11 193 non-governmental organisations 103, 159, 188, 205 attitudes towards trafficked women 157 and collusion 192 and discourse construction 157, 200–201 estimates by 82, 100–101 excess of 143 and inflation of trafficking figures 99, 175 problems faced by 109–10, 148 role of 14, 37, 49, 52, 55, 77, 143, 147, 149–50, 187, 189, 199 staffs of 106–7 and victimisation 196 see also under names of individual NGOs North Atlantic Treaty Organization 82–3, 89, 94 Norway 119, 125, 178 Office of Gender Affairs 86–7 Office of the High Commissioner for Human Rights 82 Office of the High Commissioner for Refugees 93 Office of the High Representative 82 Ohmae, K. 8 Olympic Games 44
Index Operation Top Secret 106 Organization for Security and Cooperation in Europe 34, 43, 82 orphans 115 Östergren, P. 124 paedophilia 89, 135, 185, 205 Pakistan 85, 93 Palermo Protocol 5, 16, 24, 34, 133, 146, 186, 193 and definition of trafficking 1, 16, 20–22, 87, 98, 120, 125–7, 135, 141, 159 and methods to combat trafficking 45–6 on people smuggling 17 purposes of 142 ratification of 76 peacekeeping and peacekeeping forces 13, 74, 79–94, 178–9 as clients 82, 183–4 components of 93 first generation 92 multidimensional 92 repatriation of 89–90, 94 scale of 93 second generation 79, 92 as traffickers 82–3 Perpjekja 114 Philippines, The 15–16, 153–5, 159–74 anti-trafficking policies in 159 combating trafficking in 159 corruption levels 194 legal approach to trafficking 159 as source country 134 trafficking history in 159 Phnom Penh 148, 150 ‘pig’s trough’ see procedure shopping pimps 17, 41–2, 97, 110–12, 115, 119–20, 149, 160 Platform for Action 33 Poland and Poles 16, 18–36, 42, 58, 69, 72–3 attitudes in 59–68, 187 corruption levels 194 as destination country 59, 75 economic situation 70–71 and European Union 12, as source country 59, 187 trafficking statistics 57–8 as transit country 59
239
police 41, 49, 55, 84, 89, 91, 100, 105, 129, 148 anti-trafficking 108, 191 awareness 119 collusion 6, 17, 63, 75, 83, 85–7, 90–91, 123, 183, 188 complaints against 105 corruption 195, 204 fear of 6, 24, 108, 123, 130, 183 involvement in trafficking 150, 183 Metropolitan 197, 205 and prostitution 85, 87 raids 43, 83, 86, 88, 93, 149 repatriation of 91, 94 reports 120, 123, 125 as rescuers 164, 187 training 86–7, 131 Poppy Project 100 pornography 30, 34–5, 140, 146, 193, 204 Portugal 78 post-communism, features of 72 post-communist states 8, 11, 14 see also Central Asia; Central and Eastern Europe; Commonwealth of Independent States; and under individual states prison guards, Nazi 184 Pristina 85 procedure shopping 53, 179, 189–92 prohibition era 177 Project Respect 129 prostitution and prostitutes 109 attitudes towards 10, 74, 96, 125, 156, 202 child 117, 160 and choice 15, 97–8, 111–12, 125–8, 153, 166–73, 176, 180, 197, 204 clientele 160 dangers to 125, 160 debate on 153–8, 172–3 and drugs 166–7, 170–71 and economic factors 167–9 estimated numbers relating to 41, 82, 84, 159–60 factors decreasing 131 factors increasing 82 and families 168–9, 176, 200
240
Trafficking and human rights
laws on 14, 76, 116, 144, 177–8, 204 legalisation of 9, 174, 205 murder of 17 profits of 83–4 psychological aspects 154 return to 153–4, 162, 164–73, 179 rights of 173 and romance 168–9, 171 and trafficking 30, 42, 80–81, 118–20, 161, 196, 205 types 160 types of establishment 161 as violence 126, 153 see also sex work and sex workers; trafficking, child; trafficking, human pull factors 26, 113–14 push factors 113–14 rape 25, 27, 41, 89, 109, 160–61, 169, 174, 198, 204 Raymond, J. 204 reflection delay 187 refugee status 71 relationship addiction 111 ‘reliability on legal fiction’ 91 religion 69 religious organisations 41–2, 100 remigration 108 rescue industry 165 residency permits 128, 131 resocialisation 200 Rhineland-Palatinate 43 rights, civil 186 rights, human additional 181 and choice 180 and culture 179 and employment 180 and the European Union 97, 99 and gender 15, 32, 81, 92, 178–81, 182 and immunity 80, 92 model 123–4 organisations 41 and people smuggling 65–6 perspective 29–30 and the prostitution debate 156 relativity of 191 of sex workers 173, 178, 203
and the state 20, 29–30, 184–6, 191, 203 of trafficked persons 1, 6, 10–11, 36–7, 120, 176, 178, 186 and violence 32–3 rights, labour 124–5, 130 Rinas Airport 115 Roma 205 Romania and Romanians 18–19, 75, 83 corruption levels 194 economic situation 70–71 as source country 57–8, 71, 76, 82 Rowin´ski, W. 36 rrëmbej 111 Russia and Russians 74, 83 corruption levels 194 economic situation 70–71 as source country 57, 114 and trafficking 85, 87, 93, 183, 198, 204 Rzeszow 72 Saisuree Chutikul 50 Salvation Army 42 sanctions 193, 195 Sandy, L. 15, 153 Schengen 8, 34, 44 Schloenhardt, A. 188 Schwandner-Sievers, S. 13, 181, 204 Scoble, R. 185, 204 seatbelts 201 Segrave, M. 12, 175 Serbia 58, 76, 84, 188 sex huts 41 sex tourism 8, 135, 159–60, 174 sex wars 135 sex work and sex workers arrests of 43 attitudes towards 13, 125, 139 debate on 15 differences from trafficking 41 and disabled persons 205 impact of laws on 124–5, 177 legalisation 41, 130 rights perspective 153–8, 171 scope of 204 see also prostitution; trafficking sexploitation 198 sexually transmitted diseases 4, 118, 140, 157, 173, 177, 181
Index shabu 166–7 Shapiro, N. 127 Sierra Leone 80 Siliadin, S. 24–5 Simic´, O. 13, 184 Simmons, F. 129–30 Singapore 134 slavery 19, 116, 127, 157 white 1 Smith, C. 41, 55 smoking 201 smuggling, people attitudes towards 59–68 causes of 202 definitions 1–4, 26–8, 112, 126–7 differences from trafficking 1–4, 26–8, 59, 63, 127, 180, 184, 196, 201 mutation into trafficking 4, 13, 27–8, 41, 74, 77, 141, 180, 196 routes 57 scale of 60–61, 67–8 soccer 18–19 World Cup 12, 38–45, 51, 178 social path approach 189, 192 Socialist Party 105 Somalia 80, 90 South, global 43 Spain 78 Special Trafficking Operations Program 34, 86, 93, 192 Stabilisation Force 83, 94 state officials 199 collusion 62–3, 72, 75, 144, 150, 183–4, 191 training of 186 states and bureaucracy 187 destination 16, 45–6, 52, 59, 134, 176, 179, 189, 191 developed 16, 77, 202 developing 16, 157, 202 irresponsible 193, 205 Moslem 205 obligations on 29 of origin see source source 16, 43, 45, 57, 59, 114, 134, 176 transit 16, 59 transition 16, 23, 77, 202
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victimisation by 185–8 weak 72–3 welfare 71, 77 and witnesses 187–8, 191 Status of Forces Agreements 89 statute of limitations 185 Stockholm Syndrome 7, 111 Surtees, R. 15 surveys 59–68, 77–8, 110, 194–5 Sweden and Swedes 14, 16, 54, 76, 116–32 corruption levels 194 and European Union 132 evaluation of anti-trafficking approach 120–25, 131, 198–9 law on aliens 129 law on prostitution 116–18, 124–5, 132, 178, 198, 203 law on trafficking 116–19, 124–5 Ministry of Industry, Employment and Communications 118 National Criminal Investigation Department 120, 123–5 scale of prostitution 125 scale of trafficking 120, 132, 198–9 ultimate prosecution model 14, 123–4 Swedish International Development Cooperation Agency 42 Taiwan 139, 154 Tajikistan 59, 74 Terre des Femmes 200–201 terrorism 193 Tetovo 85 Thailand and Thais 16, 47, 55, 134, 136–8, 183, 204 corruption levels 194 as destination country 9, 47, 134, 136, 139, 141 repatriation policy 12, 39, 46–50 rise of sex industry 8, 135 scale of trafficking 137 as source country 47, 57, 114, 139 trafficking statistics 57, 137 as transit country 47, 136 Thaksin Shinawatra 55 Third World see states, developing 3Ps approach 12, 37, 123, 133, 189, 196 defined 14, 45–6, 142 Tirana 101
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Togo 12, 24 tomatoes 25, 36, 197 traffickers 86 control methods 2–3, 110–12, 161–2, 166, 203 convictions 203 deception methods 111, 161 disincentives to 120–21, 130 identity of 140–41, 161, 182 motives 72 origin of 58–9, 63–4 prosecutions 130, 203 trafficking, child 15, 44, 180 and adoption 1, 26, 31 and Albania 97, 99, 100–102, 183 and Cambodia 138–41, 146–8 and China 139 countering 34–5, 135 and France 24–5 and Germany 40 and GMS 133 and India 182 and Kosovo 85 and Laos 136, 142, 143–4 and Malaysia 139 and Philippines 173–4 and Poland 75 punishments for 87, 117 scale of 1, 7, 99, 101, 137 and Sweden 117, 126 as targets 97, 101 and Thailand 49, 139, 141 and Ukraine 183 and Vietnam 139 and work 1, 4 see also children; Palermo Protocol trafficking, human attitudes towards 3, 6, 10, 30–31, 41–3, 74, 96, 100, 108–9, 131, 145, 179, 200–201, 204 and border control 38–9, 43–4, 50, 52–3 and bureaucratism 74, 146–7, 199 causes of 38, 69–76, 130, 138, 175, 202 and children see trafficking, child and citizenship 46, 49–50, 52 and compensation 76, 103–4, 188 conferences on 135
countering 12, 31–5, 46–51, 66, 76–7, 85–91, 116–32, 135, 191, 195–202 criminalisation of 196 and culture 74, 80, 92, 96–7, 109–10, 131, 157, 200 definitions 1–4, 18–23, 26–8, 87, 120, 125–7, 141–2 domestic 21–2, 88, 97, 100–101, 117, 136, 139, 161, 173, 186, 197 and drugs 162, 170–71, 174, 202–3 education about 200–201 and empowerment 170–73 estimated numbers 1, 39–40, 47, 53, 86, 132, 136–7 see also scale examples 23–6 and families 96–8, 100, 104, 107–10, 112–13, 140, 169–71, 174, 179, 181–2 future of 192–5 gendered approaches to 12, 15, 38, 45, 50–52, 95, 109, 133, 142, 144, 180 and geopolitical context 97 and home 43–5, 50–53, 96, 169–70 and human rights 10–11, 19, 29–32 see also rights, human; victims, rights impact of 4 internal see domestic international focus on 5 and language learning 181 legal cases against 24–5, 104, 121–2 legal status of 2, 196–9 legislation on 20–21, 116–18 and/of males 15, 74, 136, 139 opportunities 73 of organs 32, 36, 117 and political will 201–2 and population size 75–6 problems of measurement 5–7 and prosecution model 123–4, 133 Protocol see Palermo Protocol and psychological issues 170–71 punishments for 10, 76–7, 87, 117, 143–4, 150, 199–200 and racism 4–5 reasons for increase 8–10, 81, 84 reduction of 73
Index and reintegration 170 and repatriation 39, 45–51, 86, 101, 128–30, 179, 199 reporting, dangers of 103–4 and resource limits 123 and retrafficking 96–8, 101, 109, 112–13, 128, 130 reverse 97, 186 risk, most at 101, 137–8 routes 84, 136, 141 scale of 5, 7–8, 10, 12, 14–15, 22, 37, 57, 88, 99–102, 145, 150–51, 175 see also estimated numbers and sex work 41, 45, 155–8, 197 stages 58 and states 20, 46–51 and stereotyping 127 transnational 21–2, 26–8 types of 23 victims of 99–100 and war 73–4 see also smuggling, people; prostitution; sex work and sex workers; trafficking, child Trafficking in Human Beings Unit 88–9 Trafficking in Persons Report see under United States Trafficking in Persons Unit 91 Transcaucasus 59 transgender persons 203 transitions, multiple and simultaneous 72 Transparency International Corruption Perceptions Index 75, 194–5 Global Corruption Barometer 102–3, 195 Turkey 58, 78, 204 Turkmenistan 78 Uganda 183 Ukraine and Ukrainians 72, 75, 82, 183, 188 attitudes 74 corruption 75, 194 economic statistics 70–71 law on trafficking 76, 78 as source country 24, 57, 84, 93, 114 trafficking statistics 57 unemployment rates 70–71, 77, 193
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United Kingdom 35, 95, 97–8, 125–6, 175, 204 corruption levels 194 as destination country 113 legislation on trafficking 196–8 United Nations 1, 33–4, 79–94 acts against trafficking 34, 85–91, 193 analysis of trafficking 57–8, 86 Children’s Fund 146, 197 Commission of Human Rights 33 Convention against Transnational Organized Crime 21, 34, 120, 133, 135, 138, 142–3, 151, 196 Declaration on the Elimination of Violence against Women 32–3 Declaration of Human Rights (Universal) 10–11, 181, 190 Department of Peacekeeping Operations 88, 90, 92 Development Fund for Women 84 Human Development Index 134, 139 Human Rights Conference 32 Interim Administration Mission in Kosovo 83–5, 87–9, 91, 94 Mission in Bosnia and Hercegovina 81–3, 86–7, 91, 94 Office on Drugs and Crime 128, 182 Secretary-General 89 Transitional Authority in Cambodia 88, 146 transparency, lack of 86, 94 see also Palermo Protocol United States 177 Agency for International Development 54 and anti-trafficking 41–2, 123, 127, 204–5 Department of State 7 as destination country 113 Federal Bureau of Investigation 8 and prostitution 159 and trafficking 90 Trafficking in Persons Report 42, 46, 53–4, 88, 99–100, 121–2, 144–5, 149–50, 195 Trafficking Victims Protection Act 5, 54
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vacuum, ethical 69 Vanna, L. 141 Vatra 101, 104, 107, 114 Vertinskaya, L. 74 victimhood 156–8 victimisation quadruple 11, 15, 181–8, 199 triple 102, 181, 184 victims centred approach 14, 133 and consent 19, 21 false 126 and non-reporting 5–7, 28 partial 126 protection model 123–4 rights 48, 50, 52, 92, 120, 128, 143 see also rights, human true 126, 128 Victims’ Advocacy and Assistance Unit 87–8 Vienna 32, 75 Vientiane 137 Vietnam 28, 134, 136, 139, 199 War 135 violence 14, 17, 25, 33, 118, 149, 156, 177, 193, 198, 200 Violence Against Women in Cambodia 2006 report 149 virgins 111, 140, 162, 203 visas 43–4, 48–9, 52, 54–5, 74, 128–30, 174 Visayas 160, 165 Vlora 101, 114, 204 Vullnetari, J. 106–7
wars, impact of 9, 81 Warsaw University 36 Watch List 54, 114 weapons see arms Web, use of 199 ‘Western glamour’ 72–3 whistleblowers attitudes towards 66–7 treatment of 91, 183, 204 ‘whores’ 107–12 Wijers, M. 157 witness protection schemes 104, 191 wives 107, 110–11, 115 womb rent-outs 26 women and agency 40, 44–5, 50, 98, 155–8, 178 approaching traffickers 110–12 attitudes towards 13, 30, 74, 118, 140 combating trafficking, role in 32–3 as traffickers 59, 182 as victims 25, 29–32, 37, 40, 45, 50–51, 53, 86, 95, 97–9, 108, 149 World Cup see soccer World Vision 49 Wroclaw 75 Yea, S. 15, 176, 184 Your Name is Justine 27 Yugoslavia 8, 58, 71, 73–4, 81 Yunnan 134 ZLY 31, 36 Z˙urawski, M. 18 Zwanziger, T. 42 /
Wall Street Journal, Index of Economic Freedom 103 War on Terror 10
