Ending Impunity and Securing Justice: Criminal Justice Responses to Human Trafficking

Vol. 42 No. 4

By

Anne T. Gallagher (anne.therese.gallagher@gmail.com) AO, PhD, is a practitioner and scholar specializing in transnational organized crime, including human trafficking and migrant smuggling. In 2012, she received the Trafficking in Persons Hero award from then–Secretary of State Hillary Clinton for her global work on strengthening criminal justice responses to human trafficking. She is the author of the award winning The International Law of Human Trafficking (Cambridge University Press, 2010).

Human trafficking is the subject of complex legal definitions, but the essence of this crime is very simple: trafficking is about moving someone into—or keeping them in—a situation of exploitation from which they cannot escape. Its end purposes are as varied as the potential for profit. People are trafficked for exploitative labor in factories, on farms, and on fishing boats; for forced prostitution; for involuntary marriage; even for the removal of their organs. Sometimes trafficking involves locks, chains, and fences. However, traffickers understand that individuals can be very effectively controlled in much more subtle ways: through a debt that just keeps growing, for example, or by promises of future payments that never materialize. Sometimes threatening to turn an undocumented migrant over to the authorities, or to harm a victim’s family, can be sufficient to establish and maintain complete control.

While trafficking has been around for a very long time, international and national responses are much more recent. It was as a UN human rights official in the late 1980s that I first heard reports about what soon became recognized as the classic stereotype of victims of trafficking: young girls being lured into sexual servitude in Southeast Asia. Around the same time, the demographic and social changes that accompanied the collapse of communism in Eastern Europe were creating a vast pool of potential victims. The trickle of reports of human exploitation quickly turned into a flood. States became increasingly concerned, not just because of the inevitable human rights violations but also because of the involvement of organized crime and the threat to their borders. In 1998, the international community came together under the auspices of the UN to agree on a new legal framework around transnational organized crime. One of a package of treaties that emerged from this process dealt specifically with “trafficking in persons.”

The UN Trafficking Protocol is now the central international legal instrument in this area. It requires all states parties (currently 156) to criminalize trafficking in their national laws, take steps to prevent future trafficking, and provide basic assistance and protection to victims. States parties are also required to cooperate with each other in each of these areas. In the 13 years that have elapsed since its adoption, the Protocol has exercised decisive influence over national responses to this crime. The overwhelming majority of countries have amended their laws or introduced a special new law to criminalize trafficking and related offenses; many have gone much further and have provided specific measures of protection and support for victims, ranging from special visas to witness protection.

The United States has played a leading role in maintaining the global momentum against trafficking. The Victims of Trafficking and Violence Protection Act of 2000 (TVPA) was signed into law on October 11, 2000, two months before the adoption of the Trafficking Protocol. In addition to addressing many of the gaps and weaknesses in the U.S. legislative framework, the TVPA established a system whereby the efforts of other countries to address trafficking were to be examined and assessed. Specifically, the U.S. State Department was required to issue annual reports describing “the nature and extent of severe forms of trafficking in persons” and assessing governmental efforts across the world to combat such trafficking against criteria established by U.S. law. The annual Trafficking in Persons Report ranks countries by assigning them a “tier”: Tier 1 is for countries in full compliance with the TVPA’s minimum standards, Tier 2 is for countries making an effort but not yet fully compliant, and Tier 3 is for those countries that are failing on both counts. An additional category, “Tier 2 Watch List,” was created a few years ago for countries that, owing to the severity of the problem or failure to provide evidence of progress, are considered to be on the lower edge of Tier 2 classification. These countries are subject to special scrutiny and, in the absence of a special presidential exemption, are downgraded to Tier 3 after two consecutive years on the Watch List. Under the TVPA and its various amendments, the president is authorized to deny the provision of nonhumanitarian, non-trade-related assistance to any Tier 3 country. In addition, such countries will risk U.S. opposition to their seeking and obtaining funds from multilateral financial institutions, including the World Bank and the IMF.

As an international practitioner who has worked on this issue in more than 40 countries, I can attest to the power of the Trafficking in Persons Report. Most countries rightly resent the United States setting itself up as the arbiter of their performance. However, the tactic of “naming and shaming” is very effective. I have no doubt that threat of a negative ranking by the United States has moved many countries to take actions to prevent and respond to trafficking that they would otherwise not have bothered about. That is a good thing, but it carries great risks and it is important that the United States wield this power carefully and responsibly.

Responses to trafficking initially focused on preventing movement among vulnerable groups and supporting victims. However, I am among a growing number of practitioners who have come to understand that an effective criminal justice response to trafficking is an essential component of any national anti-trafficking strategy. In other words, it’s just not good enough to treat trafficking-related exploitation as some kind of social welfare issue. Trafficking is, first and foremost, a crime that deserves to be treated with the seriousness that is accorded other offenses such as rape, false imprisonment, and servitude. Unfortunately, this happens all too rarely. In just about every country, including the United States and my own country, Australia, traffickers are very rarely investigated, prosecuted, and punished. The most recent Trafficking in Persons Report indicates that, worldwide, 7,705 trafficking prosecutions took place in 2012, with only 4,746 convictions. While we now know that labor exploitation is the main end purpose of trafficking, the bulk of prosecutions continue to be for sexual exploitation. During 2012, there were only 1,153 prosecutions for trafficking-related labor exploitation worldwide, and only 518 convictions. It is safe to say that very few of these prosecutions have targeted the major players: those who are reaping the greatest financial rewards for trafficking-related exploitation.

Obstacles to an Effective Criminal Justice Response

Why are these numbers so abysmally low? Why is it so hard to end the high levels of impunity enjoyed by traffickers and to secure justice for victims? Those questions have occupied me for much of the past decade as I have worked with countries in Southeast Asia to help develop more effective criminal justice responses to trafficking. While progress has been frustratingly slow, I do believe that we are now much closer to understanding where the obstacles are, and what needs to be done to overcome them.

One of the main explanations for weak and ineffective criminal justice responses lies in the widespread failure to identify those who have been trafficked in the first place. Identification failures can be traced to a lack of capacity among front-line officials, as well as the hidden nature of much trafficking-related exploitation. However, at least part of the explanation also lies in the profile of the typical victim. Traffickers draw their victims from among the poor and the marginalized, people who are too often outside the criminal justice radar. It is a sad fact that the fate of the overwhelming majority of these people will never be known. According to U.S. government and UN statistics (unsatisfactory, but the best estimates we have at present), somewhere between 15 and 20 million people are currently living in a situation of trafficking-related exploitation. In 2012, the combined authorities of more than 180 countries officially identified fewer than 50,000 victims. Failure to quickly and accurately identify victims of trafficking is a gross injustice because it effectively denies those persons the rights to which they are entitled under national and international law.

The invisibility of victims has serious repercussions for criminal justice agencies. The nature of the crime of trafficking means that prosecutions are almost impossible to secure without the cooperation of victims. The failure to identify victims means a failure to bring their exploiters to account. Among those victims who are identified, many are unwilling or unable to cooperate. They are likely to be highly traumatized and (sometimes rightly) suspicious of authorities; they may be vulnerable to intimidation, influence, or threats of reprisal; they may be afraid of being sent home in disgrace. Most criminal justice agencies are just not up to the task of protecting and supporting victims as witnesses. As a result, many investigations falter before they even properly begin, and many prosecutions fail because unsupported victims simply cannot see them through.

A related problem lies in the complexity of the crime itself. Trafficking is a difficult, time-consuming, and resource-intensive crime to both investigate and prosecute. It is also very new. No country, including the United States, can yet lay claim to genuine, extensive experience in dealing with trafficking as a criminal phenomenon. In fact, most are still developing and adapting their criminal justice responses on the run, and principally through trial and error. Cross-border cooperation and sharing of experiences is still very limited. Mistakes in one country are too often replicated in another. Good practices and lessons learned are not disseminated as widely and rapidly as they should be.

It is also impossible to ignore the politically charged atmosphere around trafficking. Criminal justice agencies can very quickly find themselves caught up in debates and controversies that affect their ability to address trafficking diligently and professionally. For example, in the United States, the fight against trafficking is often deliberately and destructively conflated with the fight against prostitution. Valuable law enforcement resources are diverted to arresting the clients of sex workers (persons who may or may not be exploited), rather than to identifying those who are reaping the massive profits of trafficking-related exploitation. Pressure from the U.S. government can distort criminal justice priorities abroad. I have witnessed wrongful arrests and unfair trials in more than one country that were the direct result of clumsy attempts to receive a good report card from the U.S. State Department. The State Department must do much more to recognize and manage the risks to human rights and the rule of law posed by its own actions.

A Way Forward

So what can be done? Over the past decade, with help from criminal justice colleagues in many countries, I have begun to flesh out the key elements of an effective criminal justice response to trafficking. This “model,” which was first published in 2008 (available at http://works.bepress.com/anne_gallagher/10/), continues to be tested, revised, and refined. Its focus is very much on addressing the problems that have so far obstructed investigations and prosecutions. For example, the model recognizes that the foundation for an effective response must be a solid law that criminalizes both trafficking and the full range of associated offenses. Criminal justice agencies need options, and sometimes it is easier and quicker to prosecute someone for debt bondage or child labor than for trafficking. The legal framework must also enable the rest of the system. This means ensuring that investigators can do their job properly, that victims can access remedies, and that evidence can be exchanged across borders.

The model acknowledges that the law enforcement component of an effective response needs to include both specialist investigators and well-informed, front-line officials. Most countries now have a specialist trafficking unit within their national police forces that is charged with either conducting or advising on trafficking investigations undertaken within the country. Strong units have a clear mandate and adequate resources to do their job properly. They understand the psychology of victims and how to establish their credibility as witnesses. They appreciate the value of proactively securing evidence that corroborates the account of the victim-witness. They work closely with front-line officials—police, immigration, and labor inspectors—who have responsibility for identifying victims of trafficking in the first place and for delivering an effective first response. They collaborate with victim support agencies in ensuring that potential witnesses are protected and supported. They also work closely with prosecutors, who are another important link in the chain, throughout the investigative and trial phases. Unfortunately, while specialization within law enforcement has advanced considerably, the same has not yet happened at the prosecutorial level. Experience in the field is teaching us that, where the caseload warrants, well-trained and well-resourced specialist prosecutors who either lead or advise on all trafficking-related prosecutions are an essential component of an effective criminal justice response. Judges must also be brought into the picture. A judge who is knowledgeable about the crime of trafficking has a vital role to play in securing safe convictions that fully respect international fair trial guarantees.

The model places great emphasis on trafficked persons as victims of crime and victims of human rights violations. It rejects criminalization of victims, asserting that persons who have been trafficked should not be detained or prosecuted for offenses committed as a result of their trafficking (such as immigration or work-related offenses or compelled criminality). It acknowledges an obligation on all countries to provide identified victims with immediate protection and support. This right is enshrined in international law. It should not, as is the case in some countries, be made conditional on a victim’s willingness to cooperate or testify. The model also recognizes that victims have a right to safely participate in the prosecution of their exploiters and that it is in the interests of justice to encourage and facilitate such participation. While each country must decide on how this can best happen, experience has demonstrated the value of systems that provide victims with a “recovery and reflection period” during which time they are provided protection, support, and legal advice related to their possible role as witnesses. Some countries have made considerable progress in ensuring that the experience of victim-witnesses does not compound their trauma, keeping them away from suspects, for example, or providing opportunities for depositions or video testimony where these are not in conflict with a suspect’s right to a fair trial.

While trafficking can take place entirely within the borders of a single country, it is more often a transnational crime. Without cooperation between national criminal justice agencies, it is probable that a prosecution will not touch all those involved in the exploitation, that victims still in exploitation will remain there, and that the “big fish” will continue to act with virtual impunity. Unfortunately, the ability of most countries to engage in genuine operational and legal cooperation on trafficking remains very low. Bilateral cooperation agreements, the establishment of joint investigation teams, and updated mutual legal assistance and extradition arrangements are just some of the ways in which international cooperation capacity can be strengthened, but this will be a long and hard road.

All countries have a legal obligation—and a moral responsibility—to act against trafficking in persons. However, I have come to believe that the weight of that responsibility rests particularly heavily on countries of destination. It is in places such as Australia, the United States, Western Europe, and the wealthy countries of Asia and the Middle East, where the true profits from trafficking-related exploitation are being generated and where the evidence to support strong, high-impact prosecutions is located. This focus has another important benefit. It forces us to confront the reality that human exploitation has built our world and continues to power the global economic growth that benefits our societies disproportionately. It would be sobering to calculate just how big our individual “slavery footprint” might be. In my work, I am inspired every day by the words of Nelson Mandela, who reminds us that “to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.”

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