On 7th March, 2011 Dr. Maria Grazia Giammarinaro, the Organisation for Security and Cooperation in Europe (OSCE) Special Representative and Coordinator for Combating Trafficking in Human Beings, came to the LSE and delivered a lunchtime lecture moderated by Professor Christine Chinkin. During this talk, many of the legal aspects, both hurdles and accomplishments, of criminally prosecuting the perpetrators of human trafficking were addressed.
Of the estimated 2.4 million instances of human trafficking occurring every year only 5,000 criminal proceedings are undertaken. This fact, however, should not be seen in any way as a deterrent to continuing to strive for progress.
Dr. Giammarinaro has been a judge at the Criminal Court of Rome since 1991, was the Head of the Legislative Office and Advisor to the Minister for Equal Opportunities from 1996 to 2001, and served in the European Commission’s Directorate-General for Justice, Freedom, and Security from 2006 to 2009 before taking up her current position within the OSCE. Throughout her career she has consistently worked to combat human trafficking, the sexual exploitation of children and organised crime.
As mentioned by Dr. Giammarinaro in her lecture at the LSE, the main legal accomplishment in the global fight against human trafficking is the United Nations’ Protocol to prevent, suppress and punish trafficking in Persons, especially Women and Children (Trafficking Protocol) drafted in 2000. This document served to create common definitions of the terms and problems involved. Article 3 of the Protocol provides, among others, the key definition of the phrase “Trafficking in persons”, thus giving a potentially universal way to identify and progress with the criminal prosecutions. Article 5 goes on to order signatories to modify their legal systems to make the offence criminal under this definition. Articles 6-8 then generally address the rights of the victims of such crimes and how they should be treated by the signatory states in which they find themselves. The Protocol continues and concludes by generally outlining preventative and coordination measures that must be taken and the signing and ratification process.
It is true that this document provides something significant; it gives organisations combating human trafficking and lawyers representing victims definitions to apply to situations they find themselves in and a tool with which to pressure states which sign and ratify the document to change their legal systems. Yet, the Trafficking Protocol suffers three linked problems which tend to affect many broad legal documents.
First of all, there is the problem of interpretation. The Protocol does something great in providing clear definitions of terms and aspects of human trafficking, but these definitions contain within them many powerful terms which can be interpreted differently by varying legal agents and states. This can be seen in the beginning of Article 3, Paragraph a:
“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.”
Each of these loaded terms (recruitment, harbouring, deception) must be unpacked on a case-by-case basis. What is considered harbouring? What is considered deceptive?
This leads to the second problem, astutely brought up by Dr. Kirsten Ainley of the Department of International Relations, that of knowing complicity. If a trafficker claims they were not aware of the trafficked persons in the back of their van or the storeroom of their ship, are they liable for being involved in the transportation and/or transfer of trafficked persons? Will a hostel or hotel which is regularly used by human traffickers as a stop-point in transporting trafficked human beings be liable for harbouring criminals and victims if they claim they knew nothing of it and did nothing to investigate the situation? Can actors simply claim ignorance in order to avoid criminal repercussions?
These related definitional problems lead to a broader problem of interstate coordination. An LSE student based in the Centre for the Study of Human Rights brought up the fact that a key hindrance for the Trafficking Protocol is the fact that states may vary in their definitions and reactions to what it contains. With so many strong and sweeping terms this almost seems to be a given. In addition, with over 110 states having signed onto it, there is also the fact that this multitude of states have very different legal systems which have or will most likely integrate the mandates of the Trafficking Protocol differently.
As stated by the International Organization for Migration (IOM), the Protocol outlines numerous legal and security “requirements” that signatory states must align with. But these changes are ultimately within the hands of these states and the Protocol has no real enforcement abilities to see these through other than the wills and peer pressure of the states involved.
Aside from the Trafficking Protocol and its successes and difficulties, Dr. Giammarinaro elaborated that a key problem still often inhibiting the criminal prosecution of trafficking offenders is the overlap these crimes often have with states’ criminal, immigration, and labour laws. At times, due to the interpretive issues mentioned above, the actions of transgressors cannot be proven to be criminal so the offences are addressed in terms of labour and immigration regulations.
When addressed through labour laws, victims are able to recover earned wages and perhaps costs due to suffering, but often the perpetrator can go relatively unpunished and remain free to continue to engage in the same practices. This is much better than nothing though. As explained by Jenny Moss, a Community Advocate for the NGO Kalayaan which works with migrant domestic workers in the UK, poverty is the main reason why individuals put themselves in risky situations where they are easily exploited. Thus recovering monetarily from a case can help to lessen their vulnerability and help them to provide for themselves and their families.
When human trafficking situations are addressed through immigration laws, however, the results tend to not be as positive. This is because these laws often target the victims and their legal status, which is often very weak, within the state they have been trafficked to. In these situations state law can serve to punish the victims of human trafficking more severely than those who actually took advantage of these individuals.
There is also a fundamental problem in criminally prosecuting trafficking which involves the victims themselves. Often they are too scared to bring charges or testify against those who took advantage of them. This can sometimes be because of explicit threats made by traffickers against victims or against the victims’ families back in their home countries. It can also be because a pseudo-’Stockholm Syndrome’ develops between the two parties.
In addition, the perpetrators of these crimes are usually not singular actors or bodies. Dr. Giammarinaro put forth that human trafficking often involves networks of interconnected criminal organisations. One group may handle recruitment, another transportation, another the intimidation of victims and security and so on. Therefore identifying and bring down only one of the cogs of this machine will not end its actions because the other pieces are still operating and can simply find a replacement for the lost link in the chain.
What may possibly aid in the criminal prosecution of human traffickers would be the establishment of a legal body within the UN which keeps track of trafficking cases within all states which have officially adopted the Trafficking Protocol. This body could collect data on what arguments and types of evidence are most effective broadly or in certain countries in applying to the criminal definitions set out in the Protocol. Such information would be open to the public, and human rights attorneys and training programs could also be offered to legal professionals.
Efforts and the resource available to protect victims and their families must also be stepped up. Without these actors feeling safe and confident enough to become involved in criminal legal proceedings these cases will be infinitely more difficult.
Even though it is seldom cut-and-dry and contains its fair share of obstacles, the criminal prosecution of human traffickers is an issue where real progress is being made and where there is massive potential for more. There are two key prerogatives here. The first is pressuring signatories to the Trafficking Protocol to align their state criminal laws as closely as possible to it. The second is finding and disseminating effective ways for victims, NGOs, and legal professionals to link their cases to the criminal definitions of these heinous practices outlined in the Protocol. Efforts in these directions will go a long way to gaining more successful and more frequent criminal prosecutions in cases of human trafficking.