Human trafficking: Twenty years on from the Palermo Protocol, how do we account for progress?

By Marie Segrave and Shih Joo Tan

Today is the World Day Against Trafficking in Persons, especially important this year, as it marks the 20-year anniversary of the Palermo Protocol.

In Australia, like the UK and other nations, trafficking in persons has drifted to a lesser place in the public and policy imagination amid the wave of commitments to end modern slavery.

As we await the first reports from entities required to make public statements about their commitments to addressing modern slavery in their supply chains, where do we stand on human trafficking? How do we account for progress?

We can first take stock of what the Palermo Protocol has achieved on the international stage:

  • It’s been signed and ratified by 178 countries
  • It’s seen significant resourcing of criminal justice personnel, and the creation of law, and some case law, around serious criminal offences pertaining to human trafficking
  • Awareness of trafficking has increased
  • Commitments have been made to those who have been trafficked, in some cases financial reparations or substantive visas
  • It’s created an industry of non-governmental organisations working to raise awareness, support those who are exploited, and to implement prevention
  • There’s been some recognition that counter-trafficking efforts can have unintended consequences, and/or be poorly informed or deny rights to those who have experienced trafficking and efforts to reform and amend those responses.

Closer to home, Australia has been applauded for its response to human trafficking. In the US’ recent Trafficking in Persons report, it was described as of the highest standard. Australia’s first national response to human trafficking, in 2004, focused on sexual servitude.

What we must do, however, is look beyond these processes and commitments to ask questions about impact and to focus on future challenges.

Some of these challenges have been brought into sharper focus by the COVID-19 pandemic. Here, we focus on three challenges to consider, which are informed by our research.

Emphasis on criminal justice

While there are victim support services, the criminal justice system primarily functions to investigate, prosecute, and convict offenders.

We know this is inherently problematic, in part because trafficking victims can also be unlawful migrants, and in some circumstances become offenders exercising control and coercion over others. But it’s also problematic because our focus is so contained – we don’t look to the larger systemic issues that give rise to conditions within which exploitation arises.

Instead, we focus on numbers. Yet criminal justice data in this area is largely meaningless. How do we make sense of zero, 10, or 50 prosecutions? How do we make sense of the number of referrals in terms of this being indicative of the level of exploitation occurring in any one country? In essence, these numbers tell us more about process. They tell us little about the effectiveness of awareness-raising, of who comes forward and who does not, of the attrition of cases out of the system. These challenges remain.

Keeping victims’ rights front and centre

The second challenge is the persistent attraction to “ending exploitation”, with far less commitment to securing the rights of migrant workers.

The Palermo Protocol is a significant instrument for helping end one form of exploitation most often connected to migration for labour that involves deception or coercion, but it’s not an instrument that seeks to improve conditions of migration and work.

The Migrant Workers Convention, on the other hand, which seeks to uphold workers’ rights, is largely unpopular on the international stage. To date, only 55 have signed and ratified it.

We’re committed to ending the worst forms of exploitation that appeal to a moral code dictated by the clear and easy lines of victim/offender, but research tells us that what we need to do is ensure migrant workers are protected first and foremost.

A critical part of this is ensuring we don’t restrict migration or penalise migrant workers for their migration status in ways that further escalate their risk of exploitation.

We also need to recognise that for people who have been trafficked, the opportunity to find alternative employment is vital. There’s also very little benefit for victims that comes from an offender’s prosecution. It’s often lengthy, and in many countries, access to support services are strictly regulated, remain dependent on victims’ willingness to participate in criminal justice processes, and remuneration and compensation is not an automatic or supported process, but a civil matter that victims need to pursue on their own terms.

We can, and should, pursue criminal justice outcomes, but we cannot forget workers’ rights in this process if we want to make meaningful change and increase genuine protection.

Ending modern slavery

The third challenge comes in the form of commitments to end modern slavery.

As we push now towards corporate mechanisms and regulatory requirements to report, we see increasingly moralised and generalised commitments to ending modern slavery.

We know that corporate efforts to attend to human rights and uphold corporate social responsibility are renowned for producing process commitments with little evidence of impact. In the UK, the Modern Slavery Act remains largely, for many reporting entities, little more than a compliance requirement.

The COVID-19 context has revealed the weakness of these commitments. We’ve seen around the world the relative speed and ease with which companies that have made commitments to ethical supply chains have cancelled contracts, leaving workers without an income, and the general mistreatment of migrant workers who are at once on the frontline of supply chains, and whose rights, health and survival have been subsumed by the needs of others.

These three challenges are not impossible to overcome. They remind us of the importance of recognising just what can and cannot be achieved by singular efforts. Criminal justice and corporate regulations must all be part of a larger process of systemic change.

And, they must all recognise that labour and migration, and the processes and systems that oversee, limit and regulate these two things, are critical components of where we need to make substantive change to address the conditions that give rise to exploitation.

We have to protect labour rights; we have to stop punishing those who are unlawful, and instead look to those who seek to exploit workers. This includes the labour and migration policies that underpin employment structures.

We must move beyond rhetoric and engage carefully with efforts that are well-intended. We must embrace failure and limitations, and use the growing evidence base to inform better practice. We must confront inequalities. And we must at every step of this process involve and be led by those who know first-hand the experience of exploitation and trafficking.

Marie Segrave is a criminologist whose work into human trafficking, migrant labour exploitation, women prisoners and policing challenges the assumptions that drive legislation and policy in Australia and internationally.

Shih Joo Tan is a final year PhD candidate at Monash University. Her research examines the experiences of security and safe work in the everyday home-workplace for female migrant domestic workers in Singapore and Hong Kong.

Originally published in Monash Lens