Lecture – Are States Meeting Their Responsibilities to Trafficked Persons?

By John Alizzi | 06 Dec 11
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Each year a leader in the field of human rights presents a lecture jointly hosted by Monash University’s Castan Centre for Human Rights Law and Mallesons Stephen Jaques. The speaker for 2011 was the United Nations Special Rapporteur on Trafficking in Persons, especially in women and children, Ms Joy Ngozi Ezeilo.

Ms Ezeilo is in Australia as part of a fact-finding mission or, as she put it, seeing whether we are “on track” – a first since beginning her post in 2008. Her trip comes on the back of a visit to Indonesia, and on Tuesday 28 November she made time to deliver the lecture at the State Library of Victoria. Drawing on experiences in every continent, and on correspondence with over 100 countries, Ms Ezeilo explored the obligations on States and the adequacy of their responses to what she called “twenty-first century slavery”.

Given that characterisation, Ms Ezeilo began with some brief historical points. Following the abolition of the Trans-Atlantic Slave Trade by the British Empire in 1807, abolitionism in other places followed, as did international agreements dedicated to the cause. In the post-war era, the UN has led the way by drafting international instruments affirming the rights of all. Given how fundamentally human trafficking may be understood to undermine human rights, it is unsurprising that numerous UN Conventions are multiply breached by the practice.

As Ms Ezeilo explained, human trafficking inevitably “results in cumulative breaches of human rights”.  Not only that: international criminal and labour law instruments are also violated by the practice. Indeed, the key, specific international instrument to which Ms Ezeilo made numerous references is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which is a supplement to the UN Convention against Transnational Organized Crime. In 2004, Australia ratified the Protocol, becoming a “State party” and thus legally bound to follow the obligations set out in it. Close to 150 other countries have so far done the same.

The Protocol

The substance of much of Ms Ezeilo’s lecture rested upon an initial understanding of a number of the Protocol’s key provisions, beginning with its purpose, which is set out in three points in Article 2:

(a) To prevent and combat trafficking in persons, paying particular attention to women and children;

(b) To protect and assist the victims of such trafficking, with full respect for their human rights; and

(c) To promote cooperation among States Parties in order to meet those objectives.

Crucially, Article 3(a) defines “trafficking in persons” as:

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.

Importantly, this long definition asserts that human trafficking occurs both within and beyond State borders, and recognises its many potential forms. The sub-section continues, defining “exploitation” as including

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.

Combating trafficking

Ms Ezeilo stressed that these crimes affect every country in the world, and that the problem is not declining. However, on the basis of her past correspondence, it is clear that some countries are “still in denial” – either in respect to the fact that the problem afflicts their country or to the fact that certain forms of it do. Needless to say, this perception inhibits the action necessary to rectify the dilemma. More specifically, Ms Ezeilo pointed out that different forms of sexual exploitation are commonly recognised to exist, but that forms of human trafficking involving the removal of organs and domestic servitude are less commonly recognised. In partial response to the latter issue, in June 2011 a new Convention on Domestic Workers was adopted at the 100th annual conference of the International Labour Organization.

At present, however, as some State parties do not recognise all the forms of human trafficking listed in Article 2 to exist in their region, they consequently fail to criminalise them all (as is their obligation under Article 5). Thus, Ms Ezeilo first pointed to the problem of non-comprehensive definitions of human trafficking in the domestic legal implementations of the Protocol.

Assisting victims

Another major insight relates the implementation of State assistance to victims. Article 6 of the Protocol gives meaning to this aspect of its purpose. To summarise, it obliges States to (1) protect privacy; (2) provide legal information; (3) provide for “physical, psychological and social recovery”, including housing, medical attention and employment or training opportunities; (4) remain sensitive to the victim’s age, gender and special needs; (5) ensure physical safety and; (6) ensure the legal system contains avenues for obtaining compensation for damage suffered.

Unfortunately, States are not meeting these responsibilities to victims, which adds to the “cumulative breaches” of human rights inherent in human trafficking itself. State governments often do not feel responsible for the problem and are reluctant to expend the necessary resources to meet their obligations under the Protocol with respect to assisting victims. Ms Ezeilo insisted that States have a responsibility to exercise due diligence in their duty to govern so as to impede traffickers – and where they fall short, victims should have access to effective remedies. Further, Ms Ezeilo suggested that States should not punish trafficked persons for offences they may have committed in the process of being trafficked – such as immigration or prostitution transgressions.

Cultural complexities

Finally, even where assistance conforming to Article 6 is available, Ms Ezeilo pointed out that cultural complexities and local conditions may combine to complicate the practical task. Sensitivity to the victim’s situation and protecting them, in particular, can be complicated. To make these points clear, Ms Ezeilo provided two examples.

The first, taken from her native Nigeria, is a specific form of psychological bondage to the trafficker. This initially involves debt bondage – the notion of repaying a loan with services of unspecified length – overlaid with exposure of the victim to a traditional voodoo ritual, in which photos, nail cuttings or hair are kept by a native doctor with the supposed threat of calamity if the bond with the trafficker is broken.  Ironically and tragically, this magical bond is said to operate on the conscience of the victim (see here for a detailed study on this issue). The cynical practice of debt bondage, whether insured by ritual or not, is sometimes even presented as a “justification” for the exploitation being perpetrated. Those who rescue and / or interview victims influenced by such ideas – who are ignorant of the language and culture in which they find themselves – clearly have a complex situation to navigate.

A second example involves the complexity and the peril of local conditions. Ms Ezeilo pointed to the state of affairs in parts of Eastern Europe, in which mafias are particularly strong and ruthless. This makes the job of ensuring the victim’s physical safety especially difficult, acutely where victims are fearful of police – again for cultural reasons due to ingrained corruption in their homelands.

Clearly, these examples of complexities demand that those who assist victims of human trafficking display both sensitivity and an unusual amount of courage, on top of willing State resources.

Improving the situation

Having highlighted the difficulties States have in fulfilling their obligations under the Protocol, Ms Ezeilo – whose task it is to both remind State members of their obligations and offer advice on practical implementation efforts – suggested some strategies. As with any problem, clear recognition of what States face is the first step. The full or, more commonly, partial denial of human trafficking is therefore particularly obstructive. Next, stressing the recovery and integration of the victims, Ms Ezeilo pointed to the need to avoid stigmatising victims of human trafficking and for a State to take responsibility for trafficking by assisting its victims in positive ways.

Both recognising and combating human trafficking and assisting victims depends largely on the awareness and conscience of States, which, as Ms Ezeilo pointed out, can be influenced by those who help to ensure their own State is aware of the problems, sensitive to victims’ situations and brave enough to intervene. Though combating today’s “different form of slavery” may appear difficult, by pointing to specific ways in which States can better fulfil their international obligations, the foundation of Ms Ezeilo’s talk was that the problem need not be ignored or seen as one without a solution.

Keep up to date with the Castan Centre’s upcoming lectures and events.