The TVPA defines “severe forms of trafficking in persons” as:
a. sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such an act has not attained 18 years of age; or
b. the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.
A victim need not be physically transported from one location to another in order for the crime to fall within these definitions.
Most people think only about how much they will earn from a job. But for people desperate to obtain employment to provide for and support their families, a job can also come with extreme costs, sometime in the form of modern slavery:
As the ILO’s global report on forced labor, Cost of Coercion, shows, the cost of this exploitation worldwide is an estimated $20 billion annually. This is the amount of wages and other benefits denied to migrant workers by fraudulent labor recruiters in their home countries, labor brokers in the country of work, and employers who refuse pay wages.
The trauma associated with trafficking and its psychological effects can be devastating and, if left unaddressed, can undermine victims’ recovery and potentially contribute to vulnerability to re-victimization. Because traffickers dehumanize and objectify their victims, victims’ innate sense of power, visibility, and dignity often become obscured. Traffickers also use coercive tactics and force to make their victims feel worthless and emotionally imprisoned. As a result, victims can lose their sense of identity and security.
A variety of psychological symptoms can surface over a period of time even after victims escape or are rescued from the trafficking environment. Thus, it is critically important to incorporate psychological support and treatment within victims’ services and protocols.
Steps to reinstating psychological well being include:
Foreign victims not only face a fear of their traffickers in the countries where they are exploited, but also are afraid that their cooperation with authorities will lead to harm to their families in their home countries. Traffickers routinely threaten to harm or even kill victims or their families if victims ever report what is happening to law enforcement. Overcoming this fear is thus a hurdle for both law enforcement and victims. One approach for governments to encourage foreign trafficking victims to participate in prosecutions, and also provide them and their family members increased stability and protections, is to offer them a path to permanent residence – and potentially citizenship. Governments, however, sometimes fear that offering such longer-term immigration relief to foreign trafficking victims will lead to a massive number of illegal migrants fraudulently claiming to be victims of trafficking.
The concern of massive fraud related to the provision of immigration relief for victims of trafficking existed in the United States when the U.S. Congress passed the TVPA in 2000. To protect against fraud, a cap of 5,000 approvals per year was placed on the special status designated for trafficking victims – the “T” nonimmigrant status, also commonly referred to as “T visas” and named after section 1101(a)(15)(T) of title 5 of the U.S. Code. The feared rush on T visas, however, has not materialized. Although the number of applications for T nonimmigrant status is increasing every year, less than half of the yearly allotment of T visas for one year has been approved since 2002. This illustrates that, even with strong incentives, encouraging foreign victims to overcome their fears and come forward with their stories still remains a challenge.
Many NGOs and legal advocates also note that the eligibility requirements under U.S. law related to the T nonimmigrant status also serve to deter fraudulent applications. These eligibility requirements include demonstrating by credible evidence that the individual was a victim of human trafficking, is present in the United States on account of that trafficking, and is willing to cooperate with law enforcement in prosecuting traffickers (except for minors or especially traumatized victims), and that the victim would suffer extreme hardship, including severe and unusual harm, if removed from the United States.
Ads, like the one pictured to the left, were common in U.S. newspapers in the 1700s and early 1800s before slavery was abolished. Now, ads like the one pictured to the right show that this practice continues in the modern era. Those who escape severe abuses from their employers risk hardships of fugitive life, danger of capture, and the threat of death.
The “3P” approach to combating human trafficking promotes collaboration among stakeholders across government, private-sector, and civil society. Businesses are increasingly aware of the role they can play in prevention efforts by decreasing the demand for products made by modern slaves. This is usually seen through “fair trade” schemes or labor codes of conduct, which seek to voluntarily regulate the social and environmental impacts of the production of certain goods. They reflect consumers’ growing awareness of the risk of labor exploitation and their willingness to factor ethical questions into their purchasing habits, despite paying a price premium for doing so.
Several instances highlighted by the media over the last year, however, brought to light some corporate buyers who in the past advertised their fair trade credentials loudly but were found to have not made a strong effort to know their supply chains and monitor them regularly to ensure they were free of forced labor. Whether they are products from Africa and Latin America or clothes made with cotton in West Africa or Central Asia, companies must be responsible for the full length of their extended supply chains.
While efforts to harness market power to drive down demand for modern slave-made goods can serve as preventive efforts to combat trafficking, private-sector initiatives should be seen as a complement to governmental efforts to prosecute traffickers, and government and civil society collaborations to protect victims. Because market-based initiatives rely on the market to correct itself, and lack sufficient mechanisms to ensure meaningful accountability, they are not a substitute for vigorous government efforts to end impunity through prosecuting and punishing those who subject others to compelled service.
The essence of the trafficking experience is the denial of freedom – including the freedom to choose where and how you live, the freedom to work or choose not to work, the freedom from threats, and the freedom of bodily integrity. Unless carefully crafted and adopted with flexibility, victim assistance programs can sometimes replicate the trafficking experience by removing victims’ prerogative from questions of housing, employment, residency, and disclosure. For example, in order to stay in many government shelters throughout the world, victims surrender their right of movement – they are restricted to the shelter grounds or may only leave with the permission of shelter staff. In some countries, the disclosure of victims’ identities by government authorities results in victims’ stories and name being revealed to the press or to their families. A fundamental premise of victim assistance programs should be to place choices back into the hands of the trafficking victims.
The following “good practices” set the stage for a victim-centered approach to care that allows victims the opportunity to make choices in their care. These approaches can help victims put distance between the trafficking experience and the rest of their lives.
Open Shelters
Victims should not be detained in shelters in any form. Victims should be allowed to leave the shelter at will and without chaperones. Staying in a shelter should be an option; many victims may have access to other accommodation and should be allowed to choose those alternatives.
Full Information to Victims
Victims should be informed of their rights as early as possible in a language they understand. Victims should be informed about what will and will not be expected of them during a criminal trial. Victims should be educated about their options in the immigration context and told that they have right to consular or diplomatic access. Countries can accomplish this in a variety of ways, including appointing counsel for trafficking victims, appointing victim advocates for victims, or involving NGOs. Some countries develop brochures and other literature in many languages to facilitate early disclosures. Victims of trafficking crimes should also be put in touch with their country’s embassy or consulate for additional assistance.
Confidentiality
Victims should be given the choice of how much of their information is shared. They should not be exposed to media without their full and informed consent. It should be their choice whether their families are told about their trafficking.
Residency
Generous benefits for trafficking victims, including permanent residency, facilitate the law enforcement process. Immigration regulations that offer victims permanent residence, rather than mandating forced return, are best practices. Residency schemes should allow some flexibility for victims of trafficking to have time to determine if they wish to participate in the criminal process, with special exemptions for victims who are minors or who have experienced severe trauma. There are many reasons a victim of trafficking may initially refuse to cooperate with an investigation. Sometimes victims do not trust the police to protect their rights; sometimes law enforcement has participated in a victim’s exploitation; and sometimes victims are simply too traumatized by their experiences to discuss them with law enforcement.
Right to Work
Countries should consider granting foreign national trafficking victims the right to work. In many countries, even formal entry to a victim assistance program does not give a victim the right to a work permit. Accordingly, without material aid, victims are again placed in vulnerable situations.
Myths and misperceptions about trafficking in persons and its complexities continue to hinder governments’ ability to identify victims, provide them the services they need, and bring their traffickers to justice. These challenges are made worse by the unfortunate tendency to conflate human trafficking and human smuggling. Persistent practices, including the following, contribute to this conflation:
Prevailing concerns about illegal immigration continue to guide governments’ initial responses to potential trafficking victims. Trafficking indicators are missed and victims are wrongly classified as illegal migrants and criminals.
Narrow definitions and continued stereotypes of trafficking as a problem confined to women and girls in prostitution result in the mistreatment of other victims of trafficking. For example, instead of receiving protective services they need, migrant men in forced labor may face immigration charges or deportation if not identified as trafficking victims.
A focus solely on initial recruitment of migrant workers and prostituted individuals – whether or not they consented to their situation – can impede the proper identification of subsequent trafficking. Authorities often fail to look beneath the surface for possible indicators of forced labor, debt bondage or sex trafficking.
The risk of conflation leading to the treatment of victims as criminals increases when responsibilities of anti-trafficking enforcement and victim identification lie solely with immigration, as opposed to criminal justice, authorities. As the anti-trafficking community continues to debunk these misperceptions, governments have an obligation to move away from flawed and outdated interpretations of human trafficking that focus on the process of bringing someone into exploitation, as opposed to the compelled service that often results after a migrant arrives in a country. Domestic law enforcement, not border interdiction, is usually what catches traffickers and frees victims from modern slavery.
A growing number of companies are integrating “corporate social responsibility” into their business models and embracing the responsibility to protect human rights, promote economic and social development, and look after the environment. Many have learned through experience that ethical practices contribute to sustainable profits and economic advantage, and benefit both investors and employees. Globalization has led to increasingly complex supply chains. While challenging, supply chain monitoring enables companies to manage risk while protecting both their reputation and workers. Supply chain traceability is becoming a business necessity and initiatives like California’s Transparency in Supply Chains Act mean companies can no longer afford not to incorporate anti-trafficking measures into their corporate policies.
Companies do not have to reinvent the wheel in order to become good corporate citizens. Advocates have collaborated on a number of initiatives offering a wealth of proposals and ideas to help companies begin to implement policies to reduce the likelihood of modern slavery in their corporate supply chains.
For example, Verite, a U.S.-based NGO, developed a fair hiring toolkit that provides brands, suppliers, governments, investors, NGOs, and auditors with guidance to support the responsible recruitment and hiring of migrant workers in global supply chains. End Human Trafficking Now and UN.GIFT (the UN Global Initiative to Fight Human Trafficking) partnered with Microsoft to create an e-learning tool for business leaders, managers, and employees to identify the risks of human trafficking in their supply chains and point to actions they can take to address this risk. Generated by business, government, and civil society, the Luxor Implementation Guidelines facilitate integration of anti-trafficking values into corporate policies, while the multi-stakeholder driven Dhaka Principles outline measures for businesses to support migration with dignity. Members of the socially responsible investment community – the Interfaith Center on Corporate Responsibility, Christian Brothers Investment Services, and Calvert Investments – cooperated on a guide to effective supply chain accountability to assist investors with implementation of the California Transparency in Supply Chains Act.
Effectively responding to modern slavery requires law enforcement measures informed by concerns for trafficking victims’ rights. Anti-trafficking law enforcement actions, such as raids on suspected sites of exploitation, are often essential for the identification and liberation of trafficking victims. Such raids, however, can negatively impact the vulnerable populations that are meant to be helped. For instance, some trafficking victims have been arrested for prostitution several times by law enforcement authorities’ vice squads before finally being correctly identified as trafficking victims; some found the law enforcement interventions they experienced to be as distressing and confusing as their trafficking experience. Victims who have been threatened by traffickers with police action sometimes believe police action meant to protect them is actually directed against them.
Trafficking victims’ rights can also be compromised by shelters that lock up victims in order to ensure they will testify during trials or to protect them from their traffickers. While victim testimony and security from re-trafficking and retribution are important, detention of victims in shelters amounts to a deprivation of liberty, which is a hallmark of the trafficking experience. Furthermore, many foreign national trafficking victims are desperate to pay off the large loans taken to fund their migration and presumed employment, and government policy or shelter rules may not facilitate their ability to find work during the judicial process. Employment is equally important for victims without debt. As alternatives, governments should support victims to ease the burden of testifying; police should be trained to assemble strong cases with supporting evidence that can withstand a lack of victim testimony; and governments should support non-traditional modes of testimony, such as video testimony. While these alternatives are under the purview of the government, civil society groups can help when governments face resource constraints.
Key to balancing these human rights and law enforcement equities is maintaining a victim-centered approach throughout criminal justice procedures in human trafficking cases. In Kosovo, for example, advocates represent victims of trafficking from the time police officers bring them to the police station. These advocates explain legal rights to victims, ensuring that they understand both what care is available and that they have the right to refuse care. These rights are established in standard operating procedures for the treatment of trafficking victims. This kind of collaboration between law enforcement and service providers can help ensure that anti-trafficking efforts are effective and keep the appropriate focus on the victim.
A survey of trafficking victims’ protections around the world finds a number of countries with limited resources that have nevertheless developed innovative methods to protect victims. While the solutions vary, what they have in common are creative engagement with the private and non-profit sectors and high-level political will to address human trafficking. A local population that recognizes and condemns the trafficking problem as it exists on the ground is essential to forging effective partnerships. Widespread awareness of trafficking increases its visibility and importance to NGOs and businesses, making them more receptive to partner with the government in assisting victims. Governments can raise public awareness without large financial expenditures through media appearances and effective use of state news services. Those holding political office can also embrace human trafficking as one of their national priorities, encouraging local media outlets to report on the problem and government efforts to fight it.
Where high levels of community awareness exist, governments have effectively partnered with organizations to improve services to human trafficking victims. For example, in Aruba where there is no shelter tailored specifically for trafficking victims, the government has initiated a public-private partnership with several hotels for free or deeply discounted rooms for use as emergency shelters when urgently needed. This program has worked well to provide temporary shelter until long-term arrangements can be made. Addressing another area of victim protection, the Government of Antigua has developed a close working relationship with the local airports and airline companies to train staff to recognize trafficking indicators and obtain deep discounts on tickets for foreign victims voluntarily wishing to return to their home country. In Rwanda, the government supports an NGO that provides counseling to women in prostitution by offering a government-run community center as an operating space. Innovative and low- or no-cost measures like these present the potential for all governments to provide victim services when large budgets are not available.
The Child Soldiers Prevention Act of 2008 (CSPA) was signed into law on December 23, 2008 (Title IV of Pub. L. 110-457) and became effective on June 21, 2009. The CSPA requires publication in the annual TIP Report of a list of foreign governments identified during the previous year as having governmental armed forces or government-supported armed groups that recruit and use child soldiers, as defined in the Act. These determinations cover the reporting period beginning March 1, 2011 and ending February 29, 2012.
For the purpose of the CSPA, and generally consistent with the provisions of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the term “child soldier” means:
(i) any person under 18 years of age who takes a direct part in hostilities as a member of governmental armed forces;
(ii) any person under 18 years of age who has been compulsorily recruited into governmental armed forces;
(iii) any person under 15 years of age who has been voluntarily recruited into governmental armed forces;
or
(iv) any person under 18 years of age who has been recruited or used in hostilities by armed forces distinct from the armed forces of a state.
The term “child soldier” includes any person described in clauses (ii), (iii), or (iv) who is serving in any capacity, including in a support role such as a cook, porter, messenger, medic, guard, or sex slave.
Governments identified on the list are subject to restrictions, in the following fiscal year, on certain security assistance and commercial licensing of military equipment. The CSPA prohibits the following forms of assistance to governments that are identified in the list: international military education and training, foreign military financing, excess defense articles, section 1206 assistance, and the issuance of licenses for direct commercial sales of military equipment. Beginning October 1, 2012 and effective throughout FY 2013, these types of assistance will be prohibited to the countries listed, absent a presidential national interest waiver, applicable exception, or reinstatement of assistance pursuant to the terms of the CSPA.
The determination to include a government in the CSPA list is informed by a range of sources, including firsthand observation by U.S. government personnel and research and reporting from various United Nations entities, international organizations, local and international NGOs, and international media outlets.
The 2012 CSPA List includes governments in the following countries:
In March 2012, the International Criminal Court (ICC) convicted Congolese warlord Thomas Lubanga (pictured on page 37) for enlisting or conscripting children under the age of 15 in 2002 and 2003 during the conflict in eastern Democratic Republic of Congo. As the leader of the Union of Congolese Patriots (UPC) and its armed wing, Lubanga was responsible for enlisting or conscripting boys and girls under the age of 15 – some as young as nine-years-old – to act as soldiers and bodyguards. Others were forced into sexual servitude. Lubanga’s conviction is the first verdict issued by the ICC; he faces a maximum sentence of life imprisonment.
In April 2012, the UN-backed Special Court for Sierra Leone in The Hague convicted former President of Liberia Charles Taylor (pictured on page 37) of 11 counts of war crimes and crimes against humanity, including the conscripting, enlisting, and using of child soldiers under the age of 15. Taylor was found guilty of aiding and abetting the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC) in the commission of such crimes between 1996 and 2002 during Sierra Leone’s civil war; the court’s judgment held him criminally liable for his participation in these crimes from Liberia. He is the first former head of state to be convicted by an international court for the use of child soldiers. In May 2012, he was sentenced to 50 years’ imprisonment as punishment for his role in these atrocities.
Over the last year, a series of media, government, and NGO investigations have drawn attention to the high prevalence of forced labor on fishing boats around the world. Oftentimes, forced labor appears alongside illegal, unreported, and unregulated fishing that international organizations have identified as threatening food security and the preservation of marine resources. The March 2012 report of a ministerial inquiry commissioned by the New Zealand government found that migrant laborers recruited in Indonesia alleged physical and psychological abuses as well as severe underpayment or nonpayment of wages by Korean fishing vessels operating under contract to New Zealand companies. Other reports received during the year indicate that the Thai fishing fleet operating in open waters committed horrendous abuses of foreign crew members.
For years, the fishing industry has targeted vulnerable populations. In the case of boats operating in New Zealand’s Exclusive Economic Zone, abuse allegedly begins when an Indonesian recruiter persuades a worker in his home country to sign a contract to work aboard one of the vessels. Once on the boats, some victims are forced by senior crew employed by fishing corporations to work 18 or more hours per day, threatened, prevented from leaving the boat, and in some instances were exposed to physical abuse or sexual harassment. Living quarters are cramped with little or no heating, fresh water is scarce, and food supplies are rationed and hidden away from crew members. Medical treatment for sick or injured victims can be inadequate.
Seafood caught by these vessels ends up in freezers and shelves in grocery stores and restaurants, and eventually on a consumer’s plate. Because some purchasers of fish on the international market do not monitor their supply chains for slave labor, including the crew recruitment processes and treatment of fishermen on chartered vessels, an estimated 44.9 million people directly engaged in the fishing industry will continue to remain vulnerable to human trafficking.
This Report includes recent reports of the abuse of deaf domestic workers in the United Kingdom, addicts forced to labor in fields in the United States, people with mental illnesses and developmental disabilities enslaved in Chinese kilns, and persons with developmental disabilities forced to work as peddlers on the streets of India. Persons with disabilities remain one of the groups most at risk of being trafficked. Due to disability-based discrimination and exclusion common in many places, however, governments often ignore this risk factor or fail to make provisions for persons with disabilities as part of anti-trafficking efforts.
The stigma and marginalization of a person with disabilities creates a particular vulnerability. For example, parents who see no hope of jobs or marriage for their disabled children may place those children in exploitative situations with the intent of shedding a “burden” or seeking income. Where schools fail to accommodate students with disabilities, high drop-out rates leave them on the streets and at much higher risk of being trafficked in forced begging or other criminal activities. The commonly held view that persons with disabilities are not sexually active increases the risk of sex trafficking for persons with disabilities, especially disabled women and girls. For example, a Global HIV/AIDS survey conducted by the World Bank and Yale University showed that women and girls with disabilities were assumed to be virgins and thus targeted for forced sex, including by HIV-positive individuals who believed that having sex with a virgin would cure them.
Societal barriers limit the access of persons with disabilities to systems of justice. Lack of training of police, prosecutors, and judges on how to accommodate persons with disabilities (through, for example, sign language interpreters, plain language, and physical access) can leave victims with disabilities unable to provide effective statements and report the abuse they have endured. Laws expressly prohibiting people with disabilities from being witnesses, especially those who are blind, deaf, or have mental or developmental disabilities, leave such victims excluded from processes that should provide them with redress. Even when the justice system is not to blame, societal prejudices that devalue or discount the experiences of persons with disabilities can mean that their evidence is given less weight, and that sentences given to perpetrators may be lower than comparable cases where non-disabled people are the victims. This exclusion of persons with disabilities from the justice system in turn contributes to their being targeted by traffickers, who might assume that such victims will be less likely to raise an alarm or seek help.
Even in instances in which victims of trafficking do not have disabilities, the experience of being trafficked substantially increases the risk of victims acquiring disabilities as a result of physical and psychological trauma. It is thus essential that victim service programs include resources for those with a wide range of physical, sensory, learning, mental, and developmental disabilities.
In April 2011, the EU passed a new comprehensive anti-trafficking Directive (21011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims) defining human trafficking and setting standards for member states’ responses to trafficking. Similar to the Minimum Standards for the Elimination of Trafficking of the TVPA, the standards set forth in the EU Directive require member states to criminalize all forms of trafficking and to assign significant penalties for trafficking offenses. Member states must investigate and prosecute trafficking cases without depending on victim testimony and may continue their investigations and prosecutions even when victims have withdrawn their statements. The Directive also requires member states to extend certain protections to trafficking victims, including appropriate assistance and support not conditioned on the victims’ willingness to cooperate in criminal proceedings, and to ensure that victims of trafficking are not prosecuted for crimes they were compelled to commit. In addition, it requires that special measures be put in place to provide child trafficking victims with specialized care and support. Further, the Directive requires that member states establish provisions to prevent secondary victimization of victims during the law enforcement process. Finally, Member states are obliged to establish a national rapporteur or equivalent to assess trends and government actions to address trafficking, including the measuring of results of anti-trafficking actions and the gathering of statistics, in close cooperation with civil society. If implemented by member states, these new provisions carry a significant promise for enhanced investigations of trafficking and protection of its victims.
The Universal Declaration of Human Rights (UDHR) not only prohibits slavery and involuntary servitude (Art. 4), but also sets forth a number of other protections relevant to global efforts to address human trafficking. Some of these provisions, such as the guarantees of freedom of movement (Art. 13), freedom from forced marriage (Art. 16), and free choice of employment (Art. 23), protect victims and those who may be vulnerable to trafficking. Others, such as Article 11, provide baseline protections for the accused in criminal proceedings. Done correctly, law enforcement action can achieve not only the criminal justice goals of deterrence and punishment, but also fairness, due process, and the ability of crime victims to see their abusers brought to justice. Indeed, these goals are not in conflict.
In striving to implement best practices to address trafficking, and consistent with the standards of the UDHR, the Palermo Protocol, and the TVPA’s minimum standards for the elimination of trafficking, governments should act in accordance with the UDHR’s admonition in Article 11 that “[e]veryone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” It is critical for countries to have clear and well-constructed trafficking laws, with elements of the offense that can be understood by police, courts, parties, civil society, and at-risk persons. It is also imperative that when governments vigorously enforce those laws, they apply them fairly based on careful and thorough investigation and in proceedings that protect the due process rights of the accused.
In recent years the victims’ rights movement has made great strides in ensuring that those against whom a crime was committed are not then re-victimized by the very judicial system that should be protecting them. The re-traumatization possible in judicial proceedings can be minimized by a number of best practices, such as alternatives to in-person testimony or use of pseudonyms, access to a victim advocate, and the right to be heard in court proceedings, especially at sentencing. Moreover, vigorous victim identification mechanisms and use of prosecutorial discretion can identify and protect arrestees who may have committed crimes, as a result of having been trafficked.
Incorporating these rights-based best practices into the judicial process allows for better law enforcement training and increased victim identification, and ensures that the right people are brought to justice. The result? Justice for all, and the enhanced legitimacy of the governments’ efforts to fight against modern slavery through systems that meet the fundamental rights and needs of all those involved.
On June 1, 2012, the International Labor Organization released its second global estimate of forced labor, which represents what the U.S. Government considers to be covered by the umbrella term “trafficking in persons.” Relying on an improved methodology and greater sources of data, this report estimates that modern slavery around the world claims 20.9 million victims at any time.
