Conference of State Parties to the Convention Against Transnational Crime and its Protocols, 3rd Session, Vienna, 9 - 18 October 2006
Proceedings of the GAATW Panel Discussion at Vienna International Centre, 11 October: Protection of Trafficked Persons - A Human Rights Approach
Opening by Antonio Maria Costa, Executive Director of UNODC
The meeting was opened by Mr Costa who had arrived that morning from New York. He began by pointing out the keywords of: protection, human rights and trafficking. He then thanked all NGOs for the work they do in assisting victims and said that the information collected by NGOs through their daily work was important for governments and the United Nations to know. He asked NGOs to give their views on whether the Palermo Protocol is a useful document in their work and what they think of governments' efforts to implement the Protocol. He noted that public opinion is in support of NGOs as people are sickened and morally outraged by trafficking. Mr Costa also pointed out that the core of trafficking is exploitation: trafficking is connected to slavery.
Bandana Pattanaik, Moderator of the Panel, International Coordinator, GAATW
Bandana began by welcoming all present and explained that she would like the session to be a discussion, so presentations would be kept short. The panel was organised by three organizations--the Global Alliance Against Traffic in Women, Antislavery International and La Strada International--that were all part of the Palermo Protocol negotiations. Bandana explained that when members of the GAATW negotiating team first came to the Parlermo negotiations they had mixed feelings; they had hoped that the UN would address the issue of human trafficking by formulating a human rights instrument and were unsure about the usefulness of a crime control document. However, they were hopeful that States would interpret their responsibilities through the human rights framework. GAATW brought to those discussions a tool: the Human Rights Standards for the Treatment of Trafficked Persons (HRS), a collation of international human rights instruments that should be used while assisting trafficked persons.
She then explained that in recent years GAATW members had been reviewing anti-trafficking work and their ability to implement the human rights framework. Recent thematic consultations had raised several concerns about anti-trafficking initiatives:
- The harm that can be done to affected groups through anti-trafficking work, particularly where the framework was abused for example to advance an anti-migration agenda.
- States protect people's rights but have paternalistic ideas about women's movement and women's work.
Dr. Helga Konrad, International Consultant on Combating Trafficking in Human Beings
Dr Konrad began by noting the important questions that Mr Costa had asked States at a recent Conference that she organised in her former position with the OSCE. These questions asked States directly whether they were implementing their obligations under the Protocol on prevention, prosecution and protection. For example, whether they had established comprehensive national policies and programmes to prevent and combat human trafficking and to protect the victims, or whether they had implemented measures to provide for physical, psychological and social recovery of victims.
She explained that she had put these questions to 55 States including EU States, other States in Western Europe, CIS countries, the US and Canada, and that a significant discrepancy existed between States' perceptions of their anti-trafficking successes and the reality. From this research, she said that although trafficking was a huge business, States had only just scratched the surface. She gave a number of examples such as:
- Although 70% of the countries keep count of trafficking victims they often do not disaggregate data by age, sex or year of registration. 40% of States do not distinguish between adults and children. Four States said that no victims of trafficking have been identified on their territory and some could not provide any data at all.
- Most countries report trafficking for sexual exploitation but only 49% reported trafficking for labour exploitation.
- 17 of the 55 had not ratified the Palermo Protocol and of those who had, 20% did not include labour trafficking in their definitions of trafficking.
- 58% say they have systems for providing compensation but reality shows such compensation is hardly ever paid to victims of trafficking.
- Identification is mainly through raids, migration control and police intelligence, rather than through social strategies.
She then noted that although many States had basic counter measures they are frequently island structures, not comprehensive national referral mechanisms. The weak points are identification, protection and assistance, and the judiciary. While law enforcement has improved, the moment of identifying is crucial. If the person is not identified, there is no chance of rescue or initiating a case. Other problems are that cases are dismissed by lack of evidence, prosecutors are relying too heavily on victim testimony and not securing other evidence, and sentences rarely reflect the severity of the crime.
Finally, Helga noted that the criteria of success in combating trafficking is never one field of action, but all elements must be considered. The only focus that matters is to identify victims properly and in much larger numbers, to investigate cases properly, to prosecute properly and to sentence perpetrators to time in prison that reflects the severity of the crime. Most countries are content just to thaw the tip of the iceberg but the money in trafficking is a dead loss to development and its source is human misery that feeds other criminal rackets.
Marieke Van Doorninck, Advisor on Public Afffairs Officer, La Strada International
Marieke began with noting all of the positive reports from States in the morning plenary session and that she would like to make some of her own observations.
She explained first that protection is not just protection of the person or protection of witnesses in a criminal court, rather it involves looking at everything that is needed for the recovery of a person who has suffered serious human rights violations. NGOs and States, therefore, see protection differently. Protection for NGOs means empowerment, social assistance, education, employment and compensation; trafficked persons should be in a position after receiving protection that when they return home they better off and are not vulnerable to retrafficking.
For example, residence permits should not be linked to being a witness and States should not be afraid that this would mean that victims would then not want to cooperate with police. She noted the example of the Italian system where reasonable recovery time is given and more people are actually willing to testify. States should also not fear that this protection measure would lead to floods of trafficked persons in their countries. People do not get trafficked to get a temporary residence permit but to escape poverty, gender discrimination or want of a better life.
Marieke also pointed out that good measures on paper do not mean that protection is effectively implemented and we must look at what happens in practice. For example, the Netherlands has finally granted the right to work to trafficked persons. In practice, however, it is difficult for people to find work because employers will not employ someone who has just three months residence or if their residence time is unclear. Also, States say they have systems of compensation, but we do not need systems; we need real compensation.
Next, Marieke pointed out that social assistance should not be given in a discriminatory manner. She asked, how many people are deliberately not identified, such as people with a history of working in the sex industry? Everyone who has been trafficked deserves protection, not only those useful for a court case or who fit the image of a "victim".
Finally, she stated that protection does not end with the conclusion of a court case, but rather that is when protection starts. When individuals are to be sent home, States must perform individual risk analyses: not just whether it is a safe country, but is it safe for the particular woman in a particular context including social, family and employment contexts. So protection starts from the moment a person is identified and lasts until that person has completely recovered and is reintegrated into society.
Klara Skrivankova, Anti-Slavery International
Klara began by saying that although Anti-Slavery was founded in 1839 and is the world's oldest human rights organization, it is also perhaps the most unsuccessful because slavery still exists in modern forms and many people end up in slavery as a result of trafficking. In fact, it is estimated that the number of people in forced labour today is more than at the height of the Trans-Atlantic slave trade.
She then pointed out the discrepancy between the millions of people trafficked in the world and the number of people identified and assisted. Therefore, States must really look for people and afford them assistance. She said that although States are taking many measures towards protection of trafficked persons, these systems are inaccessible to many victims. Anti-Slavery research has found that services in the UK are designed only for women trafficked into sexual exploitation, not for victims of forced labour. Victims of trafficking for labour report that they must deal with their situation themselves, either by continuing to suffer in the hope that things would one day improve, or they can try and escape and then stay on the street with no shelter or means of support. They are then likely to be picked up by police and deported.
Klara called on States to look on trafficking from the point of view of exploitation, which she said is the core problem. She confirmed the need for the forced labour indicators proposed by the ILO and that all victims of trafficking should be protected, no matter how they arrived in the situation.
Finally, Klara urged States to look at the migration and labour connection to trafficking and to sign all instruments that protect migrants. In particular, another UN Convention, the 1990 Convention on Migrant Workers and Members of their Families, should be signed by all States because migrant workers are one of the key groups that are affected by trafficking. States would then also be addressing the so-called 'migration trafficking nexus'.
DISCUSSION
The first two questions, from a delegate of Nigeria and Alison Brown from the International Alliance of Women, asked about compensation and how it could be paid. Marieke responded that compensation could be provided in many ways and these should all be looked at to see what works best; for example, by the confiscation of the assets of the trafficker, through national funds for victims of crime or through civil suits for unpaid wages. Klara agreed that compensation can make a great difference and can be a powerful tool to prevent people being re-trafficked. Very often people return home in great debt to the traffickers and are in an even worse situation than when they left. In Albania for example, 80% of returned victims are estimated to be re-trafficked.
A delegate from the Brazilian Governement also asked about the best way to provide services to trafficked women. Klara responded that there are different approaches but sometimes services just categorise services and are not tailored to individual needs; some people do well in an environment where others have also suffered violence, whereas others do not want to do that. She said that we need a service that looks at the concrete needs of people.
Helga also responded to the question on shelters and services. She emphasised the importance of institutionalised cooperation, which means NGOs do things that are within the powers of the State but that NGOs do them better and cheaper. She said that funding and support to NGOs is necessary, not a gift to NGOs. It will actually save governments money to support NGOs.
Kristiina Kangaspunta, the Chief of the UNODC Anti-trafficking Unit commented first that compensation should be seen as compensating a victim of a crime, not a trafficking victim. Victims of crime have a right to go to court and claim compensation, so why should it be different for trafficked persons? She then pointed out that Member States have been talking of how well they are doing on combating trafficking and asked panellists their view of this.
Klara agreed with this approach to compensation and pointed out the difficulties working out entitlements of trafficked persons because they do not have a status like refugees in international law. As to how happy NGOs are with governments, Klara said that governments had come a very long way in the six years since the Protocol was adopted; for example, the Protocol definition of trafficking had been widely put into national legislation. But still a lot remains to be done, especially translating the human rights approach into practice and balancing criminal justice with human rights. She said that more effort was put into prosecuting the crime than protecting the victim.
A representative of IMADR (International Movement Against Discrimination and Racism) then suggested a shadow reporting process from NGOs with research into how governments are implementing the Protocol being done before the Conference. Helga agreed that her study of 55 countries was a similar process and was very effective.
The Austrian Ambassador then made a statement in support of NGOs and their strong advocacy efforts to raise awareness on this issue. He pointed out that governments and NGOs must work together, with initiative and energy from NGOs and funding and support from governments.
CLOSING
Bandana then thanked all panel discussants and those who attended, and expressed her pleasure that a real discussion had taken place. She then thanked UNODC, particularly Mirella Dummar-Frahi, without whose help the meeting would not have been possible.