doi: 10.1111/imig.12197
Special Section:
Developing Frameworks for the Protection of
Trafficked Persons
Introduction
Susan Kneebone*
In the second decade after the creation of the anti-trafficking framework – which includes the
United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women
and Children (2000) – one fact is clear. The problem of human trafficking has not been eradicated
and whilst policy-makers are still testing policy responses, reliable research and data on human trafficking is needed. The United Nations Office on Drugs and Crime (UNODC) explains that although
90 per cent of countries have introduced legislation criminalizing human trafficking since the Trafficking Protocol entered into force, the number of convictions globally has remained extremely low
(UNODC Global Report, 2014, Preface, 1). In the same report it is asserted that “without robust
criminal justice responses, human trafficking will remain a low-risk, high-profit activity for criminals”. Further the UNODC has released a series of Issue Papers on key aspects of the definition of
trafficking in persons under the Trafficking Protocol which illustrate that different approaches to
this crucial definition exist in various jurisdictions.
The European Commission by contrast has adopted Directive 2011/36/EU on “Preventing and
combating trafficking in human beings and protecting its victims”. The EU has a “comprehensive,
integrated approach that focuses on human rights and on the victims of trafficking” (EU Strategy
2012-2016, 3), whilst at the same time recognizing the criminal justice context. The EU system
encompasses two avenues for protection of trafficked persons; first the “trafficked victim”1 provisions for assistance and support laid down in Directive 2011/36/EU and secondly, the “international
protection” route as asylum seeker or beneficiary of subsidiary protection provided by the EU Qualification Directive 2011 (Directive 2011/95/EU on “Standards for the qualification of third country
nationals . . . as beneficiaries of international protection . . .”).2 Nevertheless, an evaluation of the
success of the measures adopted in the EU, recognizes their practical limitations and effectiveness,
especially in terms of data and identification of trafficked persons, see the European Migration Network Study (European Commission, EMN Study, 2014).
This short collection contains articles from both researchers and the policy perspective, and from
different countries and regions to assist in filling the gaps in understanding of the problem of
human trafficking. It deals with the common issue of how to devise responses to the crime of
human trafficking which protect trafficked persons from exploitation whilst at the same time
responding to the broader objectives of the Trafficking Protocol. The collection includes articles on
Mexico, Vietnam, the United Kingdom and the Netherlands, as well as from the Thailand-Burma
border. It covers issues relating to trafficked children and persons trafficked for labour and sexual
exploitation. It critically examines key requirements for devising a holistic response to human trafficking, which includes protection of trafficked persons.
In 2012 the EU launched the EU Strategy towards the Eradication of Trafficking in Human
Beings 2012-2016 (EU Strategy 2012-2016). It calls for Member States to adopt inter alia:
* Monash University, Melbourne.
Published by John Wiley & Sons Ltd.
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International Migration © 2015 IOM
International Migration Vol. 53 (4) 2015
ISSN 0020-7985
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Kneebone
1 A systematic approach to victim identification, protection and assistance (Strategy Priority A),
2 A more diverse group of actors than before in policymaking (Strategy Priority D) inter alia
police officers, border guards, immigration and asylum officials, public prosecutors, lawyers,
members of the judiciary and court officials, housing, labour, health, social and safety inspectors, and Civil Society Organizations,
3 Formal, functional national referral mechanisms (NRMs) describing procedures to better identify, refer, protect and assist victims and including all relevant public authorities and civil society (Strategy Priority A – Action 1) (EMN Study, 2014, 30).
The articles in this collection provide examples which endorse these recommendations.
Victoria Rietig, “Prevent, Protect, and Prosecute Human Trafficking in Mexico: Policy and Practical Recommendations” deals with the broad framework for tackling human trafficking. Rietig
highlights the need for greater cooperation and coordination between actors in anti-trafficking,
which draws upon the obligations in Part III of Trafficking Protocol. Part III (“Prevention, cooperation and other measures”) is aimed at reducing vulnerability factors of “victims of trafficking” and
their potential for “revictimization”. It is thus linked to the obligation to protect trafficked persons
(Kneebone and Debeljak, 214-217). Importantly, the obligation to cooperate includes with civil
society (Trafficking Protocol, Articles 9(3) and 10(2)). But as Rietig’s analysis shows, antitrafficking measures are ineffective where systems supported by the rule of law are absent and
cooperation is lacking.
Drawing on the results from a field research project conducted in 2012 in Mexico, Rietig’s findings identify many challenges to anti-trafficking which suggest absence of the rule of law including: corruption, lack of funds and lack of knowledge of relevant stakeholders, ineffective
cooperation between actors and violence. According to Rietig, interviewees highlighted the need
for more reliable data and statistics, technical assistance, training of dedicated officials, and rationalization of roles to avoid duplication.
Rietig concludes with eight recommendations which include:
Increased cooperation across sectors (both public and private) and designing an anti-trafficking platform, increasing trust in the legal system and promoting human trafficking on the political agenda.
Her findings are consistent with the 2014 US State Department TIP Report on Mexico which
found that:
The Government of Mexico does not fully comply with the minimum standards for the elimination
of trafficking . . . . It was difficult to assess government efforts to identify and assist victims and to
investigate and prosecute trafficking cases, as data collection on victim identification and law
enforcement efforts was uneven. Official complicity continued to be a serious problem. Government
funding for specialized victim services and shelters remained inadequate . . . . Victim identification
and interagency coordination remained weak in many parts of the country.
The political, regional and cultural context is an underlying sub-text of Rietig’s analysis. Mexico
is indeed a major country of origin, transit and destination of trafficked persons. The majority of
the migrants and trafficking victims come from Central America and are destined to go to the United States (Talsma, 2012). As many of the victims are trafficked for labour exploitation, Rietig suggests that the range of actors involved in anti-trafficking be extended to unions and workers.
Hoang’s analysis of the broad policy response to trafficking in Vietnam (Hoang, Thi Tue Phuong
“Protection for Trafficked Persons in Viet Nam: Another National Security Discourse?”) also demonstrates the need for a coherent framework supporting both prevention and protection. Hoang
describes how in Vietnam’s legal system, human trafficking is understood in a sexualized discourse
as a “social evil”, which extends the meaning of national security. Under Vietnam’s legal system
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Introduction
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trafficked persons are treated as tools of the criminal legal system in prosecutions against traffickers
and may be subject to status-related offences. In particular, Hoang explains that under this discourse trafficking for labour exploitation, which is a major issue in Vietnam, is not seen as an issue
of human trafficking.
Hoang’s analysis shows that the specific terms of the legal definition are vital to identification of
trafficked persons. Moreover, as explained below, in Vietnam identification of trafficked persons is
very dependent on local officials who oversee the system of household registration. Her findings
thus support the need for a coherent anti-trafficking framework and holistic approach to prevention
and protection.
Sarah Meyer, Courtland Robinson, and Michele R. Decker, in their article “Trafficking, exploitation and migration on the Thailand-Burma border: a qualitative study”, build upon some of the
ideas in Hoang’s analysis of the policy framework in Vietnam. This article presents findings from
in-depth interviews with 61 migrant workers living and working in and around Mae Sot, Thailand,
on the Thailand-Burma border. Its significance is twofold; first, it describes the multiple phases of
the trafficking process and potential risks at each phase – including recruitment, travel and transit,
and exploitation at destination. It thus tracks the three components of the Trafficking Protocol definition : namely acts, means and exploitation. The results of the study show that there is often
substantial overlap between the process (acts), means, and end exploitation. For example, the process of recruitment may include use of force or threat. On the other hand, at destination migrant
workers are often exposed to a range of exploitative experiences, including violence, coercion,
and economic exploitation. In particular the article highlights the use of debt to leverage compliance.
A second important finding of this study is that human trafficking for the purpose of “labour
exploitation”, or exploitation in the context of labour, exists in migration on the Thailand-Burma
border. The results of the study demonstrated that use of transporters (“carries”) and brokers in
order to travel to Thailand and find employment can result in trafficking into sex or labour exploitation. As the authors state: “Globally, lack of access to safe and legal ways for low-skilled workers
to migrate have resulted in individuals entering into arrangements that result in trafficking.” A similar point is made by Hoang in relation to Vietnam.
These first three articles demonstrate the need to have broader understandings of the trafficking
and migration processes and the type of exploitative experiences that amount to human trafficking.
As all the authors recognize, this requires that a broader range of actors be involved in prevention
of human trafficking. This is especially the case if trafficking is understood to arise in a broad
range of exploitative situations. The evidence presented in these articles also suggests that a legal
and policy framework supported by the rule of law, and an appropriate definition and understanding of trafficking, need to be in place to create a “systematic approach to victim identification, protection and assistance” (EU Strategy 2012-2016).
The remaining two articles focus on the issue of trafficking of children from two different perspectives; the policy-maker and the researcher. The article by Moira Galloway, Monika Smit and
Mariska Kromhout, “Between Control and Support – The Protection of Unaccompanied Minor
Asylum Seekers at Risk: the Dutch Case” describes a Dutch government project to protect Unaccompanied Minor Asylum Seekers (UMAs) who were perceived to be at risk of becoming victims
of human trafficking, by implementing “Protected Reception”. This initiative is an example of the
EU “international protection” route identified above, and involves a “proactive” procedure for identification of trafficked persons. Both the Czech Republic and the Netherlands have implemented
separate identification and referral processes for children in pursuance of EU policy under Directive
2011/36/EU (Article 15).
The article by Galloway et al. describes the evolution and modification of the specialized reception facility for UMAs provided by the Dutch government. As the article explains, although the
project was successful on one level in apparently protecting a vulnerable group by disrupting their
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onward movement, it raised the important tension between protection and prevention, between the
rights of vulnerable persons and state objectives. The authors raise the question of how far a state
can go in protecting vulnerable young people, by limiting their freedom of movement. In other
contexts it has been found that shelters for trafficked persons (mainly young people) are used as a
form of detention (Gallagher and Pearson, 2010).
But the success of the project suggests that “Protected Reception” acted as a “circuit breaker” in
the relationship (or potential relationship) between a young person and trafficker. The young people
placed in protected reception procedures received sustained psychological assessment and support.
This is important, as it documented that trafficked children often identify with and “bond with” the
perpetrator of their exploitation. For example a study by Gozdziak of children trafficked into the
US found that 83% were aged between 14-17 years and that a number of the “victims” were not
discontented and did not want to be “rescued” (Gozdziak 2008, 904).
The article by Patricia Hynes, in “No ‘Magic Bullets’: Children, Young People, Trafficking and
Child Protection in the UK” highlights the vulnerability of young people in exploitative situations.
Hynes deals squarely with the issue of identification of trafficked children in the UK and the complexity of this issue in the context of the UK’s NRM, and the overlap with other form of child protection. Drawing on findings from two qualitative studies into understandings of trafficking
amongst agencies working with children, it is suggested that identifying “trafficking” of children
could be enhanced if a broader range of agencies had roles in the process, particularly those working within community engagement frameworks who are in positions to form crucial relationships
of trust with children. The article highlights the lack of specific support services for children and
young people who have been, or are suspected as having been, trafficked into the UK. Instead, support is provided under existing child protection legislation within a multi-agency working framework, which requires a range of statutory, voluntary and private agencies to have responsibilities
for safeguarding and promoting the welfare of children.
Hynes’ article on the UK explains that anti-trafficking efforts run parallel to a broader immigration and asylum agenda that has seen an increasing tightening of policy and legislation since the
mid-1990s, and that such anti-immigration policy clouds the identification of trafficked persons.
Meyer et al. also highlight that the anti-trafficking context is often irregular migration across borders. Hoang describes this context as one of “border security and anti-migration discourse”.
As stated in Evaluation of the Effectiveness of Measures for the Integration of Trafficked
Persons:
The major barrier in dealing with trafficking is the same whether considered from the data, criminology, immigration, human rights or integration perspective, and thus relating to prevention, prosecution and protection: it is the identification of victims . . . (Van Selm 2013, 17).
All three objectives of the EU Strategy 2012-2016 converge on the issue of identification (Strategy Priority A). For example, it is stated that there is a need for “formal procedures to better identify, refer, protect and assist victims” (Strategy Priority A – Action 1), but that this must occur in
the context of a “more diverse group of actors” (Strategy Priority D).
In Vietnam for example, Hoang explains that identification of victims is a difficult issue in the
context of the household registration system, which operates at the local level, and which is dependent upon the action of local officials who for various reasons do not report the presence of victims. Indeed the evidence suggests that in many countries where formal mechanisms for
identification are lacking or are inappropriate,3 that non-governmental organisations are filling the
gap. In Vietnam, Blue Dragon has been instrumental in identifying and supporting young people
trafficked from central Vietnam to Ho Chi Minh City for exploitative labour (Kneebone et al. and
Blue Dragon, 2014). Other organizations assist with the identification and support of trafficked
women (Kneebone et al. and SHARE, 2015). From her study of the UK system, Hynes concludes
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Introduction
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that the identification of children or young people as trafficked could be enhanced by a multiagency framework, in which non-statutory agencies have a stronger role in the NRM process. In
particular, she argues that minority ethnic, and migrant and refugee community organizations who
work within such populations in the UK, are well-placed both to raise awareness about trafficking
and to form crucial relationships of trust with children within communities. Thus, she suggests,
they could assist in the identification of trafficked children and in collection of information surrounding the circumstances in which children are trafficked to the UK.
In its report, the EMN stresses the need for proactive “methods of detection” such as the screening
of all applicants for international protection, training of case workers, and provision of information to
facilitate self-reporting (EMN Study 2014, 5). It also found that migrants were less likely to be proactively screened in forced return procedures (EMN Study 2014, 7). Yet it also concluded that:
Authorities in forced return procedures seem to play a bigger role in official identification of victims than the authorities in international protection procedures. This is because authorities implementing forced return are usually necessarily law enforcement officers, and so they also have the
power to investigate crime (including trafficking) (EMN Study 2014, 7).
These observations highlight the dilemma of having multiple opportunities to identify trafficked
persons without the support of clear avenues of referral. They also suggest that the methods of
criminal investigators need to be learned by a broad range of actors at first instance.
Despite there being no express requirement to identify trafficked persons, such an obligation can
be sheeted home to a state’s basic Prevention and Protection obligations, which require that traffickers and trafficked persons be identified. The obligation to identify trafficked persons does not
begin and end with the receiving state. Identification of trafficked persons is a precursor to cooperation between states as required under Part III of the Trafficking Protocol (Kneebone and Debeljak,
2012, 224-225) and should be a key feature of anti-trafficking strategies.
ACKNOWLEDGEMENTS
This collection of articles is an outcome of a project supported by the Australian Research
Council (ARC); LP0990168, “Delivering Effective Protection to Victims and Prevention of
Human Trafficking in the Greater Mekong Sub-Region”. The support of the ARC is gratefully
acknowledged.
The articles arise from papers presented at two Panels organized by Susan Kneebone at the conference of the International Association for the Study of Forced Migration held in Kolkata, India in
January 2013.
NOTES
1 The term “victims of trafficking” is used in deference to the views of policy-makers and consistency with
the Trafficking Protocol, although it is suggested that “trafficked persons” is a more neutral term which
recognises the agency of such persons.
2 The Qualification Directive is part of the Common European Asylum System (CEAS) - a series of Directives dealing with Reception of Asylum Seekers, Procedures for the Grant and Withdrawal of Refugee Status, Temporary Protection, and Returns
3 For example, in Vietnam most identification takes place at the border and so persons who self-return may
not be “officially” identified. See Hoang, Thi Tue Phuong, unpublished PhD thesis, 2012, copy on file.
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© 2015 The Author. International Migration © 2015 IOM