We conclude our presentation of key excerpts from the U.S. State Department report on human trafficking.
THE PALERMO PROTOCOL AND TRANSNATIONALITY
In 2000, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol), supplementing the UN Convention against Transnational Organized Crime (UNTOC), marked an important transition into the modern movement against human trafficking. Over the years, the Palermo Protocol has been the source of much clarification—but also some confusion—about human trafficking, particularly regarding the issue of transnationality.
It was the first international instrument to define “trafficking in persons” and provide insight into the many different ways traffickers commit this crime. The Palermo Protocol uses “trafficking in persons” as an umbrella term that covers a wide variety of offenses, such as maintaining someone in forced labor or recruiting someone for compelled commercial sexual exploitation. It also provided a muchneeded foundation on which governments could build policies that criminalize human trafficking and stop traffickers, protect victims and prevent victimization, and promote cooperation among countries.
HUMAN TRAFFICKING DEFINED
The Trafficking Victims Protection Act of 2000, as amended (TVPA), defines “severe forms of trafficking in persons” as: n 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 n 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 for the crime to fall within this definition.
According to the UNODC’s 2018 Global Report on Trafficking in Persons, there has been an upward trend in the last decade in the number of victims identified and traffickers convicted globally. These data are not uniform across regions and types of human trafficking, yet the report suggests an overall positive correlation between the implementation of anti-trafficking strategies and increased identification of victims and conviction of traffickers. Similarly, the TIP Report’s data on prosecutions, convictions, and victim identification are significantly higher now than they were ten years ago, when the TIP Report first began to note an upward global trend. It is clear that government efforts stemming from the adoption of the Palermo Protocol are working.
Many governments deserve credit for their serious efforts to address modern slavery. Yet, much work remains. Persistent gaps in governments’ understanding of the issue continue to impede global progress, as do stubborn misperceptions about human trafficking and inconsistencies in the implementation of domestic legislation.
One common misperception generates ongoing confusion—that human trafficking requires movement across borders and cannot occur solely within a country’s borders. A possible explanation for this confusion may stem from the use of the word “trafficking” in the term “trafficking in persons,” which connotes movement, and the fact that the Palermo Protocol and its parent convention the UNTOC are intended to foster international cooperation in combating organized crime networks, which typically operate transnationally. The Palermo Protocol also calls on parties to meet its objectives through interstate cooperation. This context could imply that human trafficking is exclusively transnational, requires movement, and necessarily is tied to organized crime. Yet the UNTOC itself and a number of UNODC publications interpreting the Palermo Protocol make it clear that, when drafting domestic legislation, governments should consider human trafficking independently of both transnationality and the involvement of an organized criminal group. Each state party must establish in its domestic law the crime of human trafficking both within and between countries.
Another related misunderstanding about human trafficking is that a trafficker must move or transport a victim. Even though the term “trafficking in persons” connotes movement, no language in the definition requires movement to constitute a trafficking crime. Indeed, the Palermo Protocol’s definition specifically refers to actions by traffickers that do not entail or require any movement, such as recruitment, which quite often takes place locally. Harboring, in particular, has been frequently interpreted to mean the maintenance of an individual in compelled service, including by a United Nations and Council of Europe publication that defined harboring as “accommodating or housing persons,” including at their place of exploitation. In such cases, the three elements clearly are met—by the actions of housing or keeping an individual by coercive means for the purpose of exploitation—without the trafficker ever moving the person.
As reflected in their laws, most governments recognize this view of human trafficking. This is a major success that, in just two decades, 168 governments have implemented domestic legislation criminalizing all forms of human trafficking whether the crime happens transnationally or nationally. That said, even upon the adoption of the Protocol, supporters emphasized that the true challenge would lie in the implementation of the laws in each country.
FUNDAMENTALS OF IMPLEMENTING THE PALERMO PROTOCOL
In creating and implementing legislation, governments have the power to shape reality. Legislation that protects all victims and criminalizes all forms of human trafficking, including those that take place exclusively within a country’s borders, gives governments the platform and opportunity to embrace fully their responsibilities under the Palermo Protocol. As noted above, the majority of governments around the world already have in place comprehensive laws to address trafficking in persons. Yet, law alone can do little to end human trafficking. Translating legislation into meaningful action demands dedication, focus, and resources and requires that those implementing it truly understand both the underlying letter and the spirit of the law.
Governments can and should adopt and implement the promising practices below. Their value lies in their power not only to help governments better address human trafficking within their borders, but also to help combat all manner of misconceptions, biases, and misunderstandings about what constitutes human trafficking.
Institutionalizing a clear understanding of human trafficking
A clear understanding of the underlying exploitative nature of human trafficking and the unique ways it affects a country is a critical foundation on which governments can build a truly comprehensive strategy.
As noted above, the Palermo Protocol defines human trafficking by its three elements—a trafficker’s action taken through the means of force, fraud, or coercion for the purpose of exploitation. Understanding it as such leaves little room for interpretation based on the incidental attributes of the victim or the trafficker, such as gender, age, nationality, legal status, or occupation, or on other circumstances surrounding the crime, such as movement or connection to organized crime.
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For example, governments should prosecute human trafficking crimes as such and not under other criminal provisions—or, worse, civil laws—that may come with weaker or no criminal penalties. Characterizing an offense as less severe, such as penalizing human traffickers for labor violations under employment law instead of charging them for labor trafficking, may mean that traffickers are given penalties substantially lower than those prescribed under anti-trafficking law, limiting their potential deterrent effects.
In addition, governments should encourage or mandate comprehensive training for victim identification, especially for those most likely to come into contact with trafficking victims. This includes law enforcement officers, prosecutors, and judicial officials, healthcare providers, educators, child welfare officials, labor inspectorates, and many others. Training should be designed to help such stakeholders identify all forms of human trafficking. Without such an education, those best positioned to spot the signs of human trafficking may not be able to identify victims when they encounter them or know the appropriate way to respond.
Institutionalizing a clear understanding of human trafficking may also require governments to invest in research and data collection. Over the years, data collection by national governments has improved substantially, but gaps still exist and evidence suggests that anti-trafficking efforts lag where less is known about trafficking. An evidence-driven and unbiased understanding of human trafficking in a country is imperative to the creation of a well-balanced and tailored anti-trafficking response.
Developing a robust anti-trafficking coordination process
Due to its complexity, combating human trafficking requires a multidisciplinary effort. For governments this means incorporating the expertise of stakeholders from a range of agencies or ministries that may have a nexus to human trafficking. To facilitate an approach that addresses human trafficking regardless of where or how it takes place, governments can take steps to ensure that all appropriate authorities understand human trafficking, the various ways they may come into contact with victims or perpetrators, and the appropriate response when they do.
Confronting harmful cultural norms and local practices
Cultural norms and practices play an important role in defining a country or society, but human traffickers have also used them to support, hide, or attempt to justify human trafficking. The Palermo Protocol specifically notes that exceptions cannot be made to the criminalization requirement based on cultural variations. It is important that governments examine how traffickers may exploit cultural practices to conduct criminal activity. In some cases, traffickers may take advantage of religious beliefs to coerce victims into servitude and it is important that governments seek help from and offer support to cultural and religious leaders taking strides to protect their communities from human traffickers…deeply ingrained practices may make it difficult for governments to see and address human trafficking in their own backyards. For example, many countries in South Asia face the practice of debt bondage, a form of human trafficking in which traffickers use debt to force an individual into forced labor.
Officials across government should work to challenge stereotypes of a typical victim of human trafficking. For example, in many cases, traffickers force their victims to commit crimes. Forced criminality takes the form of begging, prostitution, cannabis cultivation, and theft, among others. An untrained law enforcement officer or benefits adjudicator may not realize an individual is a victim of human trafficking before making an arrest or a decision on available benefits. These assumptions can also make victims more reluctant to seek help. Proactive efforts to recognize and mitigate these assumptions are therefore critical.
Empowering communities to recognize and address human trafficking
When the public views trafficking crimes as common local or cultural practices that do not warrant criminal investigation or prosecution, it is critically important for governments to raise awareness and foster initiatives for communities to help address it.
The 2018 TIP Report covered the issue of supporting community efforts to find local solutions. It is worth noting again the value in reinforcing and empowering communities as full partners in the fight against human trafficking. Public perceptions about human trafficking have a major impact on the way governments address it. If well informed about the various forms of human trafficking, the public can be the eyes and ears of their communities and can put pressure on law enforcement to make it a priority.
Governments can design public awareness campaigns to target a particular issue and motivate communities to get involved. In design, these types of campaigns should have clear objectives that promote sound anti-trafficking policies.
Governments can design community-based approaches to enhance their law enforcement efforts.
CONCLUSION
Since the adoption of the Palermo Protocol, a growing number of stakeholders, including a majority of the world’s governments, have enacted comprehensive laws to hold human traffickers criminally accountable and provide care to survivors. Over time, it has become clear that stopping traffickers and ensuring protections for all victims, including victims of internal trafficking in persons, requires governments to truly comprehend what constitutes human trafficking and to proactively use those laws.
At times, governments may need to go even further. In particular, addressing human trafficking at home also takes political courage—in inspecting local sectors and industries, investigating official power structures that may condone or facilitate such activities, and ending impunity for crimes that have long been seen as accepted local and cultural practices. Governments may find it easier to blame sex trafficking on those who come to their countries to engage in foreign sex tourism than to address local demand; or to blame foreign government and power structures for failing to protect their nationals working abroad from labor trafficking, than to address the exploitative activities of labor recruiters in their jurisdiction.
Acknowledging human trafficking within the borders of a country is not easy. Governments should be willing to admit its existence and rise to their responsibility to address it. In doing so, governments not only protect those within their borders, but also contribute to the greater global fight against human trafficking.
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