Human traffic, human rights: redefining victim protection.

The Foundation for Women joined with Anti-Slavery in conducting a research "human traffic, human rights: redefining victim protection". The research investigated victim protection measures used in trafficking cases in ten countries in order to ascertain what impact such measures have on the process of prosecuting traffickers, and upon the human rights of those who have been trafficked. Obstacles to convictions and prosecutions of traffickers in each country were indentified. The research examines the laws and policies of each country related to trafficking and also the actual implementation of those laws and policies, by closely analysing a few cases in each of the ten countries. The ten countries chosen for the research were Belgium, Colombia, Italy, Netherlands, Nigeria, Poland, Ukraine, United Kingdom, United States and Thailand.

The research indicates that the best strategy to combat trafficking is to ensure that 'victim protection' means assisting and supporting, and, ultimately empowering those who have been trafficked, and enabling them to address the violations they have suffered. Only one of the human rights to be protected is access to justice, others include the right to be free from reprisals, rights to recovery and rights to legal redress.

Some countries of destination--Belgium, Italy, the Netherlands, Thailand and the United States--have made attempts to address these rights of trafficked persons by changing laws and policies in regard to trafficking, the improvements for most trafficked persons, so far, are limited. Even in the countries where there are good laws protecting trafficked persons, implementation has been patchy. Many trafficked persons in such countries are still unaware of their rights. They do not have access to the assistance measures that exist on paper to assist and support them, such as residency permits, shelters, police protection, counselling, medical care and legal assistance.

Most of the poor practices relating to the treatment of trafficked persons by authorities stem from lack of identification of trafficked persons as such by the authorities. Trafficked persons are still identified as 'undocumented (and therefore illegal) migrants' or, for those trafficked into prostitution, simply as 'prostitutes'. The scope of this report, which analyses treatment of trafficked persons in specific cases, is limited in that it only reviews cases where people were actually identified as trafficked, and thus received some assistance, whether the assistance was good or bad. It says nothing about cases in which trafficked persons were not identified as such and were not provided any assistance or any help.

It is founded that NGOs play a crucial role in intervening to protect the rights of trafficked persons, informing them of his/her rights and liaising with the authorities on their behalf, for example, so as to prevent deportation or detention. Still, there is an urgent need for sensitisation on a much broader scale of all officials and others who might come into contact with trafficked persons, but may not recognise their predicament. Law enforcement officials, in particular, need to be able to identify if someone might have been trafficked, and then inform that person of his/her rights.

One of the main problems in identifying trafficked persons and treating them as such is that often they do not see themselves as 'victims'. Despite their experience of being trafficked they generally see themselves as migrants or workers who have had some bad luck as a result of a bad decision or a bad contract. So, while the term 'migrant worker' does not encapsulate the experience of being trafficked, the term 'victim' may equally be inappropriate. In this sense a victim approach may not necessarily be appropriate in all cases.

The key findings indicate that the effective way of combating trafficking is to ensure trafficked persons are provided with the necessary support and assistance to make informed decisions about their lives. It is to empower those who wish to, to seek access to justice from the State including obtaining compensation and legal redress and at a minimum, to provide services to all trafficked persons to enable them to recover and put them into a situation where they can sustain themselves and their families.

It is recommended that everyone who potentially comes into contact with trafficked persons (including those who buy their services or the products of their labour), is aware of the human rights aspect of the problem and is able to act or refer a trafficked person to a place where they may receive assistance.

The complexity of the relationship between traffickers and trafficked persons is not to be underestimated. As fast as countries change their laws to criminalise trafficking, smart traffickers deftly change their behaviour to sidestep the new laws, for example by becoming less physically aggressive, adopting a seemingly romantic relationship with the trafficked person, marrying the trafficked person in order to legalise their status or providing small amounts of money to trafficked persons. Such people, especially women trafficked into prostitution by their 'boyfriends', are even less likely to see themselves as 'victims'.

Our key findings indicate that law enforcement agencies cannot fight trafficking effectively by simply moving trafficked persons from one system of control into another--that is, from being controlled by traffickers to being controlled by law enforcement officials. Our findings indicate that the effective way of combating trafficking is to ensure trafficked persons are provided with the necessary support and assistance to make informed decisions about their fives. It is to empower those who wish to, to seek access to justice from the State including obtaining compensation and legal redress and at a minimum, to provide services to all trafficked persons to enable them to recover and put them into a situation where they can sustain themselves and their families.

Four countries, Belgium, Italy, the Netherlands and the United States, have specific legislation to address the protection of trafficked persons, such as providing residency permits for trafficked persons. In each case there is a dual objective of encouraging the victim to testify and protecting the victim's human rights. This report's findings highlight the stark contrast between what was offered in theory in the law versus what was happening in practice, particularly in Italy, the Netherlands and (to a lesser extent) in Belgium. In the United States it was impossible to measure the implementation against the law, since at the time the research occurred no T visas (visas for trafficked persons assisting the prosecution) had yet been offered.

It is found that a crucial aspect of residency status is the immediate period of recovery, 'reflection delay', available in Belgium and the Netherlands and recommended in the proposed EU Directive on shortterm permits. In the Netherlands the period is for three months under the B9 regulation, in Belgium 45 days under the 1994 Circular, the proposed EU Directive suggests a period of 30 days.

The reflection delay is the most positive (and crucial) aspect of the Belgian and Netherlands' systems concerning residency because it enables victims of abuse to recover somewhat from their ordeal, during which time they have access to support and assistance including shelter, legal advice, medical care and counselling. The reflection delay is needed to ensure that individuals who have been trafficked can recover sufficiently from the trauma of their experience to be willing and able to talk about it. It affords the time to ensure that the person is making an informed decision about whether or not they want to testify against the trafficker.

It is recommended that a trafficked person's residency status should not be dependent upon their participating in criminal proceedings. Decisions on residency status should be based on an assessment of whether the trafficked person has suffered serious harm or abuse in the country where they are located and also the risk of further harm if they return home. This is more in line with general humanitarian principles and international human rights, such as not to expel someone if there are substantial grounds for believing they may be in danger of torture. Keeping the issues separate also ensures that receiving residency status will not be used to discredit a victim's testimony at a trafficker's trial, specially in common law legal systems.

The term for temporary residency should be for several years, rather than tied to the duration of criminal proceedings. A set period of time also reduces the stress that trafficked persons experience on account of the uncertainty of their situation and ensures service providers are able to provide assistance with a long-term perspective.

In Thailand, as far as non-Thai victim witnesses are concerned, the application for a stay of deportation under Part 5(8) depends on the authorities' understanding of the case. Law enforcement officials are still less inclined to recognise non-prostitution cases as trafficking than those including prostitution. Once court proceedings are over, there is no possibility for trafficked persons to remain in Thailand.

Followings are key recommendations;

Recommendation 1:

Government agencies responsible for administration of justice should develop a law enforcement model for interviewing undocumented migrants to ensure appropriate questions are asked to ascertain if they may have been trafficked. Guidelines for interviewing undocumented migrants should be developed by experienced law enforcement officials working on these cases in conjunction with agencies that work with migrants and trafficked persons.

Recommendation 2:

Government agencies responsible for administration of justice should train law enforcement officials (i.e. police and immigration) and the judiciary (prosecutors, judges, lawyers) as well as service providers (e.g. medical, migrant, refugee, trade unions)'to help them understand the complex situations and decisions trafficked persons face due to their vulnerable situation.

Recommendation 3:

Government agencies responsible for administration of justice should develop guidelines and procedures on treatment of trafficked persons by law Findings and recommendations human traffic, human rights: redefining victim protection enforcement officials in conjunction with non-governmental organisations that deal with trafficked persons on a day-to-day basis. These need to be circulated widely and updated regularly. 1

Recommendation 4:

States, inter-governmental organisations and NGOs should raise awareness and sensitise society in general about the violations of human rights that trafficked persons experience, paying particular attention to the effects of their treatment by the State.