THE OSCE CHALLENGED - NHC/IHF

PART II: OSCE PRIORITIES AND PERSPECTIVES FROM CIVIL SOCIETY
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ms. anna korvinus (netherlands rapporteur) on trafficking in human beings:
“Protect all victims’ human rights”

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According to Ms. Anna Korvinus, National Rapporteur on Trafficking in Human Beings in the Netherlands, it is important to be very specific about what this phenomenon really concerns: human trafficking is a form of modern slavery, where women, but children and men as well, are lured to a foreign country and exploited there, either sexually or otherwise as mineworker or domestic help for example. Often, their entry into the country of destination is quite legal.
The perpetrators’ motive for trafficking is money of course. The victims are lured by the adventure, by money, by the perceived wealth of, or the demand for cheap labour in the countries of destination. For women, the chance to escape their subordinate position may lure them as well.
Ms. Korvinus describes some measures to combat trafficking. According to her, essential elements of these measures should be the protection of human rights of all victims (not just of those cooperating with the authorities), and an adequate protection of victims’ safety after their return to their home countries. Not just for the sake of the victims, but also in order to be able to prosecute the perpetrators, as the victims’ willingness to testify against them is contingent upon their overcoming their distrust of authorities and fear of reprisals from the traffickers.
Furthermore, Ms. Korvinus calls for existing legal instruments to be actually being applied, and for more independent research and the setting-up of rehabilitation programs for victims of trafficking.

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“It is a pleasure to address you today, on trafficking in human beings. However, it is also somewhat difficult, as you are a mixed audience. Among you are NGO representatives who know all ins and outs of the fight against trafficking, as well as participants who in their daily activities are occupied with other topics within the framework of security and cooperation in Europe.
So I should start by explaining what trafficking in human beings is.

Unfortunately, there is a growing tendency to regard human trafficking as a form of illegal immigration, and to confuse it with smuggling. Both phenomena are often described as negative consequences of globalisation. Traffickers, as well as smugglers, operate across borders, profiting from economic problems as well as from regional conflicts. They make use of the vulnerability of potential victims, while capitalising on increased ease of communication and international transportation.
However, there are fundamental differences between trafficking and smuggling. Migrant smuggling is assisting people for money or other gain to enter or stay in a country illegally. In smuggling cases, the territorial integrity of a state is at stake.
In contrast, human trafficking is by definition a serious violation of the human rights and personal integrity of the trafficked persons themselves. It is also an infringement of the rule of law of society at large. It is a modern form of slavery, still very much present in today’s world.
Its main characteristic is exploitation under slavery-like, degrading working conditions, using coercion, violence, deceit or abuse of power, or abuse of the vulnerability of the potential victim. Men as well as women can fall prey to trafficking. They end up in all sorts of forced labour; girls and young women often do in the sex industry, where they have to work long hours, have no say over their working conditions, are denied health care, and have to hand over a large part, or even all, of their earnings. Threats, physical abuse and rape are not exceptional, and some victims are actually sold and resold.
To summarize: the core element of trafficking in human beings is the exploitation, the abuse of persons.
So, it is not without a reason that the UN protocols supplementing the UN Convention against Transnational Organized Crime (download), make a distinction between human smuggling and human trafficking. In my opinion these protocols lay the right emphasis: the smuggling protocol refers to the smuggling of migrants, while the Trafficking Protocol refers to the trafficking of victims. And a similar distinction is made in the most recent proposal for a European Union Council directive dealing with trafficking and smuggling (?).

This implies that governmental reactions to trafficking should not be triggered or led by the possible illegal status of its victims, but by the mere fact that they are victims of a hideous crime.
Besides, apart from the, in my opinion, fundamental impropriety of restrictive immigration measures in trafficking cases, such measures can never be an adequate answer to the trafficking problem.
In the Netherlands, research has shown that in as little as one third of investigated trafficking cases illegal border-crossing took place. In two third of the cases, the (later) victims originally crossed the border legally. Information from the German Federal Police indicates a somewhat lower, but still relatively high percentage of legal entry of victims who have been trafficked.

Why does trafficking occur? For the trafficker the reason for exploiting other human beings is financial gain. This does not only attract men. Research in the Netherlands shows that about 20% of the suspects are women, some of whom former victims. However, exploitation can only take place when there are people to be exploited. With regard to cross-border trafficking, the circumstances that make human beings vulnerable in this respect include so-called push and pull factors. Push factors relate to the situation in the victims’ country of origin, and they give those involved a push in the back to launch into the unknown. Attractive circumstances in the destination countries are pull factors.
Important push factors are the unequal distribution of wealth in the world, and unequal opportunities on the labour market. Personal circumstances and motives may increase the pressure for improvement. An unstable family situation, an adventurous attitude, or the urge to earn a lot of money very quickly are just some examples of such personal influences. An additional factor for women is that they still have a subordinate position as compared to men in many countries. Women have less capital, less land, and lower incomes. In many countries women have fewer opportunities on the labour market. Women are the first to lose their jobs in periods of economic recession. At the same time, they feel obliged to provide for their children and parents.
Important pull factors are the usually better economic situation in the destination country, real or imagined. This gives rise to the hope of a better future. A pull factor not to be underestimated, is the demand for cheap labour in the destination countries, often for those sectors of the labour market for which it is difficult to recruit domestic labour.

Although laws in many countries, among which the Netherlands, are still limited to trafficking for the purpose of sexual exploitation, the scope of trafficking in human beings is a broader one. Women, children and men are being exploited all over the world. As sex slaves, but also as, for example, camel jockeys, as forced labourers in mines, as beggars, and as domestic servants. Therefore it is appropriate that current trafficking conventions, action plans and protocols, as well as recent or forthcoming laws on the subject, concern other forms of labour exploitation as well.
However, with respect to this broadening of the definition of trafficking, I would like to stress that it is important to make a distinction between ‘illegal labour’ and ‘forced labour’. The international community should seek for a common understanding about what labour situations and circumstances should be regarded excessive. Only when human rights are violated and when a person’s situation is comparable with slavery, exploitation can and should be regarded and approached as trafficking.
Furthermore, it remains important to distinguish between sexual exploitation and other types of forced labour. It will remain necessary to have specific knowledge and skills in dealing with victims of sexual exploitation, mostly women and girls. They need a suitable approach from NGOs as well as from trained police and other officials.
It is an important task for all parties concerned to prevent ‘devaluation’ of the concept of trafficking in human beings. That would surely lead to less attention to, and fewer provisions for, the victims.

So far I tackled the questions: what is human trafficking, and why does it occur? But of course the key question is: what can and should be done against it? The answer is not a simple one, since the phenomenon is complicated. But I will touch upon some aspects that I consider important. These could be areas of special attention for the National Referral Mechanism that is mentioned in the OSCE Action Plan against Trafficking in Persons (Decision no. 557, download pdf).

Firstly: we need adequate legal instruments. But that is merely a first step. There are quite a number of national and international rules and regulations exist, but what really matters, is their application. Unfortunately, it sometimes seems that there is a wide, and still growing, gap between legal instruments and actual practice. It might be a task for the National Referral Mechanism to monitor the implementation of all different agreements and to report on shortcomings: what concrete actions are taken, and what have they achieved?

Secondly, in order to be able to do so, information on the phenomenon is needed. This calls for solid research and analysis on a national level; Research on modus operandi, on perpetrators, and on victims. This is why the 1997 Hague Ministerial Declaration (?) recommended the appointment of National Rapporteurs. As a consequence, in 2000 I was appointed as an independent Rapporteur on Trafficking for the Netherlands. My task is to collect data and to report my findings to the Dutch government, including recommendations to improve the fight against trafficking.
Some other countries also have Rapporteurs, or a comparable body. If national Rapporteurs were appointed in more European countries we would be able to aggregate all national information to a higher level. This could be of use for the National Referral Mechanism.
In my opinion, a Rapporteur should preferably hold an independent position. I would think the same goes for a National Referral Mechanism.

Thirdly: as violations of human rights are both a cause and a consequence of trafficking in persons, it is essential to place the protection of human rights at the centre of measures to prevent and end trafficking. Special attention should be paid where minors are concerned. These measures should not be applied exclusively to victims who cooperate with police and prosecution. There is an obligation to pay due attention to care and support for victims. However, for different reasons, victims do not easily come forward to tell us about their plight.
For example, it is an educated guess that in the Netherlands no more than five to ten percent of all victims who have been exploited in the sex industry come forward to testify against their traffickers. Apart from the human tragedy involved, this is a problem, because unreported trafficking will continue, traffickers will not be caught and prosecuted. They will simply go on recruiting new victims, and continue to reap high profits on the one hand, and low risks on the other. This is not acceptable.

Why do trafficked person’s not easily reveal their situation, and hesitate to testify against their traffickers? They do so for several reasons:

they may be too embarrassed about what has happened to them;
they may distrust the police or authorities in general;
for most people who became victims of trafficking for reasons of financial necessity, these reasons are still a factor, even after having been discovered. Victims need money, but in many cases at this moment are not allowed to work;
also, very likely, they may not get the chance to come forward with their story; in many countries of destination, victims of trafficking are not, or not in every instance, recognised or acknowledged as such. They are being deported as illegal migrants, as undocumented aliens;
and, last but not least, they may be too afraid of the traffickers, fearful of repercussions for themselves or their relatives. Some countries offer a temporary residence permit for victims, during the investigation and prosecution period. And such an arrangement, as well as a reflection period in which a victim has time to consider whether or not to give testimony, is also included in the recent proposal for the European Council Directive I already mentioned. But what happens after the proceedings, when, in most cases, victims have to return to their country of origin? Can they rely on any kind of protection there? The lack of protection is a problem during prosecution, but especially after, not just for humanitarian reasons, but also for law enforcement reasons.

This gets me to a fourth and very important point. International standards do call on countries to provide victim protection and assistance regulations in their domestic laws, but this call is limited to the countries’ territories. Article 6 of the UN Trafficking Protocol, for example, (which will come into force on Christmas day, after more than 40 ratifications) states that each state party shall endeavour to provide physical safety for victims of trafficking while they reside within their territory. But, because of the international character of many trafficking cases, responsibility for protection and victim assistance should not be limited to individual countries. The international community as a whole should look for better ways to safeguard the victims’ safety. The OSCE can clearly play a role in promoting international and bilateral efforts for this purpose.
Additionally, countries should not send victims back to their countries of origin without a proper risk assessment, nor should they when there are solid reasons to fear reprisals. There lies a responsibility for governments. Article 8 of the Trafficking Protocol states that returning a victim to the country of origin shall be done with due regard for the safety of the person. It is not right to put the main burden of proof in this respect on the victims’ shoulders.
Only when the victims’ safety can really be guaranteed, victims may be inclined to cooperate with law enforcement agencies and thus contribute to the prosecution of traffickers: exploiters as well as the recruiters, the transporters and the organizers behind them. In the end, effective prosecution contributes to successful prevention of trafficking. Furthermore, in most judicial systems, confiscation of the proceeds of a crime is not possible without a conviction of the perpetrator.

A last point. After their ordeal, victims need a perspective, be it in the country of origin or in the country of destination. Rehabilitation and successful integration or re-integration implies empowerment of the victims, and returning control to them. Training and education provide opportunities for a new employment and life-style. Establishing small and medium-sized enterprises in the countries of origin should be considered as ways of offering former victims the means to support themselves. Thus, civil society can become involved in the fight against trafficking.

I know it is a bit like preaching to the converted, but I would like to finish by stressing the importance of NGOs in the prevention of, and the fight against, trafficking, especially when it comes to assistance to victims. Many of these NGOs have been working together, across borders, and they have invaluable experience. It is a serious drawback that, year after year, the majority of these NGOs have to spend a considerable part of their time and effort to ensure their own survival.

Ladies and gentlemen, to make progress in the fight against trafficking we need solidarity with the victims and a strong and persistent will to stop criminal networks and persons, and to bring the suspects to trial. A fair trial for the suspects, yes, but in due balance with the human rights of the victims.”

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