Since the issuance of President Bill Clinton’s Executive Memorandum on the Trafficking of Women and Children in March 1998, the U.S. government has advocated a policy structured by the “3P” paradigm: prosecution, protection, and prevention.
Trafficking in persons is a crime akin to murder, rape and kidnapping. Criminalization is mandatory for all parties to the Palermo Protocol, and the importance of prosecution is reflected in the U.S. law enforcement approach. Yet the numbers of prosecutions each year are dismally low in comparison to the scope of the problem. Passing modern laws that prohibit all forms of trafficking by focusing on the enslavement of victims rather than the recruitment and transportation of workers or people in prostitution is an important first step in complying with the Palermo Protocol and meeting the TVPA minimum standards. For those laws to have any meaning, however, they must be enforced. As long as there are only around 4,000 trafficking convictions worldwide each year, a message is sent that the injustice suffered by victims is not a national or international priority.
Too often the victims of this crime are perceived to be society’s throwaways – prostitutes, runaways, the poor, racial or ethnic minorities, members of a low caste, or recent immigrants. Victims themselves do not know the legal definitions of this crime and should not be required to self-identify. Bias against the vulnerable classes and an inability to envision them as victims affects whether they are identified and whether their traffickers are brought to justice. A narrow focus hinders a robust law enforcement response and allows traffickers to operate with impunity. Moreover, it diminishes the promise of equal protection under the law, undermining basic rule of law principles. All victims should be entitled to see their traffickers brought to justice and to be heard through the legal process. Compassionate and smart prosecution is thus the foundation of a victim-centered approach.
Just as passage of a law without its enforcement is an empty promise, law enforcement alone without victim protections is an inadequate response. A victim-centered approach does not mean assisting a potential witness just long enough to get his or her testimony; it means meeting needs and fulfilling obligations that extend beyond the confines of a criminal case. Such an approach calls for partnerships between law enforcement agencies and service providers – not just to win the case but as colleagues sharing a humanitarian responsibility to act in the best interest of the victim.
Victim protections conditioned on victims’ active role in prosecutions brought by the state also fall far short. In many countries, immigration relief and social services are offered only to victim-witnesses purely as incentives to cooperate. They do not aim to restore the dignity or health of the person who was victimized. Optimally, the response to this human rights abuse should focus on all victims, offering them the opportunity to access shelter, comprehensive services, and in certain cases, immigration relief. Repatriation of foreign victims should not be the first response, but should be undertaken as an informed decision and done so in a manner that serves the best interest of the victim. Detention of the victim is not only at odds with the Palermo Protocol, but is counterproductive to effective rehabilitation and criminal prosecution alike. At its best, victim protection is a series of laws and policies that are broadly funded, understood, and implemented, and that are adaptable on the ground and considerate of victims’ needs.
While prevention is an important goal, neither the Palermo Protocol nor the TVPA as amended give much guidance in setting forth prevention activities beyond the obvious: public awareness campaigns, addressing root causes, and conducting law enforcement-related or border security activities. A decade later, governments are expanding their understanding of prevention to include policies and practices that cut off modern slavery at the source. This includes initiatives that both combat the demand for commercial sex and ensure that the demand for low prices is balanced by a demand for traceability, transparency, and worker protections throughout the supply chain. Governments, corporations, and consumers can come together to ensure that free trade means labor that is freely offered because of fair compensation, rather than labor taken for free.
Prevention must address key vulnerabilities in legal systems: policies and implementation loopholes that allow trafficking to occur, tolerance within government procurement and contracting, unscrupulous labor recruiting companies, restrictive visa practices used as coercive tools, and lax enforcement of labor laws. Effective prevention lies in targeted initiatives to protect the rights of marginalized, low-income workers, such as domestic servants, farm workers, miners, and garment workers. These workers are too often subjected to offenses that span a continuum of labor exploitation, including at its worst, human trafficking.
Prevention also can and should harness the economic impetus for this crime in order to fight it – by increasing criminal or civil penalties for companies that directly rely on forced labor in the production of goods or services.
Combating human trafficking requires the expertise, resources and efforts of many individuals and entities. It is a complex, multifaceted issue requiring a comprehensive response of government and nongovernment entities in such areas as human rights, labor and employment, health and services, and law enforcement. It requires partnerships among all these entities to have a positive impact.
Partnerships augment efforts by bringing together diverse experience, amplifying messages, and leveraging resources, thereby accomplishing more together than any one entity or sector would be able to alone. Examples of existing partnerships governments use to facilitate prosecution, prevention, and protection include:
Outside the government, partnerships include coalitions of nongovernmental organizations (NGOs) coming together for purposes of advocacy, service provision, and information sharing, and networks of survivors, whose experiences inform the broader trafficking movement.
While there is broad agreement on the purpose and benefits of a partnership approach to human trafficking, there is less agreement on and documentation of proven, successful strategies – something all should endeavor to create and share in the years ahead.
Dismantling the “3D” Approach to Human Trafficking
In the 10 years since the passage of the Palermo Protocol with its “3P” paradigm of prevention, protection and prosecution, a competing, more unfortunate, paradigm seems to persist in impeding greater anti-trafficking progress: the “3D” phenomenon of detention, deportation and disempowerment.
The use of this approach in detaining and deporting trafficking victims is most often the outgrowth of immigration policies or archaic laws that have yet to fully appreciate the phenomenon of modern slavery. However, some of the manifestations of this response are new, appearing only in the last few years and affecting many more women than men.
In such a response, governments may act out of self interest in ridding themselves of potential burdens. Or they may act in what they claim is the best interest of foreign victims. This usually includes detaining the victims for a short period of time and then deporting them to their country of origin without offering them credible opportunities to seek legal redress (including civil restitution), adequate psychological repair, longer term residency and work, or relocation to a third country. Attempts to hold identified trafficking victims in detention-based facilities governments describe as “shelters” – no matter how comfortable and safe they may be – disempower victims at a critical time when they need a restored sense of individual freedom. Detention models undercut any rapport service providers or investigators might build with victims. Research and law enforcement practice indicates that initial trauma lasts for months and that victims can only give a partial account of their experiences in the early stages of an investigation; a response based on detention and repatriation – even if initial statements have been reduced to video or affidavit – will likely prevent law enforcement from arriving at critical facts.
Sending victims back to their countries of origin without informing them of a full range of options not only exposes them to possible trauma associated with being identified as a trafficking victim, but it also risks returning them to the same condition and exposing them to the same or even more enhanced pressures that contributed to their initial trafficking experience, thus raising the prospects for their re-trafficking. Furthermore, when a country jails and repatriates victims without screening or protection, NGOs are deterred from bringing their clients to the government’s attention.