Human Trafficking Defined
The TVPA and the Palermo Protocol
Beyond Tier 1
Key Procurement Guidelines
Identifying Local Demand for Commercial Sexual Exploitation of Children
Optimal Regulatory Approach for Labor Recruiting
The Athens Ethical Principles and Luxor Implementation Guidelines
Techniques of Control Used by Sex Traffickers and Pimps
Slavery and Food Security: The Fishing Fleet
New Media for a New Fight
Potential Achievements of an Intragovernmental Anti-Trafficking Body
The TVPA defines “severe forms of trafficking” as:
a. 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,
b. 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 in order for the crime to fall within these definitions.
The Child Soldiers Prevention Act of 2008 (CSPA) was signed into law on December 23, 2008 (Title IV of Pub. L. 110-457) and became effective on June 21, 2009. The CSPA requires publication in the annual TIP Report of a list of foreign governments identified during the previous year as having governmental armed forces or government-supported armed groups that recruit and use child soldiers, as defined in the Act. These determinations cover the reporting period beginning March 1, 2010 and ending February 28, 2011.
According to the CSPA, and generally consistent with the provisions of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, the term “child soldier” means:
any person under 18 years of age who takes a direct part in hostilities as a member
of governmental armed forces;
(ii) any person under 18 years of age who has been compulsorily recruited into governmental armed forces;
(iii) any person under 15 years of age who has been voluntarily recruited into governmental armed forces; or
(iv) any person under 18 years of age who has been recruited or used in hostilities by armed forces distinct from the armed forces of a state.
The term “child soldier” includes any person described in clauses (ii), (iii), or (iv) “who is serving in any capacity, including in a support role such as a cook, porter, messenger, medic, guard, or sex slave.”
Governments identified on the list are subject to restrictions, in the following fiscal year, on certain security assistance and commercial licensing of military equipment. The CSPA prohibits the following forms of assistance to governments identified on the list: international military education and training, foreign military financing, excess defense articles, section 1206 assistance, and the issuance of licenses for direct commercial sales of military equipment. Beginning October 1, 2011 and effective throughout FY 2012, these types of assistance will be prohibited to the countries listed, absent a presidential national interest waiver, applicable exception, or reinstatement of assistance pursuant to the terms of the CSPA.
The determination to include a government in the CSPA list is informed by a range of sources, including first-hand observation by U.S. government personnel and research and reporting from various United Nations entities, international organizations, local and international NGOs, and international media outlets.
The 2011 CSPA list consists of governments in the following countries:
3. Democratic Republic of the Congo
The Trafficking in Persons Report monitors countries’ anti-trafficking efforts against minimum standards set forth in the U.S. Trafficking Victims Protection Act of 2000 (Div. A, Pub. L. 106-386), as amended (TVPA), not the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol), which supplements the UN Convention Against Transnational Organized Crime. The standards in the TVPA, however, are largely consistent with the framework for addressing trafficking set forth in the Palermo Protocol, both in form and content. Both define trafficking in persons as a set of acts, means, and purposes. Both emphasize the use of force, fraud, or coercion to obtain the services of another person. And both acknowledge that movement is not required, framing the crime around the extreme exploitation that characterizes this form of abuse.
Enacted just six weeks before the Palermo Protocol, the TVPA not only meaningfully effects the Thirteenth Amendment to the U.S. Constitution, but also reflects the norms of international anti-slavery law. Section 102(b)(23) of the TVPA explains:
[t]he international community has repeatedly condemned slavery and involuntary servitude, violence against women, and other elements of trafficking, through declarations, treaties, and United Nations resolutions and reports, including the Universal Declaration of Human Rights; the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; the 1948 American Declaration on the Rights and Duties of Man; the 1957 Abolition of Forced Labor Convention; [and] the International Covenant on Civil and Political Rights…
The TVPA’s minimum standards measure a country’s efforts to combat trafficking under the “3P” paradigm: prosecution, protection, and prevention. Those three Ps are also themes in the first sentence of the preamble to the Palermo Protocol: “Declaring that effective action to prevent and combat trafficking in persons…includes measures to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking” (emphasis added).
Indeed, this approach permeates both instruments:
Thus, although each TIP Report presents assessments under American law, the standards they build from are firmly rooted in international law.
While Tier 1 is the TIP Report’s highest ranking, it does not mean that a Tier 1 country has no human trafficking problem. Nor does it mean that a Tier 1 country has devised perfect solutions or has ended modern slavery within its borders. Rather, a Tier 1 ranking indicates that a government has acknowledged the existence of human trafficking, has made efforts to address the problem, and in so doing is meeting the TVPA’s minimum standards.
All countries – especially those on Tier 1 – can make serious and sustained efforts that rise above the baseline minimum standards and the standards spelled out in the Palermo Protocol to put forth a truly comprehensive governmental response that includes:
From Brazil to Cambodia, anti-trafficking experts and advocates have attempted for years to gain a better understanding of demand sources for the commercial sexual exploitation of children. In countries where this crime is prevalent such as Cambodia, Thailand, the Philippines, India, Brazil, Jamaica, and Kenya, popular perception attributes the main source of demand to foreign and predominantly Western child sex tourists. In Cambodia, for example, the media focus on sex crimes committed by foreigners, leading to a misconception that there are fewer local offenders. Such a perception leads to a disproportionate focus on addressing the issue of child sex tourism as opposed to the equally significant issue of child prostitution.1
In a 2010 study conducted by End Child Prostitution and Trafficking (ECPAT) in Cambodia, all but one of 43 prostituted children surveyed in the Cambodian capital of Phnom Penh said their regular purchasers were Cambodian men. Of the 13 prostituted children who reported having been sold as a virgin, eight said their rapists had been Cambodian.
A recent UNICEF study found that in Kenya, it is Kenyans who make up the majority of purchasers of children in prostitution. A 2008 ILO study found that there was widespread local tolerance in Central America and the Dominican Republic for the commercial sexual exploitation of teenage girls. Sixty percent of the survey’s respondents attributed responsibility for the crime to the victim or the victim’s family, rather than to the purchaser.
Law enforcement responses to the commercial sexual exploitation of children often reflect popular perception, leading to a lack of efforts to focus on local demand for child prostitution. In a few parts of the world, however, law enforcement actions are starting to reflect the realities of local demand. In Cambodia, a country where numerous foreign pedophiles have been prosecuted locally or extradited for prosecution in the United States and elsewhere, law enforcement officials are beginning to recognize the need to improve on this record. In Central and South America, law enforcement statistics already show that many trafficking-related convictions involve cases of local demand for child prostitution. While foreign sex tourists are still a source of demand for child prostitution and must be held accountable, they are often not the main source. Governments must ensure that in targeting sex tourists, they are not also ignoring sources of local demand.
In January 2006, CEOs from the private sector and representatives of NGOs, international organizations, and governments came together in Athens, Greece to share their expertise and develop business measures to counter human trafficking. The group adopted the Athens Ethical Principles against human trafficking and launched a campaign to promote private-sector endorsement of these principles. The Athens Ethical Principles contain seven core values, the first of which is a zero-tolerance policy on human trafficking. More than 12,000 companies have pledged to abide by these principles.
With time, there has been recognition that concrete guidelines are needed to direct the implementation of these broad-based, aspirational principles. In December 2010, the Luxor Implementation Guidelines to the Athens Ethical Principles were established as a result of an international human trafficking forum in Luxor, Egypt. The guidelines provide concrete ways for businesses to operationalize each anti-trafficking principle through policy, public awareness, strategic planning, supply chain tracing, government advocacy, and strengthened transparency. The overarching goal is for businesses to incorporate codes of conduct, anti-trafficking measures, and self-regulatory mechanisms into both daily business activity and long-term strategy. The guidelines call on corporations to encourage their business partners and suppliers to apply ethical principles against human trafficking. Corporations also are asked to leverage their market power by obtaining raw materials and locating manufacturing facilities in certain countries as a reward to governments that have strong anti-trafficking records. Companies are already embracing these guidelines in hopes that consumers will respond favorably to their commitment to the eradication of slavery.
A sophisticated understanding of the realities on the ground is necessary to ensure that sex trafficking victims are not wrongly discounted as consenting adults. Too often, police, prosecutors, judges, and policymakers assume a victim has free will if she has the physical ability to walk away. This assumption is wholly inconsistent with what is known about the nature of pimping and sex trafficking. The use of force, fraud, and coercion is pervasive but often overlooked. In its most obvious manifestation, a pimp will physically restrain a prostituted person’s movements and use physical violence to ensure the customers’ satisfaction. While this is undoubtedly a severe form of trafficking as set forth in the TVPA, there are other more subtle forms of fraud and coercion that also prevent a person from escaping compelled servitude.
A prostituted person may have initially consented, may believe that she is in love with her trafficker, may not self-identify as a victim, may have traveled away from the pimp, or may have been away from his physical control with what seemed to be ample opportunity to ask for help or flee. She may have a criminal record and refuse to tell her story. She may have started in prostitution as an adult or as a child. None of these factors, taken alone or in sum, means that she is not a victim of a severe form of trafficking; rather, if such facts are prejudicial at all, they should move law enforcement to consider that they may not have the whole story. And all of these concerns are just as valid for men and boys in prostitution as they are for women and girls. Indeed, male victims may be less likely to admit that they were held through fear or threats.
The TVPA’s modern approach recognizes the power of psychological coercion. Research and field experience suggest that violence and restraint – though hallmarks of the commercial sex industry – are far from the most effective means of control. Pimps use a variety of psychological methods, sometimes referred to as “seasoning” or “grooming,” to gain full control. They recruit vulnerable women or girls, pretend to be in love with them, ply them with alcohol or drugs, build their dependencies for basic needs or chemical escapes, place other women in supervisory roles over them and encourage them to compete for affection and favor, use an interlocking system of reward and punishment reminiscent of a battering relationship, and threaten their recruits with the shame of their families and a punitive, rather than protective, law enforcement response.
In this context, it is little wonder why anti-trafficking efforts may be received skeptically by a woman who has been told – and maybe even shown – that law enforcement would not protect her and that the only people who care about her are her pimp and his entourage.
It is the government’s responsibility to protect those caught in compelled service, to take the time and build the expertise to identify victims, even when victims can’t or won’t identify themselves. Governments should identify victims whether they are enslaved in a legal or an illegal activity. Governments should be judged not on their response to the most “deserving” of victims, but on their perseverance with the most challenging.
About 3,000 miles east of Jakarta, the remote island of Tual has become a depository for hundreds of exploited Burmese fishermen who are no longer deemed useful or who have escaped the boats on which they were held in servitude. This is just the most dramatic manifestation of a subset of modern slavery that continues to plague the high seas – the men of the Pacific and Indian Ocean fisheries.
IOM indicates most crew members on Thai-owned long-haul fishing vessels are undocumented Burmese and Cambodians, many of whom are forced or deceived into working grueling hours for many months, even years, before being allowed off the boats. Filipino seafarers fall into debt bondage and are victims of confinement after being recruited in the Philippines to work aboard long-haul fishing boats that dock in Southeast Asian ports, including Singapore. The fishing boats are often flagged in Taiwan or other major fishing economies.
Slavery at sea, first highlighted in this report in 2007, remains prevalent and may have increased. Capitalizing on unclear jurisdictions and the difficulty of inspecting boats in deep water, some owners of Asian fishing fleets and seafood companies that depend on their catches are relying on forced labor to harvest ever-diminishing fish stocks. As Thai boats have overfished their country’s own territorial waters and Thai seafarers have largely abandoned the Thai fishing industry in favor of better jobs on land, the Thai fishing fleets use undocumented foreign migrants and have headed out to Burmese, Indonesian, and Malaysian waters.
The UN Environmental Program warns that continued fishing at current levels, particularly in South and Southeast Asia, the Pacific Islands, and even in West Africa, is not sustainable and will threaten global food security. Furthermore, an IOM report released in early 2011 and research done by the United Nations’ Inter-Agency Project on Human Trafficking (UNIAP) indicate that much of this unsustainable fishing is even more tainted – by modern slavery. UNIAP surveyed Burmese workers exploited on such boats and found that 59 percent have witnessed their Thai boat captains murdering one of their colleagues. IOM reports that most of the more than 700 Thai boats fishing in Indonesian waters are not registered with the Indonesian government and do not abide by a 2006 agreement between the Indonesian and Thai governments requiring that a percentage of fish caught in Indonesian waters be offloaded and processed in Indonesian ports. They also violate Indonesian law requiring that all fishing boat crew members carry adequate documentation.
Seeking to avoid catch restrictions, taxes on fish catches, and the possible escape or rescue of enslaved crew, the Thai fishing boats have taken to off-loading catches and on-loading fuel and supplies off the Indonesian coast without docking on dry land, allowing the boats to remain at sea for extended periods and eliminating the one chance the men might have to escape. Without a coordinated effort by governments in the region, the enslavement of foreign migrants in the East Asian waters will continue to contribute to an impending food security crisis.
As shown in the recent events in the Middle East and North Africa, the growing reach of new and social media platforms has empowered grassroots activists with an unprecedented means to disseminate information and foster popular movements. For a movement such as the fight against modern slavery, which draws much of its strength from grassroots efforts, new media may emerge as powerful tools for identifying victims and bringing their traffickers to justice. Just as modern slavery crosses borders through migrant populations and globalized supply chains, new media can provide international tools for raising awareness, sharing best practices, and demanding government action.
New media is already seeing good use on websites such as www.change.org, which launches petitions and shares news and information to draw attention to human trafficking issues. Whether through issue-specific media, or far-reaching platforms such as Facebook and Twitter, the growing capacity of new media allows concerned parties around the world to connect and share information with a speed and breadth of access unimaginable at the start of the modern anti-slavery movement just a decade ago.
But for the anti-trafficking movement to realize the full potential of new media, it cannot just be a tool for NGOs and civil society to disseminate information. New media must also be a resource for helping governments strengthen their anti-trafficking efforts. Many U.S. government programs focus on capacity-building for law enforcement and criminal justice systems. Harnessing new media presents an opportunity to enhance such efforts by using a global network to share training materials, intelligence, and success stories. Because of this global capacity, new media can serve to track modern slavery as it crosses borders, helping countries work together with shared information so that anti-trafficking efforts are not isolated as individual domestic concerns.
As the modern anti-slavery movement enters its second decade, and more knowledge emerges about supply chains, demand, and the international nature of trafficking, new media will play a critical role in bringing together those committed to this fight.
1For United States citizens and lawful permanent residents, engaging in any illicit sexual conduct with a minor in a foreign country is a crime and punishable under the PROTECT Act (see 18 U.S.C. § 2423 as amended) upon return to the United States. (Footnote added November 4, 2011.) Return to Text