Human Trafficking – From a criminal justice to social justice approach
Keynote speech delivered at the conference Disrupting Traffick?, University of Chicago Delhi Centre, New Delhi, India, 17 May 2019
Borislav Gerasimov, Global Alliance Against Traffic in Women
Thank you very much for inviting me to speak here tonight. It’s a pleasure and an honour.
First I want to say a few words about the organisation where I work. The Global Alliance Against Traffic in Women (or for short, GAATW) is an international feminist network of NGOs advocating for the rights of migrants and trafficked persons. GAATW sees the phenomenon of trafficking as embedded in the context of migration for labour. Therefore, we advocate for measures that uphold women’s human rights and protect them from the increasingly neoliberal economic context in which we live.
I my speech tonight I will try to highlight some of the failures of the currently dominant criminal justice approach to trafficking and offer the alternative that we at GAATW subscribe to – a social justice approach that aims to address the root causes of trafficking.
The current understanding of “human trafficking” – as involving the movement of a person, through the use of force, coercion, deception, and so on, for the purpose of different forms of exploitation – is relatively new, it’s only about 20 years old. It comes from the definition of “trafficking in persons” contained in the UN Palermo Protocol adopted in the year 2000 as part of the UN Convention on Transnational Organised Crime.
This definition, however, and the very idea of “trafficking in persons”, have a much longer history, dating back 150 years to the middle of the nineteenth century. At that time, what was first called “the white slave traffic” and later became “trafficking in women” was concerned with the increased movement of European women for work in the brothels of Buenos Aires, Cape Town, Bombay, Singapore, and other parts of the world. British women and girls were also moving to work in the regulated brothels in France, Belgium and other countries in continental Europe. Then, as now, some women moved independently and others with the help of third parties; some worked under good conditions and others – under more constrained ones. Several of these cases of British women caused the first international investigation into the “white slave traffic” and a public outcry first in Britain and then internationally.
It’s important to note that by now historians mostly agree that “white slavery” was basically a myth. That while there were cases of women abducted against their will, drugged, or deceived into working in brothels, these were far fewer than what was being suggested by the anti-white-slavery campaigners, politicians and the media. Still, “white slavery” and “traffic in women” spurred a great deal of campaigns, films, and books, and several international agreements and conventions in 1904, 1910, 1921, and 1949. It is this last one, The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, on which the Indian Immoral Traffic Prevention Act is based.
The point of this very brief historical overview was this: although the present-day international, and most national, legal frameworks are clear that trafficking can take place in many sectors, and in many forms, such as in domestic work, agriculture and construction, or for forced begging, forced marriage or organ removal, for most people, these are new ideas. But the movement and exploitation of women for prostitution is a very old concept – at least 150 years old. And in all these years, the words traffic and trafficking have been associated with women in sex work, and “white slavery”.
This is important, because today, as in the nineteenth century, trafficking is conceptualised as a crime committed by one person against another, and consequently, states have had to address it as a crime. But to effectively prevent and address trafficking, or any other crime, or anything else really, we need to have a clear understanding of what we are talking about. And when police, prosecutors, NGOs, or the “average person” think about prostitution and “white slavery” when they hear the word “trafficking” then we have a problem.
“Trafficking in women” or “trafficking in persons” is not an intuitive concept – it’s not something you can understand from the words themselves, like you can understand rape, robbery, murder or beating. Add to that the confusing definition of trafficking in the Palermo Protocol – where terms such as exploitation or abuse of a position of vulnerability remain undefined and highly subjective – and it becomes clear that trafficking is poorly and wrongly understood by the general public, campaigners, politicians, the media, law enforcement, NGOs, and even victims themselves.
But the definition of trafficking is only one of the many problems of the dominant the criminal justice approach. This approach is based on an understanding of trafficking as a crime in which traffickers deceive and exploit victims. Therefore, the response should be to arrest and prosecute the traffickers and provide help to the victims. At the same time, efforts should be put into preventing the crime.
However, by now there is a widespread agreement among academics and human rights activists that this approach has failed. It has failed to bring traffickers to justice or secure help and justice for victims.
In 2017 there were 7,000 convictions of traffickers globally, according to the US State Department Trafficking in Persons Report. This is extremely low, compared to the 100,000 victims identified, as per the report, and even lower compared to the estimated size of the problem. What’s more, the TIP Report doesn’t comment on the quality of prosecutions and convictions. In other words, we have very little information about who the people convicted of trafficking are.
In 2016, Anne Gallagher, one of the world’s leading legal scholars on trafficking, expressed concerns about the attempts of many countries, especially those in the Global South, to show high numbers of trafficking prosecutions and convictions, due to the pressure of the US TIP Report. She wrote “Cases that are not trafficking (such as pimping and marriage brokering) are being prosecuted as such and convictions are leading to penalties that are grossly disproportionate to the seriousness of the underlying conduct. Accused persons are too often being denied the right to challenge their accusers, to benefit from a presumption of innocence and to secure assistance in their defence.” Another issue she pointed out was that those convicted of trafficking are most often low-level offenders.
A recent research into convictions for human trafficking in Australia shows that from a total of 20 people convicted of trafficking between 2004 and 2017, nine were women. The research looks specifically into the court cases of six of these women, all of whom were Thai, and had previously worked in the sex industry in Thailand and other countries. These women were trafficked to Australia, at least according to the court, to work in the sex industry. After they repaid their debt and were free of their traffickers, they went on to bring other Thai women to work in the sex industry in Australia, which means that they became traffickers themselves, at least in the eyes of the court. It’s quite possible that they simply thought that they were helping these other women. But in any case, this shows that, in Australia, almost one-third of all people ever convicted of trafficking, were Thai women sex workers.