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Tackling Human Trafficking: Moving Away from a Prosecution-Centred Approach

Tackling Human Trafficking: Moving Away from a Prosecution-Centred Approach

23 January, 2019
Shahrzad Fouladvand

In 2014, fourteen years after the UN Human Trafficking Protocol was adopted by the UN, a more modest document was opened for signature by the International Labour Organization (ILO). Entering into force on 9 November 2016, the 2014 Protocol to the Forced Labour Convention of 1930 (No. 29) hopes to achieve the ‘effective elimination’ of trafficking in persons. Whereas it’s cousin – the UN Human Trafficking Protocol – is a penalising document, the ILO Protocol aims at systematic preventive and regulatory action by competent authorities ‘in coordination with employers’ and workers’ organizations’. To date, it has been ratified by 27 countries. Whilst the UN Protocol is likely to remain, in the words of a leading expert on international human trafficking law, ‘the single most important development in the fight against human trafficking’, the ILO Protocol is also vital, representing an essential front in the fight against modern slavery and human trafficking.

Since the 1990s, organised criminals have become key stakeholders and facilitators in the supply of cheap labour for the global market. This position has given them a direct link to the legitimate economy and has generated high profit margins. Traffickers have effectively taken advantage of the huge supply of cheap labour and the lack of knowledge and low level of education of migrant workers. The responsibility for facilitating this trade does not lie exclusively with the organised crime groups (OCGs) and kingpins, but also – and perhaps to a greater extent – with the familiar brand names on our high streets and in our corporate sectors. For this reason, a prosecutorial strategy that is targeted exclusively on OCGs and other more minor criminal players cannot possibly succeed in making trafficking an unprofitable business. Only by focusing on the exploitative practices at the end destination and targeting the economics of trafficking can we tackle the drivers of human trafficking.

Since the 1990s, organised criminals have become key stakeholders and facilitators in the supply of cheap labour for the global market

There is an important distinction between an OCG and a corporate operation that has negligently engaged with organised crime for the provision of trafficked labour. This distinction has social, political and legal implications. I argue that these negligent corporations should not be considered willing participants in an organised crime network, even if they have performed a crucial function in legitimatising, disguising and monetising criminal activity in the form of human trafficking or modern slavery. To my mind, a very different approach is required. This is not to say, however, that the corporate and business world should not accept some degree of culpability for any failure to exercise due diligence in this respect.

Part of the reason why a different approach is needed – one that is not focused on prosecution – is because human trafficking cases are typically difficult to prosecute. Joint research by Professor Tony Ward and myself has highlighted some of the evidential problems relating to human trafficking cases. It is essential to a fair trial that the defendant must be able to adduce evidence that is of substantial probative value and raise questions that potentially afford grounds for reasonable doubt, even if that evidence or those questions may be distressing to the alleged victim. However, the right of victims to be protected against secondary victimisation may afford compelling grounds for limiting the defendant’s ‘right to confrontation’, but only where there are what the European Court of Human Rights calls ‘sufficient counterbalancing factors’ to ensure a fair trial. Fortunately, the weaknesses that commonly exist in the evidence of alleged trafficking victims – such as inconsistent or false previous statements, and the motive to present themselves as victims – will very often be things that can be amply demonstrated to the court without needing to cross-examine the complainant. A recent report from the CPS Inspectorate highlights the use of the hearsay provisions, alongside other ways of bringing prosecutions without victim-witnesses, as forms of good practice that need to be used more effectively.

Human trafficking cases are typically difficult to prosecute

Other challenges include determining what it means to be ‘vulnerable’ to human trafficking or modern slavery, and identifying the main factors that create a vulnerability to this type of crime. In ‘Human Trafficking, Vulnerability and the State’, we ‎argue that while some victims of trafficking are vulnerable because of their personal characteristics, ‎in most cases, sources of vulnerability are structural.‎ In this regard, the state can be seen as not only capable of ameliorating vulnerability, or failing to do so, but as actively creating ‎and using vulnerability to control or exploit its population. In this context, organised crime may provide people with the resources they need to attempt to reduce their ‎vulnerability; however, it may then place them in a situation in which any meaningful agency is ‎lost.‎ In this research, we argue that while criminal law has a part to play in protecting vulnerable people against ‎traffickers, it should not be seen as central to an anti-trafficking strategy.

Instead, more weight ‎should be given to regulatory approaches and to what we refer to as ‘responsibilisation’.‎ Effective criminal justice interventions are essential to disrupting the activities of OCGs involved in trafficking, but the focus should be on an approach that de-centres criminal prosecution. Responsibility for tackling human trafficking must be partly delegated to state agencies, but not exclusively so; citizens, enterprises and civil society should also take responsibility for responding to the vulnerability of trafficked people.

Dr Shahrzad Fouladvand is Lecturer in International Criminal Law at Sussex Law School, University of Sussex. Her research focuses on two forms of organised crime: human trafficking and corruption. In particular, she is interested in the ways in which these two wrongdoings are interrelated. Shahrzad uses ‘responsibilisation’ and network analysis approaches in her research. Her work also raises questions about the extent to which cooperation is possible or desirable when criminal justice agencies are tainted by corruption, whether outside the EU or within it. Currently, Shahrzad’s research centres on evidential problems relating to human trafficking and the relationship between human trafficking and corruption, with a particular focus on Albania.

The views expressed in this article are those of the author(s) and do not necessarily reflect the views of RUSI or any other institution.

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