Human trafficking: the next phase

by
Karin Grabner, Johns Hopkins/SAIS

Lecture: Recent International Developments in International Human Trafficking
Speaker: Dr. Anne Gallagher
Legal Expert and Former UN Adviser on Human Trafficking
Date: Tuesday February 8th, 2011: 12.00PM – 2:00PM
Johns Hopkins University, SAIS
1740 Massachusetts Ave.
Washington DC

International Law is “organic” law that grows with the consent of states. Trafficking in Persons is a perfect illustration. Trafficking in Persons started to develop its own legal profile over the last decade. The speaker, Dr. Anne Gallagher, was one of the co-authors of the UN Protocol on Trafficking in Persons, which was adopted in the year 2000. Prior to the adoption of the protocol there was no international legal definition of Trafficking in Persons and no political consensus on the nature of the problem. Trafficking in Persons was outside international legal policy and legislation, it was a marginalized human rights issue that did not appear much on political agendas.

From 1998/1999 on things changed and there was increasing awareness of the problem. This led to the creation of a new legal category, trafficked persons, recognizing them as victims instead of criminals. Trafficking in Persons was taken out of human rights sphere and put into the international criminal sphere.

Within a decade, the situation has changed dramatically. Trafficking in Persons is now a matter of international concern and the overwhelming majority of states are parties to one or more treaties that set out their obligations in regard to trafficking. Most states have now enacted comprehensive anti-trafficking laws. The majority of these laws are modeled on the definition of Trafficking in Persons provided by the UN Trafficking Protocol. Many states have undertaken statutory reforms to strengthen criminal justice institutions and procedures as well as to secure justice for those who have been exploited. Also internationally, comprehensive scrutiny of Trafficking in Persons has never before been so intensive.

Nevertheless fundamental constraints rest in place. States are able to record high and improving levels of conformity with international legal rules related to Trafficking in Persons in large part because they do not require a great deal of action. It is sufficient to criminalize trafficking, cooperate with other states when needed and provide support and protection to identified victims. There is a big gap between what is required from States and what would be needed to reach the objectives of effectively ending and preventing Trafficking in Persons.

But how can the constraints best be overcome? What would be a model for effective criminal justice response to Trafficking in Persons?

According to Dr. Gallagher an effective criminal justice response to Trafficking in Persons must be explicitly directed towards three main goals: ending the current high levels of impunity, provision of justice for those who are exploited, and prevention of future exploitation. This will require a combination of a good law, generous victim support programs and well resourced investigatory teams. Weaknesses in one of these parts will inevitably have negative consequences for performance of the rest.

To reach these goals, an effective criminal justice response model needs: (1) a strong legal framework, (2) a specialist law enforcement response, (3) front-line law enforcement capacity, (4) prosecutorial and judicial support, (5)victim protection and support, (6) effective international cooperation and (7) political /community support.

The challenges of the model are numerous and not easy to overcome. Traffickers are very rarely identified, prosecuted and convicted. Trafficking in Persons is a complex, time and resource-intensive crime to investigate and prosecute. Victims are usually the only witnesses able to give a full account of the crime and are therefore essential to proving a case. Trafficking in Persons and the form of exploitation with which it is most commonly associated are essentially new crimes. No country has extensive experience yet in dealing with this matter as a criminal phenomenon as countries are still in the developing phase of criminal justice responses. Also, to really tackle the problems inherent in Trafficking in Persons one has to deal also with labor migration, and there is definitely no quick fix to that problem.

Summing up, several priorities for the future can be defined: the UN has to take a strong stand behind the protocol and establish better coordination of different UN agencies on the ground. Nevertheless, no one institution alone can be put in charge to deal with the problem, therefore shared responsibility, a clear understanding of the goals and obstacles as well as willingness to change things will help making further positive change in the future.