UN Human Trafficking Prevention Protocol - An Analysis

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7th Feb 2019 Human Rights Reference this

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Human trafficking is an ever-growing global criminal concern and a prominent humanitarian crisis, with as many as an estimated twenty-seven million people being trafficked globally each year. Traditional approaches to combat this global phenomenon has been largely ineffective, as globalization has revolutionized the practices and process in which it is carried out. Trafficking at its core involves the objectification of persons into illicit market commodities – persons who, through deception, force or coercion, are transported and sold for the purpose of exploitation. In recent years, increasing awareness of this growing criminal trend throughout the international community has urged international bodies to take immediate action. As a response to this crisis, one critical document, titled the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, was drafted. Albeit being introduced only in 2000, this Protocol is a significant law enforcement accomplishment, and is the first and only international agreement of its kind to provide many detailed provisions for the protection and assistance of victims of transnational crime.

Despite this, the UN Trafficking Protocol has proven to have limited effectiveness in combating and controlling human trafficking and modern slavery, particularly in certain countries like Thailand. While it has enhanced transnational cooperation in tackling this issue, it fails to take into account, and thereby does not provide solutions for, non-compliance, a corrupt criminal justice system, as well as the reintegration of victims back into society.

While the purpose of the Protocol is to prevent and combat trafficking in persons, protect and assist victims of trafficking, and to promote cooperation among State Parties, the provisions providing for the implementation and enforcement of these measures are weak. Each of these provisions begins with the permissive language that State Parties “shall adopt or establish…as may be necessary”, “shall endeavour to”, and “shall consider…in appropriate cases” implementing various protection or assistive measures for victims. For example, Article 7 requires State Parties only to consider providing temporary or permanent residence in its territory in appropriate cases. While this provides the flexibility to craft and implement policies and laws that best suit the needs of various State Parties, the lack of any hard obligation or enforcement measures could potentially undermine political commitment to the Protocol, since compliance is purely on a voluntary basis. This lack of obligation can be seen in Thailand – one of the signatories of the Protocol – where young girls deemed to be trafficking victims are not granted temporary legal documents in accordance to Thai law, and therefore are not allowed to leave the shelter grounds (Thrupkaew, 2009). This goes against Article 8.4 of the UN Trafficking Protocol, which mentions State Party shall agree to issue travel documents to victims of trafficking who is without proper documentation, to facilitate their travel to and re-enter its territory. Hence, this freedom and flexibility to interpret the Protocol has undermined its effectiveness in implementing and enforcing the provisions stated to provide assistance to the victims of trafficking.

Similarly, the corruption of local law enforcement in countries like Thailand and Cambodia have hindered efforts to curb human trafficking, as they provide a system of protection and safe-haven for key stakeholders involved in the process. From petty bribery to large-scale misappropriation of funds, corruption is rife throughout the criminal justice process in many countries, and has serious implications both for the human rights of detainees and the efficient administration of justice. The Protocol, despite its concerted effort to counteract human trafficking, is nonetheless at the mercy of the local authorities to implement and enforce measures on the ground. As mentioned by Thrupkaew, the root cause of much of the suffering in the developing world is the failure of the criminal justice system to protect the poor from the violence and brutality that robs them of their basic subsistence and liberty. In Cambodia, the police are notorious for their involvement in trafficking, through extortion of protection money, assault and rape of sex workers and trafficking victims (Thrupkaew, 2009). In Thailand, the politicians do not take sex slavery seriously, and while there exist full and complete laws that forbid enslavement, trafficking and exploitation, they are not enforced (Bales, 1999, p.72). As such, although the Protocol does provide an international legislative framework and is very comprehensive in its scope of human trafficking, it is ineffective as local authorities are more concerned about their own personal well-being than national political concerns, and thus do not enforce these measures on the ground.

Furthermore, while the Protocol provides the necessary provisions for the physical, psychological and social recovery of victims of trafficking as mentioned in Article 6.3, it is not implemented, and little is being done to help facilitate their reintegration into society. Many victims who are freed and taken to shelters are found to suffer from aggression, depression, and emotional instability. Yet, these shelters are merely surface attempts at abiding by the Protocol, and victims are robbed of the opportunity to overcome their trauma and recover from the physical and emotional damage they have suffered. This is especially prevalent in Thailand, where psychological counselling is effectively unknown, and little therapeutic work is done with girls freed from brothels (Bales, 1999, p.59). There is also a strong possibility of re-enslavement, especially if the girls rescued are foreigners who don’t speak the local language (Bales, 1999, p.66). This shows that the Protocol has failed in not only providing the necessary services for victims to recover from the emotional trauma that they have faced from this violence, but also the prevention of victims of trafficking from re-victimization, as stated in article 9.1.b of the Protocol.

However, we cannot understate the effectiveness of the UN Trafficking Protocol, because it is the first universal instrument intended to advance the global movement against human exploitation through collective action. Consequently, it is a reflection of the political will of international governments to combat human trafficking, evidenced by the widespread ratification of 166 State Parties as a first step in the expression of that political commitment. Moreover, the Protocol’s definition of trafficking and what amounts to exploitation is universally accepted as the most comprehensive definition that has informed various international counter-trafficking legal frameworks. This has aided prosecutors worldwide in providing assistance, protection and advocating for the rights of trafficked persons.

Despite this, coordination efforts on a national level are still grossly lacking, especially among various law enforcement agencies, criminal justice service providers and victim service providers. For example, the International Justice Mission (IJM), an evangelical Christian organization devoted to combating human rights abuse, collaborate with local counterparts in providing assistive services and protection to victims of slave labour and sexual abuse. However, because of the differences in policies and their view towards trafficking and prostitution, IJM has strained, and eventually severed, diplomatic relations with counter-trafficking efforts in Thailand. In addition, IJM failed to work closely with victim service providers, and have no idea how aftercare leads to the protection for minors, and neither do they track where they are sent after repatriation (Thrupkaew, 2009). As such, the lack of a national anti-trafficking coordinating body to promote better cooperation amongst local organizations and to monitor the implementation of national referral mechanisms has greatly hindered the effectiveness of the Protocol.

Since trafficking in person by nature is a covert activity involving hidden populations on an international scale, it is difficult to analyse, measure and understand. In light of this, the Protocol could include the creation of a central repository of information on measures taken by States and organizations to combat human trafficking. This database would include national legislations, international criminal organizational structures, and information on global anti-trafficking projects. In the development of this repository, the UN could adapt from the Automated Donor Assistance Mechanism (ADAM) by UNODC, a web-based information sharing system designed to provide project transparency and coordination of technical assistance. Such a platform increases the accessibility and availability of information to State Parties, which would inarguably aid in the identification and prosecution of traffickers as well as their modus operandi, thereby enhancing global efforts against trafficking.

Limited research has also been carried out on what trafficked persons want and need in terms of support, rehabilitation and their experience in the participation of the criminal justice process. As Thrupkaew mentions, “It didn’t cross anyone’s mind to work with sex workers on the law, and although we talk about the minimum standards of assistance, victims are not consulted in the creation of those standards”. As such, additional funding could be provided to NGO’s and social workers to encourage further research in this area, so as to provide useful insights to policy-makers and practitioners.

In essence, the main compelling reason why the Trafficking Protocol is ineffective in reducing global human sex trafficking is due to UN’s inability to enforce compliance from Protocol signatories, and stronger monitoring provisions and tighter membership policies should be adopted. That being said, such reforms should proceed with caution, as ensuring compliance need not necessarily lead to revised laws being effective in that country, due to various factors such as their socio-political climate. How effective the Protocol is ultimately boils down on the onus of State Parties on their level of commitment to incorporate and enforce Protocol measures into their domestic law. Only then will we have the slightest chance in eradicating human trafficking.

(Word Count: 1543 words)

Reference

Bales, K. B. (1999). Disposable people: New slavery in the global economy. Berkeley, CA: University of California Press.

Thrupkaew, N. (2009, September 16). The crusade against sex trafficking. Retrieved February 9, 2017, from Crusade Against Sex Trafficking, https://www.thenation.com/article/crusade-against-sex-trafficking/

UNODC. (2009, October 6). ADAM (automated donor assistance mechanism). Retrieved February 9, 2017, from United Nations Office on Drugs and Crime, http://www.unodc.org/unodc/en/global-it-products/adam.html

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