Abstract
Human trafficking is a highly complex phenomenon that persists, drawing hundreds of thousands of victims worldwide, affecting stable democracies as well as conflict ridden societies indiscriminately. Existing anti-trafficking mechanisms adopted by governments and international organizations are incommensurate with the magnitude of the issue. This article, drawing upon secondary sources, aims at a brief assessment of the incongruities between the intentions of anti-trafficking mechanisms and their real impact. In this regard, it attempts to explain the unabated, if not increasing, presence of the crime worldwide. Anti-trafficking measures, in many cases, instead of protecting victims, further infringe their human rights and thus re-victimize them. This article specifically analyses these concerns, and explores issues such as human trafficking within the framework of voluntary migration, and some of the shortcomings of the UN Trafficking Protocol. Subsequently, it comments on the human rights impacts of anti-trafficking instruments in India. The article challenges some of the erroneous notions regarding victims and prevention measures in mainstream discourse and puts forward suggestions for approaching the issue from a better perspective.
Key words: Anti-trafficking mechanisms, Human Rights, Human Trafficking, India
Introduction
Counter trafficking mechanisms worldwide prescribe elaborate laws for prosecuting offenders but fall short when it comes to preventing the crime and protecting victims. This could be because of inadequate awareness regarding the ground realities that drive human trafficking among stakeholders like governments, media, academia and religious institutions (Vijeyarasa 2017, p.19). Statistics on human trafficking tend to be inconsistent, owing to the surreptitious nature of the crime. Secondly, there exist a number of contentious definitions as to what involves human trafficking. Some countries conflate human trafficking, prostitution and human smuggling, failing to make adequate distinction between these while some others routinely disregard internal trafficking and trafficking for non-sexual forms of exploitation. These incoherences hamper the proper investigation of the issue (Kapur 2007, 115).
Furthermore, victims of human trafficking or people who have had first-hand experience of migrant exploitation are rarely stakeholders in designing counter trafficking policies. Consequently, a substantial portion of existing counter trafficking mechanisms, like those in India and Nepal reflects a morally conservative approach centered on sexual exploitation/ prostitution. Thus, they fail to address intimate connection with poverty, migration, unemployment, labour laws, education and gender discrimination.
Domestic Prevention Measures and Curbing Migration
A particularly skewed approach in prevention measures is that most governments, instead of working towards eliminating exploitation at destinations, focus on restricting the actual movement of people. Some destination countries conflate human trafficking and immigration. These governments project it as an issue of national security (Ramona 2017, p 26) demanding restrictive immigration laws, a tactic aimed at stemming immigration and sex work (ILO 2105, PP. 2, 8). Consequently, policy measures may entail illegal detentions or immediate repatriations, even subverting principles of non-refoulement: actions which do tremendous harm to the human rights of migrants.
Whereas prevention measures in source countries often involve ‘safe’ migration policies placing excessive restrictions on the mobility of prospective migrants. This particularly affects women and adolescents, limiting their rights to freedom of movement and livelihood (ILO 2019). South Asian governments, like in Nepal, have various labor migration policies which prohibit women of certain age groups from migrating for low skilled work in the Arab states and Southeast Asia. These restrictions on the grounds of age and gender entailed unintended consequences for women like increased dependence on irregular migration channels, which ultimately led to greater vulnerability to being trafficked (ILO 2105, p. 9).
Human trafficking is intertwined with irregular migration. Restrictive immigration policies prompt potential migrants to rely on informal recruitment channels and find themselves in exploitative situations upon arrival in destination countries. Similarly, age, gender and occupational bans criminalizing workers within policies worsen their vulnerability to abuses, rather than protecting them. Such restrictions on migration do not in fact deter victims from these risky expeditions as long as supply and demand in an occupation are strong and consistent, regardless of the nature of the work (ILO 2019, p.1).
Instead, policies aiming at formalizing employment relationships and eliminating exploitation at work should be pursued. This includes strong labor governance measures mandating the accountability of employers for ensuring compliance with international social protection standards and labor rights across supply chains. Safe migration programmes should be replaced with policies that support mobility by informed choice as in laws mandating labor recruiters to provide accurate information to potential workers on working and living conditions. Cross border trafficking could be best mitigated by cooperation between governments of countries involved and improving migrant protection schemes. Assigning special authority to police and border personnel to prevent trafficking is detrimental to the human rights of victims (ILO, 2019, p 3).
The UN Trafficking Protocol – Drawbacks of a Prosecution Oriented Approach
The UN Trafficking Protocol advocates for a ‘human rights based’ approach. Such an approach practically bases policies on assessing their impact on individual victims and ensuring that their human rights will be effectively protected. This demands accountability from governments and recruiters for contraventions of the same. Unfortunately, anti-trafficking mechanisms in almost every country radically contradict this victim-oriented approach (Pattanaik 2007, p 7).
In fact, some clauses in the Trafficking Protocol itself contradict this human rights-based approach, because the protocol is essentially premised on viewing human trafficking as a criminal enterprise, with prosecution of the trafficker given preponderance. This relegates the agency of the victim and his/her distinct experiences to secondary importance, thus narrowing the complex issue of human trafficking to a helpless victim malevolent trafficker dichotomy. This dents the ascertainment of the real factors which drive human trafficking. For example, the treatment of victims’ consent by the protocol corroborates this incongruity. The consent of the victim should be proven as obtained through malicious means, the burden of which rests upon the prosecutor. If the employment of such prohibited means is proved, then the consent of the victim is immaterial before law. In case of absence of the prohibited means, the victim might not be thereafter deemed as trafficked. This procedure offers victims the proclivity to falsify their accounts and deny having given consent in cases where they were originally aware of the risks involved. Hence, it provides loopholes for the trafficker to escape indictment and punishment (Azimi, 2022).
Victim Stereotypes
This undue emphasis on the acts of the trafficker could be attributed to the notion of the quintessential victim of trafficking as propagated by the media- young, female, poor, uneducated, sexually abused, and totally incapable of discernment. But in reality, trafficking rarely corresponds with the narrative of the kidnapped and helpless young woman; instead, it involves more frequently economic migrants (Vijeyarasa 2017, 44). In their research based in Ukraine and Vietnam, Vijeyarasa and others concluded that the more educated and financially sound sections of the society had a higher vulnerability to being trafficked (Vijeyarasa 2017, pp 101, 123, 132). In such circumstances, human trafficking was driven by voluntary migration, owing to seemingly better prospects of life in destination countries, but the victims finding themselves in situations of exploitation after arrival (Vijeyarasa 2017, p 123).
The definition of human trafficking as encapsulated in the Trafficking Protocol fails to accommodate these forms of trafficking and therefore, Vijeyarasa calls for an alternative definition, which discards victim stereotypes and acknowledges trafficking’s intimate connection with economic migration (Vijeyarasa 2017, p191). Hence, legal instruments premised on the protocol should adequately address non-sexual forms of trafficking like forced labour.
Shortcomings of Domestic Anti Trafficking Laws and Their Enforcement in The Indian Context
India lacks a comprehensive definition of trafficking either as a common minimum platform for states to coordinate or for prescribing remedies for all kinds of trafficking (Thomas 2011, pp 36,37). The Immoral Trafficking Prevention Act, India’s cardinal anti-trafficking law, almost exclusively focuses on sexual exploitation and hence, non-sexual forms of trafficking go severely under-recognized. A patriarchal bias permeates anti-trafficking laws in India, as the discourse on anti-trafficking largely revolves around the legality of prostitution and the moral turpitude associated with it. Additionally, the ITPA couldn’t be called a sensitive law as it does not draw adequate distinction between the trafficker and the victim, and hence contains provisions which punish victims, for instance (Thomas 2011, pp 36,37).
As per statistics, cases of human trafficking are increasing in India. Yet disproportionately few victims are identified. India has an extremely low conviction rate of 27 percent1. This could be because of a lack of robust investigation system and a justice system that is largely inaccessible to victims2. Even when traffickers have been identified, there are few arrests and much lesser prosecutions (Jones &others 1985, P 8).
Indian anti-trafficking laws have been developed without adequate participation of victims or vulnerable groups like migrants, sex workers and people engaged in low skilled jobs in the unorganized sector. India doesn’t have a comprehensive migration policy and the existing migration laws adopt different standards for dealing with emigration, immigration and repatriation, the impact of which is influenced by the religion, class and gender of the subject (Pattanaik 2007, p 128).
Human Rights Impact of Anti-Trafficking Laws in India
The preponderance on sex work, in practice, vilifies sex workers, disregarding the fact that they have human rights to dignity, freedom and livelihood. This is manifest in “brothel raids”, which are coercive exercises forming the initial step towards ‘rescuing’ women and children in the commercial sex industry, ignoring whether the adult sex workers were trafficked or voluntarily inducted. The ITPA gives disproportionate authority to police officers and magistrates in matters related with the rescue and rehabilitation of victims. This is detrimental to the interests of the victim as instances of police officers manhandling sex workers and communally motivated raids are common. (Pattanaik 2007, p 123).
Some laws regarding human trafficking unjustly punish women involved in prostitution while the perpetrators, who can be the trafficker who recruited these women for sex trade or brothel keepers who lodge them in exploitative conditions, are let off with minimal sentence – something that induces traffickers commit the crime with impunity. Because of this, in Indian brothels, women who were or had been sex workers often hesitate to co-operate with law enforcement agencies fearing reprisals from corrupt police and brothel owners (Jones & others 1985). This lack of a conducive atmosphere for victims to testify and an absence of witness protection schemes coupled with protracted legal proceedings undermine the detection and punishment of violators.
The immediate redress offered to victims are administrative detention centers, which often involve the loss of liberty, deplorable living conditions and invasive medical tests. This may prompt victims to hark back to prostitution. Therefore, such inordinate detentions should be immediately abandoned (USD 2022). Circumstances like these indicate that existing counter trafficking mechanisms need to be revisited as they imperil the human rights of victims while having insufficient punitive impact on the trafficker.
Conclusion
The effective addressing of human trafficking requires a radical shift from conventional and stereotypical notions surrounding human trafficking and its victims, which dominate mainstream policy discourses. Anti-trafficking policies and interventions should be developed on an evidence-based approach drawing upon consultations with people who have been trafficked and other vulnerable groups like irregular migrants and sex workers. Legal instruments must acknowledge trafficking’s inextricable link with economic migration especially, when it is pursued via informal channels of recruitment. Formalization of recruitment channels and mandating compliance with international labor standards from employers and recruiters along with better intergovernmental coordination help at preventing labour and sexual exploitation of migrants. Such a holistic approach centered on upholding and effectively protecting the human rights of victims and vulnerable communities is an indispensable step towards eradicating human trafficking.
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Tawafuddin Azimi is a PhD candidate at Mahatma Gandhi University, Kottayam, Kerala. He has been on the staff of the Attorney General of Bamiyan province in Afghanistan and is one of the founders of Partnership for Justice, a social institution based in Afghanistan. He has done an Internship at Global Research Forum on Diaspora and Transnationalism (GRFDT). He has authored a few articles and book reviews, all of which have been published by The Migration News. And he holds an MA in International Relations and Human Rights from Mahatma Gandhi University. He can be reached at tawafazim@gmail.com Twitter @Tawafuddinazim