Paper en NGO-commentaar over vrouwenhandel m.b.t. ‘European Conference on Preventing and Combating Trafficking in Human Beings’

Van 18 tot 20 september 2002 vond in Brussel een grote Europese vrouwenhandelconferentie plaats onder de titel “European Conference on Preventing and Combating Trafficking in Human Beings – A global Challenge for the 21st century”. De conferentie werd georganiseerd door de Internationale Organisatie voor Migratie (IOM) in samenwerking met het Europese Parlement, de Europese Commissie en de lidstaten. De conferentie werd afgesloten met een verklaring. Deze Verklaring van Brussel is, evenals alle andere conferentie stukken, te vinden op de website van het IOM: www.belgium.iom.int/STOPConference

Voor Nederland namen, naast overheidsvertegenwoordigers, een aantal vertegenwoordigers van NGO’s deel, waaronder Marjan Wijers van het Clara Wichmann Instituut en Marieke van Doorninck van de Mr. A. de Graaf Stichting. Hieronder vindt u het paper dat zij inbrachten op de conferentie “Only rights can stop wrongs. A critical assessment of anti-trafficking strategies”. Tevens vindt u het commentaar van de NGO’s op de Draft Declaration of Brussels.

Only rights can stop wrongs (1): A critical assessment of anti-trafficking strategies

This paper critically examines the current strategies employed by both governmental and non-governmental agencies (NGOs) to address trafficking in persons, focussing on their impact on the women affected (2). In this context attention is also paid to the measures taken by the European Union, in particular the recent European Commission Proposal for a Council Directive on a short term residence permit (3) for trafficking victims. Central perspective throughout the paper is the position of the women concerned.

Strategies to prevent and combat trafficking (4)

Trafficking in women is a complex problem, related to different fields and interests: migration, organized crime, prostitution, human rights, violence against women, the feminisation of poverty, the gender division of the international labour market, unequal international economic relationships, etc. Solutions vary, depending on how the problem is defined, that is to say, what is seen as the problem that needs to be solved. For example, if the problem is viewed as a human rights or labour problem, logically other solutions will be drafted than if trafficking is predominantly viewed a problem of organized crime or illegal migration.

However, precisely because trafficking in women is related to so many other areas and (state) interests, any proposed measure must be carefully questioned as to what problem and, above all, whose problem it aims to solve, whose interests it serves and what the impact on the women concerned will be. Does a given strategy address the problem of the women concerned or rather the problems of the state? Will it help to prevent and combat abuse and violence or does it in fact target another problem? Will it improve conditions for the women involved or will it make their situation worse?

Trafficking in women as a moral problem

The traditional approach to trafficking in women is what could be called the moral based response, rooted in the moral rejection of prostitution. Within this approach trafficking in women is considered to be part and parcel of the overall evil of prostitution, without regard for conditions of consent or coercion. So viewed, prostitution and trafficking become practically identical. Measures to combat trafficking aim at suppressing prostitution, either by criminalizing all parties in prostitution, including the prostitute herself (as in a prohibitionist system) or by criminalizing any third party (as in an abolitionist system). Policies of most governments are based on such moral condemnation of prostitution.
The impact on women working in the sex industry is invariably a combination of isolation, stigmatisation and marginalisation, putting them at greater risks of abuse and exploitation due to the illegal and stigmatised status of their work. Women are divided into good or "innocent" women (i.e. non-prostitutes), who are deserving of protection, and bad or "guilty" women (i.e. prostitutes), who can be abused with impunity as it is their own fault, that is, the "natural" consequence of their involvement in sex work. Also in the contemporary trafficking debate, the image of the "innocent victim" appears to be extremely persistent. The consequence thereof is that only those women who succeed to comply with this image of innocence, can count on support. An attitude which traffickers gratefully exploit.

Although the moral approach is still dominant in the international debate, e.g. on UN level, over the last years sex workers" rights groups and anti-trafficking organisations have begun to challenge traditional approaches. New approaches are being developed, starting from the point of view of the women involved and moving the focus of the debate from moral positions to working conditions and workers" rights. Essential questions within this approach are: how do the women involved define the problem? What are their problems, motives and needs, in what do they want to be protected? Instead of excluding prostitutes from the debate – as has been unquestioned for centuries – their participation is considered an essential condition.

Trafficking in women as a labour problem

From the perspective of the women concerned, the core of the problem is violence, exploitation and abuse. From the perspective of women it is exactly their illegal status, the lack of legal migration opportunities – in combination with the demand for work in the informal sector – , the unregulated and unprotected character of the types of work open to them, and the unavailability of work in their own country that make trafficking such a profitable business and that force them into an illegal circuit without protection against violence and exploitation.

Trafficking in women is then put in the perspective of labour and labour migration, of traditional female roles – i.e. providing domestic and sexual services -, a gendered labour-market and the world-wide feminisation of labour migration(5) . World-wide women are predominantly relegated to the informal labour market – domestic labour, prostitution, the entertainment industry – that is, unprotected and unregulated labour, which is partly not even recognised as labour, as in the case of prostitution (no matter the fact that thousands and probably millions of women make a living for themselves and their families through this work). As a consequence, there are few legal ways for women to migrate, they are dependent of the informal and unprotected migration channels. It is not by coincidence that it is these sectors where trafficking predominantly takes place. It is also not by coincidence that these sectors, where especially women work, are unprotected or only marginally protected by labour law. Consequently, it is an interesting question whether the exclusion of the informal labour sectors from labour law protection, does not constitute a form of indirect discrimination and thus a violation of the Women"s Treaty (Convention on the Elimination of all forms of Discrimination Against Women).

When trafficking in women, forced labour & slavery-like practices are defined as labour problems, these practices can be seen as the result of the poor legal and social position of women: as women, as workers and as migrants. Within this view the position of women as workers is the focus of change strategies. The concept of "trafficking in women" is expanded to include other forms of "trafficking in women" in which women end up in slavery-like conditions, such as the trade in domestic workers and the trade in women in the context of the commercial marriage market.

Moreover, given the history of abuse of anti-trafficking measures to police and punish female migrants and female sex workers and to restrict their freedom of movement rather than to protect them from violence and abuse, serious doubts are raised as to appropriateness of the existing anti-trafficking framework and anti-trafficking laws to promote the rights of women and the prosecution of their violators. The concept of "trafficking" is questioned as outmoded and the development of new language to describe abuses in labour migration and abusive conditions in the sex-industry is advocated, separate and apart from national and state interests in protecting borders and controlling female sexuality.

Such a perspective opens a whole new array of instruments to combat violence and abuse. Strategies aim at the recognition of women"s work in the informal sectors as legitimate work, including work in the sex-industry, at labour law protection for the women involved and at improving working conditions: basically the same mechanisms and instruments that are developed since the beginning of the 20th century to combat violence and abuse in other labour sectors, i.e. labour regulations and civil law. In the case of prostitution for example, middle-men, brothel-keepers and employers clearly are in a position of power, as long as prostitutes lack any legal protection of their rights as workers. Im-provement in the social and legal positi-on of prostitu-tes would impede traffic in women and slavery-like practices, and would give women instruments to defend themselves against such practices, similar to workers in other labour sectors.

The focus then changes from the development of "new" instruments to combat trafficking to the application of "old" instruments to women"s work in the informal female designated labour sectors. Rather than isolating trafficking in women as a separate issue, the inclusion of women and women"s work in the existing labour and human rights instruments becomes the central question.

Government policies rarely, if ever, share this perspective and certainly not in relation to prostitutes or migrant workers. Still, aspects of this approach can be found on both the United Nations and European level. An example is the 1996 Resolution of the European Parliament which "welcomes the ILO (International Labour Organisation) and WHO (World Health Organisation) initiatives to draw up standards for the informal economy" and believes "that it is advisable to draw up legislation on unregulated work within the Union in order to reduce the vulnerability and lack of rights of persons working in this sector, and to ensure access to health care, social servi-ces and insurance”.

Among international bodies, the ILO has tentatively begun to address the issue by researching the situation of migrant domestic workers and (migrant) workers in the sex industry. The ILO could play an important role in setting standards appropriate to the informal sectors, particularly those affecting a large number of women, such as domestic work and sex work. ILO conventions, such as the Conventions on Forced Labour, the Convention concerning the Protection of Wages and the Migrant Workers Conventions could be used to abolish slavery-like practices. However, until now this course has hardly been taken.

Trafficking in women as a Human Rights problem

Also mainly employed by NGOs is the approach of trafficking in women and slavery-like practices as a violati-on of human rights for which states are accountable. Instruments designed to protect human rights are invoked as key guidelines and used to enhance and defend the rights of victims of trafficking. Important milestone in this approach was the World Conference on Human Rights in 1993 in Vienna, where for the first time violence against women was recognised as a violation of human rights.

Taking the promotion and protection of human rights as a guiding principle, anti-trafficking instruments should not only be in line with the protection of human rights, but should also care not to create or exacerbate existing situations that cause or contribute to trafficking by instituting policies and practices that further undermine the rights of the concerned groups, in particular women. As stated by the UN High Commissioner on Human Rights, Mary Robinson:
"That ["¦] is the only way to retain focus on the trafficked person: to ensure that trafficking is not simply reduced to a problem of migration, a problem of public order or a problem of organised crime. It is also the only way to ensure that well-intentioned anti-trafficking initiatives do not compound discrimination against female migrants or further endanger the precariously held rights of individuals working in prostitution".

However, also within the human rights approach, two different currents of analysis exist. Some define prostitution itself as a violation of women"s human rights equal to slavery. Such judgement brings us back to the moral approach, in which prostitutes are stigmatised as either victims or deviants and are denied a legitimate place in the public debate, but now via the detour of human rights. For others it is not the work as such that violates women"s human rights, but the conditions of deceit, abuse, violence, debt-bondage, blackmail, deprivation of freedom of movement etc., be it in prostitution, in domestic labour or in the commercial marriage market.

If we are looking, however, at the European situation, two other approaches have become more and more dominant: trafficking in women as a problem of organized crime and trafficking in women as a problem of (illegal) migration.

Trafficking in women as a problem of organized crime
When trafficking in women is defined as a problem of the criminal law and the criminal justice system, strategies aim at introducing more stringent criminal legislation and heavier punishments, improving (international) police cooperation and other measures which enable a more effective prosecution of the offenders. Combating trafficking in women thus becomes equated with (and often restricted to) combating organized crime. However, the choice for a criminal approach is not without limitations and risks. A criminal approach necessarily focuses on individual victims and perpetrators, leaving aside structural causes. Moreover, it carries substantial risks for the women involved. Apart from the risk of secondary victimisation, criminal proceedings may expose women and their families to the risk of retaliation from the side of the perpetrators, harassment by the authorities in her home country or stigmatising exposure to her home community. Too often it is forgotten that the criminal justice system serves fundamentally other interests than those of the victims of a crime. The position of crime victims is a general problem in criminal law, but this is exacerbated in trafficking cases. Prosecution of the offenders does not automatically include rights for the victims. On the contrary, in general the interests of the women involved are made completely subordinate to the interests of the prosecution. The sole interest the criminal justice system has in victims is their value as "evidence". The devastating consequences which acting as a witness may have for the individual live and future of the victim concerned bear no relevance for the law.

A revealing example is the above mentioned European Commission short term residence permit proposal, which offers no rights, safety or security whatsoever to trafficking victims. On the contrary, even the temporary protection offered by a short term residence permit is made totally dependent on the usefulness of the victim for the purpose of investigation and prosecution, without any attention to the protection needs common to trafficking victims. If the victim is not able or willing to co-operate with the state authorities or if she is not – or no longer – deemed "useful" as evidence in the criminal proceedings, she (again) is subject to arrest, detention and deportation, without protection against the possible consequences. This clearly fails to recognise the obligations states have under international human rights law to provide victims of serious human rights violations with appropriate remedies, including state protection, access to justice, reparation, restitution, compensation and rehabilitation.

Trafficking in women as a problem of migration

Along with the criminal approach, trafficking in women has become more and more identified with illegal migration, especially within the Western European states. The focus then shifts from combating violence and abuse to combating illegal entry and residence. Com-bating trafficking thus becomes transformed into combating (illegal) migration, whereas preven-tion of trafficking is taken to mean "to prevent the entry of possible victims". Under the denominator of prevention of trafficking, repressive immigration measures are taken such as tightening visa policies, stricter border control, closer supervision of mixed marriages, and criminalization of third parties who facilitate illegal entry or stay, and sometimes of the illegal migrant her or himself.

Though purporting to combat trafficking, such measures rather aim at protecting the state against (illegal) migrants than at protecting women against violence and abuse, thus serving the interests of the state rather than those of the women. Moreover, repressive migration policies and the resulting illegal status of women in the destination countries make migrant women more dependent on and more vulnerable to various forms of exploitation and abuse and thus tend to promote rather than repress trafficking and slavery-like practices.

Again, the European Commission short term residence proposal is an example of this tendency, where it addresses human trafficking solely as an element of policies to combat illegal migration and mixes up smuggling of persons and human trafficking. However, the difference between these two crimes is crucial. Smuggling refers to the facilitation of illegal immigration, thus constituting an offence against the state. Trafficking in persons is the use of deceit, violence and abuse for the purpose of exploiting one"s labour, thus constituting an – internationally recognised – violation of the human rights of the individual concerned, and giving rise to certain obligations on the part of the state under international human rights law to provide victims thereof with a range of possible remedies for such violations.

The perspective of women opposes that of the state: for women it is exactly their illegal status and the lack of legal migration possibilities that makes them dependent on middle men and forces them into an illegal circuit without recourse in case of violence and exploitation.

Conclusion: repressive versus empowering strategies

Strategies to address trafficking seem to move between two poles: at the one hand repressive strategies, which aim at suppressing organized crime, (illegal) migration and/or prostitution. At the other hand empowering strategies, used primarily by NGOs, which aim at supporting the women concerned and strengthening their rights.

Both repressive and empowering strategies can be of value. At the same time, especially repressive strategies beg for caution, as they run a major risk of turning against the women. Repressive strategies tend to mix up other state-agenda"s, such as counter-acting migration, with the issue of trafficking in women as a form of violence against women and a serious violation of human rights. Moreover, they easily give rise to unintended, undesirable side effects for the women concerned. At worst they can cause repercussions which have repressive rather than emancipatory effects on the already precarious position of the women likely to be affected, e.g. by restricting women’s freedom of move-ment or by using women as witnesses against organized crime wit-hout providing them the corresponding pro-tection. At the same time, it is obvious that such strategies appeal to governments for their simplicity and for their congruence with a range of state interests, such as immigration control.

Strategies which rest upon strengthening women"s rights are mainly put forward by NGOs. Participation of the women concerned is seen as essential to the development of effective change strategies. Support and lobby strate-gies are direc-ted towards empowe-ring women, enabling them to take back con-trol over their lives, and facilita-ting their ability to speak up for their own rights. Repressive strategies are rejected, if the rights of the women concerned are not at the same time clearly defined and protected.

The real challenge we are facing is to ensure the rights of those involved, as wo-men, as migrants, as wor-kers, and as victims of serious human rights violations. As long as those rights are not recognised and guaranteed, trafficking in women, forced labour & slavery-like practices will continue to exist.

1.)The title of this paper is the slogan of the Millennium Milan Mela in Calcutta, where 25.000 sex workers from India and other South Asian countries came together to stand up for their rights and to protest against stigmatisation, bad working conditions, exploitation and abuse.
2)Although also men become victim of trafficking practices, women still form the majority of victims.
3)Proposal for a Council Directive on the short term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities (COM(2002)71 final), Brussels, 11 February 2002.
4)This paper is largely based on an international investigation carried out by the Dutch Foundation against Trafficking in Women in collaboration with the Global Alliance Against Trafficking in Women on the request of the UN Special Rapporteur on Violence Against Women, Ms. Radhika Coomaraswamy. The results of this investigation were published in: Marjan Wijers & Lin Lap, Trafficking in Women, Forced Labour and Slavery-like Practices in Domestic Labour, Marriage and Prostitution, STV/GAATW, Utrecht, April 1998/ 1999.

5) According to ILO figures nearly half of the migrants world-wide are women nowadays

6) Message from the UN High Commissioner for Human Rights, Mary Robinson, to the Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, Fourth session, Vienna 28 June- 9 July 1999.
7) See inter alia the Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law and the April 2002 resolution of the UN Human Rights Commission, referencing to the Basic principles; see also the comments of Human Rights Watch on the European Commission short term residence proposal (/www.hrw.org/campaigns/migrants/#eu).

NGO statement on Human Rights and Trafficking
and Proposals for amendments to the Declaration of Brussels

IOM/EU Conference on Preventing and Combating Trafficking in Human Beings
18 – 20 September 2002, Brussels

As NGOs we welcome the commitment of governmental and intergovernmental organisations to ending the gross violations of human rights that are the essence of trafficking in persons. However, we regret that this opportunity for a meaningful dialogue between governments and NGOs has not been maximised, as is indicated by the fact that not one NGO representative has been included as a speaker or panel member. This, despite the fact that NGOs are on the frontline of both prevention and victim assistance, as acknowledged by many of the distinguished panellists.

To redress this imbalance we urge delegates to take most serious note of our concerns as stated below.

1. State labour, migration and anti- prostitution policies must be recognised as contributing factors to trafficking and related abuses. As outlined by the ILO in its contribution to the February 2002 International Symposium on the UN Convention on Organised Crime, an integrated approach needs to take into account the powerful market pressures, reflected in demand and push factors driving migration, as well as increasing immigration restrictions that inhibit regular labour migration to meet measurable labour demands. To effectively combat trafficking and organised criminal involvement, an integrated national legal and labour market policy package is necessary.

2. Human rights should be at the core of any strategy to combat trafficking in men, women, transgenders and children. This is essential to prevent the double exploitation of trafficked persons: first as forced labourers and second as disposable witnesses in states’ fight against organised crime. Human trafficking is recognised as a human rights violation, meaning that states are obligated to recognise victims’ human rights. These rights are independent of their usefulness for the state as witnesses. States have the obligation under international human rights law to not only investigate violations and punish the perpetrators, but also to provide effective remedies to trafficked persons, including compensation mechanisms, redress and protection against reprisals and arbitrary deportation as illegal migrants.

3. Despite the fact that trafficking is internationally recognised as a human rights violation, it is still difficult to protect the victims from deportation procedures in receiving countries or from repercussions by the authorities in their home countries, such as imprisonment, registration as sex worker, stigmatisation, mandatory HIV tests, and the risk of re-victimisation. Therefore, we recommend the creation of a monitoring instrument to evaluate the effects of the implementation of the UN Trafficking Protocol and of any measure taken at the level of the EU on the position of victims and the protection of their human rights. NGOs that daily work with trafficked persons, as well as people that know the concerned industries into which people are trafficked, e.g. union representatives, should be actively involved in such a monitoring process.

Regarding the Draft Brussels Declaration on Preventing and Combating Trafficking in Human Beings:

We strongly oppose the inclusion in paragraph 16 of the phrase ” the law must ensure (….) the prohibition of illicit work [and] the prohibition of the exploitation of the prostitution of others” and “adequate penalties [for] offences in relation to living off the earnings of prostitution”.

a) The inclusion of illicit work in the paragraph is contrary to the intent of the Declaration, which is “to prevent and combat trafficking in human beings”. While trafficking may involve illicit work, this is not always the case. States must not confuse the international interest in combating the human rights abuse of trafficking in persons with their own national interest in combating illegal migration. We recommend the deletion of this phrase.

b) The inclusion of the recommendation to prohibit the “exploitation of the prostitution of others” represents a step backward in international law. As the Belgian Prime Minister Guy Verhofstadt noted in his opening address to this Conference, some states recognise that “guaranteeing a better social status for prostitutes implies the regulation and recognition of their profession…. it is very important to note that the new [UN Trafficking] Protocol…only targets the exploitation of another (adult) persons prostitution against her/his will.” We fully support those governments that recognise that an essential element in combating trafficking in persons is the recognition of prostitution as labour and the enforcement of decent work conditions in the sex industry. We recommend the deletion of these phrases.

Further proposals for amendments:

Preamble
Add: “Since trafficking constitutes a violation of human rights, human rights should be at the core of any anti trafficking strategy.”
Explanation: A human rights perspective must be integral part of any credible anti-trafficking strategy.

Cooperation

Art. 4, point 1.
Add: “States should create the conditions that grass-roots NGOs who work on a daily basis with victims of trafficking are able to fulfil this role, both in terms of financial means and in terms of their independent status.”

Art. 8, point 3
Delete: “by which the demand of clients can be effectively reduced”.
Replace by: “methods by which minimum standards for decent working conditions can be developed for the concerned industries, including the sex industry.”
Explanation: The Declaration should address trafficking in persons for all types of work and in all industries and not prostitution per se.

Art. 10, point 5
Delete: ” Awareness raising campaigns aiming at the demand side…. trafficking effectively”.
Explanation: see above under 8, point 3.

Administrative controls

Art. 11
Add: ” Any anti-trafficking measures must be in line with existing human rights standards, must not violate the human rights of the concerned groups, such as the right to privacy, and should not lead to further stigmatisation or marginalisation of the concerned groups.”

Victim Protection

Add to this section:
“Victims of trafficking should have access to assistance, compensation and redress, irrespective of their willingness to testify and/or their usefulness as witnesses for the prosecution.”

Art. 14, point 1
Delete: “in cases where it is necessary for…..investigation against the traffickers.”

Art. 14 point 5
Delete: “for those victims that agree to cooperate with the criminal justice system of the state concerned.”
Replace with: “for all victims of trafficking.”

Art. 16 point 6
Add: “including temporary residence permits to bring a civil case for compensation of damages.”

Investigative methods

Add: “Investigative methods should at all times respect the right to privacy, safety and anonymity of the victim and not contribute to the stigmatisation and marginalisation of victims and other workers in the concerned industries.”

TAMPEP (Transnational Aids/STD Prevention among Migrant Prostitutes in Europe Project)
La Strada Network
NSWP (International Network of Sex Work Projects)
ENMP (European Network of Male Prostitution)
Mr. A. de Graaf Foundation, Institute for Prostitution Issues, the Netherlands
Clara Wichmann Institute, Expert Centre Women and the Law, the Netherlands
BlinN, the Netherlands
ICCO, Netherlands
AGISRA, Germany
KOK (Federal Association Against Trafficking in Women and Violence Against Women in the Migration Process), Germany
Amnesty for Women, Germany
Kobra-Fhoenix, Germany
FIZ, Switserland
Lefö, Austria
Payoke, Belgium
Le Bus de Femmes, France
StopNow, Greece
The Local Government of the Municipality of Venice, Italy
Province of Lecce, Italy