The EU’s commitment to fight Trafficking in Human Beings – What’s the Problem?

The EU’s commitment to fight Trafficking in Human Beings – What’s the Problem? Friederike von Cölln Master of Public Administration School of Public Policy Central European University 10th March 2014 Human Trafficking and Contemporary Slavery, Spring Term 2014 1. Introduction Trafficking in Human Beings has become a global issue of great moral importance and there is a great willingness of many governments around the globe to take action against this form of evil. The European Union, as well as its member states have joined the global force to combat human trafficking including the protection of people being trafficked which is reflected in quite a number of policy documents issued by EU agencies as well as governments of its member states. Against this background, human trafficking in Europe has increasingly been regarded as a problem which requires legislative, political, policing and social responses. Transnational European institutions such as the EU, the Organization for Security and Co-Operation in Europe (OSCE) or the Council of Europe (CoE) along with the individual member states have made continuous efforts to name, define and make policy around human trafficking (Wylie, Redmond 2010: 1). On the EU policy level there has also been an increasing commitment to confront the challenge of trafficking in human beings. This commitment is reflected in initiatives such as the EU strategy towards the Eradication of Trafficking in Human Beings and the Directive 2011/36/EU (Rusev 2013: 1). Meanwhile the number of identified trafficked persons is assumed to be increasing. For the years 2008-2010, EUROSTAT reported an 18% increase in persons who were trafficked (EUROSTAT 2013: 10). Nevertheless, the practical implementation of the policy documents appears to be in stark contrast to what we would believe from the great campaigns, persuasive statements of state officials and the spent resources. At a closer look, we can detect that the EU directs a large part of their efforts to combat human trafficking to illegal border crossings (Soirila 2011: 42). 1 This is very much in line with the UN Trafficking Protocol (Palermo Protocol) which emphasizes border control measures by stating that “State parties shall strengthen, to the extent possible, such border controls as may be necessary to prevent and detect trafficking in persons” (UN: 2000). Similarly, the Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (FRONTEX) has declared Trafficking in Human Beings as one of its priorities (Rusev 2013: 1). Border control policies in relation to human trafficking also intertwine with immigration control policies of the EU which rest on the three pillars of border management control policies, return policies and sanctions to employers using illegal labour (Rusev 2013: 5). This link between trafficking and migration is reflected in the following statement of the European Commission: “The prevention of and the fight against human trafficking is an essential element of the EU’s efforts to improve the checks and surveillance at the external borders and to enhance the fight against illegal immigration (Commission of the European Communities 2005). In contrast, human rights advocates and NGO’s have argued that a focus on strict border controls might in fact undermine the human rights protection of trafficked people and increase their vulnerability (Krieg 2009: 775). By analysing the strategy of border control to combat human trafficking in the EU, the essay will try to answer the following questions: Does border control contribute to the protection of trafficked persons or are borders part of the problem? And if there is a problem, why does border control feature so prominently in the EU’s efforts to combat trafficking? I will argue that the justification to counter trafficking at the border of the EU is based on the way how human trafficking is subordinated under the efforts to counter unauthorized migration. What is more is that border controls do in fact have severe consequences for persons who are trafficked because border control policies fail to separate the protection of trafficked persons from the efforts to counter undocumented migration. The EU’s efforts against trafficking can be seen as being dominated by its overarching security strategy to protect its borders from the influx of undocumented migrants and international crime. In this way, the EU has turned a human rights issue primarily into a problem of security by aiming to keep the problem of human trafficking away from its front door. The paper is divided into the following sections: The next section (2) will take a closer look at the function of borders in maintaining security against the perceived threat of undocumented migration and human trafficking. Section three introduces the Palermo Protocol as the foundation for the EU’s trafficking policies. Section 4 analyses a number of relevant EU policy documents in order to establish the context in which the commitment to combat human trafficking is embedded. The following section (5) lays out the consequences of border control strategies while section 6 discusses the broader implications of these consequences. 2. A new perspective of threat and security Human trafficking is not a new phenomenon on the international scene but it only started to play an increasing role in domestic and international politics since the early 1990s (Wasileski, Miller 2012: 107). The emergence of human trafficking in policy discourses was in line with more far reaching 2 events such as the collapse of the Soviet Union and the Communist Eastern European bloc which led to increased flows of migration from East to West but also to an increased visibility of human trafficking. It is against this background that human trafficking issues were aligned with threats to states sovereignty through the threat of unauthorized migration. Before the 1990s, human trafficking was hardly mentioned in line with international migration issues but the perceived increase in clandestine migration led towards a new conceptualization of security threats (Wasileski, Miller 2011: 301-303). Huysman argues that at the end of the Cold War, a number of new perceived ‘insecurities’ entered the domain of the traditional bipolar security domain with its focus on military and nuclear threat. In this context, the unregulated cross-border movement of people came to be seen as a new security issue. A new ‘management’ of migration and borders was needed, controls and policing of the borders became a central issue Huysman 2009: 1-2,9). However, as Bigo points out, migration is inextricably linked to the categories of the national and the state which turn the immigrant into a “danger to the ‘homogeneity of the people.’”. From this results the need to control the borders to guarantee territorial protection. The unauthorized immigrant is thus created as an outsider making his way inside, as someone who poses a potential danger to the homogeneity of the state and its population (Bigo 2002: 67). Embedding human trafficking in a security discourse has the capacity to evoke a politics of fear where social relations are based on distrust. This politics of fear is managed by the introduction of a number of security technologies which associate perceived threats to security with policies aiming to upheld law and order and to categorizes populations as ‘worthy’ and ‘unworthy’, ‘included’ and ‘excluded’ – such as border control, territory, international crime and migration. It is in this process that “traditional distinctions between criminal justice and border regimes and processes of criminalisation and immigration control have become increasingly blurred, and the law and order regime is extended beyond the traditional pillars policing-courts-prison” (Lee 2011: 105, 114). The increased attention to the borders and the securitisation of migration has led towards the notion of ‘Fortress Europe’ in which irregular migrants and especially migrants working in the sex industry are seen as violators of migration and prostitution laws disrespecting norms of decency (Friesendorf 2007: 395). Similar to the conceptualization of the immigrant as a threatening outsider, security approaches commonly frame trafficking as a threat to the state’s identity and to its borders (as will be further argued below). This link between security and trafficking has become even closer due to recent terrorist attacks. As a response, states have significantly increased the securitisation of their borders with and linked their efforts to combat trafficking to the fights against clandestine migration, terrorism and international crime (GAATW 2010: 21-22). 3. What are we talking about? Laying the foundations in Palermo Human trafficking refers to a number of different practices. It includes strategies from kidnapping to misleading job advertisements to matchmaking services (Lobasz 323). Human trafficking can be understood as a form of organized crime which involves criminal non-state actors who operate across several national territories. It thereby undermines state borders and border controls in that human beings are either trafficked illegally into a specific state or in cooperation with criminal networks that might comprise border or immigration authorities. In this way they come to be seen as a threat to state sovereignty (Wasileski, Miller 2012: 109, Rusev 2013). However, there is no 3 agreement on the actual dimension of human trafficking and data on human trafficking is often unreliable. This results from the hidden nature of human trafficking, the threat of deportation of trafficked persons, and the conceptual confusion of the term human trafficking (Lobasz 2009: 324). In the EU, however, there is the notion that the number of identified trafficked persons is increasing. For the years 2008-2010, EUROSTAT reported an 18% increase in persons who were trafficked (EUROSTAT 2013: 10). More specifically, the discussions on Human Trafficking within EU and member states discourses are generally based on the definition of ‘Trafficking in persons’ as laid out by the Protocol to Prevent, Surpress and Punish Trafficking in Persons, Especially Women and Children. This protocol, which is also known as the Palermo Protocol is an annex of the 2000 UN Convention Against Transnational Organized Crime. Article 3 of the Protocol defines human trafficking as follows: (a) "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used (UN 2000) The ratification of the Palermo Protocol resulted in many legislative responses of UN member states and therefore it can be stated that the Palermo Protocol had a great impact on the way how states and International organizations addressed the issue of human trafficking. However, as annex to the UN Convention Against Transnational Organized Crime, the issue of human trafficking was approached from the perspective of law enforcement and while the Palermo Protocol does stress the importance of protecting human rights of trafficked persons, it has often been critiqued for the weak manifestation of victims’ rights and protection measures (Wylie, Redmond 2010: 2-3). Anne Gallagher notes that the true driving force behind these efforts were security and sovereignty issues. At this point in time, wealthy states were quiet concerned that human traffickers and smugglers were becoming deeply involved in transborder migration and making profits from avoiding national immigration restrictions. This happened against a general perception that unauthorized immigration was increasing at a faster pace than ever before (Gallagher 2001: 976-978). In many ways, the Palermo Protocol therefore laid the foundation for the criminalization of trafficking, strengthening of border controls, repatriation of victims and more secure identity and travel documents. Even though the Protocol also foresaw the protection of the human rights of trafficked persons, it has been argued that sovereignty and security issues in regards to human trafficking and smuggling were the prime movers (Lobasz 2009: 326). 4. The EU’s response to trafficking in human beings Human trafficking has been on the European agenda as early as 1989 when the European Parliament passed a resolution on Prostitution and Trafficking in Persons (Wylie, Redmond 2010: 3). Further responses following the Palermo Protocol include the 2002 Council Framework Decision ‘On Combating Trafficking in Human beings’ (Council 2002) and the 2004 Council Directive ‘On the 4 Residence Permit Issued to Third Country Nationals Who Are Victims of Trafficking or Who Have Been the Subject of an Action to Facilitate Illegal Immigration, Who Co-operate with the Competent Authorities’ (Council 2004). The 2002 Framework Decision which aims towards a comprehensive approach across the European Union was very much in line with the Palermo Protocol and its focus on defining the crime of human trafficking leaves little mentioning of protection and prevention. In 2011, the 2002 Council Directive was replaced by a new ‘2011 Directive on preventing and combating trafficking in human beings and protecting its victims which establishes minimum rules at European Union (EU) level in regards to the definition of criminal offences and sanctions and it also provides measures aimed at better prevention and protection, the law enforcement approach with a strict focus on border control and increased cooperation between EUROPOL and EUROJUST (the Union’s law enforcement and judicial authorities) remains (Wylie, Redmond 2010: 4, Krieg 2009: 778-779, Council 2011). Other policy documents make clear linkages between immigration control and internal security. Border control policies in relation to human trafficking intertwine with immigration control policies of the EU which rest on the three pillars of border management control policies, return policies and sanctions to employers using illegal labour (Rusev 2013: 5). This link between trafficking and migration is reflected in the following statement of the European Commission: “The prevention of and the fight against human trafficking is an essential element of the EU’s efforts to improve the checks and surveillance at the external borders and to enhance the fight against illegal immigration” (Commission of the European Communities 2005). Further examples of the link between migration and human trafficking are the ’Comprehensive Plan to Combat illegal immigration and trafficking of human beings in the EU’ and the 2006 Commission Communication on Policy Priorities in the Fight Against Illegal Immigration of Third-Country Nationals’ where Human Trafficking is being dealt with as an issue which relates to all stages of the illegal immigration process (Krieg 2009: 787-788). As laid out in the EU’s Security Strategy 2003, Human Trafficking has become a concern of internal security, linking human trafficking and undocumented migration inextricably with the threat of international crime: “Europe is a prime target for organised crime. This internal threat to our security has an important external dimension: cross-border trafficking in drugs, women, illegal migrants and weapons accounts for a large part of the activities of criminal gangs. It can have links with terrorism” Council 2003). The 2005 EU plan on best practices, standards and procedures for combating and preventing trafficking in human beings lays the foundation for a strong law enforcement approach: “Human trafficking is a serious crime against persons, which must be addressed as a clear law enforcement priority. Human trafficking has to be converted from a ‘low risk — high reward enterprise for organised crime’ into a high risk — low reward one. Law enforcement must use all the resources and capacity available to enforce the prohibition of human trafficking, to deprive it of any economic advantage and, where financial gain has been made, to seize and confiscate any assets. The investigation of human trafficking should be afforded the same priority as other areas of organised crime in that specialist investigative techniques and disruption strategies should be employed (Council 2005)” This brief analysis documents, that even though the EU Framework Decision to Combat trafficking in Human Beings and other related documents mention the protection of trafficked persons, similarly to the Palermo Protocol, the EU approach can be classified as a crime approach which also favours the restriction of unauthorized migration (Krieg 2009: 790). 5 5. Consequences of border management The EU’s approach to counter human trafficking through a law enforcement approach and strict border controls has resulted in several critiques from human rights groups (such as the UK-based organization Stop the Traffik, the Migrants’ Rights Network or the Anti Trafficking Legal Project), feminists and academics who argue that border policies have adverse effects for trafficked persons. This following section will look at direct consequences of border control policies to combat human trafficking. There are six consequences of border control policies which might seriously affect the human rights status of people (vulnerable to) being trafficked and which point at the risk, that these policies can in fact increase the vulnerability of trafficked persons. 1. Border controls increase the vulnerability of migrants Strict border controls make it more difficult and dangerous for migrants to cross the borders with the effect that migrants are pushed to searching for facilitation through intermediaries. This in turn leads to an increase of debt-financed migration while stricter deportation and employer’s sanctions policies promote debt contracts in the illegal sector. It could therefore be argued that harsh immigration policies and exclusionary EU labour markets push migrants into the informal economy and make them more vulnerable to organized crime (Rusev 2013: 5-6). Deporting trafficked persons also makes them vulnerable to being re-trafficked. There is a great risk that traffickers seize control over their victims once they return to their countries of origin. (Lobasz 2009: 322, 333-334). The US State Departments’ 2010 Trafficking in Persons’ Report (TIPR) for example criticizes the French government for abusive police treatment and for the forced deportation of unaccompanied minors from Charles de Gaulle Airport. The minors were detained in ‘transit zones’ at the airport but French authorities failed to check for possible signs of trafficking while treating all children as ‘irregular migrants’. This resulted in their deportation which could make them vulnerable to re-trafficking or prosecution in their home countries. France also experienced two cases where border authorities failed to identify two trafficked children from Nigeria and Guinea and in one case, the victim’s trafficker followed her to the detention center where the child was held, to collect money (TIPR 2010). 2. Border controls benefit traffickers It can be argued that stricter border policies with increased border controls and enhanced technology make migrants more vulnerable to directly become engaged with traffickers (Lobasz 2009: 322) who in turn come to see the increased costs of border crossing as a new source of income (Hathaway 2008:33) At this point it is also important to note, that trafficked persons often enter their destination countries by air, often with a tourist visa and eventually enter an illegal status when exceeding their permitted period of stay. In many cases, traffickers provide the legal documents and thereby create a dependent relationship with their potential victims who might be forced into prostitution or other forms of forced labour to repay their travel expense (El-Cherkeh et.al 2004: 23). 6 Furthermore, traffickers have also profited from a lack of legal migration and employment opportunities for non-EU citizens because of restricted visa grants, residency and work permits to potential or actual trafficked persons. This is illustrated by the case of the removal of visa restrictions for Romanians by the EU in 2002 which led to a decline in the number of reported Romanian victims of trafficking (Friesendorf 2007: 395). 3. Border controls can be ineffective Border controls can be ineffective for two reasons: First, as GAATW points out, the EU’s restrictive immigration and border control policies have not resulted in a decrease of migrants but rather fuelled clandestine and insecure movements (GAATW 2010: 23). Secondly, it is not guaranteed that trafficked persons will be identified at the borders and more than that, at the time of border-crossing, many people are not aware that they are being trafficked (Friesendorf 2007: 395-396). Often people who are trafficked have uttered their consent to being smuggled across the border without being aware that they will experience exploitation or abuse while in transit or the country of destination (Lobasz 2009: 328-329). Even if the Trafficking Protocol was written to clearly differentiate human trafficking from migrant smuggling (the Migrant Smuggling Protocol constitutes another Annex to the Convention Against Transnational Organized Crime), in practice it proves difficult to keep apart trafficked persons from other voluntary undocumented migrants. This lead the Federal Criminal Police office to express its doubts about the chances of success of border control policies (Follmar-Otto, Rabe 2009: 23), calling the significance of border controls in regards to human trafficking into question. 4. Border controls often fail to differentiate between undocumented migrants and trafficked persons Frequently, border control and other state security officials consider the question of whether people cross the borders freely or under coercion less important than the fact, that these people entered the country illegally or extended their residence permit. For example, even if the Czech Republic may offer trafficked persons a temporary residence permit or even work permit, “this visa is not guaranteed to all trafficked and smuggled persons, who are in many cases perceived as committing the crime of staying in the Czech Republic illegally and are expelled from the country” (Europol 2005: 18). Similarly, undocumented migrants in Greece who become victims of violence or abuse lack any kind of civil legal protection that would protect them from their perpetrators or provide them with compensation for medical and legal fees (Wasileski, Miller 2012: 115). 5. Border controls are not necessarily the place where the Human Trafficking action is As mentioned above, it often proofs much more difficult to draw a clear distinction between trafficking and smuggling in human beings as envisioned by the analysed policy documents. Migration processes often reflect both voluntary and coercive elements. Although some migrants might have engaged voluntarily in the act of border-crossing, she or he can still end up in coercive and exploitative labour conditions upon arrival within a European member state (Krieg 2009: 789). Wasileski and Miller refer to the example of immigrant women in Greece who are often employed in the domestic sector. Due to their immigrant status they often lack official work permits which 7 make them prone to search for employment in the informal, or underground, economy where they lack legal protection and welfare benefits. This exposed situation also renders them vulnerable to being seriously exploited or even enslaved (Wasileski, Miller 2012: 115). 6. Border controls are prone to corrupt practices As documented by Rusev (2013) in a case study in Bulgaria, the corruption of law enforcement officers has become a main instrument of human traffickers to ensure their non-interference with human trafficking channels. Moreover, corruption often blurs the boundaries between traffickers and public officials and various institutions are involved in different types and levels of corruption (Rusev 2013: 13-14). Corruption networks allow the involved actors to gain economic power and local political influence while at the same time they secure protection from their engagement in human trafficking 6. Implications of the EU’s failure to protect people who have been trafficked Encountering human trafficking at the borders is an immediate result of the enforcement of border-regimes and the entanglement of human trafficking, migration and the perceived threat to internal security. Border management in the European Union mainly serves the purpose to prevent unwanted immigrants from entering European territory. This implicates at the same time, that people in vulnerable situations are restricted towards accessing the system of legal protection within the countries of destinations (Lee 2011: 141). From this perspective, border controls may actually tighten the human rights situation of people (vulnerable to) being trafficked. Border management strategies to combat human trafficking can therefore be critiqued from three interrelated perspectives (i) human trafficking is a clear violation of the human rights of the trafficked persons, (ii) through international law states have a responsibility to prevent human rights abuses, and (iii) border control strategies have largely failed to protect human1 rights and might have even contributed to human rights violations (Lobasz 2009: 329). Against the issues discussed in this paper, the EU’s motivation of combating human trafficking by responding to human trafficking by border control policies can be seriously questioned: Efforts to combat human trafficking have consistently transformed into attempts to restrict movement. Framing human trafficking mainly as a security concern that can be countered at the borders conveys the harsh impression that as long as human trafficking and the people subject to it stay outside of the European Union, everything seems to be in place. However, “the idea of simply ‘staying at home’ […] is by no means a neutral or easy exercise” (Quirk 2007: 199-200) to many of 1 As the Global Alliance against Trafficking in Women (GAATW) points out, trafficked persons seriously face a number of human rights violations as laid out by the Universal Declaration of Human Rights such as the right to be free from physical violence, freedom from slavery, the right not to be tortured or submitted to cruel or degrading treatment, the right to personal autonomy, or freedom of choosing residence (GAATW 1999). 8 those who, for various reasons, embark on often dangerous journeys to member countries of the European Union. In her study on EU-Enlargement, Migration and Trafficking in Women in Southeast Europe, El-Chakeh et al. come to the conclusion that “when people strongly want to leave their country, because they feel they have no opportunities at home, when finding new opportunities across the border is not an easy thing to do (lacking institutional channels or restrictive legislation on migration issues), they have a chance to be caught in the greedy hands of traffickers. Migration is about push and pull factors, but these factors can act in various ways. When push factors are strong it is likely that individuals will choose any possible mean to leave their community/family. Abusive parents, poor environments could lead young women to accept any job offer no matter of the risks involved” El-Chakeh 2004: 68). In this regard border policies are an expression of the desperate attempt to fight the symptoms of our present day’s greatest challenges and the lack of political solutions to South-North, East-West inequalities, structural unemployment and population. What then would be a measure to judge policies to combat human trafficking? As a minimum principle, the EU should ensure that their policies do not do any harm to people being trafficked. This goes hand in hand with the urgent need to separate measures of transnational crime such as counter-terrorism and counter-drug-trafficking measures from anti-trafficking measures in order to ensure that trafficked persons are not criminalized but that their human rights are guaranteed (GAATW 2010: 28). To align its policies more with the human rights norms, the EU should shift its focus away from the ‘threat to internal security perspective’ towards policies that ensure the personal security of those negatively affected by human trafficking. Therefore, the EU needs to fundamentally revise its immigration policies and pay greater attention to the different reasons people are crossing borders (as refugees and asylum seekers, as trafficked persons for the purpose of exploitation, as economic migrants etc.) in order to make sure, the rights of this diverse groups of people are adequately respected. As 7. Conclusion Border control plays an important role in The EU’s effort to combat human trafficking, yet this practice falls seriously behind in upholding the human rights of those subject to human trafficking and runs the risk of even worsen their situation. After this brief analysis it appears that borders are indeed a serious problem to those who are being trafficked or are vulnerable of being trafficked. The way how the EU deals with trafficked persons at its borders is trapped in a security discourse that favours law enforcement over human rights protection and that subordinates the phenomena of human trafficking under the perceived threat of unauthorized migration. Not only can border controls be ineffective, suffer from corrupt practices and fail to address problems that arise after border crossing, but they can also increase the vulnerability of people being trafficked and intensify the dependence of potential victims and their traffickers. This raises serious questions in regards to the ethical implications of the EU’s anti-trafficking policies. In general, the EU places a high value on human rights issues (not only in regards to foreign politics) however it fails to do so when it comes to unauthorized movements across its borders. Nevertheless, border control policies carry the unspoken message that it is their ultimate goal to keep trafficked people, constructed as the outsider to European integrity, out of its territory. The EU therefore ultimately fails to view human trafficking in its broader structural context. 9 In making these arguments, I certainly did not intend to argue against the treatment of human trafficking as an international crime. Neither do I intend to argue that criminal law should not be used as an instrument to take action against traffickers. But the approach taken with the Palermo Protocol gave states a unique chance to increase their border protection on the pretext of countering international crime. But because of the image that is evoked of the migrant as the untrustworthy other, the restriction of entry seems like a desirable policy option. This is why the language and discourse around trafficking and migration has to fundamentally change with more careful attention on how the problem of human trafficking should be characterised by public authorities and advocacy groups (Chacón 2010: 1652). On a more broader note, we need to fundamentally question the role border control policies play in combating human trafficking, not only because they simply address a certain proportion of the people to be thought to be held in conditions of slavery but because (Bales 1999), but because – despite they seemingly miss the point – they play a fundamental role in the EU’s strategy to combat trafficking whereby their ascribed importance exceeds by far their real possibilities. Bibliography Apap, Joanna, Peter Cullen, and Felicita Medved. "Counteracting human trafficking: Protecting the victims of trafficking." 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