Why Does Human Rights Legislation Fail to Protect the Rights of Sex Trafficking
A Case Study of Katya: Trafficked to the UK and Sent Back Home to Be Tortured.
Human trafficking is the process, through which the people are forcefully exploited for the purpose of economic gain (Ohchr.org, 2014). While, it is possible for trafficking to take place within a country, most often trafficking involves the movement of individuals across the international borders. According to the International Labour Organisation (ILO) currently, there are over 40 million people trapped in modern slavery, of which even 4.8 million are in forced sexual exploitation (Ilo.org, 2019). Trafficking in individuals violates a number of human rights, including the right to life, liberty and security and freedom from torture reflected in Article 2, Article 3 and Article 5 of the Human Rights Act 1998. However, often trafficked person’s rights are being violated, not only by the traffickers, but as well by the inappropriate response of government (Pearson, 2002). Even though United Nations stresses the importance to put human rights of trafficking victims above anti-trafficking measures (Ohchr.org, 2014), it is known that, in the hands of authorities many victims have experienced further victimisation (Pearson, 2002). Therefore, this essay is going to argue that, human rights legislation fails to protect the rights of sex trafficking victims. In particular, this paper will focus on why many sexual exploitation victims found in the United Kingdom are being deported despite re-trafficking fears. This essay will start with the introduction to Katya’s case and discussion on why human rights legislation fails to protect the rights of trafficking victims by using three issues that flow directly from this case. While the second half of the essay will look into the changes that the UK government brought about to protect the trafficking victims and their rights since Katya’s case. And it will finish with recommendations for successful reintegration of victims and reduction of re-trafficking rate. This paper will conclude that, there is an urgent need for government to adopt a human rights-oriented approach to the human trafficking.
International law points out those responses to trafficking should not discriminate trafficking victims just because they are non-nationals. As a result of inhuman activities that arose during World War II the international community recognised the need to secure the rights of the entire individual and create the first collective international agreement on the basic principles of human rights The Universal Declaration of Human Rights (Equality and Human Rights Commission, 2019). Therefore, today we have human rights that are universal: 'they apply to everyone, irrespective of their race, sex, ethnic origin or other distinction’ (Ohchr.org, 2014). This means that, same as everyone else trafficked persons qualify for the full range of human rights. However, despite the clear link between human rights and human trafficking, the rights of victims are still not in the centre of responses to trafficking (Ohchr.org, 2014). In 2003, The UK police and Home Office immigration officers arrested Katya in one of the London’s brothels. She was charged for providing fake documents and therefore incarcerated for three months. Shortly after, she was removed from the UK and sent home to Moldova (BBC News, 2011). When, British immigration officials assessed Katya’s case, they knew about the fact that, she had been trafficked and forced into prostitution, but decided that, there is no danger for her to go back to her country. Unfortunately, only a few days after deportation from the UK traffickers found Katya, she was gang-raped, brutally tortured and soon after re-trafficked, first to Israel and later back to the UK (Bhabha, 2016, p157). Therefore, this case is an example that the government itself can be responsible for the violation of trafficking victims' human rights. For this reason, the rest of the essay will explore the underlying reasons that allow such a miscarriage of justice.
States have a legal obligation to identify the victims of trafficking, however, an issue in the definition of smuggling and trafficking makes it difficult to recognise human trafficking victims. According to the Trafficking Convention, the correct identification of trafficking victims is the gateway to the protection of their human rights (Chandran, 2011, p29). However, the UK government still struggles to distinguish between these two crimes, as a result often victims that come to official attention are misidentified as illegal or smuggled migrants (Ohchr.org, 2014). The main difference between smuggling and trafficking is that, those who are smuggled generally cooperate and do it by choice, but on the other hand, trafficking victims never cooperate, or if cooperate, it is because they are tricked by misleading information or forced by the abusive action of the traffickers (United Nations Office on Drugs and Crime, 2019). Nevertheless, while in principle, these are two separate offences, in practise, ‘there is a blurred line between the point, at which a situation transgresses from labour exploitation to forced labour’ (Chandran, 2011: 57) as more and more often those who are smuggled end up becoming victims of trafficking. For this reason, the government should focus on the exploitation of a person, rather than on the process of how a person got into this situation (Chandran, 2011: 57). Since, trafficking is about slavery and not the movement and a failure to identify a person as a victim of human trafficking that will directly affect the person’s ability to access the rights to which individual is entitled, such as immediate assistance, recovery and residence permit (Chandran, 2011). This is significantly important, because the victims of trafficking are often physically and emotionally traumatised and addicted to substances. Thus, the failure to provide medical and other forms of support might worsen the harm already done to victims (Ohchr.org, 2014). Therefore, it is evident that without successful identification the human rights of a victim cannot be respected and protected and he or she is exposed to further victimisation in the hands of authorities.
Government responds to human trafficking through restrictive immigration policies which prioritise the deportation of victims. States have a responsibility to ensure that the victim is removed from the risk of further exploitation and any other harm (Ohchr.org, 2014). However, the government struggles to find a balance between fighting illegal immigration and upholding its obligations under international laws to protect and support victims of human trafficking (Cherti et al., 2002). Currently, the laws focus on removing trafficked persons from the UK rather than on protecting their human rights. As a result of the growing number of people trafficked to high-income countries for sexual exploitation and other forms of forced labour in the past decades, government imposed overly restrictive migration policies and tighter border controls (Pearson, 2002). Unfortunately, this makes the situation even worse, as these policies prioritise detention, prosecution and deportation of victims, because of offences, which were committed as a result of their status, such as prostitution (Laboratory to Combat Human Trafficking, 2018). Overly restrictive migration policies not only make persons even more vulnerable to the traffickers, but as well allow further victimisation of trafficking victims, leading to additional human rights violations (Laboratory to Combat Human Trafficking, 2018). This issue is particularly visible in Katya’s case as immigration officials put her in grave danger by prioritising removal from the country over her security. Removal from the UK had serious consequences to Katya and violated her right to freedom from torture under article 3 and the right to freedom from slavery and servitude under the article 4 of the European convention on human rights as she was brutally tortured and re-trafficked (Gentleman, 2011). Therefore, it is evident that, current anti-trafficking policies challenge victim’s protection and allow human rights violation which explains why such a high number of sex trafficking victims are being sent back home despite re-trafficking fears.
Immigration officials disregard non-criminalisation principle if victims of trafficking are unwilling to cooperate in the criminal investigation. Human rights treaty bodies underline the importance of the non-criminalisation of trafficking victims since most of the time criminalisation of foreign person’s results in deportation (Ohchr.org, 2014). However, in the countries of transit and destination, it is common for trafficking victims to get arrested and prosecuted for criminal activities such as interring illegally, engaging in prostitution or like in Katya’s case for providing false documents (Ohchr.org, 2014). While in many instances criminalisation of trafficked persons is a result of failure to identify them as victims and it is known that, even if victims of sexual exploitation are identified correctly but unwilling or unable to cooperate with British authorities they are being sent back to their countries within two days after the arrest (Pearson, 2002). However, immigration officials ignore the fact that the majority of trafficked women refuse to testify against their traffickers, because they are too terrified. Due to the lack of protection for the trafficking victims and their families back home, the women do not want to come forward and put everyone’s safety at risk (Pearson, 2002). While, the United Kingdom has a fully comprehensive witness protection scheme and it is not suitable for trafficking cases, as it is too controlling and expensive (Pearson, 2002). Therefore, the absence of a referral option denies trafficking victims right to access an effective remedy and leaves them vulnerable to be re-trafficked. Criminalisation and detention of trafficked persons are important issues, in particular, because the government's failure to assure victim’s security is the main reason why not many women are willing to cooperate.
An increasing number of cases similar to Katya have brought attention to the issue and it had recognised the need to identify victims of human trafficking and protect their human rights. Consequently, in 2008, the UK brought into force the Council of Europe Convention on Action against Trafficking in Human Being. This framework is designed to protect and provide assistance to the victims and witnesses of trafficking (Council of Europe, 2005). Therefore, following the signing of the Convention, in 2009 the government introduced a National Referral Mechanism (NRM) to meet its obligations. Additionally, to identification and protection of trafficking victims, NRM grants ‘a minimum 45-day reflection and recovery period’ (Modernslaveryhelpline, 2019). However, in most of the cases, before a trafficked person is referred to NRM, Border Force officers are the first point contact. While some victims of human trafficking are from the UK, ‘in 2015, 94% of potential victims are referred to the NRM came from 101 countries’ (Home Office, 2014). This means that many victims pass through borders staffed with UK Border Agency (UKBA) officials and it is in their duty to recognise victim and provide an urgent response to the crime of trafficking. However, an effective response requires trained and experienced staff (Ohchr.org, 2014). As a result, the government established mandatory training for all UK Border Agency staff on human trafficking awareness (Israel, 2011). Unfortunately, from 2009 to 2014 only 6,800 people had been referred into the National Referral Mechanism (Home Office, 2014). These numbers are low compared to what is known about the crime of trafficking. Therefore, it is evident that the current system is not efficient enough and that identification of both victims and criminals requires major improvement Home Office (2014). However, the only way to improve awareness of human trafficking is to build a better understanding of modern slavery and for this reason it is vital to ensure that all data is ‘recorded, collected and shared appropriately’ (Bolt, 2016). Because as already discussed throughout this essay, successful identification of victims is a key to protection of their human rights.
Victims of human trafficking, who receive reintegration assistance, have less chance to be re-trafficked. Current models of protection are not efficient as nearly 35 per cent of victims of slavery found in the UK are estimated to be re-trafficked (Anti-Slavery International 2019). The nature and quality of support provided is a critical aspect of safe repatriation because it helps trafficked persons to be ‘less vulnerable to intimidations, social isolation and stigmatisation’ (Ohchr.org, 2014:26). However, according to the UN Human Rights Office, successful reintegration of trafficking victims requires cooperation between sending and receiving countries (Ohchr.org, 2014). As it allows the countries to which migrants return to plan for their arrival. If the UK and Moldova would have communicated and better prepared for Katya’s come back she might not have been tortured and re-trafficked. In addition, intelligence exchange between national law enforcement agencies and mutual legal assistance can help to put an end to high levels of impunity traffickers currently benefit from. This would not only help to reduce the trafficking rate but as well it would secure justice for the victims (Ohchr.org, 2014). Hence, cooperation between repatriating and receiving countries and therefore successful reintegration of trafficking victims into society can help to reduce re-trafficking.
Additionally, the states should consider demand as a root cause of human trafficking and therefore acknowledge demand reduction as a part of any comprehensive prevention strategy. Trafficking of human beings is driven by a global market that strives for ‘cheap, unregulated and exploitable labour and the goods and services that such labour can produce’ (Ohchr.org, 2014: 44). When it comes to sex trafficking, the demand for a service varies depends on the price. An increase in price can reduce clientele while the availability of persons providing sexual services at lower prices can result in more costumers (Aronowitz and Koning, 2014). Therefore, a major contributor to human trafficking is men’s demand to purchase sex. If men would stop using paid sexual services, pimps and traffickers would not make any profit and sexual exploitation market would collapse (Aronowitz and Koning, 2014). For this reason, in order to have an effective approach to prevent, the states need to find a way how to reduce demand for paid sexual services produced by trafficking (Ohchr.org, 2014). However, in practise it is not very clear how demand can or should be addressed and whether it is possible to do so at all. In the case, until there is demand and supply for prostitutes, there will always be persons who have their human rights violated by both, traffickers and state officials.
In order to conclude, human rights are inherent to every human and therefore anti-trafficking measures should never affect any of these rights or dignity of human trafficking victims. Unfortunately, trafficked persons are hardly ever recognised as victims of crime; consequently, their human rights are not entirely protected. As discussed thought the essay, the lack of clarity in the law and blurring line between smuggling and trafficking of human beings makes it difficult to distinguish between these two crimes, therefore trafficked persons are often being treated as illegal immigrants (Ohchr.org, 2014). However, most importantly, current models of protection in the United Kingdom too often prioritise migration policies over the rights of trafficking victims (Pearson, 2002). For this reason, women like Katya are being sent back to their home countries without taking into account the possible danger they are in and allowing a further violation of their rights. Therefore, for human rights legislation to be able to protect the rights of sex trafficking victims, there is a need for all government agencies involved in the trafficking response to monitoring their actions from a human rights perspective and to place the protection of trafficking victim’s rights at the centre of all anti-trafficking measures (Ohchr.org, 2014).
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