The definition of trafficking is contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nationals Convention Against Transnational Organized Crime. (hereinafter “Protocol”). The primary purpose of the Protocol is to prevent and combat trafficking, to protect and assist victims, and to promote international cooperation. The definition of trafficking – which has three different elements – is defined in the Protocol as follows:
1) An action, consisting of: recruitment, transportation, transfer, harboring or receipt of persons;
2) By means of: threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or position of vulnerability, giving or receiving payments or benefits to achieve consent of a person having control over another;
3) For the purpose of: exploitation including, 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.
Thus, in order for a situation to be considered one of trafficking, there must be an act such as transport or recruitment. The act must be done by means of, for example, fraud, deception, or abuse of power. Finally, such an act must be done for the purpose of exploitation.
It is important to note that consent to the act of trafficking is irrelevant if the means used to traffic a person include those listed in the definition. Therefore, a situation which may have started out consensual, for example where a person is taken into another country legally or illegally, can evolve into trafficking depending on the circumstances. Additionally, a victim does not have to cross borders in order for an act to be considered trafficking.
Practice tip: For a comprehensive list of materials – international and regional – relating to trafficking in persons, review UNHCR Refugee Protection and Human Trafficking – Selected Legal Reference Materials (Dec. 2008). These materials were prepared by the Protection Policy and Legal Advice Section (PPLAS) of the Division of International Protection Services (DIPS) and are available on the UNHCR website at http://www.unhcr.org. These materials include reports on the scope and profile of human trafficking
Trafficking and asylum
A claim for refugee status relating to persecution suffered or feared by victims or potential victims of trafficking can arise in a number of situations, as discussed in the UNHCR Guidelines on International Protection: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked (hereinafter “Trafficking Guidelines”). These situations include the following:
1) A victim may have been trafficked abroad, escaped his or her traffickers and may request protection from the country in which he or she currently resides.
2) A victim may have been trafficked in his or her own country, may have escaped and have fled abroad in search of international protection.
3) A person may not have been trafficked but may fear becoming a trafficking victim and may have fled abroad in search of international protection.
It is important to note that not all victims or potential victims of trafficking are eligible for refugee status. In order to be recognized as a refugee, an applicant must satisfy all of the elements of the refugee definition. He or she must prove a well-founded fear of persecution based on one or more of the Refugee Convention grounds: race, religion, nationality, membership in a particular social group or political opinion. He or she must also establish that the state of origin is unwilling or unable to protect him or her.
Well-founded fear of persecution based on one of the Convention grounds
A person seeking refugee status must prove that the acts associated with trafficking which he or she fears constitute persecution. In establishing that the acts involved constitute persecution, a practitioner should consider the following:
• Do the acts constitute persecution? A representative should carefully establish that the trafficking experience or the fear of the experience constitute persecution. Trafficking often involves a variety of extreme forms of exploitation such as abduction, incarceration, rape, forced prostitution, forced abortion, forced labour, beatings, starvation, deprivation of medical treatment, etc. These acts constitute violations of human rights which generally will amount to persecution. Where the trafficking was only a one-time experience, the applicant will have to establish that the experience was particularly severe and that he or she continues to experience ongoing trauma which would make it impossible for him or her to return to his/her country of origin. In such cases, it is important that evidence of ongoing psychological trauma be presented to the adjudicator.
1) Fear of future persecution: Victims or potential victims may fear a variety of persecutory acts if forced to return to their country. These can include reprisals by traffickers or re-trafficking. Traffickers will often take retaliatory measures against victims who escape. In order to qualify for refugee status, a victim will have to prove that the reprisal(s) rise to the level of persecution. Family members are sometimes subject to reprisals as well and it is important that the victim include information on the potential for such in his or her application for refugee status. In preparing the application, a practitioner must be careful to establish that these acts are persecutory and represent violations of human rights. Reprisals have taken the form of threats against the victim and/or his/her family members, physical abuse and, sometimes, even murder. It is important for a practitioner to gather as much information as possible about reprisals taken against other trafficking victims and/or their families and communities. The practitioner should take care to establish that the trafficker(s) have the ability to carry out such measures. As noted in the Trafficking Guidelines, victims may also fear ostracism, discrimination or punishment by their own family and/or local community. If severe, such acts may rise to the level of persecution. Victims also face the real possibility of being retrafficked if they are forced to return to their home country. As recognized in the Trafficking Guidelines, retrafficking will generally amount to persecution.
Causal link between the persecution and one or more of the five Convention grounds:
In order to satisfy the refugee definition, a victim or potential victim will have to prove that his/her well-founded fear of persecution is related to one or more of the Convention grounds: race, religion, nationality, membership in a particular social group or political opinion. As the Trafficking Guidelines recognise, the difficult issue for adjudicators in assessing claims related to trafficking is often the link between the persecution and a Convention ground. Although the prime motivation of traffickers is likely to be profit rather than persecution based on one of the grounds, the economic motive does not exclude the possibility of Convention-related grounds in the targeting and selection of victims. Trafficking often occurs in situations where potential victims may be vulnerable to trafficking because of characteristics which may be related to one of the grounds. For example, opportunities for exploitation arise in countries where there has been significant social upheaval or conflict, resulting in a breakdown in law and order. Members of certain communities may be especially vulnerable to exploitation and less protected by the authorities in their country, thus making them perfect targets for traffickers. The causal link to persecution may be established by one of more of the Convention grounds as follows:
• Race: In some armed conflicts, there may be a deliberate plan to victimise certain racial or ethnic groups and persecutors may carry out this victimisation through trafficking. This may coincide with a desire for economic gain. In situations where there is no armed conflict, there still may exist an atmosphere of exploitation of certain ethnic groups. Where trafficking involves sexual exploitation, market demands may prefer certain race or nationalities over others. As noted by the Special Rapporteur on trafficking, such demand “is often further grounded in social power disparities of race, nationality, caste and colour.”
• Religion: Members of certain religious communities may be targeted because they are members of a vulnerable group for which the authorities provide little or no protection. Although profit again may be the primary motivation for trafficking, it does not exclude the importance of religion as a factor in the selection of victims.
• Nationality: Nationality includes citizenship as well as membership in an ethnic or linguistic group and may overlap with race. As noted previously, traffickers may target members of certain races, especially during ethnic conflicts or times of social unrest, as they enjoy less protection by the authorities.
• Membership in a particular social group: In many claims, this is the ground which is most often cited as the reason for persecution. Victims or potential victims may qualify as refugees where they can demonstrate that they fear persecution based on their membership in a particular social group (PSG). In establishing this ground, the members of the PSG do not have to establish that they know each other or that they associate with each other as a group. See Guidelines on International Protection: membership of a Particular Social Group within the context of Article 1A(2) of the 1951 Convention and 1967 Protocol relating to the Status of Refugees. However, they must establish that they either share a common characteristic other than the risk of being persecuted or that they are perceived as a group by society. The common characteristic will often be one that is innate, unchangeable or otherwise fundamental to the identity, conscience or exercise of one’s human rights. Women are an example of a group defined by innate and immutable characteristics as are children.
• Examples of social subsets of women or children can include single women, divorcees, widows, illiterate women, separated or unaccompanied children, orphans or street children. Former victims of trafficking may also constitute a particular social group. For example, a court in the UK found that former victims of trafficking are capable of being members of a particular social group because they share common background or past experience of having been trafficked. SB (PSG – Protection Regulation – Reg 6) Moldova CG (2008) UKAIT 00002. Summaries of other decisions relating to trafficking can be found on the website of the Center for Gender and Refugee Studies.
• Political opinion: In some cases, victims may be targeted because they hold or are perceived to hold a certain political opinion. Such an opinion may make them more vulnerable and potential targets for traffickers.
Agents of persecution and place of persecution
The refugee definition recognises both state and non-state actors as agents of persecution. Although persecution is often carried out by state actors, it can also be done so by individuals as long as the persecutory acts are knowingly tolerated by the authorities or if the authorities refuse, or are unable to provide effective protection. In most trafficking situations, the persecution is committed by traffickers or criminal enterprises and, sometimes, by family or community members. In such situations, it is important for a practitioner to prove that the authorities in the country of origin are unwilling or unable to protect victims or potential victims of trafficking. In establishing this, a practitioner should look at the following:
Legislation and administrative mechanisms:
Does the country have measures in place to prevent and combat trafficking? If so, how effective are these measures? The practitioner should review the Trafficking Protocol which lists steps which states should take to protect trafficking victims and determine if the State in question complies with such steps.
• Criminalisation of trafficking: Has the state in question adopted or implemented measures to criminalize and prevent trafficking? The mere existence of such laws will not be sufficient to exclude the possibility of persecution. It is important to determine how effective the laws are in targeting and punishing traffickers, and, as a result, in protecting victims or potential victims.
• Acquiescence of the state: There may be situations where the state actually tolerates or actively facilitates trafficking. Corrupt officials may benefit from trafficking. In such situations, the state may be the agent of persecution and it becomes responsible for the failure to protect victims or potential victims.
In order to establish a claim for refugee status, a person must be outside his or her country of origin. However, this requirement does not mean that he or she must have left that country because of a well founded fear of persecution. See UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, 1979, re-edited 1992, paragraph 94. This fear can arise after s/he has left the country and s/he will be considered a refugee sur place as long as the other elements of the refugee definition are met.
• Where someone is trafficked or fears being trafficked in his/her own country, and escapes to another country to seek protection, the link between the fear and the persecution is evident. In such cases, an adjudicator must determine whether the acts which provoked flight rise to the level of persecution.
• Even where the exploitation experienced by a trafficking victim occurred outside the country of origin, this does not exclude the possibility of a well-founded fear in his/her own country. Depending on the circumstances of the case, including the sophistication of the trafficking rings involved, an applicant may have experienced and continue to experience harm in a number of locations, including the countries through which they transited, the state in which the asylum application is submitted and in the country of origin. A representative should carefully research and present evidence to the adjudicator to establish that the victim may suffer persecution if returned to her home country.
• A victim or potential victim of trafficking may fear reprisals, punishment or re-trafficking in the country of asylum. In such cases, s/he may be considered for resettlement to a third country. See UNHCR Resettlement Handbook, November 2004 edition, chapter 4.2.
A number of procedural issues may arise in preparing and presenting a request for refugee status based on a fear of trafficking. Often, claims relating to trafficking are presented by women. Many countries have established gender-sensitive guidelines for interviewing and representing women who have suffered or who fear persecution. A practitioner should determine if such guidelines have been published in the country where s/he is presenting the claim. If not, s/he should review guidelines from other countries to use as both a guide in preparing the claim and to present relevant sections to the adjudicator in support of the claim. A list of these guidelines is available on the website of the Center for Gender and Refugee Studies.
In many cases, a victim of trafficking may be hesitant to identify him or herself as such. S/he may not realise that his/her experience may qualify him/her for refugee status. Therefore, in interviewing a person who a practitioner suspects may have been trafficked, it is vital that the practitioner create a supportive and safe environment. S/he should assure the person of the confidentiality of his/her story. If the victim is a woman, providing an interviewer who is a woman may be important. The practitioner should understand that victims who have escaped traffickers may be afraid to provide details regarding the circumstances of the case. Some may be traumatised and in need of psychological or other assistance.
Identifying such assistance may help in the ultimate preparation of a strong claim for refugee status. A practitioner should determine whether there are services available in the community for the person or, if not, try to identify medical and/or psychological personnel who would be willing to provide such services on a pro bono basis. Physicians for Human Rights, an organisation based in the United States, has created a network of several hundred health professionals who conduct pro bono evaluations of asylum seekers to support their claims. Similar organizations may exist in other countries.
ON PEOPLE SMUGGLING, TRAFFICKING IN PERSONS
AND RELATED TRANSNATIONAL CRIME
• International Labour Organization (ILO): The ILO works to combat the practice and conditions which give rise to forced labour and has established a Special Action Programme on Forced Labour. ILO regularly publishes reports on its research into forced labour practices which may be helpful to practitioners in gathering information on the situation of trafficking in a certain country.
• International Organization for Migration (IOM): The IOM carries out a significant amount of work relating to anti-trafficking, focusing on prevention activities, technical cooperation with governments and civil society institutions and offers direct assistance to victims of trafficking in collaboration with partners. As part of its work, the IOM carries out research and publishes reports, manuals and articles on trafficking.
• United Nations High Commissioner for Refugees (UNHCR): UNHCR is responsible for ensuring that refugees, asylum seekers, IDPS, stateless persons and other persons of concern do not fall victim to trafficking. Additionally, it has a responsibility to ensure that victims of trafficking or potential victims are recognized as refugees and provided international protection if their claims satisfy the elements of the Refugee Convention. UNHCR carries out a range of anti-trafficking activities and has issued guidelines governing refugee status determination (RSD) for victims and potential victims of trafficking.
• UNHCR Refworld: Refworld has a page devoted to trafficking issues which contains the following: directory of organizations and relevant resources relating to anti-trafficking.
• United Nations Division for the Advancement of Women: UNHDAW maintains a page on violence against women. This page contains a number of resolutions adopted by the General Assembly and a number of reports prepared by the Secretary-General relating to trafficking.
• United Nations Global Initiative to Fight Human Trafficking (UNGIFT): UNGIFT was created to promote the global fight on trafficking. It is managed by a number of international organizations. Its website provides information on trafficking, best practices and publications.
• United Nations Office on Drugs and Crime (UNODC): UNODC is the only UN agency focusing on the criminal elements relating to trafficking. Its webpage on trafficking contains resources and publications.
• United Nations Inter-Agency Project on Human Trafficking in the Greater Mekong Sub-region (UNIAP): UNIAP is a UN-interagency project established in 2000 to facilitate a stronger and more coordinated approach to combating trafficking in the Greater Mekong Sub-region (GMSR) and beyond. Its website provides major resources relating to trafficking, especially as relates to the Greater Mekong Sub-region.
• United Nations Special Rapporteur on Trafficking in Persons, Especially Women and Children: The UN Commission on Human Rights has appointed a Special Rapporteur on Trafficking. The web page for the Special Rapporteur provides the following information: international standards; annual reports; country visits; and, other relevant documents. The Special Rapporteur takes action on violations committed against trafficked persons and has a procedure for receiving and investigating complaints. This information is also available on the webpage.
• European Union: EU action against trafficking in human beings and the sexual exploitation of children. This webpage on the EU website provides information on Member States’ support services for trafficking victims as well as updates on EU Council documents on anti-trafficking issues (directives, decisions, plans and reports).
• Organization for Security and Cooperation in Europe (OSCE): The Office of the Special Representative and Coordinator for Combating Trafficking in Human Beings supports the development and implementation of anti-trafficking policies in OSCE member states. The OSCE carries out research and issues publications relating to the situation of trafficking in Europe.
• Asylum Aid: The Refugee Women’s Resource Project (RWRP) was created by Asylum Aid in 2000 with the aim of enabling women seeking asylum in the UK to obtain protection. In addition to advocacy relating to promoting gender-sensitive asylum policies, the RWRP also publishes reports on gender and asylum issues, including on trafficking-related claims.
• Anti-Slavery International: Anti-Slavery International, a human rights organization based in the UK, advocates that all victims of trafficking have their rights protected and are provided non-conditional assistance. Its activities include research and monitoring, advocacy, awareness raising and capacity building. Publications on trafficking are available on its website.
• Coalition Against Trafficking in Women (CATW): The Coalition Against Trafficking in Women is an NGO that promotes women’s human rights by working internationally to combat sexual exploitation. The organization’s website provides a range of resources, including articles, best practices, reports, resolutions, legislation, etc.
• Center for Gender and Refugee Studies (CGRS): This center is dedicated to advancing gender-sensitive asylum laws, helping to successfully represent women in need of protection, and preventing refugees from being forcibly returned to the countries from which they fled. CGRS maintains a website which provides summaries of decisions issued by immigration and refugee tribunals involving gender-based asylum asylum claims, governmental gender guidelines, relevant documents from the UNHCR and other UN agencies, and other materials. The case summaries include cases where fear of trafficking formed the basis for the claim.
• Human Rights Watch (HRW): Human Rights Watch, an international human rights organization, works on issues relating to trafficking of women and girls within its Women’s Rights division. The webpage contains new stories, reports and information relating to HRW’s advocacy relating to combating trafficking in women and girls.
• Human Trafficking.org: This website brings governments and NGOs in the East Asia and Pacific together to cooperate and learn from experiences in combating trafficking. Its website provides a range of resources relating to preventing and combating trafficking.
• La Strada: La Strada is a network of human rights NGOs in Belarus, Bosnia and Herzegovina, Bulgaria, the Czech Republic, Macedonia, Moldova, the Netherlands, Poland and the Ukraine. It aims to prevent and combat trafficking in human beings, with a focus on women in Central and Eastern Europe. Its website provides a wide range of documentation on trafficking, including manuals for practitioners, legal texts and analyses, and research articles.
• Physicians for Human Rights (PHR): PHR is a human rights organization based in the United States which uses the skills of health professionals to assist torture survivors and others in their claims for asylum in the United States.