A New Way Forward in the Fight Against Human Trafficking

By Megan Crehan for GlobalJusticeBlog.com

The term “human trafficking” may be relatively new but the concept is hardly a modern invention. In its current form, human trafficking encompasses the practices of forced labour and sex trafficking.  The use of these practices dates back to ancient civilizations like those of Ancient Egypt, dating from 1550-1175 BCE.  Currently, the International Labour Organization (ILO) estimated in its 2017 report that 40.3 million people are victims of human trafficking. With numbers as staggering as these, it is clear that action must be taken to stop the practice of human trafficking and to prevent it from happening in the future.

The global nature of human trafficking necessitates a global effort to end it.  There are currently more than 75 non-governmental organizations (NGOs) that are combatting human trafficking.  This post will take a deeper look into the efforts of these organizations as well as the efforts of national governments to end human trafficking.  With so many groups partaking in the effort, it is necessary to analyze the efficacy of their efforts to determine whether a new, more cooperative scheme, between NGOs and nations is the way forward.

First, it is important to provide a legal definition of  “human trafficking.” The United Nations Office on Drugs and Crimes (UNODC) is the section of the United Nations (UN) that is tasked with creating and implementing legal structures to combat human trafficking.  The UNODC’s United Nations Convention against Transnational Organized Crime (UNTOC) and its Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking in Persons Protocol) define human trafficking as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion… for the purpose of exploitation.”  There are 117 signatories to the UNTOC and its Protocols.  By signing this convention, the signatories are legally obligated to create a domestic legal scheme to criminalize the offenses listed in the convention.  Thus, it is the states that criminalize human trafficking, rather than the treaty itself.  By placing the legal force of the treaty in the hands of the 117 signatory states, there will be inherent differences in their domestic legal schemes implemented in accordance to the convention. The potential result is 117 different legal schemes dealing with human trafficking.  It is entirely possible for two states’ legal schemes to contradict each other but still be in compliance with the UNTOC.  If there is a dispute over jurisdiction for prosecution in this situation, how are the states supposed to proceed? Where do states go to resolve these disputes? Will states be willing to put forth the effort to decide this issue? It is questions like these that illustrate the inherent flaws of the enforcement arm of the UNTOC. However, before states even reach the point of prosecution, the human trafficking offenses must first be discovered and investigated.  It is in these early steps where the work of the numerous NGOs comes into play.

Some of the most well-funded and well-known NGOs that are working to combat human trafficking are Human Rights Watch, Amnesty International, Polaris, and Coalition Against Trafficking in Women.  As NGOs do not have any enforcement capability under any treaties, their main purpose is to collect data, conduct case studies, issue reports on their findings, offer resources, and raise awareness. The Global Alliance Against Trafficking in Women (GAATW) published a report in 2014 on the annual funding of government agencies and NGOs combatting human trafficking.  In 2012 alone, the United States donated $17.7 million to 40 international projects. That amount is consistent with the donations of other states.  When combined, states spend hundreds of millions of dollars combatting human trafficking.  This provides NGOs with the resources necessary to conduct effective fieldwork and publish valid reports.  Without this government spending, NGOs would not be able to conduct the important work that they do.  This relationship between states and NGOs allows the states to fulfill their international obligations of preventing the spread of human trafficking by providing NGOs with funding but allows states to delegate the task of research to NGOs that have the manpower and motivation to conduct it.

However, the task of collecting data on human trafficking schemes is not an easy one.  Successful human trafficking schemes rely on secrecy, separation of information, and convoluted money trails.  Therefore, even if an NGO was able to gain entry into a group running a human trafficking scheme, the chances of discovering the information that a state government needs to investigate and prosecute the scheme, in conjunction with its obligations under UNTOC, are very slim.  The functioning details of most successful operations lie with the individual in charge and that information is only divulged to the individual that needs to know the limited information necessary to carry out his responsibilities.  It is because of this system that NGOs and even law enforcement alike struggle with collecting the necessary information to prosecute.  As a result, most of the data collected by NGOs focuses on statistics such as the number of victims, the type of work they were forced into, and how long they were in captivity for.  Furthermore, NGOs obtain this data from surviving victims, therefore most data is no longer contemporaneous.  Finally, there has been a rise in critical commentary on the methods of research used by NGOs and the validity of evidence they produce.  In April of this year, GAATW published a report on this very issue and concluded that the fight against human trafficking can only succeed if NGOs employ more sophisticated and reliable research methods to produce stronger evidence.  As the report notes, many NGOs are already moving in this direction.  It is important that NGOs continue to follow this trend as government agencies tasked with combating human trafficking operations rely on evidence provided by NGOs as well as evidence provided by their own operatives.

Stemming from this important cooperation between NGOs and government agencies is the necessity for cooperation between states.  As mentioned previously, each signatory to UNTOC must create domestic legislation criminalizing the offenses listed in the convention, such as human trafficking. As a result, there is the potential for contradicting legislation or overlapping prosecution.  The UNTOC merely provides that if multiple states have jurisdiction over an offense, the states shall consult one another to coordinate their actions. It is not a stretch to say that this provision does not create a sophisticated scheme for resolution of these kinds of disputes; nor does the provision create a mechanism for joint jurisdiction over these kinds of offenses.  At the moment, states rely on diplomatic negotiations to determine jurisdiction.  However, what if diplomatic negotiations are unsuccessful? It would be a violation of the UNTOC and international law to let these offenses go unpunished.

Therefore, it is my recommendation that states develop a joint prosecution scheme under the UNTOC for matters that cross multiple jurisdictions while the scheme governing offenses under the UNTOC, over which only one signatory has jurisdiction, remain the same. This joint prosecution scheme encourages cooperation and good faith between states, which can enhance the efficacy of prosecutions of human trafficking schemes.  The complexity of human trafficking schemes themselves makes the prosecution of these schemes extremely difficult.  Therefore, if states can cooperate in good faith, while relying on the more reliable evidence provided by NGOs through more sophisticated research methods, the efforts to prevent and prosecute human trafficking offenses will likely be more successful.

Megan Crehan is a 3L from Toronto, Canada. Megan has devoted much of her time in law school to the study of international law and has spent the past two years as a member of the Jessup International Moot Court Competition Team.