The CEDAW Committee’s New General Recommendation on Human Trafficking: The Good, the Bad and the Ugly

Late last year, the Committee on the Elimination of Discrimination against Women issued General Recommendation 38 on trafficking in women and girls in the context of global migration. This was a culmination of a multi-year process, which we in Amnesty International, along with scores of women’s rights and sex worker rights organizations and activists, had engaged closely with.

For many of us, however, the final result was bitterly disappointing. While there are some welcome and inspiring elements to the new general recommendation, it also suffers from a number of missed opportunities and regressive provisions. Worst of all, it has completely disregarded the lived realities and rights of sex workers, a key group of stakeholders who are deeply affected by anti-trafficking policies.

The Good

The general recommendation takes aim at a broad range of root causes of trafficking, particularly the socio-economic injustice it is fueled by, and includes far-reaching steps states must take to tackle the wider structures that leave women at risk. These include gender-based discrimination and patriarchy, structural inequality, lack of decent work, denial of social protection and discrimination in migration policies. In particular, the general recommendation sets out the need to place a labour rights and safe migration approach at the center of States’ efforts to address trafficking.

These calls are particularly important in a context where trafficking is traditionally addressed as an issue of transnational crime or security under international law, to be dealt with by stronger criminal justice approaches, national security measures, and tighter border control. It is an implicit rebuke to popular discourses which blame the deaths of migrants in transit on criminal trafficking gangs, for example, camouflaging the gross inequalities that trigger flight and the restrictive border regimes that push migrants into high-risk circumstances.

The Bad

The general recommendation is, however, still torn between a transformative vision concerned with promoting women and girls’ autonomy and agency, and a narrower approach that sees women as victims and the State as protector. This stops it from reaching its full potential and raises a series of concerns.

As Radhika Coomaraswamy, former UN Special Rapporteur on violence against women has stated, by empowering State officials to increase their surveillance of women’s lives, the general recommendation assumes a benign State which does not match the lived realities of all women. Migrant women, sex workers, women of diverse racial origin, LBTI women among others have reason to fear ill-treatment, arrest, detention or deportation from the authorities, and in many cases prefer to remain invisible. This is particularly the case in contexts where irregular entry, same-sex conduct and sex work are criminalized.

More policing without wider legal and policy change, and a multi-faceted approach that puts the needs of rights-holders at the center, still leaves women at risk. Some women may also wish to avoid being “rescued” as this interjects the State into many facets of their lives and may result in unwanted deportation and other adverse outcomes.

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Child trafficking in the fishing industry on Lake Volta

Challenging Heights is an anti-trafficking, anti-slavery, children’s rights NGO located in Winneba, Ghana, approximately an hour and a half outside of Accra, the capital. Inspired by the president and founder’s own experience being trafficked and enslaved as a child, the organization serves source communities, which are communities where children are trafficked from, in order to achieve its strategic goal of ending child trafficking in the fishing industry in Ghana in five years and ending child slavery in the fishing industry in Ghana in ten years.

 

During the Advocates Program, Challenging Heights provided an in-depth overview of every aspect of the organization. Each day, I was amazed by the breadth (and depth) of the organization’s programs. Not only does Challenging Heights rescue children from Lake Volta, rehabilitate them in a shelter, reintegrate them with their families and monitor them after reintegration, it also provides livelihood support to reintegrated children’s families as well as other vulnerable children’s families, conducts a youth empowerment program to tackle the root cause of poverty, campaigns against corporal punishment and child marriage, conducts alternative dispute resolution with slave masters to make sure children are given what they are owed for their labor, distributes 80,000 Tom’s shoes a year to schoolchildren, supports education with its newly independent Friends International Academy, conducts research projects on issues connected to its programs, and advocates for children’s rights locally, nationally and internationally.

 

The passion of the staff members of Challenging Heights layered each and every session throughout the Advocates Program. The communications officer, in the campaign against child marriage, hands out flyers that include her personal phone number so that people in danger of being married as a child or who know a child in danger of being married can call her for help. The rescue team risks their own lives to go out on the lake to rescue trafficked and enslaved children from slave masters. The shelter manager reminded us of the realities and challenges of shelter life, but when asked about her greatest success said, “Every single day when I see children laughing it’s a success. Even when they are crying, it’s a success because they can express their emotions”.

 

Despite the dedication and passion of Challenging Heights and its staff, slave masters and traffickers continue to traffic and enslave children without legal repercussion. In 2016, there were no convictions under Ghana’s anti-trafficking law, due to insufficient resources devoted to collecting evidence which hinders investigations according to the State Department.  Challenging Heights staff was certain Ghana would be moved to the Tier 3 watch list for trafficking in persons this year due to the government’s lack of action. However, the State Department granted Ghana a waiver because of a written plan that would have an impact if implemented. The Trafficking in Persons watch list levels are based on minimum standards for the elimination of trafficking in persons the US State Department created.

 

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Trafficking of Human Beings at the ECtHR: The Importance of Using Article 14 to Broaden the Protection of Women and Girls (Part I)

Two Spanish cases currently pending before the European Court of Human Rights illustrate gaping lacunae in the protections extended to victims of trafficking on the continent.  They also, however, offer a unique opportunity to broaden this protection by recognizing, for the first time, that the trafficking of human beings is a form of slavery and violence that constitutes discrimination against women and girls. By linking trafficking and discrimination (in the same way that it linked domestic violence with gender discrimination in cases like Opuz vs. Turkey), and thereby requiring that States appropriately protect victims of trafficking and refrain from further discriminatory treatment against them, the Court would provide much more robust safeguards for some of the most vulnerable women in Europe.

The insufficient protection to trafficked women under the European Convention of Human Rights

The Convention guarantees basic rights and freedoms and recognizes “the inherent dignity of all human beings.” The enjoyment of those rights “shall be secured without discrimination on any ground.” Trafficking, for its part, has been recognized as a humanitarian crisis. Trafficking is the only organized crime expressly prohibited in the EU Charter of Fundamental Rights. The Council of the European Union agreed on a Framework Decision on combating trafficking in 2002, adopting an action plan on best practices, standards, and procedures for tackling the phenomenon in 2005. Further plans have been adopted by the Committee of Ministers of the Council of Europe and the Parliamentary Assembly of the Council of Europe. Statistics bear out the fact that trafficking is widespread and well entrenched on European soil. European Commission statistics from 2014 indicate that 30,146 victims were found across the 28 Member States. 80 percent of registered victims are female, and approximately 35 percent arrived from outside the EU. More than 1,000 child victims were trafficked for sexual exploitation. Yet the Court has only heard twelve cases involving allegations of trafficking since 2005, eight of which were ruled inadmissible. The result is a legal regime that could do more to protect the high numbers of trafficked persons arriving in Europe. With regards to its trafficking jurisprudence, the Court has explicitly recognized three main positive obligations on States, all derived from Article 4.

The first is an obligation to put into place an appropriate legislative and administrative framework. It requires that States “penalize and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour,” with additional requirements for effectively preventing trafficking and protecting victims. In Rantsev v. Cyprus and Russia, the Court elaborated on Article 4’s requirements, holding that member States must “put in place adequate measures regulating businesses often used as a cover for human trafficking,” and that immigration rules must “address relevant concerns relating to encouragement, facilitation, or tolerance of trafficking.”

The second requirement involves the positive obligation to take operational measures to protect victims and potential victims of trafficking. The obligation only arises, however, if State authorities were aware, or should have been aware, of “circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked or exploited…”. The obligation is tempered, so that the Court will not impose an “impossible or disproportionate burden on the authorities.”

Thirdly, and lastly, the Court has held that Article 4 involves a procedural obligation to investigate where there is a credible suspicion that an individual’s rights . . . have been violated.” Any investigation must be effective, meaning that it must be independent from those implicated in events, and must be capable of leading to the identification and punishment of those responsible. The investigation must also be prompt and reasonably expeditious, with urgency attached where the possibility of removing the individual from the harmful situation is available.

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