European Council on Refugees and Exiles ( ECRE) interview
Maria Grazia Giammarinaro, OSCE Representative and Co-ordinator for Combating Trafficking in Human Beings
(ECRE). The Council of the European Union adopted last week a new Directive in the area of trafficking in human beings. ECRE has talked to Maria Grazia Giammarinaro the OSCE Special Representative and Co-ordinator for Combating Trafficking in Human Beings. Ms. Gianmmarinaro spoke about the new EU rules and the challenges ahead to combat trafficking in human beings and protect its victims.
What is trafficking today?
Trafficking in human beings must be acknowledged for what it is: massive-scale modern-day slavery, a gross violation of human rights and freedoms, mostly a business of organized crime, which proves highly lucrative, and a serious transnational threat for individual and State security.
Trafficking should not be treated as a marginal phenomenon, involving the profiles of certain victims only, or limited to sexual exploitation. In recent years, my Office has published a number of Occasional Papers drawing attention to trafficking for labour exploitation, which affects men, women and children, many of whom are vulnerable migrant workers seeking out a better live for themselves and their families.
What do you see as the main obstacle in combating trafficking in human beings? What needs to be done?
The international community has made significant progress during the past ten years since the adoption of the UN Palermo Protocol, thanks to the efforts and partnerships of governments, NGOs and international organizations. Yet despite the solid foundation and numerous good practices that already exist in the OSCE region and beyond, there are still many inconsistencies and gaps in their actual implementation. At the same time, it is imperative that we recognize the ever-evolving modus operandi of traffickers, which poses a real challenge for law enforcement, prosecutors and judges, in both cultural and legal terms.
Efforts to enforce anti-trafficking legislation are often impeded along the way owing to the cultural background of practitioners, specifically the narrow interpretation and consequent implementation of the provisions in the Protocol, and especially its definition of trafficking.
One element of confusion and incorrect interpretation is the so-called "transfer paradigm": in other words, practitioners tend to think that a case of trafficking exists only when there is the transfer of the person. Even though border crossing is not necessarily a component of the crime, many still think that the victim must have been transferred from one country to another, or at least from one place to another, in order to identify a case of trafficking. Even where transfer does occur, the likelihood that only one single criminal group has been responsible for the entire trafficking chain from recruitment to final exploitation is rare; nowadays this modus operandi constitutes an exception. Rather, a person can enter a destination country autonomously or via a smuggling network, and only subsequently be recruited by another criminal group to be placed in a certain job and exploited in slavery-like conditions. In order to qualify a case as a trafficking case, the focus should therefore be on the exploitation rather than the way the person has reached the destination country. Moreover, the OSCE recently released an innovative research on the business model of trafficking in human beings as a strategy to better prevent the crime, and its findings prove that trafficking in human beings often involves loosely connected clusters of people. In practice, because the link between the two criminal groups cannot be easily proved, the first part of the trafficking chain is usually ignored, and only a minor violation of labour laws is found. As a consequence, the worker is deprived of the assistance to which she or he is entitled as a victim of trafficking, and the only result of the institutional response is her or his deportation. Therefore, the real challenge is to identify the whole criminal network running a trafficking process.
Another critical element relating to the interpretation of the definition set out in the Protocol concerns the notion of the abuse of a position of vulnerability. Although many efforts have been made to identify valid indicators in order to distinguish a case of trafficking from a case of smuggling or illegal migration, NGOs denounce that national case law mainly requires evidence related to violence and/or total deprivation of freedom of movement. In other words, the actual implementation of the definition tends to limit the notion of trafficking to its most serious forms based on the use of extreme violence.
Such poor interpretation clearly fails to strengthen anti-trafficking action. It is telling that the limited data available, for example the 5,606 trafficking prosecutions recorded globally in 2009 by the U.S. Trafficking in Persons Report, is not at all commensurate to the ILO minimum estimates of 12.3 million in forced labour worldwide.
How far does this new measure go when it comes to preventing trafficking and prosecuting criminals? What would the OSCE like to have seen achieved in the Directive on trafficking in human beings at the EU level?
We are pleased that the new Directive recognizes and makes provisions for persons trafficked for forced criminality and forced begging, and for the removal of organs. We are also pleased that it recognizes the importance of addressing prevention of trafficking in human beings, which was not previously the case. These elements were lacking in the Directive's predecessor.
Furthermore, the OSCE has long advocated for the establishment of anti-trafficking co-ordinating and reporting mechanisms, we therefore very much welcome the provisions on the establishment of National Rapporteurs or equivalent mechanisms in EU Member States, as well as on the co-ordination of the EU antitrafficking strategy and the role of the Anti-trafficking Co-ordinator.
Better results could also have been achieved concerning the provision on extraterritorial jurisdiction, which is binding only when the offender is a national of the country, while it is not binding when the offender is a habitual resident. In practice this means that the Member States do not have an obligation to prosecute traffickers coming from another country, which however have established the base of their business in the EU Member State concerned. Furthermore, the harmonization and the increase of the level of penalties could have been brought further.
That said, the new Directive is a good and innovative piece of legislation. The challenge now lies with EU Member States to adopt stronger national laws in line with the new Directive, and to co-operate to share good practices aimed at enforcing effective anti-trafficking action.
Will the victims of trafficking be better protected? What are the additional requirements needed to protect them?
The Directive's new measures aimed at protecting trafficked persons and their rights is to be much commended, as it broadens the protection of victims' rights through the inclusion of social assistance measures, building on an extensive interpretation of the pre-existing legislation (EU acquis). It opens the way to a similar interpretation of the Lisbon legal basis that recognizes for the first time the protection of victims' rights as an area of judicial co-operation and national legislation approximation.
We would welcome the revision of Directive on residence status for trafficked persons who are third country nationals (2004/81/EC) to further reinforce the protection that they are currently offered, and to ensure that a permit is granted unconditionally and not on the basis of co-operating with authorities. This relates directly to the question of safe and voluntary return of trafficked persons. In the vast majority of countries, trafficked persons must return to their country of origin after criminal proceedings, although they have acted as witnesses; only occasionally are they granted a residence permit to stay on humanitarian grounds. This is a major obstacle that prevents victims from coming forward and reporting the crime. In terms of viable alternatives and chances for compensation, there is little on offer.
Furthermore, trafficked persons may face a real risk of suffering serious harm if returned to their country of origin without appropriate risk assessment procedures, as recently investigated by the ODIHR anti-trafficking programme in its work on human rights protection in the return of trafficked persons. When conducting risk assessments, the question is not simply whether there are organizations in the country of origin that could help the trafficked person, but whether there is a real risk of harm on return, including a risk of reprisal by traffickers; whether local authorities can protect the person from intimidation and violence; whether the person may be prosecuted for act(s) stemming directly from the trafficking process; and last but not least, whether local services have adequate capacity to support and sustain the social inclusion of the trafficked person, given also the serious and frequent stigmatization. Several national reports indicate that the risk of re-trafficking may be as high as 30 per cent of identified victims.
What are still the main gaps in combating trafficking on human beings in the EU and other OSCE participating States? Any sign of progress?
We need to challenge the widespread culture of disbelief that trafficked persons frequently encounter, with authorities challenging their victimhood or treating them as suspects, detaining them and deporting them even in situations potentially deserving international protection. And we need to work towards building viable options for the long-term social inclusion of trafficked persons. Otherwise, many victims will continue losing hope and believing that they have no viable option but to continue to submit to their exploiters.
It is undeniable that NGOs play an active and effective role, bringing direct and effective benefits to trafficked persons. I would especially like to emphasize the need for continued funding of NGO programmes for trafficked persons together with the establishment of minimum standards for quality of care. We should ask a number of questions: why do victims in some countries refuse any assistance? Why do victims in most places not seek assistance from authorities? Is it due to the quality of the assistance offered, or the conditions upon which services are provided, even the intrinsic limitations of the offer, either assisted return or deportation? We need to involve and consult trafficked persons in order to improve and tailor the quality of the support we offer. And we need to support and strengthen NGOs to help them increase their overall capacity; this is especially true when we consider that NGOs providing direct assistance are often very small and under-resourced.
The OSCE has long advocated for a multidisciplinary and human rights-based approach to victim identification as embedded in the OSCE/ODIHR concept of National Referral Mechanisms . While a core principle of the National Referral Mechanisms is institutional co-operation between state and civil society organizations, in the majority of OSCE participating States, NGOs are not granted an official role in the identification of trafficked persons, while the state law enforcement structures are the sole authority determining the status of victims. This may result in the non recognition of trafficking victims who have no useful information for prosecution or who committed immigration offences directly as a result of being trafficked.
The European Council on Refugees and Exiles (ECRE) is a network of 70 refugee-assisting organisations in 30 European countries, working together to protect and respect refugees.