The status of “belonging” and its connection to human trafficking exist in every nation, whether the specific determining issue is citizenship, migration, or displacement of persons forced to flee their home, town, or country on account of unrest. In the United States, Japan, and the United Arab Emirates (UAE), temporary foreign workers are particularly vulnerable to human trafficking. In Japan, foreign unskilled laborers are prohibited from employment. Yet, as is the case in most nations, there is demand for low-wage workers. To help satisfy this need the government-run Industrial Training Program and Technical Internship Program, revised in 2010 as the Technical Intern Training Program, has created a means for employers to obtain low-cost migrant workers. In what was designed as a three-year training and technical intern program, enrollees are supposed to spend the first year as trainees and the remaining two as technical interns. The worker’s dependence on legal employment is tied to one employer, creating the opportunity for unfair treatment and abuse. Scheming employers take advantage of the system and—after withholding worker passports—force laborers to work excessive hours, restrict their movements, and either do not pay workers or pay them nominal amounts. Workers also face physical and sexual abuse. In the UAE, migrant workers make up more than 90 percent of the UAE’s private-sector workforce. The recruitment of foreign workers involves a system of brokers and agents who swindle workers out of large sums of money. Foreign nationals are promised high-paying jobs in the UAE, but upon arrival they often earn less than 50 percent of what they were promised, or are simply not paid. As with the system in Japan, workers are linked to just one employer, their sponsor. If the worker tries to find better employment—except in instances in which the employer has failed to pay the worker for more than two months—the employer is obligated to trigger the worker’s deportation. In fact, companies face heavy fines if they fail to ask the UAE government to cancel absconding workers’ visas. Ironically, although it is illegal for employers in the UAE to withhold worker passports, the common method for an employer to trigger the deportation of a worker is to turn in the worker’s passport to the Ministry of Interior. Under the Victims of Trafficking and Violence Protection Act of 2000, the United States has taken significant measures against human trafficking. At the same time the highly unregulated one-sponsor H-2B guestworker visa program has contradicted the nation’s pledge to protect victims of trafficking by creating the opportunity to exploit legal migrant workers. The H-2B visa allows for the hire of temporary nonimmigrant workers to perform nonagricultural labor on a onetime, seasonal, peak-load or intermittent basis. Even with the amended regulations, there are significant flaws in the current H-2B visa program, but it is lack of enforcement of the program that has enabled unscrupulous employers to exploit and traffic workers with little to no consequence. Part of the problem is that no agency took responsibility for the program from 2005 through 2008. It is now monitored under the U.S. Department of Labor.
In Colombia and Iraq, displaced persons, particularly women and children, are the most vulnerable. As of December 2009 there were between 3.3 and 4.9 million internally displaced persons in Colombia. In the first half of 2011, according to the Observatory on Human Rights and Displacement, 89,000 people were displaced. Displaced Colombians have little access to education, health care services, and housing. Consequently, they are more vulnerable to exploitation, including human trafficking and domestic violence. In addition to displacement that results from civil unrest, guerrilla and paramilitary groups have forcibly taken land from the poor, particularly Afro-Colombians. They also recruit disadvantaged children for use as combatants, informants, messengers, sexual partners, transporters, placers of bombs, guarders of hostages, kidnappers, spies, and couriers or dealers in the illegal drug trade. In Iraq, the U.S. invasion resulted in the displacement of an estimated 4.8 million Iraqis between 2003 and 2009, but what exacerbated the problem was the immunity from Iraqi law and the Iraqi legal process granted by the U.S. government to U.S. contractors and U.S. and Iraqi military personnel. In 2004 the United States, through Paul Bremer, then administrator of the Coalition Provisional Authority (CPA), granted the Multi-National Force–Iraq (MNF-I), the CPA, foreign liaison missions, their personnel, property, funds, and assets, and all international consultants immunity from Iraqi law and the Iraqi legal process. The order was not lifted until 2008, when the Iraqi government passed legislation rescinding CPA Order 17, but the legislation does not specifically address how past incidents will be addressed. Also in 2004, coalition troops were barred from investigating any violations committed by Iraqi troops against other Iraqis. The combination of an immensely vulnerable population and the carte blanche enjoyed by U.S. companies, U.S. contractors, and Iraqi military personnel created an ideal scenario for human trafficking.
Marginalization does not necessarily end with a person’s escape from a trafficking experience. In most nations throughout the world, criminalization of victims continues, with variations in the severity. Victims are most commonly charged with prostitution and immigration violations. As economic times continue to be tough, governments have increased implementation of immigration policies, often in direct conflict with a nation’s pledge to adequately protect trafficking victims. For instance, in the United States there is often a race against the clock as to what will happen first to trafficking victims applying for visas—deportation or protection. This scenario is, of course, in direct conflict with the intent of the nation’s federal anti-trafficking law, since it treats the applicant as a criminal instead of a potential victim. Yet this contradiction exists in most nations. Furthermore, many recent immigration agendas have targeted vulnerable populations. For instance, in August 2010 France began a controversial deportation of Roma persons to Romania and Bulgaria. In response, the European Parliament passed a resolution calling on France to suspend the program; after some resistance, the nation did so. Yet, as of August 2012, the nation continues to deport Roma from France. Italy previously had a victim-centered approach, but NGOs believe that there is a recent decrease in the identification of trafficking victims by the government. This is likely because illegal migrants commonly face fines and expedited deportation without a thorough evaluation as to whether they are trafficking victims. On July 2, 2009, Italy’s legislature approved a law criminalizing illegal immigration, which is punishable by a fine and an immediate order to leave the country. Shockingly, it also permits the creation of unarmed citizen patrol groups to help police keep order. To prevent the entry of migrants, Italy is part of an agreement with Libya that allows Italy to forcibly return and reroute boat migrants back to Libya. These persons are not screened by Italian authorities to determine whether they are trafficking victims. In Israel, the newly created immigration and border control authority, called the Oz Unit, replaced the Immigration Police. NGOs assert that Oz inspectors do not convey information to police when they encounter a suspected crime against migrant workers. The nation has also announced its intention to cancel the temporary B1 visas—unrestricted work visas—to trafficking victims. In the United Kingdom, the conflict between the nation’s immigration and anti-trafficking agenda is exacerbated by the fact that the nation’s border agency is the lead anti-trafficking agency. The U.K. Border Agency’s objective to monitor immigration clashes with its ability to properly identify, protect, and support victims of human trafficking. This conflict was demonstrated when 49 officially recognized trafficking victims, identified by the Border Agency and police, were not effectively referred and instead were housed in an immigration detention center and a young offenders’ institution.
In many nations, cultural norms dictate that sex-trafficking victims not be excused for committing prostitution despite having been forced to commit the offense. Victims are punished and in some cases killed for the crime. For instance, in Iran—where Norma Ramos states there exists a gender apartheid—the unequal footing of women in relation to men has not only created a highly marginalized population vulnerable to trafficking but also led to the criminalization of identified victims. In February 2010, at the Trafficking in Persons Working Group in Vienna, the Iranian delegate stated that Iran would not accept any recommendations calling for the absolution of trafficking victims for their crimes. The delegate stated that while the victim status of a woman in prostitution might be taken into account by the judge, he opposed the idea that such a woman should not be prosecuted. A similar situation exists in Syria and Iraq, where prostitution is illegal and those arrested face detainment. In Iraq almost half the women in the central women’s prison of Kadhimiya (Baghdad) have been convicted of prostitution. Some of the women face death. From 2006 through 2008 there were mass killings of women in the cities of Basra and Umara. A number of the women were accused of prostitution, while others were convicted of being unveiled and wearing makeup.
In cases of forced labor—maybe because of gender bias or simply because of lack of awareness among governments and critical players such as law enforcement and other first responders—adult men are often not acknowledged as human trafficking victims. In those nations men are rarely provided with shelter or equal access to services or prosecutorial options. This is the case in Australia, Brazil, Germany, and Japan. This issue has begun to be acknowledged by governments. For instance, the government of Japan, in its 2009 Action Plan to Combat Trafficking in Persons, emphasized that victims of trafficking include non-Japanese men, women, and children. Joy Ngozi Ezeilo, the United Nations special rapporteur on trafficking in persons, has expressed concern that Japan’s trafficking response is gendered and focuses solely on women and sexual exploitation. She points out that other forms of trafficking besides sex trafficking affect men and women as well as boys and girls. Ezeilo’s concerns about the action plan remained unaddressed as of 2010, when only one male victim (a sex-trafficking victim) received services at an NGO shelter. In 2011 no male victims of either forced labor or forced prostitution were identified.
Globally, forced labor and commercial sexual exploitation are the primary identified forms of human trafficking. There is widespread debate about which is more prevalent. Not surprisingly—as it is most regularly included in anti-trafficking legislation and is more familiar to police, judges, and prosecutors—commercial sexual exploitation is more frequently identified. As awareness and inclusion of forced labor in anti-trafficking legislation increases, so does its identification. Our guess is that forced labor, which affects men, women, boys, and girls, is more prevalent, but the reality is that both forms of trafficking at their core are forced labor and that separating the two categories merely triggers unequal treatment of victims and disparate sentencing for traffickers. This result can be clearly seen in the anti-trafficking law of New York State, which makes sex trafficking a class B felony with a maximum sentence of 25 years’ imprisonment and labor trafficking a class D felony with a maximum sentence of 7 years’ imprisonment. In other nations, forced labor is simply not acknowledged. This is the case in China, where trafficking is defined as the abduction, kidnapping, buying, fetching, sending, or transfer of a woman or child for the purposes of selling. The law does not include forced labor, involuntary servitude, or debt bondage, nor does it include trafficking of adult males. In Chile, neither forced labor nor internal trafficking was criminalized until March 2011, when Chilean congress passed a comprehensive anti-trafficking law that prohibits all forms of human trafficking. Fortunately, nations are quickly taking the measures to adopt comprehensive anti-trafficking laws, if they did not already have them, or to expand upon existing anti-trafficking legislation to make it more comprehensive. Yet in most nations, the fact remains that although forced labor is acknowledged in law it is less so in practice, resulting in numerous victims that do not have equal access to services, shelters, or the prosecutorial system. These victims, often foreign and without valid visas, are treated as illegal migrants and promptly deported without any sort of adequate screening to determine if they are in fact trafficking victims.
Across the globe, while victims are criminalized and in many instances have little recourse against their traffickers, the traffickers themselves often face minimal or suspended sentencing. For instance, in Germany 92 of the 115 convicted traffickers did not have to face jail time in 2010. Human traffickers are also commonly granted suspended sentences in Poland, Niger, and Japan. Suspended sentences are also granted in Australia. Another source of concern is the occasional granting of 2-for-1 credits to offenders, including human traffickers, whereby one year in pretrial custody is counted as two. This was the case in Canada until October 2009, where a federal cap was placed on time served at 1-to-1. Today, the ratio can be raised to 1.5-to-1 when the circumstances justify doing so.
In trying to obtain data on arrests, investigations, prosecutions, and sentencing, we found that many nations do not adequately collect trafficking data. One reason is that prosecutors habitually turn to tried-and-true lesser charges, such as prostitution and pimping. This practice results in traffickers’ commonly receiving less stringent sentencing; it also means that cases are classified under separate offenses. This is the case in Russia, where human trafficking cases are predominantly identified under Article 241, organization of prostitution; Article 242, criminalizing the production and distribution of illegal pornographic material; and Article 240, forcing to engage in prostitution. Significantly fewer cases are identified under the specific offense of trafficking in persons, Article 127. A similar situation exists in Italy, where trafficking cases are categorized under multiple articles of the Penal Code. This information would need to be integrated to yield a more accurate picture of the trafficking situation and the government response. Another impediment to obtaining trafficking data is the failure of some nations to criminalize certain forms of human trafficking, such as forced labor or internal trafficking. Such nations are not likely to collect data on these forms of trafficking, and if they do, the offenses will not be classified as human trafficking. Often it is these unacknowledged forms of trafficking that are the most prevalent, and the lack of their inclusion in a nation’s anti-trafficking law poses a significant hindrance both to obtaining an accurate view of the trafficking scenario and to adequately protecting existing and potential victims. To bridge this gap, nations should take steps to ensure that their anti-trafficking laws cover all forms of human trafficking and provide adequate protections to potential and existing victims. Many nations focus most of their anti-trafficking efforts on the prosecution of traffickers. A crucial ingredient in the complicated battle against human trafficking is to ensure that victims do not get revictimized. According to Joy Ngozi Ezeilo, governments must remember the three R’s—rehabilitation, reintegration, and redress for victims. These can be implemented only when the post-trafficking experience is a priority and not a sidenote for a nation’s government. Of course, while the inclusiveness of the law is essential, how the law is enforced and whether a nation has the infrastructure to enforce it are equally essential.