January 2007
Michele Clark
Head of the Anti-Trafficking Assistance Unit,
Organisation for Security and Cooperation in Europe (OSCE, Vienna)
and
Shivaun Scanlan
Senior Advisor on Anti-Trafficking Issues, Office for Democratic
Institutions and Human Rights (ODIHR, Warsaw)
on
‘Progress and challenges in the implementation of the OSCE
Action Plan to Combat Trafficking in Human Beings’
Ü Eurasylum: The OSCE Action Plan to Combat Trafficking in Human Beings was adopted in 2003, in order to provide participating States with a comprehensive toolkit to help them implement their commitments to combating THB. In particular, the Action Plan aims to address issues of human trafficking comprehensively, by covering the protection of victims, the prevention of THB and the prosecution of those who facilitate or commit the crime. It also provides recommendations as to how participating States and relevant OSCE institutions, bodies and field operations may best deal with political, economic, legal, law enforcement, educational and other aspects of the problem. Can you guide us through the main tenets of the Action Plan and describe, in broad terms, some of its key benefits to date?
Ü Michele Clark: The OSCE Action Plan to Combat Trafficking in Human Beings has its roots in the Organization’s long and noteworthy history of political commitments ensuring the protection of human rights, made by consensual agreement of all participating States at the Ministerial level. Basing its human rights mandate upon the principles of the Helsinki Final Act of 1975, which affirmed both the inherent dignity of the human person as well as the fact that this could only be realised through the effective exercise of civil, political, economic, social cultural and other rights and freedoms, the OSCE (originally the Conference on Security and Cooperation in Europe), has played an exemplary role in promoting individual rights and freedoms throughout its region over the past three decades.
The Action Plan to Combat Trafficking in Human Beings marked the culmination of a progression of anti-trafficking decisions made throughout the first part of the new millennium, beginning with the Vienna Ministerial Council Decision of 2000 which articulated strong support for the UN Convention Against Transnational Organized Crime and its Supplementary Protocols, notably the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (The Trafficking Protocol), and its comprehensive approach including prevention of trafficking, the protection of and assistance to trafficked persons, and the investigation and prosecution of the crime. In 2003, the Maastricht Ministerial Council endorsed the OSCE Action Plan as a comprehensive document which contained far-reaching recommendations for the participating States on the best ways and means to implement the OSCE anti-trafficking commitments, as well as precise tasks for the OSCE bodies to assist the participating States in this endeavor. The implementation of the Action Plan remains a long-term obligation for the OSCE bodies.
Based on the UN definition of THB, the Action Plan establishes a direct link between the political commitments of the participating States and recommendations to be implemented at the national level in the areas a) investigation, law enforcement and prosecution; b) prevention of THB; and c) protection and assistance to trafficked persons. These recommendations, drawing upon best practices and guidelines elaborated by leading international organizations and NGOs, as well as building on the OSCE field and institutional experience, cover the broad scope of State anti-trafficking activities in countries of origin, transit and destination, and envisage the strategic involvement of civil society and other social actors in the fight against THB.
The OSCE Action Plan, as a living document, was developed further in 2004-2005. An Addendum, Addressing the Special Needs of Child Victims of Trafficking for Protection and Assistance, was endorsed by the Ljubljana Ministerial Council as an integral part of recommendations on actions to be taken at the national level. Its provisions were aimed at ensuring criminalisation of child trafficking, developing effective measures to prevent trafficking in children and reduce children’s vulnerability, establishing referral mechanisms with focus on the special needs of child victims, and other urgent, target-oriented steps protecting the child from further exploitation and victimization, and ensuring an individual durable solution in the best interest of the child.
The OSCE Action Plans itself acknowledges the primary role of the States in addressing trafficking in human beings, and encourages the development of national action plans as a way of ensuring a systematic State approach to, and as a toolkit enabling States to set strategic priorities and outline concrete actions, to allocate resources and set realistic benchmarks to ensure visible results for their efforts. As of August 2006, 34 OSCE participating States indicated that they had developed National Action Plans.
The OSCE Action Plan is notable in that it includes components which can serve as models for regional as well as national action plans. The first is the inclusion of a definition of THB in this case, based on Article 3 of the Trafficking Protocol which is inclusive of all forms of trafficking. The second is that the Action recommends a comprehensive framework for addressing THB in all OSCE participating States, whether they be countries of origin, transit or destination. The third exemplary component is that of a multi-dimensional approach, recognising that THB needs to be addressed as an issue of relevance to human rights, social and economic development, and law enforcement and rule of law. Finally, the Action Plan identifies clear roles and responsibilities for all stakeholders and provides implementation strategies.
The OSCE Action Plan encourages the development of some form of national coordinating structure in order to assist with the implementation of a State’s anti-trafficking agenda, functioning as a national working group or task force. This can also be configured as inter-ministerial groups or commissions composed of high-level officials.
The OSCE Action Plan has now been operational for three years and has helped to develop a common approach that forms the basis for dialogue and initiative across all participating States. The Action Plan, by including actions at the national level for countries in the OSCE region, underscores that anti-trafficking activities are the responsibility of all States, be they of destination, transit or origin. By adopting the definition of THB from the Trafficking Protocol, the Action Plan further encourages participating States to address all forms of trafficking. Recently, a conference held in Vienna on the Prosecution of Trafficking for Forced and Bonded Labor attracted over 200 experts and high-level representatives from OSCE participating States and Partners for Cooperation, thus indicating the willingness to expand the traditional perimeters of the anti-trafficking agenda and take a greater step in fulfilling the recommendations of the Action Plan.
Ü Eurasylum: One of the recommendations of the OSCE’s Action Plan to Combat Trafficking in Human Beings aims to encourage the participating States to establish so-called National Referral Mechanisms (NRMs) by building partnerships between civil society and law enforcement agencies, creating guidelines to identify trafficked persons effectively and establishing cross-sector and multi-disciplinary working groups to develop and monitor anti-trafficking policies. Furthermore the OSCE’s Office for Democratic Institutions and Human Rights itself has conducted country assessments to assess the way in which human trafficking is dealt with in practice, explore the actual compliance of governments with OSCE commitments on trafficking and promote establishment of NRMs and sustainable solutions in the fight against human trafficking as part of its technical assistance to OSCE participating States. Could you describe what is understood by an NRM and outline some of the key findings of your country assessments?
Ü Shivaun Scanlan: Anti-trafficking efforts in recent years have resulted in significant commitments and action in the OSCE region, no less represented by the adoption of the UN Transnational Organised Crime Convention and its Trafficking Protocol (2000), the Council of Europe Convention on Action Against Trafficking in Human Beings (2005), the EU Framework Decision on combating trafficking in human beings (2002) and the EU Directive on the residency permit to third country nationals who are victims of trafficking (2004), alongside of course the adoption of the OSCE action plan (Please note, however, that the EU and Council of Europe instruments referred to are not necessarily applicable to all OSCE participating States, which include non EU countries and non member states of the Council of Europe). Despite this progress, however, it is clear that some anti-trafficking policies and activities fail or result in unintended consequences for victims of trafficking or vulnerable groups. For instance measures taken in some countries restrict freedom of movement, permit arbitrary detention, disregard privacy and endanger peoplessecurity after deportation to the country of origin. There is also reason to believe that possibly the majority of trafficked persons do not have access to protection mechanisms or justice as authorities fail to identify them as victims.
The NRM concept as developed by the OSCE/ODIHR (See National Referral Mechanisms: Joining Efforts to Protect the Rights of Trafficked Persons : A Practical Handbook OSCE/ODIHR 2004) aims to address some of these weaknesses and ensure that responses to trafficking do in fact protect the human rights of trafficked persons and vulnerable groups. To this end, the NRM firstly recommends that States adopt a multi-agency approach to developing and implementing policy on trafficking. In particular a national governmental coordinator might be appointed and multi-disciplinary working groups created to develop, coordinate and monitor implementation of anti-trafficking policies. Multi-agency here refers not only to the participation of different governmental agencies, who ideally should include labour, migration, social and health ministries alongside the ministry of interior, but also civil society and those responsible for protecting human rights. These structures should also be flexible to respond to new or different manifestations of trafficking. For instance there is increasing recognition in the OSCE region of problems with trafficking for labour exploitation, yet many policy developments continue to focus only on trafficking for sexual exploitation.
Other measures are also recommended such as the conclusion of cooperation agreements between law enforcement and service providers to ensure that victims of trafficking are not just used as pawns in a criminal justice process but are given immediate, unconditional access to assistance and protection. In this regard appropriate legislation ensuring protection of trafficked victims is crucial; not least if the trafficked victim is in an irregular immigration situation and needs a residency status to access his or her rights. The NRM concept also recognises that the identification of trafficked persons is particularly problematic. It therefore recommends that States support other means to assist trafficked persons in accessing protection and rights through the medium of hotlines, drop-in centres, rights awareness campaigns and outreach services for migrant communities and those in work sectors prone to exploitation.
The final litmus test of a well functioning NRM would be that trafficked persons are never held in detention, never forced to undergo medical examination, always enjoy protection of their data and privacy, are able to decide without duress whether or not to cooperate with criminal prosecution, when involved with criminal proceedings are given opportunities to work or continue with their education, when acting as witnesses benefit from witness protection schemes and anonymity and are never returned to countries where they risk re-trafficking or ill treatment.
The OSCE/ODIHR, in partnership with the UNOHCHR and UNICEF, conducted a series of trafficking assessments in South Eastern Europe between 2002 to 2005 (See Trafficking in Human Beings in South Eastern Europe UNICEF/UNOHCHR/OSCE-ODIHR 2003, 2004, 2005). Its current country assessments, which form part of its assistance to States in the implementation of their OSCE human dimension commitments, are focused on the responses to trafficking and protection of trafficked persons in a number of destination countries including France, Kazakhstan, Russia, Turkey and the UK. The assessments have raised awareness of the OSCE commitments on trafficking, in particular with respect to establishing NRMs, and are helping to identify gaps in structures and responses as well as providing comparable information on responses.
In most of the countries reviewed inter-ministerial/departmental coordination structures have been established to exchange information on trafficking and contribute to the development of strategy and policy on trafficking. These structures however are not always open to civil society, which the NRM recommends, and key roles are often given to ministry of interior representatives to the neglect of those responsible for social, health or labour and migration policies. The focus of some of these coordination groups is exclusively on trafficking for sexual exploitation and the shift to considering trafficking for labour exploitation is slow despite evidence of significant problems in some countries. Few of the countries have appointed national coordinators to chair the coordinating structures or rapporteurs to act as focal points for data collection. It is also not clear in many cases how the policy discussions and decisions from the inter-ministerial level filter down to the operational level in the absence of working level groups or clear policy instructions to operational actors. Therefore many improvements in coordinating structures are still to be made.
On the operational side, many of the countries have established good working relationships between law enforcement and small numbers of NGOs to facilitate identification and assistance to trafficked persons, as recommended by the NRM. Rarely, however, is assistance provided unconditionally and only in few cases is assistance available to victims of labour exploitation. Sometimes the lack of clear policy guidance to identify and protect all trafficked victims leads to the detention and unsafe return of trafficked victims to countries of origin. This also contributes to preventing trafficked persons from seeking justice, including compensation, in the country in which they have been exploited and against those who have exploited them. Instead we are finding an increasing number of prosecutions of recruiters/traffickers in countries of origin upon the return of trafficked victims, whilst those making most of the gains from exploitation remain at large in countries of destination.
Some countries support hotlines for trafficked persons but more could definitely be done to enhance outreach services and raise awareness of rights amongst communities at risk in the destination country and including in sectors alongside the sex industry. The purpose of temporary residency permits and their role in facilitating identification and permitting access to justice is not fully agreed upon by all countries and even where procedures do exist they are applied rather narrowly and not used uniformly to benefit all trafficked victims. Instead countries are artificially distinguishing between deserving and undeserving trafficked victims, sometimes due to the limitations of their assistance provision and sometimes due to differing political agendas.
Ü Eurasylum: Much of the public interest in trafficking in the past has focused on trafficking for sexual exploitation. Increasingly though we are reading and hearing more about labour exploitation. What are the responses of organisations like the OSCE in keeping with these developments and what further action might we expect in this regard?
Ü Shivaun Scanlan: The OSCE has organised two major conferences on trafficking for labour exploitation in the last two years and continues to urge its field missions to remain open to the possibly changing nature of trafficking in their regions. We are definitely registering an increase both in interest and visibility of trafficking for labour exploitation in the OSCE region. In fact during a recent OSCE regional conference on trafficking in Central Asia much of the discussion was devoted to issues of labour exploitation both within the region and in the CIS. Of course we are also increasingly aware of reports of trafficking for labour exploitation in Western Europe not least of new EU nationals, which challenges traditional notions of trafficking as an aspect of immigration crime.
The OSCE responses to trafficking, such as the OSCE Action Plan and even the National Referral Mechanism concept, have been developed primarily in the context of addressing trafficking for sexual exploitation. Although the Action Plan is based on the Palermo Protocol definition of trafficking, which of course addresses all forms of trafficking, the recommendations included in the Action Plan were very much derived from lessons learnt in addressing sex trafficking, which at the time of its drafting was the main preoccupation in the OSCE region. This is not to say that many of the recommendations in the Action Plan are not applicable to the crime of trafficking for labour exploitation too, only that many possible avenues for action are missing from it.
The controversial nature of the sex industry and the very different approaches of the OSCE participating States have meant that the Action Plan is silent on labour-related perspectives on trafficking. For instance no reference is made to decent working conditions, the enforcement of minimum labour standards, or the role of social partners in protecting trafficked victims or preventing trafficking in the Action Plan. However as soon as we consider employment sectors which are far from controversial and which may be prone to trafficked labour, such as seasonal agricultural work, food processing, construction or care work, it is inevitable that questions connected with the workplace and the regulation of working conditions come to the fore.
Also legal remedies other than those available through criminal justice spring to mind when we discuss labour-related abuses. For instance trafficked victims may be able to claim certain rights and remedies through labour courts, such as unpaid wages, which for some may be more appealing than seeking compensation through criminal justice systems. Trade unions also have a role in protecting trafficked persons or representing their interests as would mediation to secure payment of wages or to improve working conditions. Generally speaking when we consider ways of tackling trafficking for labour exploitation we can be more creative in a way that has not been possible in the context of trafficking for sexual exploitation. A lot of good alternative practices in this regard have possibly already been developed by those working to protect migrant workers rights, particularly those concerned with protecting undocumented migrants. As already alluded to in the previous section, we are very well aware of the limitations of systems that are focused on the identification of victims, essentially by state actors, as a means of providing protection against trafficking and exploitation. This is particularly so where up to now few referrals, in many countries, are ever made of victims of labour exploitation. Although of course we should continue to urge for commitment to assist all trafficked victims through appropriate identification and referral mechanisms, if in the long term different approaches to protection might benefit more of the undeserving type of trafficked victim then we also need to reflect these approaches in our work.
br> The OSCE is continually updating its responses to trafficking through the development of new political commitments. This year saw the adoption of a new Ministerial Council decision on trafficking which for the first time recalls articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights on the right to work and to the enjoyment of just and favourable conditions of work and the need to ensure that minimum labour standards are enforced. It also recommends that OSCE States promote outreach strategies to persons working in low wage labour and work sectors prone to exploitation to improve access to information on rights and justice. In this manner, some of the gaps in the Action Plan are already being filled. It only remains for the States themselves to ensure that their new commitments are being met in practice; if needed with the support of the OSCE structures and institutions.
