Deficiencies with the Definition of Trafficking and the Assistance and Protection Provisions

A. The Definition Provisions

The anti-trafficking statutes of the region should provide a complete framework for prosecuting all persons involved in the criminal activity as well as provide protection for as wide a cross section of victims as possible.

The Belizean and Guyanese Acts adopt the exact formulation of the definition of �trafficking in persons’ laid down in the Palermo Protocol.^[726] This includes the �recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.’^[727] The Jamaican legislature outlined this provision in more specific terms, providing that the offence includes:

a. recruiting, transporting, transferring, harbouring or receiving another person within Jamaica

b. recruiting, transporting or transferring another person from Jamaica to another country; or

c.

by threat or use of force or other form of coercion, abduction, deception or fraud, the abuse of power or position of vulnerability or the giving or receiving of a benefit to obtain the consent of a person having control of another.^[728]

The definition of trafficking outlined in the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others prohibited the trafficking of persons for the purpose of prostitution and sexual exploitation.^[729] This Convention was the most comprehensive treaty addressing the issue of trafficking at that time. It took an anti-prostitution and law enforcement approach and was the first international instrument on trafficking which included provisions directly related to implementation, although these were very weak.^[730] Several criticisms have been offered against the 1949 Convention. The Global Alliance Against Traffic in Women, a coalition of non-governmental organizations promoting the elimination of trafficking in women, argues that the Convention fails to take into consideration the fact that exploitative purposes go beyond sexual exploitation and prostitution of women.^[731] Additionally, as the offences covered under the Convention are limited to the recruitment and transportation of victims only, several other and equally exploitative acts and actors, such as the individual who receives and holds the victim in exploitative and slavery­like labour conditions would go unpunished, leaving a section of victims without restitution.^[732] The first of these criticisms has been remedied by the Palermo Protocol and the anti-trafficking legislations in the region.

As the illicit traffic in humans progressed, there came a realization that exploitation was not limited to any particular sex nor was it solely characterized by sexual exploitation and prostitution.^[733] The surfacing of new manifestations of trafficking, for example, trafficking for domestic or industrialized labour or for commercial marriage, prompted the broadening of the trafficking definition to include trafficking for any form of forced labour or slavery-like practices.

The Palermo Protocol, however, was unsuccessful in fully addressing the second of the criticisms raised above. It failed to advance the scope of offences subsumed by its provisions to include not only the recruitment and transporting of individuals, as was the emphasis under the 1949 Convention, but also the exploitative end purposes of trafficking, which is not limited to sexual exploitation but includes domestic work, sweatshop labour, migrant labour, or any other work in the informal economy. The anti-trafficking statutes of Belize, Guyana and Jamaica, which embody almost precise carbon copies of the Protocol, all reflect this deficiency. The definition of trafficking under these statutes, as well as the Palermo Protocol, has been expanded beyond the recruitment and transfer of individuals to include the transport, harbouring or receipt of individuals.^[735] This expansion allows for persons involved at any stage of the trafficking process to face sanctions for their illegal activity - those at the beginning of the chain, who provide or sell the trafficked person, and those at the end of the chain, who receive or purchase the trafficked person, hold the trafficked person in forced labour and profit from that labour.^[736]

Despite this advancement, there still exists an ineffective standard for criminalizing all exploitative activities. The recruitment and transportation process is currently criminalized under the statutes. However, no provision has been made to specifically criminalize the act of subjecting an individual to forced labour or slavery-like conditions. There is also no such provision under the various criminal codes or offences against the person legislation in the region.

Under the anti-trafficking Acts of Belize, Guyana and Jamaica, the offence of trafficking in persons involves the recruitment, transportation, transfer, harbouring or receipt of a person by manipulative means.^[738] These definitions victimize the individual caught in the chain of trafficking — the individual who is recruited, transported and finally received — and criminalizes the activities of offenders who play a part in beginning, perpetuating or completing this chain. The definition of trafficking laid down in the Protocol, and adopted in the Caribbean statutes, has been so interpreted by the UN Special Rapporteur on Violence Against Women:

... the definition covers all persons involved in the trafficking chain: those at the beginning of the chain, who provide or sell the trafficked person, and those at the end of the chain, who receive or purchase the trafficked person, hold the trafficked person in forced labour and profit from that labour. Criminalizing the activities of all parties involved throughout the process of trafficking would facilitate efforts to both prevent trafficking and punish traffickers.^[739]

But the question remains — what provision is made for the person who becomes a victim of exploitation but who has not been a link in the chain of events? It is accepted that the exploitative end purposes to which a person may be subjected may not be properly categorized as �trafficking’ in the general understanding of the term, however, it would be a great addition to the statutes to provide for the offence of exploitation in and of itself, independently from the chain process of recruitment, transportation and receipt.

The GAATW had suggested that the prohibited offences under the 1949 Convention, and by extension, domestic legislation, should be expanded to reflect a bifurcation of the act of recruitment from the exploitative end purposes of trafficking, the former being defined as �trafficking’ and the latter as �forced labour and slavery like practices.’ The GAATW defines trafficking in this context as �all acts involved in the recruitment and/or transportation of a person within and across national borders for work or services by means of violence or threat of violence, abuse of authority or dominant position, debt bondage, deception or other forms of coercion.’^[740] Forced labour and slavery-like practices are defined as: �The extraction of work or services from any person or the appropriation of the legal identity and/or physical person of any person by means of violence or threat of violence, abuse of authority or dominant position, debt-bondage, deception or other forms of coercion.’^[741]

This separation can play a definitive role in the formulation of strategies to effectively combat human trafficking on all planes and to provide remedies and protections to the victims of these abusive practices. Chuang, who favours the GAATW approach, states that such a division would prove useful in securing protection for a wider cross section of victims as it is not all �trafficking’ victims that are subjected to forced labour/slavery-like practices, and not all women subjected to forced labour/slavery-like practices that are also victims of trafficking.^[742] This distinction recognizes �that one practice may be an act of choice, while the other act, an imposition of force, deceit, or abuse.’^[743] For example, a woman may unreservedly choose to migrate illegally into a country by her own resources, but find herself being exploited in a forced labour or slavery-like practice as a consequence of her attempt to

find gainful employment. In such circumstances, the GAATW approach would improve anti-trafficking statutes, providing for a more inclusive framework for possible victims.

This is not to advance the perception that the undocumented migrant is wholly unaccounted for in the anti-trafficking statutes of the region. The statutes of Belize and Guyana explicitly provide for the protection of illegal migrants from internal trafficking. Under the definition sections of both statutes, it is an offence to recruit, transport, transfer, harbour or receive a person by means of the abuse of a position of vulnerability, for the means of exploitation.^[744] These Acts expressly define the �abuse of a position of vulnerability’ to include taking advantage of the vulnerabilities resulting from a person having entered the country illegally or without proper documentation.^[745] Under the Jamaica anti-trafficking Act, however, there is no definition given as to what amounts to an �abuse of a position of vulnerability.’ However, the inclusion of this ground of abuse under the definition section should also be given a similar interpretation not only in light of the regional statutes that precede it, but also the international standard which exists under the Palermo Protocol. The travaux preparatories of the Protocol indicate that the reference to the abuse of a position of vulnerability is to be understood to refer to any situation in which the person involved has no real acceptable alternative but to submit to the abuse involved.^[746]

It is possible to see the analytical importance of drawing a distinction between the act of �trafficking’ and the forced labour/slavery-like practice in human trafficking discourse. Chuang points out that in so doing one is better able to understand the different dimensions to the trafficking problem and consequently prescribe policies, strategies and solutions that will specifically target one area or the other.^[747] This formulation would be better suited to the issue of human trafficking in its Caribbean context as the countries of the region generally attract voluntary immigrants seeking to participate in the sex tourism industry or who are simply in transit to the Global North.

Additionally, this would have the added benefit of shifting anti­trafficking campaigns away from restricting immigration in the interest of the state, a factor which plays a significant part in mobilizing efforts against trafficking, to a greater focus on protecting the human rights of the individual victim. This of course calls Caribbean governments to a higher standard than that which exists internationally, and admittedly it may not be a standard considered worthy of pursuing so long as there is no desire in the region to lead the progression of human rights protection worldwide rather than follow the standards prescribed and promulgated by developed states in an attempt to secure their own interests.

As Chuang highlights, the problem of forced labour/slavery-like practices, as an issue particularly domestic in character, may have less political ramifications for a state than the issue of trafficking. As such, it is suspected that states may overlook the former of the two evils.^[748] Here, she emphasizes, is where the anti-trafficking movement and non­governmental organizations would have to be particularly instrumental in lobbying on behalf of victims of forced labour/slavery-like practices as a distinct class of victims equally in need of protection.

B. The Assistance and Protection Provisions

The United States TVPA in section 108 prescribes the Minimum Standards to be adopted by countries receiving security and financial assistance. Subsection 2 mandates that states provide protection for victims of severe forms of trafficking in persons. The anti-trafficking statutes of Belize, Guyana and Jamaica, which all had their genesis after the Palermo Protocol came into force, have supplemented the skeletal framework laid down in the TVPA with the comprehensive protections under the Protocol. There is an emphasis, however, on the repatriation of victims to their �home’ or the place they first suffered abuse.

Although the matter of repatriation is not dealt with particularly in the TVPA, it is understood from the Act that victims are to be returned to their place of origin. This is evident on a careful construction of the Act: continued presence is dependent on a number of factors and conditions which must be met by the applicant, including proof of extreme hardship should he/she be removed from the United States.^[749] Article 8 of the Palermo Protocol mandates that states facilitate and accept, with due regard for the safety of victims, the return of such persons without undue or unreasonable delay.^[750] The Protocol specifies that this return should preferably be voluntary but does not mandate this.^[751]

Under the Acts of Belize, Guyana and Jamaica, the relevant authorities are mandated to establish a system to effect the safe return of victims to their country of citizenship or permanent residency.^[752] As is the position in the Protocol, such a provision is not optional and is considered the first option in relation to a victim of trafficking.

The Belizean and Guyanese Acts, however, make additional provisions in relation to repatriation. In reaching a decision as to whether to return a victim to his or her country of origin, the relevant authorities must consider the right of the victim to apply for temporary or permanent residency status, or even citizenship in the case of Belize.^[753] No such provision is made under the Trafficking in Persons Act of Jamaica. Factors to be taken into consideration in relation to repatriation there add nothing to the chances of the victim to remain in the country but serve only to ensure that the process is as expedient as is possible.^[754] The Minister, under the Jamaican Act, must first take into consideration the safety of the victim while in Jamaica. This suggests that if the victim is likely to be harmed due to reprisal attacks in Jamaica, repatriation is to be done more swiftly. The safe return of the victim without undue delay is also a relevant consideration. Finally, the wish of the victim as to the choice of country to which he is to be sent is the final consideration. The only choice the victim has is in relation to where he is to be sent, not whether he is to stay or go.

Returning a victim to place of origin serves only to put that person at risk of �revictimization,’ especially where the economic and social conditions of the country influenced the initial victimization. The Jamaican Act provides no different treatment than that afforded to illegal immigrants under Caribbean immigration laws, under which prohibited immigrants are ineligible for the grant of immigrant status.^[755]

The United States Act authorizes the continued presence of a victim if he or she may be a potential witness in effectuating prosecution of a trafficking offender.^[756] Certification must be awarded for continued presence and this certification is effective only for so long as the �Attorney General determines that the continued presence of such person is necessary to effectuate prosecution of traffickers in persons.’^[757] Under the Palermo Protocol, State Parties are to consider adopting legislative or other appropriate measures permitting victims to remain in their respective territories temporarily or permanently.^[758] Although this is merely a consideration that states ought to take, the legislators of Belize, Guyana and Jamaica have enacted provisions providing for some variation of legal status for victims.

Under section 13(2) of the Belize Act, a victim may apply for permanent residency status or citizenship of Belize. In the interim, the Department of Immigration and Nationality Services is to issue temporary residency permits or other authorized permits allowing the victim and any dependent children accompanying him/her to remain in Belize during the criminal proceedings against the traffickers.^[759] This provision, however, is conditional on the willingness of the victim to assist in the investigation or prosecution of the trafficker(s) on request. A similar position is adopted under the Guyana Act.^[760]

Jamaica, on the contrary, has adopted a much more restrictive approach to the legal status of trafficking victims in the territory. No provision is made for a victim to apply for residency or citizenship in Jamaica and authorization granted for temporary stay in the island shall only be for the duration necessary to carry out the:

a. process of identifying the victim or verifying his identity and nationality;

b. activities necessary to find accommodation for and other assistance to the victim;

c. criminal prosecution against the persons who have committed or facilitated the commission of the offence of the trafficking in persons;

d. investigations necessary to prosecute the offence of trafficking in persons or facilitating the offence and other legal and administrative activities.^[761]

Additionally, the Minister may cancel at any time the visas or other documents permitting the victim to remain in Jamaica, where he considers it justified in the particular circumstances.^[762] This provision gives the Minister great latitude as it specifies no circumstances that would warrant such a revocation. The provision is also open to abuse as it allows for the Minister to make a unilateral decision concerning the cancellation of authorization documents.

From the preceding paragraphs it is evident that the Jamaican Act is particularly deficient as to provisions regarding the legal status of victims, whether temporary or permanent. Although additional options are available in Belize and Guyana, it must be noted that they are discretionary in nature; therefore, their extensive potential may not translate into benefits in practice.

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