Trafficking

Special Rapporteur on Trafficking urges human rights approach and integration with the WPS agenda

Christine Chinkin and Gema Fernández Rodríguez de Liévana analyse the latest report from the UN trafficking expert, and find reason and opportunity for a more joined up approach to tackling trafficking of women and girls.

Heat map of human trafficking activity across the world. By DARPA graphic

Last year the Centre for Women, Peace and Security published a Working Paper that reflected upon the interplay between the different international legal regimes that have evolved for combatting gender-based violence against women, in peacetime and in conflict, and human trafficking. The report presented to the UN General Assembly on 26 October 2018 by the Special Rapporteur on trafficking in persons, especially women and girls, Maria Grazia Giammarinaro (SR), built upon some of the arguments in urging states to adopt a human rights approach to trafficking and for its integration with the Women Peace and Security (WPS) agenda. The SR emphasises the gendered dimensions of trafficking in persons and its disproportionate impact upon women and girls in conflict and post-conflict. She notes that while the number of male victims of trafficking has significantly increased over the past decade, women and girls make up 51% and 20% of trafficking victims respectively. Women and girls are disproportionately subject to trafficking for sexual exploitation, which, when committed in conflict, can constitute conflict-related sexual violence. Nevertheless, recognition of trafficking as a gendered phenomenon has only been slowly acknowledged.

Since the adoption of Resolution 1325 (2000) the UN Security Council has considered sexual violence against women and girls in conflict as a threat to international peace and security. In its subsequent WPS resolution 1820 (2008) the Council affirmed that effective measures to prevent and respond to sexual violence as a tactic of war can ‘significantly contribute to the maintenance of international peace and security’ and demanded that ‘all parties’ to armed conflict protect civilians against such violence. The Council has also addressed human trafficking, (Resolution 2331 (2016); Resolution 2388 (2017), and has identified the relationship between trafficking, sexual violence in armed conflict and terrorism, all of which threaten international peace and security. But it has failed to integrate this understanding with its own WPS agenda. This disconnect undermines a holistic approach towards combatting trafficking in persons, conflict-affected sexual violence and gender-based violence against women, crimes that in the lived experiences of women are often interlinked and not easily separated. It also casts doubt on the Council’s awareness of debates around the continuum of sexual violence across war and peace, as well as its multiple conflict-related manifestations outside those of certain terrorist groups, which are the primary focus of the resolutions on trafficking.

In contrast the SR recommends the integration of trafficking into the WPS agenda to complement ongoing anti-trafficking efforts at the global level, including those of the Security Council. This tactic reinforces the importance of human rights in tackling human trafficking: WPS is in essence a human rights, not a security, agenda, the SR is a human rights mandate and trafficking of women and girls constitutes a violation of their human rights and gender-based violence against women. Under human rights law states must exercise due diligence to prevent, investigate, prosecute and punish violence against women and accord appropriate reparations to its victims. Most states however perceive human trafficking through a criminal law, immigration and/or security lens that gives little attention to their human rights obligations.

Integrating human trafficking into WPS allows for a breakdown of appropriate responses under the four pillars of prevention, protection, participation and relief and recovery. The SR provides examples under each of these heads as well as practical recommendations. For instance under the prevention pillar she elucidates that conflict is systematically and systemically linked with the risk of being trafficked; this risk should be routinely taken into account from the very onset of conflict and immediate preventive measures introduced. Another constant consequence of conflict is the vulnerability of displaced and fleeing persons to trafficking. She suggests that IDP and refugee camps establish a registry of all persons residing in the camp as a protective measure against disappearance in conjunction with facilities for immediate and secure reporting of missing persons to allow for prompt investigation. Delay reduces the probability of a successful outcome to any such investigation. (Cottonfield; Guatemala). Most fundamentally, given the intersection between trafficking and other forms of violence against women, preventative anti-trafficking measures are to be considered ‘both as life-saving interventions and as being aimed at preventing violence against women.’

The need for consultation with women is captured by the WPS pillars for protection and prevention, as well as for participation. The SR emphasises its importance in the context of trafficked women observing that a widespread failure to recognise the connection between conflict and trafficking as a form of conflict-affected sexual violence means that it is often overlooked during conflict and is omitted from peace processes and planning for post-conflict reconstruction. But survivors of trafficking can make significant contributions to designing and implementing anti-trafficking programmes that are essential to breaking the cycle of violence that impedes a sustainable gendered peace. Women can provide insights into the local economy and assist in programme for reduction of the economic dependency that underpins further vulnerability to trafficking. Victims of trafficking can work with others to raise awareness of the predatory post-conflict economy that fuels demand for trafficking and to establish community-based protective networks. Effective programmes for relief and recovery with informed input from trafficked persons and a gendered approach toward access to and delivery of economic and social rights are described as ‘essential’ to long term recovery. Failure to develop and implement such policies lessens the likelihood of achieving stability and human security post-conflict (including food, health, gender and physical security) that are crucial elements in the prevention of extremism and trafficking.

The same is true of land reform. Access to land and livelihoods are frequently understood as post-conflict economic reconstruction rather than as aspects of combatting conflict-related sexual violence and its continuation in post-conflict. The SR describes the connection between conflict-related sexual violence and the forcible seizing of land, mines and natural resources that leads to forced displacement and enhances vulnerability to being trafficked. Victims are subjected to sexual exploitation and forced labour in illegal mines, and become economic commodities in the male dominated extractive industries that are operated by non-state actors outside the protection of the state. In seeking further research into the linkages between conflict-related sexual violence, trafficking, dispossession of land, exploitation of natural resources and of women, the SR expresses concerns in common with the Special Representative of the Secretary-General (SRSG) on conflict-related sexual violence. The latter also explains how sexual violence is used strategically to grasp control of land and resources, destroying the physical and economic security of displaced women and making socioeconomic reintegration vital to relief and recovery. The SRSG urges the Security Council to address the nexus between trafficking in persons and conflict-related sexual violence. Her mandate stems from Resolution 1888 (2009) thus strengthening the argument for integration of these currently separated agendas. The CEDAW Committee too has explained that trafficking is exacerbated during and after conflict and that conflict-affected areas constitute places of origin, transit and destination for trafficking (CEDAW Committee, General Recommendation No. 30). Taken together these expert opinions facilitate ‘joined up thinking … grounded in international law and a rights-based and victim-centred approach that is focused on the prevention of gender-based violence and the protection of women and girls from such violence in situations of armed conflict, displacement and post-conflict settings.’

 


About the authors

Professor Christine Chinkin CMG FBA is Professorial Research Fellow in the Centre for Women, Peace and Security, where she leads two major projects: ‘A Feminist International Law of Peace and Security’ funded by the AHRC and ‘Gendered Peace’, funded by the ERC.

 

Gema Fernández Rodríguez de Liévana is a Spanish human rights lawyer who specialises in human trafficking, violence against women and sexual and reproductive rights. She is managing attorney at Women’s Link Worldwide.

 

Human trafficking and the women, peace and security agenda

Recognition of trafficking of women and girls as a form of violence against women and of its incidence in conflict brings the issue implicitly into the WPS agenda. Christine Chinkin introduces her working paper, which explores this latest disruption of the traditional boundaries in the international legal regime.

In the year since the Centre for Women, Peace and Security’s Working Paper Series was launched a consistent theme has been the interaction of the Women, Peace and Security (WPS)  agenda with other contemporary issues of international affairs, for instance refugee and migration flows, transitional justice processes, sexual orientation and gender identity and examining the silence around violent women. These papers have shown the potential of WPS to become a comprehensive agenda for addressing the ways in which gender impacts upon conflict, and conflict impacts upon gender. My paper International Human Rights, Criminal Law, and the Women, Peace and Security Agenda continues this trend by examining the relationship between these legal regimes in the context of human trafficking.

Heat map of human trafficking activity across the world. By DARPA graphic

The WPS agenda provides a normative framework for addressing the experiences of women in armed conflict, notably prevention of and protection against ‘all forms of violence against women and girls’ (Security Council Resolution 1325, 2000). WPS is not the first international regime for combating gender-based and sexual violence against women and girls; rather it supplements other specialised international legal regimes, notably International Humanitarian Law (IHL), International Human Rights Law (IHRL) and International Criminal Law, each with its own language, objectives and processes. While institutionally separate the overlapping nature of these legal regimes has blurred conceptual boundaries and distinctions between conflict and peace. In 1993 the World Conference on Human Rights at Vienna asserted that: ‘Violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law’ (para 38.) This disruption of the traditional divide between IHL and IHRL supports the notion of a continuum of violence against women between that occurring in ordinary everyday life – peacetime – and that taking place in armed conflict and its aftermath.  In so-called post-conflict violence against women ‘does not stop … and often increases.’ (CEDAW Committee, General recommendation No. 30, para 35).  The separation of crimes against humanity from warfare (Rome Statute, article 7) likewise serves to emphasise the reality of violence across all situations whether termed ‘war’ or ‘peace’.

While the WPS resolutions have incorporated these regimes, another older legal regime for regulation of a particular manifestation of gender-based violence has not been brought explicitly into their scope: human trafficking, especially of women and girls. And while 1325 was ‘conceived of and lobbied for as a human rights resolution that would promote the rights of women in conflict situations’ (p 15) the international fight against trafficking has been primarily through the processes of criminal law enforcement. The Palermo Protocol – the principle legal instrument for combating trafficking – was a product of the UN Crime Commission, not the (then) Human Rights Commission. In response, the Office of the High Commissioner for Human Rights produced Recommended Principles and Guidelines on Human Rights and Human Trafficking that put the human rights of trafficked persons ‘at the centre of all efforts to prevent and combat trafficking. The UN Special Rapporteur on Trafficking, especially women and girls has emphasised that the concern of human rights is not just to ensure that the rights of victims are respected but that human trafficking is understood as ‘a gross human rights violation’. Trafficking in women and girls also constitutes gender-based violence and creates vulnerability to further forms of such violence – rape, sexual abuse, sexual slavery, harassment (para 7).

Bringing sexual violence against women as a tactic of war within the Security Council’s responsibility for the maintenance of international peace and security (Security Council Resolution 1820) and urging a range of measures upon member states and UN agencies securitised such violence and in effect privileged such victims over others who have also been subject to gender-based or sexual violence outside this framework. The security focus of WPS has been sharpened by the recognition that sexual and gender-based violence are ‘part of the strategic objectives and ideology of certain terrorist groups, used as a tactic of terrorism’. States are accordingly called upon to integrate their WPS agendas with those for countering terrorism and violent extremism (Security Council Resolution 2242). This additional politicisation and securitisation of WPS has the potential to move it ever further away from the transformative human rights agenda of the civil society advocates of Resolution 1325. The same has happened with human trafficking. In 2016 the Security Council addressed human trafficking in armed conflict for the first time. (Security Council Resolution 2331, see also Resolution 2388). It recognised the association between conflict-related human trafficking, sexual and gender-based violence in conflict and that addressing trafficking in conflict is part of countering violent extremism and the terrorism.  The Council condemned trafficking in conflict areas and called upon member states to take measures, primarily with respect to criminalising and prosecuting trafficking in the context of armed conflict, and to investigate, disrupt and dismantle trafficking networks in this context. The resolution’s scope is on all armed conflict but its emphasis is on trafficking, terrorism and violent extremism. Human trafficking has long been politicised, by its association with prostitution, with people smuggling and migration flows, and now with terrorism and extremism. As with WPS the Security Council has created a hierarchy of victims, as victims of trafficking in this context are to be treated as victims of terror, eligible for official support and redress. This recommendation does not extend to persons made vulnerable to being trafficked through fleeing from conflict or violence, or to those who have no secure migration routes because of strict border controls and security policies.

Recognition of trafficking of women and girls as a form of violence against women and of its incidence in conflict brings trafficking implicitly into the WPS agenda. This could mean the application of the WPS pillars to trafficking, including women’s participation in decision-making about trafficking. Trafficking has long attracted greater allocation of funding than other forms of violence against women; if such resources were pooled and directed towards trafficking within a WPS framework it could provide a co-ordinated and strengthened human rights-based response.  While the importance of combating violence against women and human trafficking is self-evident, linkage with the countering terrorism and violent extremism agendas threatens the integrity of combating those crimes and seeking the empowerment of women for their own sake and not for the advancement of other political priorities.  This conjunction of legal and policy regimes could strengthen the rights-based approach to human trafficking urged by the human rights institutions, although ensuring that neither trafficking nor WPS are subjugated to the security imperatives of the Security Council remains imperative.

Read more: International Human Rights, Criminal Law, and the Women, Peace and Security Agenda

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About the author

Professor Christine Chinkin CMG FBA is Emerita Professor of International Law and founding Director of the Centre for Women, Peace and Security.