A Global Alliance Against Forced Labour - International Labour ...

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A DYNAMIC GLOBAL PICTURE2. Combating impunity: The law and its enforcementGlobal and regional developments:Rising awareness73. Global awareness of forced labour, especially asa result of human trafficking, has certainly increasedover the last four years. The need to address theseconcerns has been recognized in several internationalor regional treaties, action plans and declarations. Atthe same time, a number of development agencies– both bilateral and multilateral – have started to becomemore aware of the need to address forced labouras part of effective development strategies.74. An important event was the entry into force, on25 December 2003, of the Trafficking Protocol supplementingthe United Nations Convention againstTransnational Organized Crime. 3 This helped clarifyearlier uncertainty as to the contents of the offenceof human trafficking, and as to the identity of thevictims (see Part I, Chapter 1). It also required eachState Party to establish by law the criminal offence oftrafficking for either labour or sexual exploitation.75. Expert reports, policy statements, and declarationsof regional and international bodies adoptedsince that time nevertheless still reflect different viewsas to the very concept of trafficking, the gender identityof the victims, or the main underpinnings of actionagainst trafficking. Distinctions are frequentlydrawn between “law enforcement and border control”approaches to the problem on the one hand,and “human rights and victim-centred” approacheson the other. There is a growing acceptance, however,that effective action against trafficking must combineelements of all of these approaches. And, increasingly,there is recognition that trafficking is a labour marketissue, and that labour institutions have a key role toplay in action against it.76. For example, the Brussels Declaration ofSeptember 2002 emphasized that for a comprehensiveEuropean policy against human trafficking,halting “the demand for sexual services, cheap labourand other forms of exploitation must continue to be atthe forefront of the long-term efforts to fight humantrafficking effectively”, and that a “global approachto trafficking must address all forms of exploitation,including sexual exploitation, labour exploitation,in particular child labour, and begging”. 4 In July2003, the Organization for Security and Co-operationin Europe (OSCE) adopted its Action Plan toCombat Trafficking in Human Beings, which interalia drew attention to the broader labour dimensions.Recommended action at the national level includedeconomic and social policies aimed at addressing theroot causes of trafficking in destination countries.Member States were urged to implement measures toreduce the “invisibility of exploitation”; to address the“problem of unprotected, informal and often illegallabour, with a view to seeking a balance between thedemand for inexpensive labour and the possibilitiesof regular migration”; and to tackle “undergroundeconomic activities which undermine economies andenhance trafficking”. 577. In the African region, the Economic Communityof West African States (ECOWAS) adopted inDecember 2001 its Declaration on the Fight againstTrafficking in Persons, 6 together with an Initial Planof Action for 2002-03. The Declaration calls uponECOWAS member States to adopt legislation establishingtrafficking as a criminal offence, to developpolicies and programmes to prevent and combat traffickingin persons and to protect victims from furthervictimization. Laying the groundwork for future cooperationbetween member States in strengtheningborder controls without limiting freedom of movement,it also calls on countries to take a range of educationaland social preventive measures to discouragedemand for trafficked persons. The Plan of Actiongives indicators and target dates for specific measures.It also identifies the particular input of the ILO, togetherwith other international agencies, in preventionand awareness raising.78. In the Asia and Pacific region, the “Bali Process”was initiated by the Governments of Australia andIndonesia to develop practical measures at a regionallevel against trafficking and smuggling. Two regionalMinisterial conferences were held in 2002 and 2003,followed by a Senior Officials’ Meeting in Brisbane,Australia, in June 2004. Regional workshops have alsoassisted countries in developing legislation and promotingmutual legal assistance. The process has thusmoved from one of enunciating principles to morepractical measures, while there has also been a recentchange of focus from the interception of smugglingtowards the prevention of trafficking and protectionof victims. The Brisbane meeting reiterated the needto focus on the root causes of illegal movement of3. See Introduction of this Report, para. 2. The Convention itself entered into force on 29 Sep. 2003, and a second supplementary Protocolagainst the Smuggling of Migrants by Land, Sea and Air on 28 Jan. 2004. As of 15 Nov. 2004 there were 76 States Parties to the TraffickingProtocol.4. The Brussels Declaration was adopted at the European Conference on Preventing and Combating Trafficking in Human Beings: GlobalChallenge for the 21st Century, 18-20 Sep. 2002, which brought together more than 1,000 representatives from EU Member States, candidatecountries, neighbouring countries and others, and institutions of the EU. The Council of the EU adopted Conclusions concerning theBrussels Declaration on 8 May 2003 (Offi cial Journal of the European Union, C 137, 12 June 2003).5. OSCE Permanent Council Decision No. 557: OSCE Action Plan to Combat Trafficking in Human Beings, PC.DEC/557, 24 July 2003.6. Adopted at the Twenty-Fifth Ordinary Session of Authority of Heads of State and Government, Dakar, 20-21 Dec. 2001.19
A GLOBAL ALLIANCE AGAINST FORCED LABOURpeople, and to address the demand side of trafficking.Participants also agreed on the importance of datacollection in the prevention of trafficking. Finally,attention was drawn to trafficking for labour exploitationand begging, and to the particular problems oftrafficking during armed conflicts.National experience79. What significant developments have takenplace during the period under review, and what lessonsof good practice can be found? This section doesnot claim to present a detailed review of these issuesby country, but merely seeks to highlight the mostimportant ones, illustrated by selected examples.80. A study on forced labour in Africa 7 identifieda range of inadequacies in the current legal frameworkin a number of countries. Definitions are verygeneral, so that prosecutors and the courts find it difficultto identify forced labour situations in practice.Constitutional prohibitions are often not supportedby specific laws, making it extremely difficult eitherfor the authorities to bring a prosecution or for forcedlabour victims to refer a case to court. In other casesforced labour may be prohibited in a country’s labourcode but not specified in any law as a criminal offence.Separate laws may contain distinct and sometimes inconsistentdefinitions of overlapping offences, for exampleconcerning forced labour, slavery, servitude orservile status and trafficking; in such cases, nationallaws tend to reflect an assumption that forced labouris the least serious of these offences. Furthermore, theoffence of trafficking in persons is often defined inlaw as only concerning women and girls traffickedinto prostitution or other sexual exploitation.81. Some countries have recently clarified the definitionof more traditional forms of forced labour, orincreased the penalties for forcing someone to work.For example, Niger’s 2003 law amending the PenalCode 8 specifically addresses the predicament of personswhose ancestors were enslaved and who are describedas still being of “servile status”. The amendedlaw also clarified the offence of debt bondage, providingfor severe penalties in the form of lengthyprison sentences and heavy fines. Mali provides severepenalties for child trafficking under its 2001 PenalCode. In Nigeria, a new 2003 anti-trafficking law 9provides for life imprisonment for slavery offences,for a series of penalties including fines for traffickingrelatedoffences involving minors under the age of 18,but for life imprisonment in the case of their importationor exportation for the purpose of prostitution.For the most part, however, penalties for the offenceof forced labour appear to be very light.82. In most African countries, where institutions ofboth labour administration and law enforcement havesevere resource limitations, the record on law enforcementis unsurprisingly weak. In Sudan, for example,although a legal framework is in place and the authoritiesnow acknowledge thousands of abductions,no one has so far been prosecuted for abductions or theoffence of forced labour. Nigeria’s new anti-traffickinglaw holds out promise of good practice. It provides fora National Agency for Prohibition of Traffic in Personsand Other Related Matters (NAPTIP) responsible fortraining law enforcement agents and others, to ensureeffective implementation. It is too early to assess theeffectiveness of this new institutional structure.83. In several South Asian countries a legal frameworkagainst bonded labour systems is now firmly inplace. Typically, as in India and Pakistan, the lawsprovide for a detailed definition of bonded labour andbonded labour systems, penal provisions for the offenceof exacting bonded labour, and modalities for enforcement.India’s Bonded Labour System (Abolition)Act, 1976 (BLSA), provides for imprisonment of up tothree years and fines of up to Rs.2,000 for anyone whocompels any person to render any bonded labour andadvances any bonded debt. Pakistan’s Bonded LabourSystem (Abolition) Act, 1992, provides for a penalty ofbetween two and five years’ imprisonment, or a fine ofnot less than PRs.50,000, or both, as punishment forenforcing or exacting bonded labour.84. In August 2004, the Government of India reported4,859 prosecutions to date under the BLSA, atotal that probably far exceeds that of any other singlecountry on a forced labour offence. However, it isnot known how many resulted in convictions. 10 Yetthe number of prosecutions is still low compared tothe number of bonded labourers: the Government’sown official statistics indicate that 285,379 bondedlabourers had been identified as at 31 March 2004, ofwhom 265,417 had received rehabilitation assistance. 11The remaining 19,962 persons were not available forrehabilitation as they either had died or could notbe traced. State governments report that 527 districtlevelVigilance Committees have been constituted tomonitor the situation on the ground. 12 However, thefederal Government acknowledges that there is someconfusion over what constitutes bonded labour. For7. M. Dottridge: “Forced labour in Africa: Concepts, categories and challenges” (ILO, SAP-FL Working Paper, forthcoming).8. Act No. 2003-025 of 13 June 2003, to amend Act No. 61-27 of 15 July 1961 establishing the Penal Code.9. Trafficking in Persons (Prohibition) Law Enforcement and Administration Act, 2003.10. Data are available only for the State of Uttar Pradesh, where a total of 2,421 prosecutions resulted in 1,228 convictions and 1,193 acquittals(information provided to SAP-FL by the Government of India, 31 Aug. 2004).11. ibid. The states in which bonded labourers have been released and rehabilitated are, in order of their respective numbers: Tamil Nadu,Karnataka, Orissa, Andhra Pradesh, Uttar Pradesh, Bihar, Madhya Pradesh and Rajasthan, which together account for 98 per cent of allrehabilitated bonded labourers. A further eight states account for the remaining 2 per cent.12. ibid.20
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GLOBAL ACTION TO COMBAT FORCED LABO
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