Allison Jernow, a former Justic Department prosecutor and now senior legal officer at the International Commission of Jurists, provides this perspective on human trafficking: “Whatever else you can say about human trafficking,” she writes in a chapter in the DCAF report, ” it is a real and tangible violation of an individual’s rights.”

But for human trafficking victims, legal protections of those rights remain far from assured, leaving many men, women and children as legal lost souls — citizens that no one seems to want, and whose access to basic human rights is often stymied.

This is the ultimate devastation of contemporary slavery:  its victims are left struggling to become members of society, months and even years after their actual experience with slavery has ended.  “The mistreatment of (human trafficking) victims, especially in destination countries, is widespread and well-documented,” the DCAF report explains.  “Despite any number of international protocols to address trafficking victims and look after their well-being, actual implementation falls well short of adequate protection.”

As the DCAF report makes clear, human trafficking — the popular term for the contemporary slave trade — is flourishing across the globe, driven in equal parts by criminal enterprise and economic desperation. As it grows and spills across national borders, trafficking is forcing governments — often reluctantly — to deal with psychologically and emotionally scarred (and often physically abused) individuals suddenly dropped in their midst.

While some progress is evident, the DCAF report concludes that legal protections that safeguard the individual rights of trafficking victims remains a distant goal.

The issue, at heart, is determining who should take responsibility for dealing with trafficked persons:  the country of origin — the victim’s home nation or where he or she became ensnared into slavery — or the destination country where victims end up working in brothels, factories or farms. Existing national and international laws leave this crucial question undefined and hazy, according to the DCAF report.  The report states that in countries of origin, for example, victim services and witness protection programs are either non-existent or dependent largely on grants from international organizations and donor countries.  Victims who have returned, voluntarily or otherwise, to their countries of origin may not fear expulsion but they have still have no guarantees that they will be able to access justice—defined as obtaining redress for the wrongs done to them.

The same kind of legal limbo confronts trafficking victims in destination countries. For example, the DCAF report explains, under the European Convention on Trafficking, if there are “reasonable grounds to believe” that a person is a trafficking victim, that person shall not be removed from the territory until the identification process is complete.  Nevertheless, in many countries, potential victims are summarily arrested, detained, and expelled. In Germany, according to one study, deportation measures were begun against 55 per cent of the victims in the files studied. Migrant trafficked persons in Poland are usually deported within 48 hours. Even in the Netherlands, which offers trafficking victims temporary residency, mis-communication and poor identification practices means that trafficking victims sometimes end up being held in detention facilities for illegal aliens.

Why does this legal neverland exist.  The experts quoted in the DCAF report say a combination of factors impact the legal rights of trafficked persons:

• Although awareness of human trafficking is growing, the legal structure to deal with it at the nation-state and local level lags behind. Without clearly enunciated laws protecting victims of human trafficking, the justice systems of most nations cause trafficked persons to most often fall under existing criminal statutes defining them as illegal immigrants, prostitutes or migrant labors.  This predetermined classification makes it exceedingly difficult for the victim to prove a claim of forced labor or servitude.
• Many nations, perhaps responding to domestic political pressures, treat trafficked victims as intruders who have violated their national borders and who need to be expelled — sent back to where they came from — as quickly as possible.
• Even where some level of protection for trafficked persons exists, the onus for proving the forced servitude falls upon the victim, which is a huge hurdle for those without passports, language or knowledge of the law in the country where they’ve ended up. Fear of incarceration or deportation also prevents many trafficking victims from seeking police protection.

No wonder that trafficking victims end up being treated like lost baggage.  Jernow writes that in the UK, despite high-level publicity given to raids on sex trafficking rings, it is common to deport all suspected victims as illegal migrants. This happens both because front-line police officers are unfamiliar with trafficking and frequently refer potential victims to immigration authorities. Even when government ministers describe sex trafficking as a “modern-day form of slavery” and state that police raids have “rescued” such victims, there is no guarantee against deportation. Thus, Jernow goes on to explain, a raid on a brothel in Birmingham, described by police as an anti-trafficking operation, resulted in the release of nineteen women from Eastern Europe. Immediately following the raid, however, many of the women were denied access to lawyers and were held in detention. Six were eventually deported. The British Government’s Home Office explained, “At no point did any of the women indicate that they were trafficked into the UK, nor did they indicate any undue distress or reluctance to return to their home country.”

Advocates for victims’ rights believe that the remedy for this legal imbalance is enactment of victim-focused anti-human trafficking laws. Progress towards codifying trafficked victims rights has been made, Jernow writes.  For example, in 2002 the UN High Commissioner for Human Rights issued Recommended Principles and Guidelines on Human Rights and Human Trafficking. The principles provide several safeguards for trafficked persons, including protection from being charged for illegal entry into destination and transit countries.  But the principles lack teeth. “Access to justice and fair treatment, restitution from the offender, assistance, and some mechanism to apply for state-based compensation are now recognized as rights held by crime victims, although implementation of these rights is lagging in many countries.”

A better solution, she writes, is for nations to incorporate basic human rights protections into existing criminal laws.  Provisions in the law that have proven effective include temporary residency (sometimes called “reflection periods”) in the destination country and access to financial compensation in exchange of victim cooperation in prosecuting suspected traffickers, Where these have been introduced, Jernow writes, victims receive better — i.e. equitable — treatment.

The ability of trafficking victims to access justice, participate in a meaningful way in legal proceedings, be protected from retaliation, and file claims for compensation is significantly influenced by two developments, Jernow explains.

“First, in both destination and origin countries, the importance of an active civil society and a well-developed culture of victim rights cannot be overstated. The meaningful exercise of rights granted under international law depends very much on the assistance of NGOs and legal aid. Second, in a few countries there are programmes granting trafficking victims reflection periods and short- or long- term residency permits. Where such programmes exist, they are invariably linked to the provision of benefits and services, either through government service providers or government-supported NGOs. Thus secure residency plus professional counseling and assistance translates into access to justice.”

Next:  The status of anti-trafficking efforts in the United States.