PALERMO 20TH ANNIVERSARY SPECIAL
Are we better off on the inside?
Maria Grazia Giammarinaro
International Committee on the Rights of Sex Workers in Europe
Kathryn Babineau & Jennifer Bair
For almost two decades, Helmut Sax has straddled the boundary between research and practice around anti-trafficking. He has long sat ‘on the inside’ of official international anti-trafficking bodies and yet is widely and publicly critical of the ways in which anti-trafficking efforts often fail. BTS caught up with him in the context of this twentieth anniversary debate.
Neil Howard (BTS): Helmut, you have nearly two decades of experience as both an anti-trafficker and a scholar of anti-trafficking. In this series, we’re looking at the concept of ‘exploitation’ and taking stock of where the field has gotten to in its fight against it. What’s your take on where the field is at?
Helmut Sax: The ultimate goal of anti-trafficking is not the prevention of trafficking, but the prevention of exploitation. Conceptually, trafficking should be regarded as no more than a preparatory act, something that creates or maintains situations of dependency which make people vulnerable to being exploited. The added value of making trafficking a criminal offence is precisely that it enables us to address these situations – what I call the ‘logistics’ of dependency. But doing so means working much more closely with wider efforts to end exploitation. For example, when it comes to supply chains, we shouldn’t just be focussing on monitoring but instead need to address poor working conditions, weak labour rights, and all the underlying cause factors that lead to a need for monitoring in the first place.
Neil: So why is that not happening?
Helmut: Ironically, it’s partly attributable to the fact that, as a criminal offence, trafficking is typically addressed through the criminal justice system. This leads to a heavy emphasis on investigation, arrest, and prosecution, with the obvious consequence that individual criminals are targeted instead of the exploitative circumstances in which they operate. In practice, this sees states work hard to increase their numbers of trafficking investigations and convictions, but their actual focus really should be on addressing exploitation.
Neil: Indeed. I know that much of your work has focussed on children and their rights, so I’d like to ask you to explain the particular place that children have in the anti-trafficking universe.
Helmut: The trafficking definition has completely failed in relation to children. The three elements of the general definition (‘recruitment’, ‘means’, ‘for the purposes of exploitation’) only make sense when considered together. However, with their problematic understanding of childhood, the drafters of the Palermo Protocol decided to skip the ‘means’ element as a requirement for establishing trafficking among children. As a result, in principle, any recruitment or transportation of children with the mere intention of exploiting them legally constitutes child trafficking. This means that basically all child labour situations, even those where parents have put their children to work, would equate to ‘trafficking’ – which includes dozens of millions of cases worldwide! This is of course both meaningless and impractical.
The ‘logistics’ behind dependency justify the criminalisation of trafficking as a distinct offence.
In addition, there is another issue here concerning the relationship between child trafficking and the ‘sale of children’. At around the time that the Palermo Protocol was being drafted, lawmakers were also working on an Optional Protocol to the UN Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography (OPSC). And given how closely related these documents were, insufficient attention was given to the complementarity between them.
The OPSC addresses situations of sexual exploitation of children. It focuses on ownership-like control by adults for remuneration, which may include situations of child abuse shared as pictures or video clips, illegal practices in the context of child adoption, and prostitution. Clearly, there are overlaps between these situations and those typically discussed in a trafficking context. Yet the conceptual starting points for the sale of children and child trafficking are different. Child trafficking aims at the exploitation of the services of the child, while the sale of children focusses rather on the transfer of control for remuneration, irrespective of what happens next to the child. Not every case of illegal child adoption, for example, is a child trafficking case, but the ‘sale’ of a child (however problematic that term) may be one of the ‘means’ used in a child trafficking case. In practice, there is often confusion about these concepts, especially in relation to adoption and more recently also in discussions about surrogacy.
Neil: Complicated and challenging stuff. But, without wishing to trivialise, surely from a victim perspective this is splitting hairs?
Helmut: Sure, from a ‘victim’ perspective, all such narrow categorisation is irrelevant. And it would be unnecessary if we were to follow a comprehensive, human rights-based approach to organising our societies. We’d all enjoy the rights to life, integrity, liberty, adequate standards of living, health, education, work, and so on. In fact, in many respects this is the key issue – anti-trafficking has to a large extent focused only on the perpetrator side of things due to the initial framing of trafficking as a criminal offence. Perhaps the biggest challenge for discourse and practice is therefore (still!) the turnaround to adopt a more holistic rights-based approach.
In my view, if we are to achieve that, it could be helpful to look at the related issue of domestic violence. Over the last decades, huge progress has been made globally in establishing violence against women and children as issues that are not solely the concern of the private sphere. They are in fact matters of state concern and responsibility, with clear human rights obligations to protect victims, prevent abuse, investigate and provide redress. Although the situation is still far from ideal, public and political discourse has shifted significantly. That leads me to ask what lessons the anti-trafficking field can learn from that shift. How can we be sure that trafficking is seen as a structural issue, one that is really about exploitation? And how can we be sure that people recognise the ubiquity of this exploitation in the way we now do with domestic violence?