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Ja’s human trafficking case law and tier ranking by US State Department

Monday, August 04, 2014    

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HUMAN trafficking is a particularly virulent offence against human rights. The phenomenon of trafficking may be old, but it has taken on new dimensions. This is because, first, globalisation has fuelled growth in certain economic sectors with demand for cheap labour, particularly of women and children in the sex industry and other service sectors. Second, immigration laws have increasingly restricted entry of immigrants from developing countries to developed countries, driving labour migration underground.

The crime of human trafficking is generally under-reported and under-recorded because of its clandestine characteristic. Social commentators estimate that as many as 27 million men, women, and children are trafficking victims at any given time. No country can claim that its borders are not affected in some way by trafficking. According to the US Department of State (USDS), an estimated 15,000 to 18,000 persons are trafficked into the United States every year for forced labour.

Since entry into force of the Trafficking in Person (TIP) Act and the formation of the Anti-Trafficking Police Unit, which conducts investigation, builds awareness and arrests offenders, there has been one conviction. In that case a 14 -year-old girl was sold by two men to an undercover police officer. Both men pleaded guilty in 2008 to conspiracy to get a 14-year-old girl involved in prostitution. They were charged with trafficking in persons, but pleaded guilty to the lesser offence of conspiracy to trafficking and sentenced to one year each.

Data obtained from the police states that, to date, there are seven cases of trafficking before the courts, 28 cases are being probed, four of which involve transnational investigations.

Having perused the case law within the Jamaican context the most plausible explanation for so few human trafficking prosecutions and convictions is that human trafficking is arguable not systemic in this country as many have claimed by the USDS . There might be areas of concern, but generally there is confusion with prostitution and trafficking. There are women and men who get involved in prostitution voluntary and should not count as human trafficking, although prostitution is still illegal in Jamaica.

In comparison with other countries, Jamaica has an effective anti-trafficking police unit, a robust public awareness campaign, and a legislative framework that prohibits all forms of trafficking, with a sentencing regime of up to 30 years imprisonment.

The USDS ranks countries in different tiers when compiling their trafficking in persons report. In the USDS 2014 Human Trafficking Report Jamaica was placed on Tier 2 watch list having done so much to arrest the trafficking problem. Aspects of the report allege that there are corrupt government officials and that Jamaica took insufficient action to address reports of official complicity. This sort of allegations is unfounded if it cannot be qualified. However, if the USDS has empirical data, then in my opinion the proper thing to do is supply such information to the police so they can investigate.

The report further posits that they were no convictions leading up to the writing of the report. While that might be so, there are currently cases before the court and it is logical to await the outcome of those cases before any pronouncements can be made.

However, in the same report, the USDS chided the Japanese Government for not employing effective measures to combat trafficking in persons. Traffickers continued to use fraudulent marriages between foreign women and Japanese men to facilitate the entry of these women into Japan for forced prostitution. The report further stated that organised crime syndicates (the Yakuza) continue to play a role in the trafficking of humans.

In comparison to Jamaica, the Japanese Government has not developed or enacted legislation that would facilitate anti-trafficking prosecutions. This was a recommendation by the USDS for four consecutive years. The government also failed to develop trafficking-specific assistance measures for victims.

Human Rights Watch, an independent, international organization that works as part of a vibrant movement to uphold human dignity and advance the cause of human rights for all articulates that the tier ranking by the USDS is inequitable. This is illustrated by looking at some countries that are placed on the tier 2 ranking and comparing them with those on tier 2 (watch list).

Having perused the 2014 Trafficking in Person report, tier 2 appears to be a "catch-all" category, as it is comprised of countries with a wide range of trafficking records. Tier 2 includes countries, such as Nigeria, while at the same time it includes countries like Kyrgyz Republic, "where there are no government-sponsored prevention efforts, no anti-trafficking legislation, no capacity for arrests and prosecutions, and state corruption remains to be a huge problem".

The UN Special Rapporteur on the Sale of Children, Child Prostitution, and Child Pornography alleged the serious and endemic corruption of police officers, who allegedly participated themselves in the detention and rape of child sex trafficking victims. The report alleges that the Kyrgyzstani Government took no action to investigate allegations of officials' complicity in trafficking crimes. It identified few victims and did not adequately protect child victims during the investigation and prosecution of their traffickers.

Another country on tier 2 is Kiribati, which is a alleged source country for girls subjected to sex trafficking within the country. The government continued to fail to employ policies to proactively identify trafficking victims among women and girls in prostitution or adequately protect trafficking victims. The government has not prosecute cases against potential trafficking offenders or punish those who exploit or facilitate the commercial sexual exploitation of children. The Government of Kiribati demonstrated no discernible progress in identifying or protecting trafficking victims. It did not actively identify or protect any victims of trafficking. The government had no procedures to proactively identify trafficking victims among vulnerable populations and did not identify any children subjected to prostitution in well-known meeting places, such as bars and hotels in Kiribati.

Another criticism of the TIP Report by HRW is the mention of countries like Japan, whom many organisation believe to be wrongly categorised. HRW states that Japan lacks specific legislation prohibiting trafficking and there is no indication that they intend to establish said legislation. HRW states that trafficking cases are not aggressively pursued and penalties are weak. The government may have funded international programmes to increase awareness in other countries, but overall, little to nothing has been done to control the growing trafficking issue.

I submit there should be an effort to provide more concrete evidence to support the placement of countries in the specific tiers. The USDS should ensure that all future reports include all reliable data on the number of trafficking victims in each country, disaggregated by age, sex, nationality, and the nature of their forced labour. In summary, the objectivity of the reporting mechanism of the USDS is arguable questionable, especially if a country has implemented an effective awareness programme that will lessen or eliminate prosecution. Having no prosecution because of effective public campaign should not put a country at a disadvantage.

Victor Barrett is a trafficking in persons specialist. Comments: vicbar5@gmail.com

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