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IDENTIFYING AND INVESTIGATING CASES OF FORCED LABOUR AND HUMAN TRAFFICKING Dr Shahrzad Fouladvand Lecturer in Human Rights Law Hull Law School & Wilberforce Institute (WISE) University of Hull [email protected]
The International Legal framework applicable to forced labour and Human Trafficking
- The UN Slavery Convention, 1926 - The ILO Forced Labour Convention, 1930 (No. 29) - The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 2000
- Modern Slavery Act 2015 ■ Indicators of Forced Labour and Human Trafficking ■ The sequence of investigative steps
■ Victim - Centred Investigation ■ Guiding principles for the treatment of victims ■ Questioning techniques and Topics
People Most at Risk ■ Women and girls, who represent 55% (11.4 million) of all forced labour victims ■ Workers suffering from long-standing patterns of discrimination ■ Migrant workers, particularly those with irregular status
■ Workers in informal sectors, such as domestic and agricultural workers ■ Children, who represent 26% (5.5 million) of all forced labour victims ■ Un-skilled and illiterate workers, who may not be aware of their legal rights
THE INTERNATIONAL LEGAL FRAMEWORK
The International Legal Definition ■ The ILO Forced Labour Convention, 1930 (No. 29) ‘All work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. ■ two elements: 1- ‘Lack of valid consent’ 2- ‘Menace (or threat) of penalty’ This Convention has been ratified by the United Kingdom in 1931.
■ Modern Slavery Act 2015
Subsection (1) provides for an offence of slavery, servitude and forced or compulsory labour. ■ No one shall be held in slavery or servitude. ■ No one shall be required to perform forced or compulsory labour
“forced or compulsory labour” shall not include: ■ Compulsory military service ■ Certain forms of prison labour ■ Work in emergency situations (War, calamity, etc.,) ■ Minor communal services (within the community)
the following categories of workers are covered by the forced labour definition: ■ Homeless persons, beggars ■ Persons working in private households ■ Irregular migrants ■ Seafarers
■ Persons engaged in drug trafficking ■ Street children
Reviewing Penalty ■ Physical and sexual violence ■ Imprisonment or other physical confinement ■ Imposition of worse terms and conditions of work, including extra work ■ Dismissal, exclusion from future employment
■ Removal of rights or privileges ■ Financial penalties ■ Deprivation of food, shelter or other necessities ■ Retention of identity documents ■ Retention of other valuable belongings ■ Denunciation to authorities (police, immigration) and deportation ■ Religious retaliation ■ Informing family, community or public about the current situation of the worker leading to loss of social status.
Forced Labour and Human Trafficking ■ several critical concepts and categories are related to forced labour, including labour exploitation, human trafficking, slavery, bonded labour, child labour and prison labour. ■ Human Trafficking is a serious crime that involves the recruitment, transportation or receipt of persons within a country or across borders for the purpose of exploitation.
Human Trafficking Definition ■ The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, 2000- also known as the ‘Trafficking Protocol’ – defines human trafficking to include three elements: Act
Purpose of Exploitation
Prostitution or other forms of Sexual exploitation
Use of Force
Forced Labour or services
Slavery or Similar Practices
Removal of Organs
Deception In the case of a child, the ‘act’ and exploitative ‘purpose’ are enough to qualify a case involving a child as one of human trafficking.
Human Trafficking Definition ■ Modern Slavery Act 2015 ■ Section 2: A single offence of human trafficking covering sexual and non-sexual exploitation.
■ It replaces the two existing offences in -
sections 59A of the Sexual Offences Act 2003 (which relates to human trafficking for the purposes of sexual exploitation)
section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (which relates to human trafficking for the purposes of labour or other exploitation)
both these existing offences are repealed by Schedule 5.
Forced Labour and Slavery ■ Slavery is defined by the UN Slavery Convention, 1926, as a ‘status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. ■ Slavery and slavery-like practices constitute a form of forced labour. ■ Bonded labour is a form of forced labour
Forced Labour and the Law ■ its actual enforcement is through national laws - there must be a criminal prohibition of the practices of forced labour and human trafficking
- The penalty for engaging in the practice must be adequate - There must be an effective enforcement mechanism for bringing allegations of forced labour and human trafficking before the law for judgement. ■ Different approaches can be used to prosecute and punish: -
Forced labour and human trafficking cases can be prosecuted as a stand-alone offence
sometimes laws prohibiting crimes that are related to forced labour or human trafficking
In some countries, certain types or forms of forced labour can be prohibited under national legislation
INDICATORS OF FORCED LABOUR AND HUMAN TRAFFICKING
Indicators 1. Deception 2. Retention of identity documents 3. Restriction of movement 4. Abusive working and living conditions 5. Withholding of wages 6. Excessive overtime 7. Isolation 8. Physical and sexual violence 9. Intimidation and threats 10. Abuse of vulnerability 11. Debt bondage
How indicators are used in practice to investigate cases? ■ the sequence of investigative steps: ■ Spot signs: Recognise warning signs that point to force labour or human trafficking indicators ■ Check causes: Ask questions to determine whether the signs could relate to forced labour
■ Use methods: Apply investigative methods to obtain answers to the previous set of questions ■ Collect evidence: Gather evidence related to each indicator that will help establish the existence of forced labour
How does this investigative sequence work in practice? ■ Deception: ■
■ Actual terms and conditions of work differ from those that were promised orally or in writing ■ Employer cannot show an employment contract ■ Worker has no employment contact or the terms and conditions are poorly defined ■ Employment contact is written in a language that the worker does not understand ■ Worker signed a new employment contact upon arrival (contact substitution)
■ Worker is not provided with pay slips or any other record or wages or deductions ■ Worker does not understand how wages or deductions are calculated or know how much he/she is earning
How does this investigate sequence work in practice? ■ Check causes ■ How did the worker learn about the job (advertisement, informally, direct contact)? Did an intermediary recruit the worker? ■ Did the worker sign an employment contact? If so, is the worker’s signature genuine? Was the contract signed under duress? ■ If the worker signed a contract, does he/she understand the language and its terms and conditions? ■ Has the worker signed more than one employment contract (e.g. before departure and upon arrival)? Do the contracts differ? ■ What was the worker promised about the job (location, nature of work, pay) and benefits (housing, food, other)?
How does this investigate sequence work in practice? ■ Use methods ■ Examine employment records ■ Search for records of communication to establish means of recruitment, relationships between employers and intermediaries and promised terms and conditions of work ■ Interview workers separately and in a confidential environment ■ Interview the intermediary (recruiter, contractor or private employment agency) ■ Inspect the premises of the intermediary and examine records ■ Check whether the intermediary is licensed and accredited by the competent authority ■ Check public records, government databases and media sources for information about any complaints or pending cases involving the employer or intermediary ■ Interview third parties, such as relatives co-worker
How does this investigate sequence work in practice? ■ Collect Evidence ■ Witness statements ■ Employment contracts and other documents indicating the terms and conditions of work ■ Sources related to recruitment (e.g. Job advertisement from newspapers, internet, radio, or posters) ■ Record of financial transactions (e.g. pay slips, books and registers, bank records) ■ Record of communication (e.g. diaries, agendas, phone records, actual phone calls made, received, emails, letters. ) ■ Record of transportation (e.g. tickets or receipts, pieces of paper with dates and times, petrol receipts) ■ Public records, media reports and information from government databases ■ Registration or accreditation records (licenses, certificates, professional qualifications)
VICTIM CENTRED INVESTIGATION
Victim centred investigation ■ What is the victim-centred approach and how does forced labour and human trafficking affect victims?
■ Most prosecutions will require testimony from victims ■ Understanding how the experience of forced labour and human trafficking affects victims will help you to deal with victims appropriately ■ what are some common reactions of forced labour and human trafficking? - Effects of trauma: victims often experience feelings of guilt, shame, anger, anxiety, risk behaviours, depression and physical symptoms. Changing accounts or even fabrications can occur as a result of trauma and not necessarily the result of a deliberate decision not to cooperate. - Dependency: -Fear of retaliation: - Distrust
Victim Centred Investigation ■
- ensuring that procedures are in place to response to the needs of victims before conducting an inspection or raid - Coordinate interviews with other law enforcement agencies, when possible to decrease the number of times a victim has to tell a traumatic story and avoid the existence of conflicting accounts. ■ Secondary victimisation: ■
Secondary victimisation refers to responses by law enforcement officers, service providers and other professionals that further traumatise victims.
- blaming the victim for his or her situation - excessive, intensive questioning or intrusive physical examinations
- not respecting the confidentiality of information provided by the victim - Delaying the return of confiscated ID documents or other personal effects
Internationally recognised principles for the identification, protection and assistance of victims in forced labour and human trafficking cases ■ the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985 ■ the Recommended Principles and Guidelines on Human Rights and Human Trafficking 2002, developed by the UN High Commissioner for Human Rights. ■ These principles require close collaboration between law enforcement, NGOs and other professionals to ensure that victims are properly protected and assisted and not re-victimised.
the most important guiding principles for the treatment of victims ■ Treat as victims, not criminals ■ Treat with dignity: avoiding forceful interrogations, being sensitive to gender and cultural issues and avoiding language that could come across as judgmental or discriminatory. ■ Provide access to information: victims should be fully informed about their rights and responsibilities, legal proceedings and the detention status of defendants. ■ Protect from harm: a comprehensive risk assessment should consider measures such as the provision of secure housing, protection of victim identity, police escorts and pre-trial detention of offenders. ■ Provide with assistance: e.g. shelter, health care, ■ Offer recovery and reflection period to enable them to recover and make informed decisions about whether to cooperate in any legal proceedings. ■ Access to remedies
■ Reparation: victims should be offered safe and voluntary return to their home countries. ■ Special consideration for child victims.
Considerations when interviewing victims: Challenges ■ Rehearsed stories
■ Memory problem ■ Hostility and refusal to cooperate ■ Changing accounts and fabrications
■ Lack of knowledge about rights, unwillingness to view themselves as victims, belief that it is normal to work under exploitative conditions ■ Emotional attachment to exploiters ■ Fear of law enforcement ■ Fear of retribution from employers/exploiters ■ Feelings of shame and guilt ■ Inability to speak the local language, low level of formal education ■ Social and cultural differences, gender issues
Questioning techniques: ■ Actively listening: careful listening skills enable interviewers to ask important follow up questions and obtain clarification about details vague descriptions in the victim’s account. ■ Indirect questioning: many individuals may find it easier to call attention to the needs of others than to describe their own experiences. Let interviewees to describe abuses suffered by co-workers, rather than pressuring them to immediately tell their own stories. ■
Flexible: permitting interviewees to answer questions in their own time and let them to tell their stories.
Topics that should be addressed include: ■ Entry into the situation (including recruitment, transport, arrival, methods of communication, financial arrangement and deception) ■ Working conditions ■ Living conditions
■ Health ■ Wage payment practices (unpaid wages, partial wages, debt bondage) ■ Location of identification and travel documents
■ Freedom of movement (locks or other means) ■ Communication and contact