Human trafficking and forced labour: A criticism of the International Labour Organisation

Abstract

Purpose
– During the last ten years, the International Labour Organisation (ILO), and some other international organizations, have increasingly addressed human trafficking from a “forced labour” perspective. The purpose of this paper is to clarify the terminology in relation to human trafficking and forced labour, to highlight the links between them, and to provide a critique of the ILO approach. It also aims to make the case for the implementation of a specific international instrument to address the link between trafficking and forced labour.

Design/methodology/approach
– This paper compares the definitions of human trafficking and forced labour, the link between them in the United Nations, European and ILO instruments.

Findings
– Although human trafficking is a criminal activity, the ILO identifies it as a form of forced labour. The paper concludes that, no matter what role the trafficking victims have in participating in the criminal activities, they should be viewed as victims and witnesses. They should not be viewed as “workers” or “labourers”. Any minor under the age of 18 years, in accordance with the European and international instruments, has no legal capacity to give consent to being exploited.

Originality/value
– This paper argues that the international and European instruments do not specifically address the link between trafficking and forced labour. There is a need for a specific international instrument prescribing the link between trafficking and forced labour. In the absence of such an international instrument, there is a piece meal approach by international bodies and countries toward the regulation of trafficking and forced labour.

Full text

Human trafficking and
forced labour
A criticism of the International
Labour Organisation
Kadriye Bakirci
Law Division, Management Faculty, Istanbul Technical University,
Istanbul, Turkey
Abstract
Purpose – During the last ten years, the International Labour Organisation (ILO), and some other
international organizations, have increasingly addressed human trafficking from a “forced labour”
perspective. The purpose of this paper is to clarify the terminology in relation to human trafficking
and forced labour, to highlight the links between them, and to provide a critique of the ILO approach.
It also aims to make the case for the implementation of a specific international instrument to address
the link between trafficking and forced labour.
Design/methodology/approach – This paper compares the definitions of human trafficking and
forced labour, the link between them in the United Nations, European and ILO instruments.
Findings – Although human trafficking is a criminal activity, the ILO identifies it as a form of forced
labour. The paper concludes that, no matter what role the trafficking victims have in participating in
the criminal activities, they should be viewed as victims and witnesses. They should not be viewed as
“workers” or “labourers”. Any minor under the age of 18 years, in accordance with the European and
international instruments, has no legal capacity to give consent to being exploited.
Originality/value – This paper argues that the international and European instruments do not
specifically address the link between trafficking and forced labour. There is a need for a specific
international instrument prescribing the link between trafficking and forced labour. In the absence of
such an international instrument, there is a piece meal approach by international bodies and countries
toward the regulation of trafficking and forced labour.
Keywords Labour, Human rights, Crimes, Laws and legislation
Paper type Viewpoint
1. Introduction
Human smuggling and trafficking have become a world-wide industry that
“employs” millions of people and has an annual turnover of billions of dollars
(Va
¨yrynen, 2003).
Modern trafficking and modern forms of bondage are linked through indebtedness,
which makes trafficking a form of forced labour. Forced labour as such has not really
caught the world’s attention. It takes different forms and their common features might
seem abstract at first glance. However, forced or compulsory labour makes headlines
almost daily in stories of trafficking in persons, imprisonment in sweatshops and the
slavery-like conditions on some plantations and even in private homes (Anti-Slavery
International – ASI, 2003).
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Journal of Financial Crime
Vol. 16 No. 2, 2009
pp. 160-165
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DOI 10.1108/13590790910951830

2. Human trafficking
2.1 Definition of trafficking
Official definitions of human trafficking are provided by the United Nations’ (UN)
Protocol against the smuggling of migrants by land, sea and air and the UN Protocol to
suppress and punish trafficking in persons, especially women and children.
The protocols are supplements to the so-called Palermo Convention or more
specifically the UN Convention on Transnational Organised Crime adopted by the UN
General Assembly on 15 November 2000.
Trafficking refers to the:
[...] recruitment, transportation, transfer, harbouring or receipt of persons, by means of
threat or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or
of a position of vulnerability or of the giving or receiving of payments or benefits to achieve
the consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, sexual exploitation, labour exploitation,
slavery or practices similar to slavery, servitude or the removal of organs.
2.2 Important clarifications about trafficking
.Trafficking does not require movement. A common myth regarding trafficking is
that it solely entails the transporting of people for sale across political and
geographic boundaries. Contrary to the practice of human smuggling, trafficking
in persons does not necessarily entail crossing an international border or does not
require any transporting; instead it is contingent upon recruiting, harbouring,
providing or obtaining of a person for the purposes described in the definition
above. The concept can be compared to that of drug trafficking, i.e. the mere
selling of drugs is considered drug trafficking – the drugs need not be transported
over any form of border. Therefore, people are sometimes trafficked within their
home towns (internal trafficking) (Ellerman, 2002).
.Consent of victims is largely irrelevant. The consent of a victim to the intended
exploitation is irrelevant where any of the exploitative means have been used. Victims
ofhumantraffickingarestillconsidered “victims” even if they initially provided their
consent to participation in the sexual or labour exploitation (Ellerman, 2002).
2.3 Forms of trafficking
Trafficking is categorised as sex and labour traffickings. These forms of trafficking
should be more logically categorised as labour trafficking and trafficking for the
purpose of criminal activities including sex trafficking.
3. Forced labour
In its original convention on the subject, the Forced Labour Convention, 1930 (No. 29), the
International Labour Organisation (ILO) defines forced labour for the purposes of
international law as “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” (Art. 2(1)).
The other fundamental ILO instrument, the Abolition of Forced Labour Convention,
1957 (No. 105), specifies that forced labour can never be used for the purpose of economic
development or as a means of political education, discrimination, labour discipline,
or punishment for having participated in strikes (Art. 1). The Abolition of Forced Labour
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Convention, 1957 (No. 105), supplements rather than revises the earlier instrument. This
convention clarifies certain purposes for which forced labour can never be imposed, but
does not alter the basic definition in international law (ILO, 2005).
Convention (No. 29) provides for certain exceptions, in particular with regard to military
service for work of a purely military character, normal civic obligations, work of prisoners
convicted in a court of law and working under the control of a public authority, work in
emergency cases such as wars or calamities, and minor communal services (Art. 2(2)).
Forced labour cannot be equated simply with low wages or poor working conditions.
Nor does it cover situations of pure economic necessity, as when a worker feels unable to
leave a job because of the real or perceived absence of employment alternatives. Forced
labour represents a severe violation of human rights and the restriction of human
freedom, as defined in the ILO conventions on the subject, the UN instruments on
slavery, practices similar to slavery, debt bondage or serfdom and in European
instruments (ILO, 2005).
The ILO’s definition of forced labour comprises two basic elements: the work or
service is exacted under the menace of a penalty and it is undertaken involuntarily
(ILO Convention, 1930 (No. 29)). The work of the ILO supervisory bodies has served to
clarify both of these elements over the last 75 years.
The penalty does not need to be in the form of penal sanctions, but may also take the
form of a loss of rights and privileges. Moreover, the menace of a penalty can take
multiple different forms. Arguably, its most extreme form involves physical violence or
restraint, or even death threats addressed to the victim or relatives. There can also be
subtler forms of menace, sometimes of a psychological nature. Situations examined by
the ILO have included threats to denounce victims to the police or immigration
authorities when their employment status is illegal, or denunciation to village elders in
the case of girls forced to prostitute themselves in distant cities. Other penalties can be of
a financial nature, including economic penalties linked to debts, the non-payment of
wages, or the loss of wages accompanied by threats of dismissal if workers refuse to do
overtime beyond the scope of their contract or of national law. Employers sometimes
also require workers to hand over their identity papers, and may use the threat of
confiscation of these documents in order to exact forced labour (ILO, 2005).
Freedom of choice, the ILO supervisory bodies have touched on a range of aspects
including: the form and subject matter of consent; the role of external constraints or
indirect coercion; and the possibility of revoking freely given consent. Here too, there
can be many subtle forms of coercion. Many victims enter forced labour situations
initially of their own accord, albeit through fraud and deception, only to discover later
that they are not free to withdraw their labour. They are subsequently unable to leave
their work owing to legal, physical or psychological coercion. Initial consent may be
considered irrelevant when deception or fraud has been used to obtain it (ILO, 2005).
4. Human trafficking and forced labour
During the last ten years, the ILO and other international organisations, like ASI and
the International Confederation of Trade Unions have progressively, perceived
trafficking from a “forced labour” perspective.
For more than ten years, the ILO’s Committee of Experts on the Application of
Conventions and Recommendations (CEACR) has commented on several occasions on
the trafficking of men, women and children for the purposes of labour exploitation,
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including forced labour in sweatshops, factories, plantations, entertainment, brothels
and as domestic servants in private houses. The committee found that victims of
trafficking had often submitted to conditions of forced labour; therefore information on
national and cross-border trafficking has generally been examined under the Forced
Labour Convention, 1930 (No. 29) (ILO, 2005).
The CEACR had considered cases of indigenous people, children, women as well as men,
and concluded that “women and children are the key target group for traffickers”. It draws
attention to the particular vulnerability and needs of children “where child bondage and
forced labour is related to trafficking and related forms of abuse” (ILO, 2005).
4.1 Labour trafficking and forced labour
It is estimated that approximately 2.5 million men, women and children are victims of
trafficking at any point in time, and that at the very least one-third of these are
trafficked for economic purposes other than sexual exploitation. While there appears to
be increasing consensus on this point among the global anti-trafficking community,
there is still insufficient knowledge of these broader dimensions of the problem,
because policy-makers and law-enforcement agencies have not applied resources to
investigation, and an inevitable consequence is that there has been very limited official
data or analytical research (ILO, 2005).
There are numerous forms of labour trafficking, some examples are: agriculture/farm
labour, factory work/“sweat shops”, domestic servitude/housekeeping/nannies,
construction, food service, entertainment/modeling, peddling (ILO, 2005).
Labour trafficking victims who are cheap labourers end up in small workshops in
the tourism and entertainment sector or in private households, working illegally
without any, insurance or administrative and judicial safeguards. In all countries and
regions migrant workers, particularly illegal migrants, are at particular risk of coercive
recruitment and employment practices (ILO, 2005).
Forced labour situations may be particularly widespread in certain economic activities or
industries which lend themselves to abusive recruitment and employment practices.
However, the fact of forced labour is determined by the nature of the relationship between a
person and an “employer”, and not by the type of activity performed, however hard or
hazardous the conditions of work may be. Nor is the legality or illegality under national law
of the activity relevant to determining whether or not the work is forced (ILO, 2005).
In my opinion, any kind of labour resulting from human trafficking should be
defined as forced labour regardless of the nature of the work or working conditions.
Since trafficking refers to the:
[...] recruitment, transportation, transfer, harbouring or receipt of persons, by means of
threat or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or
of a position of vulnerability or of the giving or receiving of payments or benefits to achieve
the consent of a person having control over another person, for the purpose of exploitation.
The trafficked people should be seen to be victims of forced labour. They cannot conclude
employment contracts by their own free will. This puts them in a situation of forced labour.
4.2 Trafficking for the purpose of criminal activities and forced labour
4.2.1 Sex trafficking and forced labour. The most lucrative part of trafficking involves
sex trafficking, and the trafficking in women and children for the sex trade has
emerged as an issue of global concern which is facilitated by porous borders and
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advanced communication technologies and is becoming increasingly transnational in
scope (ECPAT International, 2004; IOM, 2004). Some sex trafficking victims are forced
into the following situations: forced prostitution, pornography, stripping/exotic
dancing, mail order brides, and massage parlors.
The victims of sex trafficking – girls, women, men and boys – are enslaved often
under threat of death. Without their consent, they are forced to provide sex for pay.
The payment goes directly to the traffickers. Traffickers often convince women to go
abroad and work as prostitutes, seemingly of their own free will, but then enslave and
brutalize them. They are modern day slaves. A Swedish Government study revealed
that much of the vast profits generated by the global prostitution industry go directly
into the pockets of human traffickers (US Department of State, 2004).
In contrast, prostitution is when a woman sells her body as a commodity and
pockets the income. Prostitutes are not slaves and are not controlled by the traffickers.
According to the ILO (2005) supervisory bodies:
A woman forced into prostitution is in a forced labour situation because of the involuntary
nature of the work and the menace under which she is working, irrespective of the legality or
illegality of that particular activity.
Women who are the victims of sex trafficking are therefore the victims of illegal or
criminal activity and should not be defined as (forced) labourers. They should be seen
to be victims of crime and witnesses to criminal activity.
The only instrument of the ILO related to child exploitation, Convention Concerning
the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child
Labour (No. 182) of 1999, provides protection against the sale and trafficking of
children, the use, procuring or offering of a child for prostitution, for the production of
pornography or for pornographic performances. Although child labour does not imply
child prostitution and pornography Convention No. 182 includes child prostitution and
pornography in the definition of the term “child labour” (Bakirci, 2007).
4.2.2 Other forms of exploitation and forced labour. Women and children are
trafficked for the purpose of begging, street crime, shop lifting and drug transporting.
Disabled and elderly men are also trafficked as beggers. The traffickers exploit them
for their own financial gain.
The ILO Convention No. 182 provides that:
For the purposes of this Convention, the term the worst forms of child labour comprises inter
alia the use, procuring or offering of a child for illicit activities, in particular for the production
and trafficking of drugs as defined in the relevant international treaties (Art. 3 (c)).
Although child labour does not imply “the use, procuring or offering of a child for illicit
activities, in particular for the production and trafficking of drugs”, Convention No. 182
includes them into the term “child labour”.
According to the ILO supervisory bodies “an activity does not need to be recognised
officially as an ‘economic activity’ for it to fall potentially within the ambit of ‘forced
labour’”. For example, a child or adult beggar under coercion will be considered as
being in forced labour.
Although “work” or “labour” does not also imply begging or other criminal
activities (such as street crime, shoplifting and drug transporting), the ILO Convention
No. 182 and the ILO supervisory bodies includes them in the term “labour” (Bakirci,
2007) and identify them as among the forms of forced labour.
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4.2.3 A criticism of the ILO. I do not agree with the ILO’s definition because:
.These are all criminal activities. No matter what role the trafficking victims have
in participating in the criminal activities, they should be viewed as victims and
witnesses. They should not be viewed as “workers” or “labourers” (Bakirci, 2007).
.Also a child and a young adult under 18-years old, in accordance with the European
and international documents, has no legal capacity to give consent to being exploited
(Bakirci, 2007).
.Although these kinds of activities need to be eliminated immediately and
international action is required, the ILO should stop including illegal activities in the
definition of labour. These kinds of activities should be dealt with in specific
international and European instruments and not within ILO’s instruments which are
about general labour standards.
5. The need for a specific international instrument to address the link
between trafficking and forced labour
The international and European instruments do not specifically address the link between
trafficking and forced labour. There is a need for a specific international instrument
prescribing the link between trafficking and forced labour. In the absence of such an
international instrument, there is a wide range of diversity in the approaches of international
bodies and countries towards the regulation of trafficking and forced labour, even among
those that have enacted specific legislation for it.
References
ASI (2003), “Programme consultation meeting on the protection of domestic workers against the
threat of forced labour and trafficking”, paper prepared for Anti-Slavery International by
Lin Chew, in Cooperation with the ILO’s SpecialAction Programme to CombatForced Labour,
available at: www.antislavery.org.uk/homepage/resources/Anti-Slavery%20domestic%20
workers%20discussion%20paper%
Bakirci, K. (2007), “Child pornography and prostitution: is this crime or work that should be
regulated”, Journal of Financial Crime, Vol. 14 No. 1.
ECPAT International (2004), End Child Prostitution, Child Pornography and Trafficking of
Children for Sexual Purposes, ECPAT International, Bangkok, available at: www.ecpat.net
Ellerman, D. (2002), “Trafficking of women and children in the United States”, available at: www.
polarisproject.org/polarisproject/Brandeisl.htm
ILO (2005), A Global Alliance Against Forced Labour, ILO, Geneva.
IOM (2004), International Migration Law, Glossary on Migration, IOM, Geneva.
US Department of State (2004), Trafficking in Persons Report, State Department Releases, June,
US Department of State, Washington, DC.
Va
¨yrynen, R. (2003), “Illegal immigration, human trafficking, and organized crime”, Discussion
Paper No. 2003/72, UNU Wider, Helsinki.
Corresponding author
Kadriye Bakirci can be contacted at: bakirci@itu.edu.tr
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