On 2nd July, the Sri Lanka Press Institute (SLPI) organised a panel discussion on preventing human smuggling and trafficking. The event was as much a forum to discuss the incredible increase in, despite ridiculous government denials, boats with asylum seekers from Sri Lanka heading to Australia as it was a panel that sought to address mainstream media misconceptions about the basics of human smuggling and trafficking.
Mainstream media reportage following the press conference didn’t inspire confidence that the second goal was met. For example, Ceylon Today’s almost full page spread on 4th July got almost every conceivable fact from the press conference wrong, including the ILO’s representative’s gender. It included in the article a question about the financial architecture of smuggling and trafficking posed to the panel by us, but got the answer completely muddled up and attributed statements to the ILO representative actually made by others on the panel.
Media coverage on this issue in Australia, as Asanka B Ratnayake, a photographer resident in Australia (@abrfoto) avers, is no better.
@groundviews The big news in Australians mind & dominating the media atm is our new carbon tax, boat people news is back to pg 3 & beyond
— Asanka B Ratnayake (@ABRFOTO) July 2, 2012
— Asanka B Ratnayake (@ABRFOTO) June 29, 2012
Media reports since the press conference and, in fact, over just the past week alone have reported a continuing outflow of boats from Sri Lanka, sometimes as high as two a day. More are being caught by the Navy, but many also seem to be ending up in or around Australia. Given the severity of the problem, Groundviews asked the ILO representative at the panel, Chandrika Karunaratna, National Programme Coordinator of Trafficking in Persons and Forced Labour to answer some pertinent questions about this under appreciated and badly reported issue. The questions also included some posed by this site’s readers as we were live tweeting the proceedings of the SLPI press conference.
What’s the difference between human smuggling and human trafficking?
Human Trafficking and Human Smuggling are two terms that are often used (albeit erroneously) synonymously. There are significant differences between the two.
It is important to understand the distinction between Human Trafficking & Human Smuggling as there is a tendency to confuse the two. The media often uses the terms inter-changeably when in reality the two are entirely different. What has been discussed and reported widely in the news the past couple of weeks- the boats arriving in Christmas Island is ‘human smuggling’.
Human Smuggling is the ‘ procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident’.
Human Trafficking is the ‘recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat, force, coercion, abduction, fraud, deception, abuse of the position of vulnerability or giving or receiving of payments or benefits to achieve consent of a person having control over another person for the purpose of exploitation’ .
There are several key distinctions between ‘smuggling’ and ‘trafficking’. Smuggling always occurs trans-boundary (between countries) whereas Trafficking can occur within the country as well as across national boundaries, referred to as internal trafficking & external trafficking. Another significant difference between the two terms lies in the means used by the perpetrator to secure consent. In Smuggling, the migrant knows that he/she is being smuggled; there is consent. However in Trafficking there would be no consent, and even if there were, it would have been obtained by means of deception, fraud, threat, force, abduction or coercion. Therefore, the lack of consent is an essential ingredient in ‘trafficking’. The ultimate purpose for which a person will be trafficked is exploitation, and this can include commercial sexual exploitation, forced labour, slavery, removal of organs, begging etc. The smuggler on the other hand would have no intention of exploiting the smuggled migrant after having enabled him/her to illegally enter or stay in a country. A clear distinction should be made between the two terms also in relation to the penalties associated with the offence. The Immigration & Emigration Act of Sri Lanka carries a penalty of 1-5 years Rigorous Imprisonment for an offender of Smuggling, whereas an offender of trafficking can receive a minimum penalty of 2 years and a maximum penalty of 20 years Rigorous imprisonment and a fine. The penalty for trafficking is commensurate with that imposed in relation to the offence of rape.
However, it is also important to note that a smuggler can be an intermediary who benefits from trafficking. E.g. An individual who transports or organizes the transportation of irregular migrants for a fee across the border.
What of the two does the ILO’s mandate primarily extend to preventing and addressing?
The ILO founded in 1919, as part of the Treaty of Versailles that ended World War 1, premised on the principal that ‘universal and lasting peace can be established only if it is based upon social justice’; is the international organization responsible for developing and overseeing international labour standards.
In the given context, the ILO’s mandate extends to addressing Human Trafficking. The ultimate purpose for which a person may be trafficked is exploitation. This includes forced labour for economic exploitation, and forced labour for commercial sexual exploitation. The ILO has since its inception worked to combat the practice and also the conditions that give rise to it. The ILO’s advantage lies mainly in its rich body of conventions that are ratified widely by countries across the globe. It’s supervisory mechanism ensures compliance with the provisions contained in the conventions and affords an opportunity for the ILO’s tripartite partners; Governments, Workers’, and Employers’ organizations to report on progress and comment on the lack thereof.
ILO’s mandate to combat forced labour dates as far back as 1930 when the Forced Labour Convention (C-29) was introduced in around the same time period of the Slavery Convention of 1926. Later the drafters of the International Covenant on Civil and Political Rights (ICCPR) 1966 and the European Convention on Human Rights (ECHR) 1950 modeled their prohibitions on forced labour and slavery on these ILO definitions. Thereafter the Abolition of Forced Labour Convention (C-105) in 1959 and the Convention on the elimination of worst forms of Child Labour Convention (C-182) in1999 served to combat trafficking in persons for forced labour and commercial sexual exploitation. The ILO has also established a Special Action Programme on Forced Labour to intensify the efforts to combat trafficking and forced labour. Sri Lanka has ratified all the ILO conventions mentioned above, and as such has a close working relationship with the ILO in implementing measures aimed at combating trafficking.
The ILO has several programmes that specifically address trafficking in persons in several countries. Under the ILO International Programme for the Elimination of Child Labour (IPEC) a specific project to combat child trafficking was implemented in Sri Lanka from 2002-2006. A Cyber Surveillance Unit was established at the National Child Protection Authority, and officers were trained by experts from Scotland Yard to identify and investigate offenders. Several cases were identified and the programme also assisted the US Federal Bureau of Investigation (FBI) to arrest a US national involved in child trafficking.
ILO is currently implementing another programme on preventing trafficking in Persons in Sri Lanka through improved management of labour migration since 2009. Under this programme the ILO works in close cooperation with the relevant ministries, law enforcement authorities, immigration and the Foreign Employment Bureau on strengthening policy, supporting law enforcement operations and improving the knowledge base on better informed labour migration. The ILO provides technical support to the National Anti-Trafficking Task Force that decides upon policy interventions, facilitates training programmes for law enforcement officers including the state prosecutors, police, officers attached to the Sri Lanka Bureau of Foreign Employment pre-departure training centres island-wide, and media personnel. Judicial Colloquiums on the international legal developments on the subject were also organized. The ILO is also currently developing Resource Manuals on the subject for the state prosecutors in partnership with the Attorney General’s Department. A survey on returned and refused migrants is going to be conducted at the Bandaranaike International Airport in collaboration with the Department of Immigration & Emigration to identify victims and offenders and channel them to the relevant authorities. A range of awareness raising initiatives is being implemented in collaboration with the stakeholders at national, subnational, and village level. The ILO envisages working with the entire cardre of the labour inspectorate to identify victims and perpetrators of trafficking. Currently the ILO in partnership with the Bandaranaike Centre for International Studies and the Department of Immigration & Emigration is conducting a 6-month Diploma on Migration & Trafficking for all national stakeholders with a view to providing an in-depth understanding on the subject. Community Vigilance Groups were established and trained in monitoring and investigating cases at the village level in partnership with a Trade Union following which several cases were identified and channeled to the relevant authorities including the Police and the National child Protection Authority. The ILO also works in close cooperation with the national stakeholders in reviewing the existing national legislation on the subject and exploring areas for reform.
What do we know of the financial architectures of human smuggling and trafficking, globally as well as reg. Sri Lanka? How is payment made?
In the case of trafficking for forced labour, if paid, the wages are significantly below market rates and it would be barely sufficient to meet the victims’ subsistence costs. In most extreme cases, traffickers and other perpetrators exercise complete discretion over the payments often leaving the victim uncompensated. In the case of trafficking of migrant workers, bogus job agents and intermediaries charge exorbitant recruitment fees and in the event that the victim is unable to pay the sum, he/she will find him/herself in a situation of bonded labour at the destination where the worker’s pay is set off against the fee owed to the recruitment agent. Victims of trafficking for forced commercial sexual exploitation rarely receive pay, and the perpetrator inevitably profits handsomely. In extreme cases they remain in perpetual servitude unable to escape the exploitative conditions.
The ILO’s 2009 global report on forced labor stated that the financial crisis could serve to boost the supply side of human trafficking by expanding the pool of vulnerable and unprotected workers as easy prey to traffickers.
It is essential to gather financial information to identify financial networks linked to organized crime and human trafficking. Financial intelligence units should be established to trace, intercept and confiscate the criminal assets and proceeds of crime.
However, it is important to note that unlike smuggling, trafficking does not always involve a pecuniary benefit as the ultimate purpose for which a person maybe trafficked is exploitation. Intermediaries may benefit financially at some point of the network/chain, however we cannot disregard the fact that this may not be so in certain cases and the receipt of payment is not the deciding factor in a case of trafficking.
What’s the most recent data available on numbers being trafficked, and how much of a lucrative industry this? You mentioned some figures from 2008 – is there more recent data and if not, why not?
The profits generated from human trafficking are significantly high, thereby making it one of the most lucrative criminal industries in the world.
The ILO Working Paper: Forced Labour and Human Trafficking estimated that the annual global profits generated from the world’s 2.5 million victims of trafficking for forced labour, including forced commercial sexual exploitation and forced labour for economic exploitation is USS32 billion. The paper represented an annual average profit of US 13,000 per victim. Profits from the global estimate of 1.1million victims of trafficking for forced economic exploitation amounted to USS 3.8 billion. The global profit from victims of commercial sexual exploitation amounted to USS 27.8 billion.
The ‘ILO Global Estimate of Forced Labour 2012’ estimates 20.9 million victims of forced labour globally, a figure that is considerably higher than ILO’s previous estimate. Out of this, 4.5 million (22%) are victims of forced sexual exploitation, and 14.2 million (68%) are victims of forced labour for exploitation in economic activities, such as agriculture, construction, domestic work or manufacturing. According to the estimates the Asia-Pacific region accounts for by far the largest number of forced labourers-11.7 million (56%) of the global total.
It was noted at the press conference that in 2011 and 2012, Sri Lanka was categorised as a Tier 2 country by the US State Dept. What does this exactly mean, and is the ranking revised annually?
The United States Department of State releases a report referred to as the Trafficking in Persons (TIP) report. It is released annually and reflects a global perspective of the nature and scope of trafficking in persons and the broad range of government actions to confront and eliminate it. The report grades countries into one of 3 Tiers based on the governments’ efforts to comply with the minimum standards for the elimination of trafficking contained in the Trafficking Victims Protection Act of the United States of America. While those countries whose governments fully comply with the TVPA standards are placed in Tier 1, those whose governments do not fully comply but are making significant efforts to do so are placed in Tier 2. The Tier 2 Watch List is an extension of Tier 2 in that it reflects those countries in which the absolute number of victims of severe forms of trafficking is significant or significantly increasing, there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year, and where commitments to take additional steps over the next year determined the country’s efforts to comply with the minimum standards listed in the TVPA. Tier 3 carries those countries whose governments fail to comply with the minimum standards and are not making significant efforts to do so. A Tier 1 placement does not signify that a country has no human trafficking problem; it indicates that while a government acknowledges the existence of the problem, it has made significant efforts to address it. Moreover, appreciable progress must be demonstrated each year to remain in Tier 1.
The TIP Report specifically looks at a government’s prosecution, protection and prevention efforts to combat trafficking in persons. The number of convictions as well as the range of initiatives aimed at protecting victims and preventing potential victimization plays a significant role in the grading system. Having been placed in the Tier 2 Watch List for 4 consecutive years from 2007, Sri Lanka was upgraded to Tier 2 in the reports released in both 2011 and 2012. A National Steering Committee on Trafficking in Persons was established in May 2010 in collaboration with the ILO and was subsequently integrated into the National Anti-Trafficking Task Force (NTF) Chaired by the Ministry of Justice and technically supported by the ILO and IOM. The collective efforts of the NTF coupled with the successful prosecution and conviction of the trafficking offenders during the past couple of years have contributed to Sri Lanka moving up in the tier placements.
The 2012 report notes, “The Government of Sri Lanka does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. During the year, the government did not convict any trafficking offenders. Serious problems remain, particularly in protecting victims of trafficking in Sri Lanka and abroad, and not addressing official complicity in human trafficking.” Given the recent rise in asylum seekers to Australia alone, how do you think Sri Lanka’s country status will be affected?
The TIP report released by the US Department of State specifically focuses on anti-trafficking measures introduced by the governments, specifically based on the degree of compliance with the minimum standards enumerated in the Trafficking Victims Protection Act of the United States. The recent rise in asylum seekers to Australia is primarily a question of suspected smuggling (refer definition of smuggling in Q1). As such, this development will not impact on the country’s status/grading as far as the TIP report is concerned.
Sri Lanka falls short of complying with the minimum standards mentioned above, especially in light of the absence of victim and witness protection law. A shelter for victims of trafficking has also been identified as a pressing need. Although no convictions were recorded during the reporting year, several indictments were filed and several on-going prosecutions were recorded. The TIP report recognizes the efforts of the National Anti-Trafficking Task Force in coordinating and streamlining the anti-trafficking measures introduced by the various stakeholders.
What are the key laws applicable to human smuggling and trafficking in Sri Lanka?
Trafficking: Although Sri Lanka had various provisions under its law to combat trafficking, it was introduced as a separate offence by way of an amendment to the Penal Code in 2006 (Act No. 16). The definition of trafficking contained in this provision (Section 360C.) is modeled on the international definition of trafficking contained in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (commonly referred to as the Palermo Protocol) that supplements the UN Convention on Transnational Organized Crime 2000. The Sri Lankan provision broadens the scope of the offence further by not restricting the act to recruitment, transportation, transfer, harbor or receipt but extending it to ‘any other act’ and extending the exploitative purpose to ‘any other act which constitutes an offence under any law’. Where the victim is an adult; the penalty associated with the offence ranges from a minimum of 2 to a maximum of 20 years rigorous imprisonment and a fine. Whereas if the victim is a child (under the age of eighteen) the minimum term of imprisonment is 3 years.
In addition to S. 360 of the penal code several other provisions dealing with offences such as ‘procuration, fraud, money laundering come into play as do provisions in the Immigration & Emigration Act, Sri Lanka Bureau of Foreign Employment Act, Brothels Ordinance, Vagrants Ordinance, and Employment of Women & Young Persons Act.
Smuggling: The key law applicable to human smuggling is contained in the Immigration & Emigration Act No. 20 of 1948 as amended. Sections 45, 45A and 45C as amended in 1961, 1993, 1998 and 2006 remain the relevant provisions. Section 45C specifically addressing the concern of facilitating persons to leave Sri Lanka maintains that ‘Any person who a) organizes one or more persons to leave Sri Lanka in contravention of the provisions of the Act or b) attempts or does any act preparatory to, or aids and abets any other person to, so organize shall be guilty of an offence and upon conviction be liable to imprisonment of either description for a minimum of 1 year up to a maximum of 5 years. The term ‘organizes’ includes the transportation of persons by sea, land or any other manner without obtaining valid travel documents, receiving and harbouring persons whether in Sri Lanka or in a foreign country, and soliciting pecuniary benefits from persons whether or not any such benefit was realized.
While the Immigration & Emigration Act contains detailed provisions that capture the essence of smuggling, it is pertinent to note that ‘Smuggling’ has not been defined in the Act.
What international legal instruments has Sri Lanka signed up to and ratified over human trafficking and smuggling? Is the country subject to regular independent review of compliance as a consequence?
Sri Lanka ratified the United Nations Convention on Transnational Organized Crime in September 2006. Although Sri Lanka signed its supplementary protocols in December 2000 – specifically a) the Protocol against the Smuggling of Migrants by Land, Sea and Air, and b) the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children; it is yet to ratify them. Sri Lanka has ratified, inter-alia, all 8 Core Conventions of the ILO including the Forced Labour Convention (C-29), Abolition of Forced Labour Convention (C-105), and the Convention on the Elimination of Worst Forms of Child Labour (C-182). These conventions specifically focus on exploitative labour practices and therefore contain the ILO international jurisprudence on trafficking for forced labour. Sri Lanka has also acceded to the United Nations Convention on the Protection of the Rights of all Migrant Workers and Members of their Families in March 1996. Sri Lanka ratified the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution 2002, however the domestic law enacted to give effect to the regional instrument is currently not in operation.
The ILO international labour standards are backed by a supervisory system that is unique at the international level and that helps to ensure that countries implement the conventions they ratify. Once a country has ratified an ILO convention, it is obliged to report regularly on measures it has taken to implement it. Every two years governments must submit reports detailing the steps they have taken in law and practice to apply any of the eight fundamental conventions they may have ratified. When examining the application of international labour standards the Committee of Experts makes two kinds of comments: observations and direct requests. Observations contain comments on fundamental questions raised by the application of a particular convention by a state. Direct requests relate to more technical questions or requests for further information. A standing committee of the Annual International Labour Conference is made up of government, employer, and worker delegates- ILO’s tripartite partners. It examines the report in a tripartite setting and selects from it a number of observations for discussion. The governments referred to in these comments are invited to respond before the Conference Committee and to provide information on the situation in question. In many cases the Conference Committee draws up conclusions recommending that governments take specific steps to remedy a problem. Member States report at regular intervals on measures they have taken to give effect to any provision of certain conventions or recommendations, and to indicate any obstacles which have prevented or delayed the ratification of a particular convention. Sri Lanka is subject to this review system as regards the ratified ILO conventions.
It was noted by the Police spokesperson that the conviction rate was abysmal for those caught engaging in human smuggling and trafficking. Why is this? What can be done to improve it?
The reasons for the low conviction rate in relation to trafficking maybe attributable to a number of points. Firstly, it must be borne in mind that trafficking was introduced as a separate offence by way of an amendment to the Penal Code in 2006. Prior to this amendment, a charge of trafficking was filed under the provision of ‘procuration’. Moreover, given the complex nature of the crime and the multiple exploitative purposes for which a person may be trafficked, charges may be filed under other legal provisions such as ‘money laundering’ and ‘fraud’. Cases are also filed under the Brothels Ordinance of 1889 (note: fine increased by way of an amendment) and the Vagrants Ordinance of 1841, both archaic pieces of legislation that do not contain stringent penalties akin to those contained in Section 360C of the penal code. There is a need to continue information programs for law enforcement authorities such as the police on the use of S.360C to file charges under the offence of trafficking. Therefore, while the conviction rate for trafficking may be assessed as against the use of S.360C, the fact that some cases are filed under other provisions should not be disregarded.
One of the challenges in securing prosecutions and convictions for trafficking offenders is that not all cases are reported, and or evidence is sometimes scarce. The organized and clandestine nature of the offence may serve to dissuade victims from reporting the crime for fear of reprisals. The means used by a trafficker to secure consent can include deception and coercion. In most cases where a fraudulent job agent or intermediary is concerned, the perpetrator is known to the victim and is therefore capable of exploiting their trust. Under such circumstances victims may remain reluctant to cooperate with law enforcement to identify the offender. Moreover, in the absence of victim and witness protection legislation that could serve to instill confidence in the victims, they would seldom risk their security to help bring offenders to task.
There is also a continuing need to raise public awareness of the offence. The penalties associated with the offence should be publicized with a view to deterring potential offenders. Moreover, the gravity of the crime should be highlighted so as to empower the public to make informed decisions and avoid being victimized. This is where the media is needed on board. Investigative journalism to identify victims and offenders should be encouraged. The ILO in collaboration with a Trade Union with strong field presence established 16 Community Vigilance Groups in selected districts to perform Watch Dog functions- identify victims and offenders and channel them to the relevant authorities. Linkages were established between these community groups and the grama niladhari divisions and the law enforcement authorities to ensure close coordination. Mass awareness raising campaigns are a strong need and the ILO in collaboration with the Ministry of Justice, Department of Immigration & Emigration, Sri Lanka Bureau of Foreign Employment and the National Child Protection Authority conducted several such campaigns.
It was repeatedly mentioned by a GOSL representative on the panel, from the Immigration Dept., that majority of those who go to Australia are economic migrants. There was no data provided to back up this assertion, save for the submission that asylum seekers would otherwise head to India. Can the ILO shed light on the reasons why so many are leaving Sri Lanka post-war, and in particular, this year?
The ILO has not conducted a study on this subject, and is therefore not in a position to ascertain whether the majority of those who leave for Australia are economic migrants. No study has been conducted thus far by the ILO to determine reasons for the outflow of migrants post-war.
Does the ILO conduct interviews with those deported from countries they sought asylum in order to ascertain the reasons for their actions?
No. While the ILO’s mandate extends to the protection of the rights of migrant workers, it does not extend to asylum seekers deported from countries they sought asylum. The situation envisaged here would entail illegal immigrants and potential smuggled migrants. The ILO’s mandate does not extend to combating ‘human smuggling’. The ILO has not conducted interviews with such deportees.
You noted at the press conference that, inter alia, poverty, escape from domestic violence, economic concerns plus the curiosity of going abroad were reasons for trafficking. Please expand and what is the nature and scale of the research ILO is basing this on?
The ILO conducted a study in 2010 in the districts of Puttalam, Galle, Trincomalee, Ampara and Batticaloa to assess the vulnerability of these communities to trafficking. Interviews conducted with the communities, and families of migrant workers revealed some of the reasons mentioned above as factors that influenced their decisions to migrate. The Findings of this study was presented to all stakeholders in December 2010.
Some of the reasons were also highlighted in a study that the ILO is currently conducting on returned migrant workers in collaboration with the Social Policy Analysis and Research Centre (SPAARC) of the University of Colombo. Victims of trafficking for labour exploitation will be interviewed from among those irregular migrants.
Related to the question above, what emphasis is ILO placing on what appears to be a growing trend of asylum seekers travelling out of Sri Lanka by sea? What on going research projects are there, will the results be made public, and by when? What if any immediate measures is the ILO taking with its principal partners in Sri Lanka and Australia to stem this outflow?
Here again, the ILO does not work on asylum seekers travelling out of Sri Lanka by sea. No study has been conducted by the ILO to ascertain the reasons for their departure. The recent trend of Australia-bound asylum seekers may include potential smuggled migrants. Given that the ILO’s mandate does not include prevention of human smuggling, it has not taken measures to address this topical concern.
However, the ILO works in close cooperation with the Department of Immigration & Emigration, the Police, and the Sri Lanka Bureau of Foreign Employment in conducting training for the officers attached to these institutions on the subject of trafficking in persons. The distinction between Trafficking & Smuggling is established and officers are trained on identifying defining elements in the two offences.