Forced Labour: Global Perspectives and Challenges, by Roger Plant, Dublin, October 2009

Presentation to Seminar on “Strategies for Tackling Forced Labour”, Migrant Rights Centre Ireland, in Conjunction with the Anti Human Trafficking Unit (Department of Justice and Equality and Law Reform) and the Irish Congress of Trade Unions, Dublin, 1 October 2009

Statement | Dublin, Ireland | 02 October 2009

Dear friends and colleagues,

I am glad to be in Ireland again, and thank you warmly for this invitation. I have to begin by thanking the Irish Government and Irish Aid for the generous support they have given to our forced labour programme over the past several years, for the trust they have shown in us, and the strong commitment to helping us fight forced labour and trafficking around the world as part of broader efforts to tackle poverty and discrimination, and to promote human rights.

A lot has happened since I last spoke on this subject in Ireland a few years ago. We have seen countless conferences and media events, new laws and action plans, growing business commitment – including a special session on forced labour and trafficking at the Clinton Global Initiative in New York last week – and also a global policy and action plan developed by the international trade union movement.

There have also been major developments in Ireland itself, since the Anti-Human Trafficking Unit was established within the Department of Justice, and the new Criminal Law (Human Trafficking) Act came into operation in June last year. In the ILO, we very much appreciate the way that working groups have been set up on the key matters covered by the legislation, including one on labour exploitation issues with the participation of employers and trade unions as well as different government bodies and civil society groups. On a complex subject, where the parameters of the different forms of trafficking need to be thought out carefully, this is the right way to move forward.

So in Ireland as in many other countries, some essential building blocks are now in place. There is the law, the institutional capacity, and the consultative mechanisms. But I understand that Ireland is also facing many of the dilemmas encountered elsewhere, as regards the interface between trafficking and forced labour, challenges of identifying and protecting possible victims, and determining the appropriate response and remedies when problems are identified.

This morning I have been asked to provide a global perspective on forced labour, and if possible to apply this to the Irish context as well as that of Europe more generally. In particular, I have been asked to discuss the value of focusing on the act of forced labour and the elements of exploitation associated with it, rather than exclusively on the process of trafficking with all the definitional problems that can go with this. I have also been asked to explain what our SAP-FL programme is doing, both globally and as relevant to the European context. This is quite a tall order for a 30 minute presentation, but I shall do my best.

Let’s begin with the concepts of forced labour and trafficking. The ILO is a standard setting organization, which has adopted almost 190 international labour Conventions over the past 90 years on a range of subjects. Its technical cooperation programmes, including those of our special action programme on forced labour, are grounded on the principles and rights set out in our labour standards. We have Conventions on forced labour, child labour and the worst forms of child labour, the protection of migrant workers, and much more. But we have no instruments on human trafficking per se. We prefer to see human trafficking as a sub-set of forced labour concerns or, in the case of child trafficking, of the worst forms of child labour. So we tend to focus on the exploitative outcome, rather than on the process or mechanisms whereby vulnerable persons can end up in situations of severe exploitation. Whether it is for sexual or other forms of economic exploitation, we consider all of this to be forced labour. It does not matter whether a particular kind of work or service is recognised as lawful in any one country. What matters is the presence of coercion.

Moreover, under international law forced labour is a serious crime. Forced labour has been broadly defined by the ILO, in a Convention dating back to 1930 but still considered valid today, as a situation in which people enter work or service against their freedom of choice and cannot get out of it without punishment or the threat of punishment. Forced labour is the only issue in ILO standards that deals directly with a matter of criminal justice. Article 25 of the 1930 forced labour Convention provides clearly that “the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced”.

We have often considered the implications of the spate of new laws and policies on human trafficking for addressing those forms of coercive exploitation covered by the ILO’s forced labour Conventions. I think the ILO position was best set out in our earlier report four years ago, “A Global Alliance against Forced Labour”. At the present time the global momentum is apparently towards establishing the criminal offence of trafficking, making provision under such laws for identifying and prosecuting the offence of exacting forced labour, among others. This can have a positive impact in combating the coercive exploitation of migrant workers, provided that member States legislate against trafficking in the broadest sense, first giving full attention to the forced labour dimensions in addition to sexual exploitation; and second, allocating sufficient resources to law enforcement measures in this regard. At the same time the impetus for anti-trafficking laws should not be a reason for not legislating against forced labour as a specific criminal offence. For example, by no means all the forced labour practices to which even migrant workers are subjected in destination countries are necessarily a result of trafficking. And not only migrants are the victims of forced labour in the destination countries. There is therefore a need for laws against both forced labour and trafficking.

In our most recent global report, published in May this year, we took this analysis further, examining the contributory factors that can lock people in forced labour situations. Forced labour consists essentially of exploitation in the place where work or service is provided. One can point to different factors, such as abusive recruitment practices, which negate freedom of choice by the worker. Intermediaries who carry out such practices with the deliberate intent of placing persons in a situation in which forced labour can be exacted from them can certainly be considered as accomplices to forced labour. But any judicial action against forced labour would normally take as its starting point the ultimate conditions of work or service, paying less attention to the range of factors that created or exacerbated the vulnerability of workers to the exploitation.

If we turn to trafficking, and particularly trafficking for labour exploitation, there has so far been little jurisprudence in Europe or elsewhere in the world. The US is a country where a specific statute on forced labour was first introduced in 2000, as part of the Trafficking Victims Protection Act. And it is probably the country that has seen the largest growth of prosecutions for the forced labour offence, accompanied by civil actions for compensation for the victims. A few years ago in 2003, a report by a European Union identified forced labour as the “crucial element” of a trafficking situation, as the presence of coercion which makes it possible to separate it from smuggling. Otherwise put, smugglers, however much they charge, can be seen as doing a service for the persons they move clandestinely across borders. Traffickers by contrast deliberately set out to exploit their victims. And the employers at the end of the chain also exploit the trafficked persons in a very deliberate way.

There has still been much debate since then as to the linkages between forced labour and trafficking. As the Palermo Protocol has entered into force in more and more countries, they have had to amend their criminal laws to recognise the offences of trafficking for labour as well as sexual exploitation. They have also need benchmarks and indicators, as to how they can capture cases of labour trafficking in practice, how they can prosecute them, what kind of penalties should be provided, also what kind of compensation should be provided for the wrongs suffered, and by whom. One issue of contention is whether the offence of trafficking requires movement, either within or across borders. A more serious one, for law enforcement purposes, is whether or not it requires coercion in the sense of the ILO’s Conventions on forced labour.

In conducting its 2005 global estimate on forced labour, in which trafficking is seen to account for about one fifth of all forced labour worldwide, the ILO took the position that the offence of trafficking has the three elements of deceptive or coercive recruitment, movement, and forced labour exploitation at the place of destination. Others have taken a different stance, arguing that movement is not a necessary criterion for identifying a trafficked person. In the words of the US Government’s 2007 Trafficking in Persons Report, “To define trafficking in persons on the basis of movement is to create an artificial and unfounded distinction between victims who are exploited without being moved and those who are moved prior to and during their exploitation”. These can be largely semantic and perhaps trivial concerns. What matters is that there be strong laws against coercive exploitation, vigorously enforced, covering all human beings including nationals and migrant workers. It does not make much difference whether the letter of these laws is against forced labour or trafficking, as long as they capture the elements of coercion, and as long as they can be applied against contemporary manifestations of forced labour.

The second concern is a more complex one. The fight against forced labour is only one part – and in statistical terms quite a small part – of the fight against exploitative labour practices in today’s global economy. At the bottom end of the labour market, vulnerable workers including migrants can work for excessively long hours in difficult and dangerous circumstances for scarce remuneration, and the media often refers to such practices as modern slavery or slave labour. But it is not unfree labour, in that extra-economic forms of coercion are applied. There has been growing concern at what is sometimes dubbed “consensual exploitation”, through which workers without any viable alternative can subject themselves through rational choice to conditions which most people used to the enjoyment of labour standards and rights would consider inhumane. They can do this, sometimes incurring huge debts to recruiting agents, in the hope that they can work off these debts through labouring twice a normal workday or more, often seven days a week, and eventually making the savings or remittances to which they aspire.

Certain countries have in their anti-trafficking laws or elsewhere in their criminal codes the legal concept of working conditions “incompatible with human dignity”. Both Belgium and France have provisions in their criminal legislation which consider the offence of human trafficking to involve the imposition of living and working conditions considered “contrary to human dignity”. Under Germany’s penal code as amended in 2005, the new offence of trafficking for labour exploitation, applicable only to foreigners, includes the concepts of slavery-like conditions and debt bondage. One criterion for this offence is the payment of wages markedly less than those paid to German nationals.

Others are now grappling with the concept of exploitation, for which there is almost no precedent in international law, seeking to identify which kind or degree of abusive practice should be pursued through criminal courts, and what practices might better be addressed through labour justice and administration. Other countries have laws against forced labour, including within its scope such criteria as late payment of wages which – while perhaps a useful indicator of forced labour – is not based specifically on coercion. India’s Supreme Court in the early 1980s passed a judgment, presuming that all persons not paid the legal minimum wage were in beggar or forced labour conditions, and placing the onus on their employers to prove that this was not the case.

Some analysts now argue that there is a continuum from the most flagrant forms of coercive exploitation, through to the “lesser” forms of abuse, and up to what the ILO has termed the “decent work” conditions to which all workers would naturally aspire.

There has also been much discussion about the degree or severity of exploitation. It is a very subjective term, which has not generally been covered in labour standards, let alone in criminal law until the Palermo Trafficking Protocol put the subject so firmly on national legislative and law enforcement agendas. Common sense suggests that people are exploited when others derive unfair advantage, or make unfair profits, at their expense, by subjecting them to arduous and morally unacceptable conditions of work. But there are obvious gradations of this. No legislature or judiciary will find it easy to determine which practices should be dealt with through long prison sentences, which through fines, or which through the closure of enterprises. Some countries thus have gradations of offences in their trafficking laws, ranging from fines or smaller terms of imprisonment for the lesser offences to 20 years or more for the more serious offences. Israel’s 2006 anti-trafficking law has “exploitation” as the lesser offence, forced labour in the middle, and trafficking for slavery as the most serious offence carrying the heaviest penalty. The US law as amended last year begins with the lesser offence of fraudulent recruitment, and has forced labour as the most serious offence punishable by up to 20 years imprisonment.

At this severe end of the spectrum some flagrant abuses are happening, even in Europe, and law enforcement is beginning to wake up to them. Examples can be cited from Italy, Spain and the United Kingdom. The so-called “Terra Promessa” case in Southern Italy was first prosecuted in mid 2006. Polish workers, recruited under false pretences for agricultural labour in Apulia province, were housed in appalling conditions, and forced to work for almost nothing under the eyes of armed guards. Over a hundred workers were eventually rescued and provided assistance by Italian and Polish NGOs. Through cooperation between the Italian and Polish police, assisted by EUROPOL, arrests have since been made in both countries. A high profile Spanish case in early 2009 involved the arrest of 19 Romanians accused of enslaving 27 of their compatriots for forced labour and begging. Victims had been held captive in slum apartments in Barcelona and Valencia. They were employed mainly as farm labourers, working twelve hour days. They had been recruited in Romania with false promises of jobs, forced to work without pay, compelled to beg on the streets when no work was available, and apparently made no attempt to escape these conditions.

In the United Kingdom a similar case, also involving East Europeans, came to light in November last year. Some 60 individuals were taken by the police from vegetable fields, in what was seen as the UK’s largest single action against human trafficking for labour exploitation. Police believe the workers were receiving far below the minimum wage, for working up to 16 hours a day and six days a week. They also spent up to four hours a day travelling to the worksite. The vegetables were believed to be destined for large supermarkets. Detectives suspect that the exploited persons, most of whom were quite legally in the UK, had been recruited through advertisements and overseas agencies in countries like Lithuania and Poland. Police believed that the workers had been given money to reach the UK, but had been required to pay it back, probably with interest. Their passports would have been removed, and cash deducted from their incomes for transport to the fields. Violence was used against some of the workers. The Serious Organised Crime Agency, which carried out the investigations and the raid, described the system as “debt bondage”.

Further afield, fraudulent recruitment has sometimes led to tragic consequences. A notorious case five years ago involved Nepalese workers, who were reportedly told by their recruiters they would work in Jordanian restaurants, but has their passports taken and were instead sent to Iraq where all but one was later kidnapped and murdered. More recently, the IOM assisted a group of Sri Lankans who had been similarly duped and taken to Iraq against their will.

Yet many of the questionable practices – which can involve high fee charging by both licensed and unlicensed recruiters, often locking vulnerable workers into debt bondage situations – seem to escape national laws and law enforcement. Notably, the US Government’s Office to Monitor and Combat Human Trafficking has been arguing in its last few reports that labour trafficking can take place through perfectly legal recruitment mechanisms, particularly in Asia and the Near East. The main argument is that high transaction costs for internationally recruited migrant workers, together with deceptive practices, can place them in a situation of high vulnerability to debt bondage and forced labour in the destination country. The problems begin with a mix of excessive charges and transaction costs for visas, travel and job placement expenses in the country of origin. The workers may be deceived as to the work they will carry out in the destination country, or as to wage rates and hours of work. A common practice is “contract substitution”, where they sign one contract in their home country, but are later compelled to sign a totally different one in the place of destination.

Let’s take the case of Chinese migrants abroad. Over the past two decades there has been extensive Chinese migration to Europe, much of it irregular, with migrants and their families paying large amounts of money to “snakeheads” to be smuggled into Europe (around 25,000 Euros to Europe, and more than twice that amount to get to the United States), enduring arduous conditions while repaying these debts. But our research so far suggests it is difficult to distinguish between the “legal” and “illegal” agencies. In some cases, registered agencies can also carry out unlawful activities. Moreover, is this trafficking or consensual exploitation? Chinese workers can service massive debts and work very long hours for a seven day week, but arguably accept these conditions out of rational choice. Our Chinese research found that the fees change according to the destination country or area, and that it may take an average of two years of back-breaking work to repay them.

Last month the US Department of Justice announced that it was prosecuting its first forced labour case based on pure economic coercion, with no physical force or restraint involved. It concerns recruiters from Thailand, charged in a human trafficking conspiracy for exploiting Thai farm workers in Hawaii. Interestingly, the workers had been brought to Hawaii under the federal agricultural guest worker programme, an official programme allowing employers to take on foreign workers on short-term temporary visas, when they cannot find nationals to do the work. In this case the recruiters had allegedly arranged for the Thai workers to pay high recruitment fees, financed by debts secured with the workers’ family property and homes. The recruiters has confiscated passports, failed to honour employment contracts, and threatened to send the workers back to Thailand where they would face serious economic harm created by the debts. The indictment also charges a visa fraud conspiracy to obtain employment-based visas. If convicted, the defendants could face up to 15 years imprisonment.

Cases of this kind are now cropping up all over the world, though rarely do they meet such a vigorous law enforcement response as recently in the United States. It is a pattern which now calls for serious reflection, as to how to address quite systematic practices of fraud, deception and abuse, when many of these practices fall in a grey area between legality and illegality.

In an attempt to build some consensus on these points our SAP-FL programme, together with the European Union, has undertaken a Europe-wide expert consultation regarding harmonised indicators of unfree recruitment, forced labour and exploitation. It covers the various aspects of deception, coercion, withholding of money or identity documents, isolation, violence and threats of denunciation to the authorities. It should help build consensus, as to what acts and practices need to be punished with the full force of criminal law, and what might best be tackled through awareness-raising and other means. I can share a leaflet that sets out the main operational indicators of trafficking of adults for labour exploitation.

Experts were chosen for their personal expertise not only among national police forces, but among a broader group involving also labour inspection services, academia, social partners and civil society. The consultation followed a methodology called the Delphi method, developed in the 1950s to reach consensus among a groups of experts and widely used for a large set of applications in social, medical or political sciences. Following the definition of human trafficking in the Palermo Protocol, experts were asked to provide a list of indicators (or typical elements) of coercion deception, exploitation and vulnerability which they know are relevant in modern cases of trafficking in Europe. In a second round of consultation, experts were asked to rank all the proposed indicators by order of relevance, from the highly significant to the insignificant. Overall, 68 experts (39 women and 29 men) from 23 European countries participated in the survey.

As a result of this process, experts agreed on a list of 67 indicators. Each indicator covers a different dimension of trafficking cases, namely: deceptive recruitment, coercive recruitment, recruitment by abuse of vulnerability, exploitative conditions of work, forms of coercion at destination, and abuse of vulnerability at destination. While the indicators of course include all the elements of the stereotypical case of human trafficking such as abduction, violence and confinement, they also go beyond. In particular, the combination of all these indicators provides a useful guide to better understand the variety and complexity of modern human trafficking. As some indicators of a trafficking situation are considered stronger than others, they are divided into strong, medium and weak categories. While few strong indicators a sufficient to identify a situation as human trafficking, an accumulation of weak indicators can also lead to the same result.

A key issue is that this method can involve a proactive approach, probing into a hidden problem that may eventually merit criminal investigation and prosecution, rather than relying on the available criminal statistics (which are highly likely to under represent the reality of the problems).

The Delphi exercise was originally intended to help data collection and analysis. However laws enforcement began to show an interest, precisely because they were struggling to identify often subtle cases of forced labour and trafficking, gather evidence, and instigate prosecutions. Available global statistics tell their own story. According to US State Department estimates there were 490 prosecutions for labour trafficking, in 2007 as opposed to over 5,000 for sex trafficking. For 2008, the number was down to 312. And actual prosecutions for labour trafficking decreased more than threefold from 326 in 2007 to 104 in 2008. In Europe moreover – somewhat paradoxically, in view of the heightened attention to the issue – convictions for labour trafficking fell from 80 in 2007 to only 16 last year.

So last week we held a technical consultation in Portugal, bringing together criminal justice and labour actors and prosecutors from all over Europe, to see whether and how these indicators could be adapted to law enforcement needs. It was an experimental meeting, with quite ambitious goals. We wanted to see how they could help investigations and evidence gathering, prosecutions, coordination of government efforts with NGOs and other civil society stakeholders, identification of victims for protection purposes, and training programmes. We also discussed how they could provide sentencing guidelines and parameters for judges, as the judiciary begins to prepare itself for labour trafficking cases.

This work needs to be seen together with our guidance materials for labour inspectors, and particularly a recent casebook for judges. This has been designed as a training manual for judges, prosecutors and other legal practitioners. It covers forced labour cases in both international and regional courts, as well as national jurisdictions from countries of Europe, Asia and the Americas. It seeks to illustrate how national court decisions have taken into account the provisions of the ILO’s own Conventions on forced labour, and to show how this can provide guidance for future prosecutions and court decisions. We also hope to promote cross fertilisation of judicial experience, and dialogue among judicial practitioners. The first version is only a start. Readers are encouraged to share copies of court decisions, so we can enrich this information sharing through electronic and other means.

I’d like to end by summarising the key messages of our recent global report on forced labour, The Cost of Coercion. These are that forced labour and trafficking, while serious crimes, must also be addressed as labour market concerns, as labour as well as human rights, and that criminal and labour justice must combine their efforts to tackle the problems. There are also systemic problems on labour markets – the most egregious of these being the failure to curb abusive practices and excess charging by a range of recruiting agencies – that need to be addressed together by governments, employers and workers organizations, and committed NGOs like MRCI.

This is why our programme has been working so intensively to build both workers’ and business alliances against forced labour and trafficking, with our main international partners being the International Trade Union Congress (ITUC) and the International Organisation of Employers (IOE). We have also developed a handbook on forced labour and trafficking for labour inspectors, now available in several languages, which helps them identify the subtle forms of abuse in domestic work and those sectors of the informal economy where they may rarely have access, to seek the appropriate remedies, and see how they can work together with and complement those agencies concerned with stemming irregular migration, or with applying criminal justice.

Our last global report also demonstrates clearly that governments, employers and workers have to work closely together to adopt a regulatory framework on the recruitment and placement of migrant workers that is realistic, allows for some flexibility of employment, but under no circumstances tolerates forced labour, trafficking and severe exploitation. On the business and employers’ side, there has been much progress in adopting codes of conduct with labour rights and protections, in preventing forced labour within their own company supply chains. Yet there are other and broader issues where governments and the social partners need to come to the table, for example to prevent undue restrictions on the rights of migrants to change their jobs. In the Gulf States, for example, it has often been argued that such severe restrictions, together with high recruitment charges and other transaction costs, are at the root of the severe exploitation endured by some Asian temporary workers. As our global report observed however, similar problems have surrounded temporary migrant worker arrangements in countries including Australia, Canada and the United States. Australia has set up a tripartite commission to prepare the appropriate reforms. The US has embarked on its first prosecutions of the foreign recruiters who abuse these systems. We have highlighted the positive experience of the UK’s Gangmaster Licensing Authority (GLA), established with broad consensus after the tragic death of Chinese migrants in early 2004, to licence and monitor the job providers and instigate criminal prosecutions in the worst cases of abuse.

The new laws and the new institutional developments in Ireland provide an ideal opportunity to face up to challenges of this kind, the “grey areas” which may not always merit criminal prosecution as severe cases of forced labour, but where loopholes in the law may allow unscrupulous persons to make large profits at the expense of vulnerable workers. There is much talk these days about the need for tightened regulations on financial markets, to rein in the unscrupulous hedge fund operators. It may not be a bad idea to apply the same logic to labour markets. Our last global report estimated that over US 20 billion is stolen from workers by these abusive practices, and we fear that the figures are rising. So sensible regulations, adopted through informed consensus of all partners in the legitimate employment relationship, are clearly to the benefit of society as a whole.

Thank you.

Roger Plant

Head, Special Action Programme to Combat Forced Labour

International Labour Office

Geneva, Switzerland

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