Identifying and prosecuting Trafficking in Human Beings
(hereinafter, THB) is often very difficult because of the fear of the victims
to testify in a criminal proceeding. Therefore, it is fundamental that there is
cooperation among states, at all levels and with a holistic plan of action.
However, we usually forget the major role that legal persons can play in
combating THB, despite studies showing the importance of companies in this
globalized crime. According to a report prepared by the Ashridge Centre for
Business and Sustainability at Hult
International Business
School and the Ethical
Trading Initiative, 77 per cent of companies think that there is a credible
reason to believe that modern slavery occurs in their supply chains.
We
cannot demonstrate the real data of the use of corporations to commit THB but
it is clear that THB, by its very nature, it is often committed within
company's activities and there are companies that are most at risk, such as
industries involving agriculture, migrant workers or seasonal product cycles.
Therefore, trafficking is a liability for all companies and that liability
could be in many countries not only moral, but also civil, administrative or
even criminal. For this reason, companies should be aware of the responsibility
that they have in the fight against THB and the serious consequences for them
if their employers or their managers are involved in this type of crime. Apart
from punishment, they would suffer a huge non-material damage as a result of
the process.I. BACKGROUNDS OF THE COMPANIES´ CRIMINAL LIABILITY
Pope
Innocent IV established the Societas delinquere non-potest principle in order
to prevent the papal excommunication of civil or business corporations, cities
and legal entities for offences committed by one of its members. The
principle was later consecrated in most of European systems of criminal laws.
The notion of guilt has been considered as a concept of personal nature and
therefore a company could not be criminal responsible for a crime until the 19
century, when the corporate criminal liability was set in the Common Law. The Netherlands
became the first Civil Law country to introduce it into its criminal system in
1950, and nowadays most European countries have accepted that possibility.
There exists a worldwide trend to corporate criminal liability.
We
must take into account that we live in a globalized world, where corporations
operate worldwide, which directly implies a high risk of being involved in
cases of modern slavery or THB.
II. LEGAL INSTRUMENTS
ESTABLISHING CORPORATE LIABILITY IN RELATION TO THB
There
has traditionally been some reluctance to attribute to companies liability for
crimes committed by their managers or even by their employers. However,
corporate liability has been considered a fundamental instrument against
organized crime as established in the United Nations Convention against
Transnational Organized Crime. Article 10 obliges each State Party to adopt and
establish the liability of legal persons for participation in serious crimes
involving an organized criminal group, including THB. The liability of legal
persons may be criminal, civil or administrative; the main point is that it
must be effective, proportionate and dissuasive.
In
the same vein, both the Council of Europe Convention on Action against
Trafficking in Human beings of 16.5.2005 and the Directive 2011/36 on
preventing and combating trafficking in human beings require Member States to
establish corporate liability. Specifically, according to articles 5 and 6 of
the aforesaid Directive, all Member States shall take the necessary measures to
ensure that legal persons can be held liable for THB committed for their
benefit by any person, who has a leading position within the legal persons
based on a power of representation of this legal person, an authority to take
decisions on behalf of the legal person or an authority to exercise control
within the legal person. Those measures shall ensure effective, proportionate
and dissuasive sanctions, with criminal or non-criminal fines and penalties.
Furthermore, it must be ensured that companies can be held liable for a lack of
supervision or control, and what constitutes in my opinion the fundamental
issue in order to use companies as mechanisms for fighting THB.
With
regard to domestic legislations, I would like to make a brief reference to the
UK Modern Slavery Act of 2015 and the California Transparency in Supply Chains
Act of 2010. Both instruments impose obligations on large corporations in order
to avoid THB in their supply chains, what constitutes major progress with
regard to the fight against THB for labour purposes. Therefore, it would be
desirable, in my view, to expand that type of regulations to other countries.
According
to Section 54 of the UK Modern Slavery Act 2015 all companies with an annual
turnover that exceeds £36m shall be required to make available a slavery and
human trafficking statement for each financial year. That annual statement must
address a full of organisational details such as the organisation structure,
training about slavery, its policies in relation to slavery and human
trafficking, the parts of its business and supply chains where there is a risk
of THB and its due diligences processes.
With
regard to the California Act, it requires retailers and manufacturers doing
business in California (that have over $100 million in global revenue) to
prominently disclose, on company websites, the extent to which, if any, the
company engages in specific activities to detect and prevent forced labour and
human trafficking in their supply chains—verification, auditing, certification,
internal accountability, and training. Thus, companies should implement due
diligence programs with effective internal controls, with identification of
areas at risks and with implementation of specific policies in order to address
those risks. Otherwise, they can be in many states criminal responsible
for modern slavery or human trafficking and we can imagine the devastating
effect that it could bring to them.
Despite
those regulations, THB cases against corporations remain too low. It is a
relatively recent issue, with several obstacles such as the extraterritorial application
of corporate criminal liability, evidentiary issues and the problems derived
from subcontracting with complex corporate structures.
III. MAIN COMPANIES AT
RISK
As already mentioned, human trafficking is considered a form of transnational organized crime, which includes displacement of people from their own countries or regions. THB crimes are often committed in more than one country by organized criminal groups. However, smuggling of and trafficking in should be differentiated. According to professor Anis Bajrektarevic there are four differentiating elements: (i) an exploitation and usage of the trafficked person over a long period of time; (ii) inter-dependency that forms a strong (brothers-in-arms like) linkage, between trafficked victim and organized crime groupings; (iii) eligibility for further networking (recruitment for criminal purpose); (iv) very often trafficking itself is not a voluntary movement, but in the case of smuggled persons it always occurs voluntarily .
As already mentioned, human trafficking is considered a form of transnational organized crime, which includes displacement of people from their own countries or regions. THB crimes are often committed in more than one country by organized criminal groups. However, smuggling of and trafficking in should be differentiated. According to professor Anis Bajrektarevic there are four differentiating elements: (i) an exploitation and usage of the trafficked person over a long period of time; (ii) inter-dependency that forms a strong (brothers-in-arms like) linkage, between trafficked victim and organized crime groupings; (iii) eligibility for further networking (recruitment for criminal purpose); (iv) very often trafficking itself is not a voluntary movement, but in the case of smuggled persons it always occurs voluntarily .
Therefore,
it is usual that companies are used as means for THB, in the process of
recruitment, transportation or exploitation.
According
to the Protocol to Prevent, Suppress and Punish Trafficking in Persons
Especially Women and Children, supplementing the United Nations Conventions
against Translational Organized Crime Trafficking in persons "shall mean
the recruitment, transportation, transfer, harbouring or receipt of persons, by
means of the threat or use of force 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, the exploitation of the prostitution
of others or other forms of sexual exploitation, forced labour or services,
slavery or practices similar to slavery, servitude or the removal of organs.
Therefore,
THB offences can be committed by different activities and each of them can
involve a particular kind of company. For instance, while recruitment is
usually committed on the Internet through false jobs postings, receipt of
persons can be performed in hotels. Therefore, I am going to analyse which
companies are most at risk stemming of the UN definition and differentiating
between the various stages of the THB.
a.
First stage: Recruitment
The
initial stage of the THB process consists of the recruitment. It can be done by
several means, and it depends on the purpose of the offence. However, there are
usual forms of recruitment, both on THB for labour exploitation and in sexual
exploitation.
Social
networks play a fundamental role in the recruitment phase and for that reason
it is extremely important to implement in those companies effective THB
detections systems. It appears that 89% of 12-17 year-old love to chat on the
Internet: clase-mates, chat rooms or webnets. These are prefect points for
traffickers, who use false identities to lure potential victims to a meeting.
With
regard also to the Internet, it is common to make use of false jobs
advertisements placed on it. It seems to be difficult to detect that type of
simulated jobs, but it is also possible to implement different channels for
identifying presumed traffickers. The false contracts, and the patterns are
always similar. The companies that operate on the Internet should be on the
lookout for signs of THB.
Nevertheless,
it cannot be ignored that the identification on the Internet is very difficult.
The anonymity and mass audience of online services increases both the
discretion and profitability of the services but complicates the fight against
the recruitment. For that reason, in my opinion the companies that operate on
the Internet should increase the delivery of information to users in relation
to the THB. Companies should expose the risk of being victim of THB and they
should explain the traditional methods used by traffickers. Furthermore,
companies should also provide users with direct contacts of the company
specialized in the fight against THB, representing intermediaries between users
and police authorities.
Finally,
private employment agencies, as labour recruiters, have an important role in
this first stage of THB. Therefore, the issue of labour recruitment and the
responsibilities of governments and employers to protect workers from
exploitation were at the centre of the 103 debate of the International Labour
Conference, which led to the adoption of the Protocol of 2014 to the Forced
Labour Convention, 1930, and the Forced Labour Recommendation 2013 (No.203). As
specific provision, it is recommended the promotion of coordinated efforts by
relevant government agencies, including efforts to regulate, license and
monitor labour recruiters and employment agencies and eliminate the charging of
recruitment fees to workers to prevent debt bondage and other forms of economic
coercion.
In
the same row, the International Labour Organization and the United Nations
Office on Drugs and Crime (UNODC) call on governments, social partners,
businesses, other international agencies, and all concerned stakeholders, to
strengthen their efforts to address abusive and fraudulent recruitment
practices in statement rendered in June of 2015 in which series of
actions were requested:
1.Adopt
and strengthen, criminal laws and other regulatory measures, to address the
entire spectrum of fraudulent and abusive recruitment practices that may lead
to trafficking in persons;
2.Raise
awareness amongst recruiters, private employment agencies and employers in the
private and public sectors on due diligence and best practices on how to
eliminate abusive and fraudulent recruitment practices;
3.Enable
cooperation among relevant government agencies, workers’ organisations,
employers’ organisations and represent- actives of private employment agencies;
promote strategic partnerships between the public and private sectors, and
facilitate exchange of good practices within common migration routes;
4.Create
complaint mechanisms and ensure that migrant workers who have experienced
abusive and fraudulent recruitment practices or subsequent exploitation, gain
access to justice and effective remedies, such as compensation;
5.Ensure
the Right to Freedom of Association, maximise collective bargaining coverage
and support trade unions in their efforts to organize workers, including
migrant workers, to better protect them from exploitation during or resulting
from the recruitment process.
6.Foster
the transparent and participatory negotiation, conclusion and effective
implementation of bilateral and regional agreements, rooted in international
standards, as well as other specific mechanisms to ensure improved
international coordination and cooperation and to close regulatory and
enforcement gaps across common labour migration routes.
7.Ensure
that national mechanisms to regulate the recruitment of migrant workers are
integrated into labour migration policies and relevant bilateral and regional
agreements, to ensure coherence between national laws and policies governing
labour recruitment and the broader policies relating to employment, skills, and
education.
8.Promote
the ratification of relevant UN and ILO Conventions, in particular the recently
adopted Protocol of 2014 to the Forced Labour Convention, 1930; the Trafficking
in Persons Protocol; the Private Employment Agencies Convention, 1997 (No 181);
the Migration for Employment Convention, 1949 (No 97) and the Migrant Workers
(Supplementary Provisions) Convention, 1975 (No 143) to ensure proper
recognition and regulation of labour recruiters and employment agencies
b) Second Stage:
Transition
According to the UN Protocol, it must be punished not only the recruitment, but also the transportation, transfer, harbouring or receipt of persons. One of the main characteristics of THB, and which distinguishes it from another forms of exploitation, is the transition stage. Victims are transported to the place of exploitation, either within the country or outside the country of origin of the victim, but in every case, apart from their families and friends, what makes them more vulnerable. Modern slavery requires that people are moved from one place to another and for that reason. It is important to adopt measures to prevent THB in all kind of transport firms, hotels and hosting’s companies.
According to the UN Protocol, it must be punished not only the recruitment, but also the transportation, transfer, harbouring or receipt of persons. One of the main characteristics of THB, and which distinguishes it from another forms of exploitation, is the transition stage. Victims are transported to the place of exploitation, either within the country or outside the country of origin of the victim, but in every case, apart from their families and friends, what makes them more vulnerable. Modern slavery requires that people are moved from one place to another and for that reason. It is important to adopt measures to prevent THB in all kind of transport firms, hotels and hosting’s companies.
Victims
can be transported by land, sea and air. All shipping companies should be aware
of the fights against THB. They can be responsible for human trafficking if
they do not adopt any measure to avoid that the traffickers use their services
to commit their criminal activities. Consequently, companies that depend on
transport as part of their values chains, or that are supplying transportation
services, must face the risk of being complicit in modern slavery [11] . For
instance, there have been several scandals of smuggling and THB using trucks
among the world, with fatal endings in some cases. To deal with such
situations, it was created the Truckers Against Trafficking (TAT) with the
mission to educate, equip, empower and mobilize members of the trucking and bus
industries to combat human trafficking. Its main goals are to saturate
trucking and related industries with TAT materials, partner with law
enforcement and government agencies to facilitate the investigation of human
trafficking and marshal the resources of their partners to combat THB.
Similarly, the International Transport Worker’s Federation is trying to make
people aware of the risk of low cost-holidays. Exploitation often happens at
tourist destinations, hotels are anonymous and publicly accessible, making them
likely venues for prostitution and crime. And even more anonymous would be new
companies, which operate on online leasings or rentings short-term lodging such
as apartments or homestays. However, tourism and hospitality stakeholders are
often unaware of signs, contributing unknowingly to sex trafficking and the
transportation of human beings, despite being likely to intervene not
only in the second stage but also in the third phase of THB.
c) Third stage:
Exploitation
Exploitation could be for several purposes but it shall include, according to the Palermo Protocol, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
Exploitation could be for several purposes but it shall include, according to the Palermo Protocol, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
This
phase is what justifies the existence of THB and where the companies have more
risk to be responsible for the crime. In contrast with the previous stages,
where it is complicated to attribute criminal responsibility to the companies,
at this stage, companies should have strong mechanisms of THB detection and
specially, those companies that are most at risk.
According
to a study elaborated by NGO Verité in 2016, eleven sectors were found to be
the most likely to have a risk of human trafficking globally [15] :
agriculture, construction, electronics, fishing and aquaculture, forestry,
healthcare, hospitality, housekeeping/facilities operation, mining and basic
metal production and textile and apparel manufacturing. But there are also
additional risk factors. Particular products, such as those that have seasonal
cycles, certain business processes, for instance in long and complex supply
chains, the use of certain vulnerable groups, such as women and children, and
other operations in countries deemed as high risk. The study is mainly focused
on the companies’ role attending to their supply chains. In the context of the
sexual exploitation, we cannot forget the situation of bars, clubs, escort
agencies and brothels, due to the fact that they constitute an important focal
point for human trafficking. It is clear that in many occasions the owner of
that kind of business would be responsible for trafficking. But in many other
cases, it would be difficult to make them responsible for the scenario of a THB
victim working in their establishments, especially when they are big commercial
premises. And for that reason, it is fundamental to have the possibility to
attribute to that business any kind of liability, whether civil, administrative
or criminal. Nonetheless, the seriousness of the offence and the high risk of
having workers which are victims of THB in such kind of an industry justifies,
in my opinion, the attribution of criminal responsibility to that business or
even to the owners, in cases of absolute lack of control.
IV. CONCLUSIONS
Trafficking in human beings is a global problem and one of the world’s most abhorrent crimes. It must be fought by land, sea and air, and with use of all the instruments of the rule of law. The fight against this crime must involve several actors with a multifaceted response. Otherwise, we will not be able to eradicate this shameful crime.
Trafficking in human beings is a global problem and one of the world’s most abhorrent crimes. It must be fought by land, sea and air, and with use of all the instruments of the rule of law. The fight against this crime must involve several actors with a multifaceted response. Otherwise, we will not be able to eradicate this shameful crime.
It
is crucial that small, medium and large companies are involved in the fights
against human trafficking. The aim of the traffickers consists in earning money
and to that end they often need corporations. Therefore, if we achieve the goal
of preventing the utilization of companies to commit THB, we would be able to
put traffickers in a difficult situation. Corporations are a fundamental
element in the fight of all globalized crimes. We should emphasize that
companies can and should play a vital role in preventing human trafficking.
At
this point, there are already many companies that they are aware of the risks
of being involved in a case of THB and take their responsibility for it. There
are major initiatives in this area. For instance the aforementioned Truckers
Against Human Trafficking or the European Alliance Bankers against Trafficking
in Human Beings, which created a practical toolkit with “red-flag indicators”.
With
the globalization of business, international compliance is a necessity. The
global nature of companies with subsidiaries, affiliates, and vendors all over
the world provide great opportunities but also great risks of being liable for
the actions of their staff. However, there are many companies that are
not conscious of the risks that they take if they do not implement effective
measures against THB.
There
is currently a worldwide trend to corporate criminal liability and it is only a
matter of time we start prosecuting companies which are responsible for human
trafficking. Judicial authorities, policy makers, press and civilian play an
important role related to corporate liability. We should promote the awareness
of companies of the necessity of the implementation of due diligence programs
with effective internal controls, with identification of areas at risks and
with implementation of specific policies in order to address those risks, and
to avoid labour exploitation .
It
is responsibility of all of us to combat THB with involvement of all the possible
actors.
*An early version of
this text has been presented at the OSCE Conference (18 Alliance against Trafficking in Persons,
Vienna 2018)
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