Combating Human Trafficking - The Fight to Champion the Dignity of Others
By Ann Kambara
Labor Counselor, U.S. Embassy, Tokyo
Sept. 17, 2004
The signing of the UN Optional Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children presented an important challenge to all countries to work together to criminalize and eliminate the tragedy of human trafficking. From this fall, Japan will face the important issue of how to implement its commitments under the UN Protocol. In the late 1990's, the United States faced a similar decision, which resulted in the passage of the Trafficking Victims Protection Act (TVPA) in 2000 and in December 2003, the passage of the Trafficking Victims Protection Reauthorization Act (TVPRA). As I look to the current debate in Japan, I would like to discuss the factors that led the U.S. to develop anti-trafficking legislation and discuss the reasons why Japan might consider passage of a similar law for foreign policy and domestic security reasons.
What is Human Trafficking?
The United Nations Optional Protocol on Trafficking in Persons, which Japan signed in December 2002, calls on countries to criminalize the transfer and illegal receipt of human beings as commodities for exploitation. It defines trafficking in terms of the use of force, fraud or coercion to subject persons to sexual exploitation, forced labor or practices similar to slavery, debt bondage, peonage or involuntary servitude. Human trafficking differs significantly from migrant smuggling. Trafficking victims have never consented to or, if they initially consented, their consent has been negated by the coercive, deceptive or abusive actions of the traffickers. Trafficking victims often are unaware that they will be forced into prostitution or exploitative labor situations. Under U.S. law, the trafficking of any minor (under the age of 18) is automatically considered to be a severe form of trafficking regardless of the consent or lack of consent of the victim. In some cases, minors have been "sold" into trafficking by well meaning parents and other relatives, who themselves have been duped into believing that the employment offer is legitimate. In short, human trafficking is an extreme violation of the human rights of its victims. Therefore, the commonly held perception that victims of trafficking voluntarily come to Japan to work and remain here of their own free will is incorrect. While there are foreigners who willingly and knowingly come to Japan to work in the commercial sex industry research increasingly indicates that most would prefer other ways to survive.
The Human Trafficking Debate in Japan
There has been an increasing awareness recently in the Japanese press about human trafficking cases, partly due to the recent issuance of the U.S. government's annual Trafficking in Persons Report and because Japan will decide later this year how to reconcile domestic law with its UN anti-trafficking obligations. Some Japanese editorials have called upon the government to develop a specific anti-trafficking law that will give law enforcement officials and prosecutors the tools to fight criminal trafficking networks. Members of the Japanese NGO community have sought greater protections and services for the victims of trafficking and the rigorous prosecution of the criminal networks that bring trafficking victims to Japan. Research on human trafficking conducted by international organizations has highlighted the human cost of trafficking in Japan, its societal costs and its role in funding international organized crime activities. The Japanese public appears to be aware of the term human trafficking, but remains unclear about its' meaning and does not understand why this trade in human beings is so abhorrent. As I see it, the current debate in Japan is very similar to that in the United States in the late 1990s.
Development of the TVPA - Concerns of Victim Service Providers
In the late 1990s, members of the NPO (non-profit organization) community approached U.S. policymakers with stories of men, women and juveniles from a broad range of countries brought to the United States for sexual exploitation and forced, sweatshop, domestic or agricultural labor. The conditions these persons worked under were dramatically different from that of regular "disgruntled" workers. The stories they told were of deception by their brokers who promised them well-paying, legitimate jobs only to force them into prostitution. Some were assured that they would receive adequate housing and would work under decent conditions only to find that their travel documents and wages were being withheld pending repayment of exorbitant "debts" to their brokers. They were forced to live in sub-standard housing and worked under dangerous, sweatshop conditions. If they insisted on going back to their countries because they had been deceived or asked for better work conditions, they would be severely beaten, sometimes chained or locked up, deprived of food and water, "sold" to more abusive bosses, told that their families would be harmed or killed if they refused to work and subjected to other forms of physical and psychological coercion. They were exposed to risks of HIV/AIDS and sexually transmitted diseases because their bosses would not allow the use of condoms. The United States NPO community felt a strong need to help these trafficking victims and was concerned that, under existing laws, their attempts to help victims could also make them subject to arrest for aiding and abetting illegal immigrants.
Appeals from Foreign Victims
At around the same time, the dissolution of the former Soviet Union and economic poverty contributed to an outflow of young people to the West who were easy prey for human trafficking networks. Many of these young people told stories to U.S. policymakers of their deceit and captivity by trafficking brokers and organized crime figures. The victims explained how human trafficking networks took advantage of globalization and technology advances such as the internet and high-speed transportation systems to advertise and transport them. Brokers would recruit them with offers of well-paying overseas jobs or scholarships, only to force them to work in prostitution and/or under sub-standard labor conditions. They told stories of how broker networks, often connected to organized crime groups, carried on their business with very little fear of arrest because of the lack of comprehensive anti-trafficking laws and limited international police cooperation. Even when the brokers were caught, they often received only light fines or short-term imprisonment in contrast to huge profits they could make from the trade in humans. These victims in the FSU asked U.S. policymakers to help them escape this tragic human cycle.
A United States Response
In 1998, responding to these calls from various group from both within the United States and overseas, then-President Bill Clinton called on the Secretary of State and other Cabinet members to raise national and international awareness of human trafficking; examine the treatment of trafficking victims - their safety, access to social services and ability to participate in criminal trials against their traffickers; review U.S. criminal laws to determine their ability to prevent and criminalize trafficking and to take other steps to combat trafficking. This group focused on efforts to prevent trafficking, to protect its victims and to prosecute the broker networks - the "3 Ps" of anti-trafficking efforts that remain key today.
The TVPA Coalition
The drafting and passage of the TVPA in 2000 represented an unprecedented coalition of political forces. Human rights advocates, faith-based organizations, defenders of women's rights, child-protection activists, worker rights groups and law enforcement all cooperated. Legislators from across the political spectrum were galvanized by reports such as the 1999 Global Survival Network case study of sweatshop workers in the Northern Marianas Islands, which reveled that some 40,000 trafficked women from East Asia and Russia were working under sweatshop conditions by day and forced into prostitution at night. The CIA produced an important monograph that discussed the role of international organized crime groups and the challenges to law enforcement under current trafficking-related laws, providing concrete suggestions that eventually were incorporated into the TVPA. The bipartisan global leadership group, "Vital Voices Global Partnership" also played an important role bringing together people from both sides of the political spectrum, like Senator Hillary Rodham Clinton, Secretary Madeleine Albright, Senator Kay Bailey Hutchison, Senator Sam Brownback, the late Senator Paul Wellstone and our own "taishi fujin" former Senator Nancy Kassebaum Baker, to raise public awareness of trafficking and to lobby for the TVPA. In the House, the final version of the TVPA passed in October 2000 by 371 yeas to 1 nay, while the Senate passed the bill in a unanimous 95 to 0 vote. The Trafficking Victims Protection Reauthorization Act (TVPRA 2003) passed in December 2003 with similar bipartisan support and provided new funding for anti-trafficking efforts and strengthened and clarified the provisions of the TVPA 2000.
Why is the United States concerned?
Many people ask me why the U.S. is so concerned with human trafficking and who in the government regards this as a key issue? My government's concern about human trafficking starts at the very top. In September 2003, President Bush underscored the hidden crisis of human trafficking in his annual address to the United Nations General Assembly - the first time that a world leader had raised the issue before so many heads of government. The President pointed out that human trafficking generates billions of dollars each year - much of it finances organized crime. He noted the particularly heinous nature of human trafficking, which results in the abuse and exploitation of the most innocent and vulnerable. President Bush called for severe punishment for those who prey on trafficking victims and who profit from their suffering, noting that those who patronize the commercial sex industry debase themselves and deepen the misery of victims. In short, the U.S. regards trafficking in persons as a heinous international crime and we are committed as a nation to end this violation of human rights at home and abroad.
The Ultimate Transnational Crime
One reason that many countries have joined the United States in their efforts to combat human trafficking is because it is a transnational criminal enterprise that recognizes neither boundaries nor borders. Profits from trafficking feed the coffers of organized crime; trafficking has become the second largest source of income for criminal networks after drug running, according to the United Nations. Why is trafficking so lucrative? Because traditional anti-trafficking law enforcement efforts have been hindered by laws that were limited in scope and which mandated only minor fines or punishment for offenders, mostly the victims of the crime - not the broker networks. Trafficking victims can be sold and resold many times, each time earning the broker a profit. Lastly, the transnational nature of the crime makes it very difficult to coordinate law enforcement and prosecutorial efforts. A research study by the Coalition Against Trafficking in Women under a grant from the National Institute of Justice, a Department of Justice research and training facility, showed that traffickers and brokers are involved in a wide range of criminal activities including robbery, car theft and export, extortion, money laundering, alien smuggling, document fraud, weapons violations and drug trafficking to name just a few.
Tightening the Net on Broker Networks
In 2003, 24 countries enacted new, comprehensive anti-human trafficking legislation. We hope to increase the number of countries with comprehensive anti-trafficking laws. However, we find that when human trafficking is effectively criminalized in one country, crime groups will seek a new, easier home base, preferably a country without effective and comprehensive anti-trafficking laws. The borderless nature of human trafficking demands that law enforcement and judicial officials continuously develop new strategies and modes of cooperation for the investigation and prosecution of this crime. We can no longer afford to ignore trafficking as a "victimless" or "foreigner" crime that is put on the shelf in favor of investigations of "hard" crime. We can't afford to overlook trafficking cases because they might involve difficult and time-consuming investigations or because they don't have an obvious impact on the daily lives of our people. In Japan's "entertainment" districts, businesses that front for trafficking are co-located with restaurants and stores used by all. Japanese and foreign parents of young children and teenagers have complained to me that their sons and daughters must pass by sex businesses with explicit advertising on their way to school. Others complain of "pink" (sexually explicit) materials that regularly appear in their mailboxes even though they are unwanted. Still other Japanese express concern that the "touts" for sex businesses aggressively grab teens and adult men to try to drag them into sex clubs. These incidents don't occur in "bad" or "sleezy" areas of town, but in our own backyards.
Demand and Supply
We need to change our way of thinking about trafficking and understand that human trafficking is based on economic demand and supply principles. Traditional law enforcement approaches that center on punishing those who provide services, namely the trafficking victims, are ineffective. Law enforcement needs to work with the NGO community to reach out to victims that need help and to encourage them to testify against their broker networks so that we can attack the "roots" of the problem. Prosecutors need to find ways that victims can remain in the country long enough to testify against their captors and provide victims with the economic and legal support systems to enable this to happen. More attention needs to be placed on making sure to deal with the "demandeurs" of human trafficking, ranging from those who profit from trafficking to the clients who may not even regard their patronage as part of a chain of criminal exploitation with a severe human toll.
Foreign Policy Costs of Trafficking
We also need to recognize that there are foreign policy implications of a failure to deal effectively with human trafficking. Overseas sex tourism creates negative impressions of a country overseas and has even resulted in negative blowbacks to regional diplomacy. A case that illustrates this was the strong negative reaction against Japan that many Chinese expressed on the internet following last year's sex tour scandal in Shenzhen, China. While the employees of the Osaka company thought they were simply procuring a large number of Chinese prostitutes for a party, many Chinese expressed outrage over what they felt was a deliberate affront to Chinese women on a national holiday commemorating the Japanese invasion of Manchuria. The negative images of child sex tourism from Japan, the U.S. and other Western countries cast a pall on positive diplomatic efforts to alleviate poverty and promote democratic institutions in sending countries. Japan's anti-trafficking efforts can enhance or detract from the efforts of countries that send victims. Even if sending countries in the region have strong laws to combat trafficking, brokers may be able to escape punishment if Japan's laws are not equally strong. In fighting human trafficking we all must help each other.
The U.S. regards Japan as a valued partner and a strong example of a successful Asian democracy. We want Japan to be a strong partner in our efforts to combat global human trafficking. Considering the resources available, Japan could do much more to address trafficking domestically to match the strong international showing it makes though its 3 million dollar contribution to international organizations for anti-trafficking activities in the region.
Japan Debates a Trafficking Law
Currently, Japan lacks a comprehensive law against trafficking and relies on the penal code and a variety of labor, immigration, and child welfare/protection statutes to carry out limited trafficking-related prosecutions. Although Japan's laws provide for up to 10-year prison terms and steep fines, actual penalties have been far less severe. However, as I noted before, beginning from this fall, Japan will begin to discuss how it will reconcile its domestic laws to fulfill UN anti-trafficking commitments. Some Japanese have said that current domestic laws are sufficient to bring Japan up to the international level of anti-trafficking efforts. However, the reason I believe that it is appropriate to seriously consider the development of a specific anti-trafficking law is based on the United States experience during the debate over the TVPA.
Effective Law Enforcement Needs a Model Law
Although the United States had outlawed slavery and involuntary servitude since 1865 and aspects of anti-trafficking were covered in a range of domestic federal, state and local laws, the "2000 Trafficking Monograph" drafted by the CIA called for changes to existing law. The Monograph noted that prosecutors found that a lack of a single trafficking statute made prosecution under numerous statues cumbersome. Also, a trafficking law would permit better tracking of cases and record keeping, improve law enforcement and prosecutorial coordination, and serve as a better deterrent. A specific trafficking law would provide conceptual clarity, define the issue, and prescribe adequate protection and assistance for trafficking victims. Most importantly, for Japan, a comprehensive anti-trafficking law would put trafficking violations firmly under criminal procedure instead of the currently applied labor and immigration law violations. Whereas currently law enforcement officials do not investigate child trafficking under the existing child pornography laws, even though a number of foreign trafficking victims are minors, a specific trafficking law would better focus attention on the need to more effectively screen victims, rather than assuming that they are all here voluntarily without coercion. These are all benefits that I feel would accrue to Japan if it were to create its own anti-trafficking law.
Support to Combat Human Trafficking
As Secretary of State Colin Powell said in January 2004 at the opening of a Russian government sponsored trafficking conference, the United States extends a pledge of partnership in support of countries that join in the fight against the crime of human trafficking. In June of this year Secretary Powell added, "We fight trafficking in persons not just for the sake of victims and potential victims of these crimes; we do it for ourselves, because we can't fully embrace our own dignity as human beings unless we champion the dignity of others." That is what the Government of Japan and the NGO community will be doing this fall - discussing how best to champion the dignity of others. We cannot allow the criminals to outsmart us in this endeavor. We owe it to ourselves and to our communities to stop the scourge of human trafficking.