* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.
A longer version of this article first appeared in the Anti-Trafficking Review, Issue 6.
There is some dispute within the global counter-trafficking community about whether resources invested in criminal justice responses to human trafficking would be better spent on protection and prevention efforts; the other ‘Ps’ in the neat ‘three P’ distillation of answers to questions of trafficking. But allowing traffickers to remain at large fails to prevent trafficking and inadequately protects victims. Prosecution, protection and prevention are not mutually exclusive. The question is not which should take priority, but how they can be pursued in a way that is mutually reinforcing.
This is not the same as saying that more prosecutions equate to greater success in the fight against trafficking. The tier ranking applied by the United States Department of State Trafficking in Persons Report has rightly attracted ire, including for its assessment of ‘implementation of human trafficking laws through vigorous prosecution’. Quantitative measures of prosecution and conviction rates make simple what is necessarily complex, and compare what is essentially incomparable. What does it meanthat there are few trafficking prosecutions in a country where even murders go uninvestigated? In a country where there are several trafficking prosecutions, how can we know whether they served to disrupt trafficking operations? Did trial processes respect the rights of the parties involved? Did convictions lead to compensation and restitution for victims, or are they now worse off? Prosecutions of traffickers can do more harm than good to victims. Their participation as witnesses can escalate their protection needs and result in re-victimisation where victim-centered approaches are lacking. Heavy reliance on victim testimonies can mean cases fall apart, resulting in low level criminals seeing the inside of a court room. These concerns reveal that the number of prosecutions can only offer quantitative insight into trafficking response. In setting prosecutorial priorities, protection and prevention gains must be weighed.
From a prevention perspective, already stretched prosecutorial resources should be allocated where they can do the most damage to trafficking ventures. In practice, where convictions for offences under complex domestic trafficking laws would not succeed, prosecutors may elect to pursue alternative prosecutorial paths. Where a successful conviction (for instance, for kidnapping, extortion, rape, assault, battery and organized crime) results in incarceration for 20 odd years, the prosecutor is to be commended for her calculated decision to put a key trafficking player out of play, while minimising risks to both trial outcome and to victims. Yet this conviction would not ‘count’ as a success in criminal justice response to human trafficking, while a conviction of a petty criminal for a crime that is sloppily branded as trafficking would. This injustice speaks to the need to do more than simplistically count prosecutions and categorise them by the forms of exploitation they confront; indeed, pressuring countries to do so may even be detrimental.
From a protection point of view that puts victims’ needs front and centre, access to justice must be upheld as a key component of a holistic response. Decisions to involve victims in prosecutions of their traffickers must be weighed against the risks raised. In some cases, the more appropriate course from a victim’s best interests perspective is to simply not prosecute traffickers. Such decisions should not be chalked up as prosecutorial failures but as protection successes. In other cases, doing what is in the victim’s best interests may mean empowering him or her to participate in criminal justice processes against them.
Prosecution of human trafficking is costly and requires resources that could be invested elsewhere. This is true for all prosecutions of serious and complex crimes, but should not result in the conclusion that we need not bother. To abandon the attempt to end impunity for traffickers is to disregard one of the key raison d’être of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, being to protect victims in legal proceedings against traffickers. Luis CdeBaca, US Ambassador-at-Large to Monitor and Combat Trafficking in Persons, recalls a comment made by a victim on seeing the perpetrator at court: ‘He looks so small,’ she said. How can victims of trafficking triumph over traffickers unless they are supported to bring them to justice? In doing so, emphasis should not be on simply increasing the number of prosecutions counted as ‘trafficking’ prosecutions, but on making them count by measuring their value by the extent to which protection and prevention objectives are also served.
Marika McAdam is an independent legal consultant, scholar and adviser who has worked with UNODC, IOM and OHCHR among others. She has written extensively about migrant smuggling, human trafficking, migration and human rights, and their intersections.