Human Trafficking – Criminal Justice Responses in South East Asia

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Human trafficking affects all Member States of the Association of South East Asian Nations (ASEAN). Over the past ten years, significant progress has been made in strengthening the criminal justice response to this crime. This article summarizes the key findings of a recent report that documents both achievements and challenges in ASEAN’s quest to end impunity of traffickers and secure justice for victims.

Human trafficking refers to the exploitation of individuals for private profit. In the classic trafficking case, a person is tricked or deceived about the nature of their work or the conditions of employment. Through debt bondage, coercion or other forms of intimidation, they end up in a situation from which they cannot escape. It is now recognised that human trafficking affects all regions and most countries of the world. In the public mind, trafficking is most commonly associated with the worst aspects of the sex industry. However, as we learn more about this crime type, it has become clear that the end-purposes of trafficking are as varied as the potential for profit. Examples from our own region provide a potent illustration. Cambodians are trapped on fishing boats in the waters of Thailand and New Zealand. Burmese women and girls are lured across the border into China to be sold as brides. Women from South Korea, China and Thailand are trafficked into Australian brothels. In Singapore, migrant construction workers accrue debts to recruitment agencies that make them vulnerable to forced labour. Domestic workers from the Philippines and Indonesia are abused in private households in Malaysia and throughout the Middle East.

Exploitation associated with trafficking is certainly not new, but it is only over the past decade that national criminal justice agencies have been called upon to play an active role in identifying and protecting victims and investigating perpetrators. While some progress has been made, the challenges to a truly effective criminal justice response to trafficking are considerable. This article summarizes the current international consensus on the problem and obstacles to an effective solution. It then provides an overview of key developments in South East Asia over the past decade.

Obstacles to an effective criminal justice response In every part of the world, prosecutions for traffickingrelated crimes are very low when measured against the size of the problem. Victims are too often misidentified as illegal migrants or illegal workers — or not identified at all. Despite being the key to successful prosecutions, victims are almost never brought into the criminal justice process as witnesses.

While this is changing slowly, there can be no doubt that the odds continue to favour the criminals. The reasons are not difficult to fathom. Traffickers operate around industries that are poorly regulated and poorly policed. They prey on the marginalised and the powerless: poor migrant workers, children, women escaping poverty and violence. The trafficking process itself is typically structured to exacerbate vulnerability. Victims are subjected to physical and psychological violence; they are forced to pay off huge,  unfair debts; their families are threatened; their passports and identity documents are taken away. Often it is not even necessary to lock up a victim of trafficking as threats and coercion create their own chains.

From a law enforcement perspective, the practical obstacles to an effective criminal justice response to trafficking are considerable. They include:

• The complexity of the crime: trafficking is a difficult, time-consuming and resource-intensive crime to both investigate and prosecute.

• Heavy reliance on victim testimony: Except in cases of proactive, intelligence-led investigations (still the exception in every part of the world including Australia), victims are usually the only witnesses able to give a full account of the crime. They are therefore essential to proving a human trafficking case. This raises very difficult practical and evidentiary issues.

• Lack of experience: Trafficking and the forms of exploitation with which it is most commonly associated are essentially “new” crimes. No country can yet lay claim to genuine, extensive experience in dealing with trafficking as a criminal phenomenon. Most countries are developing and adapting their criminal justice responses on the run, and principally through trial and error.

• Lack of cooperation across borders: Cooperation and cross-fertilization of ideas across borders is still very limited. Mistakes in one country are not quickly corrected in another. Good practices and lessons learned are not disseminated as widely and rapidly as they should be.

It is also important to acknowledge the highly charged political and social environment around this issue. Trafficking is implicated in some of the most sensitive issues of our time including labour migration, prostitution and discrimination against vulnerable minorities. In some countries, governments themselves have a vested interest in maintaining an unprotected migrant labour force – or a sex industry comprised of compliant foreign workers. Criminal justice agencies can find themselves caught up in debates and controversies that affect their ability to address trafficking diligently and professionally.

Recent developments in South East Asia
Trafficking affects all of the ten countries that make up the Association of South East Asian Nations Brunei, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar (Burma), the Philippines, Singapore, Thailand, Vietnam). A decade ago, the situation in this region was very similar to other parts of the world: victims of trafficking were treated as criminals and those who exploited this powerless group operated with virtual impunity. Prosecutions were extremely rare, hampered by lack of political will; inadequate legal frameworks; and inexperienced, uninterested criminal justice agencies. There was no common agreement between countries as to the nature of the problem or what should be done. As a result, cross-border cooperation to rescue victims or apprehend perpetrators was non-existent.

By 2011, the situation had changed dramatically. These changes are documented in a recently released ASEAN Progress Report on criminal justice responses to trafficking. The Report sets out what ASEAN Member States have agreed to be the seven essential components of an effective criminal justice response:

• Strong and comprehensive legal frameworks;

• Specialist investigative capacity to investigate trafficking cases;

• Front line capacity to identify and respond to trafficking;

• Prosecutorial and judicial capacity with regard to trafficking cases;

• Victim identification, protection and support;

• Provision of special support to victims as witnesses; and

• International legal cooperation in trafficking cases.

Each of these components is the subject of a separate chapter of the Report. For each chapter, the authors provide a detailed overview of the relevant standards that have emerged through a combination of international, regional and national law and policy as well as accepted good practices within and beyond the ASEAN region. Each chapter then considers the extent to which ASEAN Member States have reached those standards – as well as major obstacles and opportunities. At the conclusion of each chapter is a checklist, which can be used by ASEAN Member States to measure the quality of their response and to identify areas where further work is needed.

The report confirms that ASEAN has emerged as a regional leader on the issue, setting out detailed standards for all its Member States and developing and deploying a range of tools and resources to support its mantra of ending impunity for traffickers and securing justice for victims. The report also documents significant change at the national level…

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