Mending the protection and prosecution divide: looking at Saudi Arabia human trafficking flaws and possibilities.

• Author: Zimmerman, Sarah

1. INTRODUCTION

   Despite its storied existence, public concern for human trafficking is only a recent phenomenon. (1) Growing demand for the protection of victims of both sex and labor trafficking has meant the relatively recent promulgation of anti-trafficking legislation, on a national and international scale. (2) At the global level, the United Nation's Protocol to Prevent, Suppress, and Punish Trafficking in Persons promotes a three prong approach: prevention, protection, and prosecution. (3) Unfortunately, prosecution and protection are concepts at odds, (4) forcing policymakers to strike a balance, which typically encourages the former to the detriment of the latter. (5) At the crux of this tension is the concept of revictimization, also known as retraumatization or secondary victimization, which is "victimization occurring at different points in time" or trauma caused by reliving an event. (6) The unfortunate reality is that successful prosecution of traffickers requires the victims to testify during trial. (7) Counterproductively, victims' embedded distrust of the judicial system, their fear of retaliation against themselves or their families, and the potential for retraumatization that can occur by reliving their experiences through testimony makes victim participation a problem. However, successfully combatting this crime requires both victim protection and prosecution of offenders. (8) The key is determining how these pieces fit together. The author posits that with adequate protection, victims will be properly incentivized to participate in the prosecution of their traffickers because the law will offer provisions to quell their fears above while encouraging such involvement. To better understand this dilemma in a real world setting, this Note examines the state of the human trafficking problem in Saudi Arabia in Part II. It reviews the human trafficking decree and other related legislation of Saudi Arabia, focusing on its lack of victim protection and prosecution provisions. Part III analyzes potential solutions to the lack of necessary protections, by reviewing provisions from countries all over the world. Finally, Part IV makes recommendations as to which of these provisions, if any, used successfully in other countries might be applicable in helping Saudi Arabia improve the condition of its current regulations. (9)

2. HUMAN TRAFFICKING IN SAUDI ARABIA

   Human trafficking occurs in Saudi Arabia, and yet its government has not made sufficient efforts to combat it. (10) Saudi Arabia is primarily a destination country for both men and women who are trafficked for "forced labor and, to a lesser extent, forced prostitution." (11) The Trafficking in Persons Report (TIP Report), published by the United States State Department, notes that women from a variety of countries across Asia, Africa, and the Middle East face prostitution and illegal domestic servitude; foreign migrant workers being particularly vulnerable. (12) Saudi Arabia is now on the Tier Two Watch List, (13) which means that it has not fully complied with the Trafficking Victims Protection Act's (TVPA) minimum standards and has a significant ascertainable number of victims, but is making significant efforts to do so. (14) However, the Saudi government is failing to provide evidence of increasing efforts to combat severe forms of trafficking, and has not made any commitments to taking additional steps. (15) Part of this determination was due to insufficient regulations and enforcement related to prosecution of employers and protection of victims within Saudi Arabia's borders. (16) Not only is the lack of key provisions a problem, but recent changes to Saudi law may be contributing to the prevalence and severity of the trafficking. (17) The religious nature of the theocratic government presents additional challenges for trafficking victims, (18) and Sharia law contributes to a fear of the judicial system due to its strict application. (19)

   In 2009, the Saudi government passed Royal Decree M/40 entitled the "Suppression of the Trafficking in Persons Act" (Decree M/40). (20) Decree M/40 contains sixteen articles defining trafficking and criminalizing certain acts and aggravating factors constituting Trafficking in Persons (TIP). (21) The jaw considers proper punishment to be "imprisonment for a period not exceeding fifteen years or a fine not exceeding one million riyals, or ... both." (22) All sentencing is subject to the application of aggravating factors, such as when the victims are women or children. (23) Finally, Article Fifteen provides a limited list of protections to be made available to the victims of trafficking. (24) However, the human rights situation with respect to human trafficking has still been criticized. (25) In fact, some found that the process denied any opportunity for relief. (26)

   Other Saudi laws exacerbate the human trafficking problem. In July 2013, the Saudi Council of Ministers (27) passed a new law that regulates the relationship between employers and their domestic workers. (28) Many remain skeptical of the actual possibility of more prosecutions and, therefore, victim protection. (29) The Saudi government also requires foreign citizens with work or residency permits to obtain an exit visa before leaving the country. (30) While withholding passports is illegal, it is rarely enforced. (31) These combined practices have presented problems in the labor trafficking context because employers are an integral part of obtaining an exit visa, thus, many victims find themselves trapped. (32)

   At the very least, the Saudi law prohibits trafficking in persons and criminalizes the type of conduct described above. (33) However, a lack of enforcement is a barrier to successfully prosecuting under these laws. (34) Additionally, the lack of sufficient protections is not only failing to incentivize prosecution of offenders, but victims are also susceptible to being prosecuted. (35) While the U.S. State Department makes recommendations for each country based on their achievement of U.S. developed minimum standards, the remainder of this Note will look to provisions from nations across the globe for successful approaches to the protection and prosecution dilemma, in an effort to find plausible amendments that would bolster Saudi's current laws.

3. BEST PRACTICES IN RESOLVING THE PROTECTION AND PROSECUTION DISCORD

   While no country has developed a perfect solution to human trafficking, there are a variety of helpful provisions implemented by others that could be added to Saudi Arabia's anti-trafficking efforts. The following discussion will only address some of the possible best practices. This Note will focus on five categories of options for Saudi Arabia to consider incorporating into their current law: immunity, residency, privacy protections, civil society activities, and restitution.

   1. Immunity for Victims

      The first question any TIP law must contemplate is how it will integrate victim protection with prosecution. This is usually a question of immunity; whether a nation will provide protection from prosecution for victims from any crimes committed while under the traffickers control and whether that immunity is conditional. Immunity is a key barrier to enabling prosecution because many victims are too afraid of incarceration to come forward or participate in judicial proceedings. (36) Some countries, like Moldova, the Dominican Republic, or the Kyrgyz Republic, will only provide such protection for victims who cooperate with the law enforcement officials and testify against their traffickers in prosecution. (37) This method of incentivization is criticized on the premise that protection should be available to all human trafficking victims, regardless of their ability or desire to participate in the prosecution of their traffickers. (38) Under the same reasoning, prosecuting these victims should not be permitted to provide them with the protection they deserve. (39) Conversely, in a country like Saudi Arabia with a pervasive lack of prosecution, a provision like this could enable prosecutors to get access to their key witnesses. (40)

      However, in Saudi Arabia, the problem with prosecution is more closely linked to enforcement. The Country's officials have the tools at hand but are not successfully commencing prosecutions. (41) This would suggest that a lack of victims coming forward might not be the primary reason for lacking prosecutions of human trafficking perpetrators in recent years. This approach might not be ideal for Saudi Arabia. Instead, the government should consider providing blanket immunity that is not conditional. With the fear of incarceration removed, law enforcement may have better luck finding victims willing to come forward. (42) With immunity for prosecution secured, Saudi Arabia would have addressed one of the two main concerns of victims who fear accusing their traffickers: fear of incarceration and fear of being deported.

   2. Right to Residency

      A relatively common provision in TIP legislation involves a victim's right to residency, whether temporary or permanent. Most countries, (43) like the United States, condition a victim's permanent residency on their cooperation in the prosecution of their trafficker. (44) This approach has been embraced by the European Union. (45) Going even further than most, Belgium will assess permanent residency based on the quality of the information provided by the victim during the investigation and prosecution. (46) Permanent Residency allows a victim to start a new life and avoid the conditions that led to his or her victimization in the first place. Most countries put fewer restrictions on a victim's access to temporary residency than they do on permanent residency visas. (47)

      There is a distinction between a country granting temporary and permanent residency. Temporary residency clearly aligns with a government's desire to condition this residency on the duration of...