PARADOXES AND ANOMALIES IN CARIBBEAN ANTI-TRAFFICKING LAW AND PRACTICE.

• Author: Haynes, Jason

INTRODUCTION

The Caribbean is a geopolitical, plural-linguistic, and culturally diverse region whose existence is marked by conquest, settlement, slavery, rebellion, emancipation, colonialism, and independence. The islands that comprise the Caribbean are classified along four linguistic taxonomies: the English-speaking Caribbean, the French-speaking Caribbean, the Spanish-speaking Caribbean, and the Dutch-speaking Caribbean. (1) They are largely middle-income, Third World developing states that have struggled against the vestiges of slavery and colonialism, (2) stagnated economic development, (3) existential threats in the form of climate change and environmental degradation, (4) and criminality. (5)

Although traditionally, Caribbean islands have been principally confronted by the challenge of drug and arms trafficking, in the past two decades, these islands have come to the rude awakening that human trafficking is part and parcel of their experience as small island states with porous borders and myriad social and economic vulnerabilities. While accurate statistics do not currently exist as to the precise scale of the problem of human trafficking in the Caribbean, the available data and anecdotal evidence strongly suggest that the region is a source, transit, and destination region for various forms of trafficking, including sexual exploitation, forced labor, and domestic servitude. (6)

Over the past two decades, Caribbean territories and islands have either amended existing laws (7) or enacted specific laws (8) to prevent and combat human trafficking, assist victims of trafficking, and prevent the continued occurrence of the phenomenon. The enactment of anti-trafficking law was necessary to give domestic effect to the provisions of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereafter, the Palermo Protocol), since the majority of Caribbean territories and islands, like the United Kingdom, are dualist jurisdictions under international law, which effectively means that international anti-trafficking law is not binding, in a de jure sense, in their domestic jurisdictions unless specifically incorporated into domestic law.

The mere existence of these laws has not, however, resulted in the elimination of trafficking in persons. In fact, it appears that, in many Caribbean jurisdictions, incidents of trafficking in persons have only increased in the past decade, and state practice has not always been consistent with legislative interventions. It is against this backdrop that this article has been conceptualized. The aim of this article, in this connection, is to critically assess existing state practice so as to determine the main challenges that confront Caribbean states in respect of their ongoing efforts to combat trafficking in persons.

THE INTERNATIONAL LAW ON HUMAN TRAFFICKING

The international law on human trafficking cannot be found in one, allencompassing instrument, as such. Rather, for historical reasons, international anti-trafficking law is scattered across several instruments. Some of these instruments are general in nature, that is, not limited to human trafficking, (9) while others are exhaustive in scope, such as the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Human Beings, to which all Commonwealth Caribbean countries are states parties.

The UN Trafficking Protocol, signed at Palermo, Italy, in 2000, (10) represents the global blueprint against human trafficking. Among other things, the Protocol introduces the first internationally agreed-upon definition of trafficking in persons (TIP), (11) and it provides a framework for the prevention (12) and prosecution (13) of the crime, as well as the protection of trafficked victims. (14) Compliance with the Protocol is monitored by the Conference of the Parties to the UN Convention against Transnational Organized Crime. (15)

One of the greatest contributions of the UN Trafficking Protocol to the global fight against trafficking in persons is the provision of a common and, for the most part, internationally agreed-on definition of the term "trafficking in persons." Article 3 of the Protocol defines trafficking in persons as

the recruitment, transportation, transfer, harboring 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 labor or services, slavery or practices similar to slavery, servitude, or the removal of organs. (16) On a plain textual construction of this provision, several points are noteworthy. The first is that this provision prohibits not only transnational trafficking between states but also internal trafficking, defined as trafficking within the borders/territory of a particular state. The second is that, in respect of the trafficking of adults, this provision implicitly countenances the "action," "means," and "purpose" elements. (17) In relation to the "purpose" element, in particular, it is noteworthy that this provision broadly defines "exploitation." The nonexhaustive approach to defining "exploitation" is evidenced by the use of the nonexhaustive terms "include" and "at a minimum." The practical effect of this approach is that, although the most prevalent forms of exploitation--namely, sexual exploitation, forced labor, and domestic servitude--are explicitly addressed by the foregoing definition of exploitation, the provision does not restrict itself to these forms of exploitation. Other forms of exploitation are also captured by this provision. These include, for example, trafficking for the cultivation or production of cannabis, as well as the recent trend of trafficking of pregnant women for their babies; (18) trafficking for welfare benefits; (19) forced begging; and the increasingly prevalent phenomenon of trafficking for forced marriage. (20)

More generally, though controversial, it appears that exploitation need not actually occur for the offense of human trafficking to be made out in criminal proceedings. (21) Rather, because human trafficking is a crime of specific intent, the presence of at least one of the "actions" listed above, in addition to at least one of the applicable "means," with evidence of an intention to commit one of the "purposes" described above, will give rise to the offense of trafficking. There is, however, one caveat to this. For there to be child trafficking, only the "action" and "purpose" elements must necessarily be satisfied; (22) that is, there will be child trafficking if, for example, a trafficker recruits a child and subsequently sexually exploits him or her. The "means" element, in this connection, is an irrelevant consideration in making out the offense in court proceedings, though it may affect the duration of the sentence ultimately imposed.

On a related issue, it is also important to note that the alleged consent of a trafficked victim is, by law, irrelevant for the purposes of determining whether such a person was exploited, provided that any of the "means" described above was used. (23)

It is instructive to note that the Palermo Protocol envisages that states parties will criminalize various forms of illegal activities linked to human trafficking. These might include, for example, predicate offenses such as attempting to commit a trafficking-related offense. (24) Participating as an accomplice in a trafficking-related offense (25) and organizing a trafficking-related offense (26) is also prohibited. The offenses of concealing, damaging, or destroying a trafficked victims identity documents (27) and, more controversially, unlawfully using the services of individuals with the knowledge that they are victims of trafficking (28) are also contemplated by the Palermo Protocol.

In the area of prevention, the Protocol introduces a range of preventative measures that are aimed at reinforcing law enforcement efforts, thereby constricting the supply side of trafficking. (29) In particular, the Protocol recognizes the specific vulnerability caused by structural socioeconomic and political challenges, such as chronic poverty and unemployment, and requires that states take appropriate measures to prevent the victimization and revictimization of trafficked victims. (30)

Insofar as the protection of trafficked victims is concerned, the Protocol has made an important contribution by expressly recognizing, for example, the principle of noncriminalization, (31) whereby trafficked victims ought to be immune from prosecution in circumstances where they engage in criminal activities, such as immigration or prostitution-related offenses, as a result of having been trafficked. More generally, Article 6 of the Protocol provides for myriad measures aimed at protecting and assisting victims of human traffickings, such as assistance during legal proceedings, the provision of residence permits, housing, medical treatment, job training, assistance for rehabilitation, and assistance for repatriation; these measures have come under intense scrutiny by some scholars for being overly oriented toward a trafficked persons utility as merely a witness and not so much a victim. (32) Although these measures are couched in seemingly hortatory language--namely, states "shall consider"--it is now widely accepted that the Protocol has put in place a robust "framework and impetus for the generation of a comprehensive range of rights-based international, regional, and national norms and standards that articulate, with much greater clarity than was ever previously possible, the obligations of States in relation both to...