Tackling Human Trafficking [The Barrister Magazine]


[As published on The Barrister Magazine: http://www.barristermagazine.com/article-listing/current-issue/tackling-human-trafficking.html]

Recently human trafficking has returned in the UK media spotlight, as a study by the Centre of Social Justice has been published denouncing the Government’s failure to tackle this complex form of transational crime.

The internationally recognised definition of ‘human trafficking’ can be found in the Palermo Protocol (Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children) to the Convention against Transnational Organised Crime (the Protocol entered into force in 2003):

“Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring 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 labour or services, slavery or practices similar to slavery, servitude or the removal of organs… The consent of a victim of trafficking in persons to the intended exploitation set forth [above] shall be irrelevant where any of the means set forth [above] have been used.”

This complex definition seeks to capture the chain of trafficking which includes the act, the means to carry out the act and the purpose of the act. Therefore, the definition should be understood as follows:

1) The act: “the recruitment, transportation, transfer, harbouring or receipt of persons

2) The means: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

3) The purpose: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 labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

It should be noted that, in each one of the three limbs of the definition, the elements listed are alternatives to be satisfied. Therefore, contrary to popular belief, a victim of human trafficking does not necessarily need to have ‘travelled’ or have been ‘transferred’. In fact, the mere recruitment is sufficient to satisfy the first limb of the definition – provided the subsequent other two limbs are satisfied too. Similarly, in the second limb of the definition, it is not necessary to prove that the victim was subjected to violence or threat of violence: other forms of coercion which satisfy the legal threshold, which are more of a psychological nature rather than physical, include the abuse of a position of vulnerability (e.g. an individual who offers to “help” an orphan). Finally, exploitation is commonly correlated to prostitution. In reality, the variety of forms of exploitation is far wider and includes the exploitation of individuals in cannabis factories, as well as in otherwise legitimate enterprises such as the textile industry (e.g. where workers are unpaid, paid under the minimum wage or made to work in unsafe and illegal conditions).

Of course, for human trafficking to be identified, all three limbs of the definition must be satisfied. This is the most complex aspect since one or more stages of the chain of human trafficking can easily be concealed. The greatest problem of this form of crime is the difficulty posed in identifying the victims and the crime itself. Often a victim might even be confused as a perpetrator, since the police might come across them for the first time in the context of the commission of a criminal offence, such as cultivating cannabis.

On 6 April 2013, the European Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims will come into force in UK, meaning that that is the deadline by which the country must fully implement it. Some of the key changes that will be brought about by this welcome piece of legislation are requirements for/to:

  • the establishment a dedicated national anti-slavery agency or Rapporteur
  • the establishment of an EU Anti-Trafficking Coordinator
  • increase public awareness of human trafficking
  • set up special measures for the protection of victims and, in particular, of minors
  • the revision of definitions relating to human trafficking offences to cover a broader range of cases, to include the commission of offences within the UK territory or by UK nationals outside of the UK territory
  • the establishment of a system by which prosecution and punishment of defendants later identified as victims of human trafficking may be dropped where it is proven that their commission of criminal offences is correlated to their status as human trafficking victims.

The Crown Prosecution Service has recently published a new set of guidelines on Human Trafficking taking into account the European Directive soon coming into force. The UK needs to also work hard in cooperation with other EU Member States on raising awareness amongst officials dealing with immigrants, such as those at the UK Border Agency, as well as members of the criminal justice system including judges that all too often misunderstand the nature of this complex crime.

ICC’s Failure to Protect its Officials


Since 7 June 2012, four officials of the International Criminal Court’s (ICC) Office of Public Counsel for Defence (OPCD), including Australian lawyer Melinda Taylor, have been detained in Libya.

Image

I had the pleasure of meeting Melinda Taylor last year during the course of my LL.M. and she gave me some useful advice for my thesis.  I have always admired her competence, professionalism and commitment, therefore I was shocked to say the least when I heard the news of her detention in Zintan, near Tripoli.

She, and the other three ICC officials, have been accused of trying to pass on “dangerous” documents to Saif Al-Islam Gaddafi. Gaddafi is son of  Muammar Gaffafi and is facing ICC charges of crimes against humanity.

Under the 1998 Rome Statute and in compliance with the principles of fair trial and respect of the rule of law, each Defendant at the ICC is entitled to a number of rights deriving from his/her right of defence:

– right to appoint a counsel of his choice

– right to have adequate time and facilities to prepare his defence

– right to communicate freely and in confidence with his lawyers

The latter includes the right to freely discuss and exchange documents with his lawyers.

This clearly shows that the detention of the ICC officials is unjustified and a violation of international law. Not only is there no legal basis for their detention, but their right to international immunity has been violated.

This situation highlights the hot topic of who should bring to justice the accused former regime figures: whether it should be a right of the newly established Libyan authority or whether it should be left to the International Criminal Court. It appears that, on top of the UN mandate deriving from the UN Security Council Resolutions 1970 and 1973 allowing the ICC to open the Libyan case, under Article 17 of the Rome Statute (principle of complementarity), Libya should be considered “unable” to try individuals such as Saif Gaddafi for the simple fact that the current Libyan authorities cannot guarantee impartiality and fairness of trial.

This is hotly disputed and their conduct in respect of ICC officials clearly shows that they are prepared to overstep international law in order to affirm their independence and sovereignty. It remains unclear how they expect to claim legitimacy and credibility on the international scene whilst violating international law and not complying with the rights of the accused to a fair trial. Furthermore, this situation seems to reveal that the ICC had not made arrangements suitable to secure the safety of its officials prior to sending them to Libya and, ultimately, ensure their protection.

Age Discrimination: Too Young or Too Old?


Two major decisions handed down last week by the UK Supreme Court have brought the issue of age discrimination back under the spotlight. Mandatory retirement age was abolished in the UK in 2011, although employers can still apply it if they can justify it on the grounds of proportionality in achieving a legitimate aim.

Both cases, Seldon v Clarkson Wright and Jakes and Homer v Chief Constable of West Yorkshire Police, dealt with employees being discriminated directly or indirectly in relation to their retirement age. The two situations were however rather different. In Seldon, the claimant was a solicitor required to leave the law firm Clarkson Wright & Jakes (CWJ) at the age of 65th according to the partnership agreement. This policy was justified on the basis of integrating younger people and giving partnership opportunities to young generations. In Homer, the claimant was a legal adviser with the police national legal database who alleged that he was subject to indirect age discrimination as he was ineligible for a promotion that required him to have a law degree. His argument was that, given he was aged 62; he could not obtain a law degree before the age of retirement (65) and thereby apply for the promotion.

Neither ruling determined the outcome in the specific cases, as both were sent back to the employment tribunals. However, Lady Hale delivered both principal judgments essentially concluding that both age discrimination claims had some merits but that specific circumstances had to be considered. Lady Hale concluded, in Seldon, that to justify a policy it is not sufficient for an employer to show that it has an aim that is capable of being a public interest aim (such as the aim to integrate young people thereby dismissing older partners / employees) and that it must in addition be shown that it is actually a legitimate aim in the particular circumstances of the employment. In Homer, the claimant’s appeal was dismissed and it was held that the requirement of holding a law degree could be considered indirect discrimination but that this depended upon a valid justification on the side of the employers.

These cases highlight the basic fact that age is not a condition of an individual (such as disability) nor a permanent characteristic which is subdivided into generally speaking clear-cut ‘categories’ within society (gender, ethnicity or sexual orientation): age is rather a specific situation part of human life. There is no clear boundary between one phase of life or another. The ability to work in later years really depends on the individuals’ mental and physical health. However, businesses are likely to consider that at an older age, people might be less flexible and adaptable than younger people thereby slowing down their work activity or reducing innovation. This clearly is a delicate topic, as one can see both sides easily and must be careful to argue heavily either way given the implications on society as a whole. But what, in my opinion, is the strongest argument in favour of mandatory retirement age, would be the possibility of opening up the job market to young people. Just like dignity of old workers is considered and protected, the same should apply to young people who are either struggling to find employment or, once on the job, are not given enough chances to show what they are capable of.

Michael Skapinker argued in his article on the Financial Times (The Law is a Grey Area for Employers of the Aged, Thursday 3rd May 2012) that the Supreme Court rulings made the law even more woolly that it already is, thereby leaving uncertainty amongst employers as to what they are and what they are not entitled to do in relation to retirement ages. Michael Skapinker makes the fairly obvious but excellent point that “we all start off young and, with luck and good health, end up old. If the law acts to protect the elderly, we will all benefit one day.” Yet, however tempting it might be to agree with him, I must resist this point. Society will not benefit now or tomorrow if there is no generational interchange and if older employees have no “time limitations” than enable newer generations to step in. This clearly results in older generations holding the economic and labour power, whilst being forced to support younger generations unable to sustain themselves, to repay university debts and to start-up families. Whilst Mr. Homer (Homer v Chief Constable of West Yorkshire Police) might have felt that it was unfair to him to be ineligible for a position requiring a law degree, it would be equally if not more unfair to make a position for a law graduate impossible to reach because old staff – regardless of their qualifications – can have priority over them. I struggle to see how this will benefit the young a few years along the line.

The Supreme Court might be implicitly supporting this view as its rulings effectively mean that employers are entitled to require older staff to leave, provided this is justified on stronger grounds than mere cost cutting and improvement of competition. However, in considering two cases which effectively approach the issue of age discrimination from the one-sided perspective of the older staff, one should not forget, in the wake of the London riots, society’s interest in providing jobs – and dignity – to younger generations.

Behind the Bars


Although it was not my first visit to a prison, it did not feel just like any other day. It was early, still pitch dark outside. Trying to figure out what clothes to wear was rather difficult. I knew it was sensible not to wear any low cut tops or short skirts (rather obvious), but I was also advised not to wear scarves or elegant clothes. I opted for a pair of jeans and a sweater. I also knew that I could not take anything possibly relating to computers, such as USB sticks or CDs, but also I couldn’t take in chewing gums which apparently are used by inmates to force the locks open (don’t ask me how!).

Waiting at the bus stop, there I was: standing in the freezing cold on my way to HMP Pentonville Prison in London.  Some notorious inmates of this prison have been George Michael and Pete Doherty (who also wrote a song called Pentonville). When I arrived, I was surprised to find that the building is very visible from the main road and houses are built very close-by. In fact, some of the cells’ windows can be easily seen from the road. I got in through the main entrance and had to get a Visitor’s pass after having had my fingerprints and a photograph taken by security. No mobile phones could go past security, so I left mine in a locker. Clearly, no cameras could be taken inside either so the photographs in this post were found online and were not taken by me.
When I walked in, accompanied by internal staff, it was the time of what is called ‘free flow’, that is, when cells are unlocked (I think different wings are unlocked in turns and not all cells are unlocked, e.g. those with high security regime) and prisoners are moving from one wing to another heading to whichever activity they’re meant to attend. These activities can be educational or simply taking a shower. ‘Free flow’ lasts for about half an hour and it takes place about twice every day. When it ends, everything is locked up again and inmates are either back in their cells or in another space where they’re undertaking an activity such as a workshop. I couldn’t help but notice that the great majority of inmates was either black or Asian, although there were a few whites too. From what I saw, most of them were also quite young.

Pentonville was the first prison in Great Britain to put into practice the enlightened ideas of the prison reformer, John Howard. Built in 1840-42 to the designs and under the direction of Major (later Sir) Joshua Jebb, Surveyor General of Prisons, it pioneered the separate housing of inmates in wings radiating out from a central hall. (Source: http://www.elton-engineeringbooks.co.uk/highlights/jebb.htm) The only time it stopped being used as a prison for English inmates was during the Second World War, when it was used to hold German prisoners. Other than that, it’s been actively in use since it was first opened.

Source: http://www.elton-engineeringbooks.co.uk/highlights/jebb.htm

Pentonville has 7 residential wings:

  • A wing – Induction and First Night Centre. This wing has recently been refurbished to cater for new arrivals into custody.
  • B wing – Resettlement wing
  • C and G Wings are for remand and convicted prisoners and provide services including education, workshops and offending behaviour courses
  • D Wing – Is the enhanced wing
  • E Wing – Substance Misuse Unit
  • F Wing – IDTS (Stabilisation Unit)

I walked through one of the wings (I am not actually sure which one it was, but I think it must have been either C or G) and I was surprised by the brightness of the spaces. Of course, the light is not as abundant in the cells. Some of the cells, those for vulnerable inmates, are actually in the basement and have no natural light. The prison was built for around 600 prisoners, however now the prisoners are more than 1200 and all cells (intended for one individual only) host two prisoners. Although I didn’t actually walk inside a cell, I could see they were tiny and there was barely room for a bunk bed and a table where prisoners eat. In fact, they collect food and eat in their own cells rather than in a shared canteen. Breakfast is collected together with the evening meal, but most of them apparently eat it in the evening or at night because they’re hungry and end up skipping breakfast the following morning. Some cells have a TV, which the inmates pay for. I was told that, although it seems like an excessive privilege, it is actually a very good weapon to use to make sure the prisoners behave well. In fact, I understood that the threat or the actual act of taking away the TV is sometimes more effective than any other threat. Clearly, spending so many hours locked up, the worst thing is making time go by without going crazy. It is also better to let them watch TV rather than get into fights with each other or using drugs (although they probably do it anyway, although Pentonville has gone down hard on the fight against drugs given the recent scandals).

I had the opportunity to see a classroom which was actually well equipped, with some computers, a board, large tables and chairs. The computers don’t have internet connection and even the staff’s own computers, which are located in separate sections of the wings, to which prisoners have no access, have limited access to internet. Although this might sound obvious, every single space is separated by locked gates which need to be unlocked to go through and locked immediately after. Even to simply access the staff’s toilet or a staircase, there will be one or two locked gates and doors to get through. On my way out, the food was being served for lunch and the smell was absolutely unpleasant and I surely did not feel hungry after that.

 Source: The Guardian

It was a very interesting experience, because, while one can imagine what a prison is like from all the films that depict life in prison, the reality is not as ‘cool’ as television and the cinema make it appear.

A report published in June 2011 by Her Majesty’s Inspectorate of Prisons for England and Wales (HMI Prisons), sadly confirms my general perception of the building’s state:

 “Pentonville is an iconic prison, but not always for the right reasons: its four central wings are over a hundred and fifty years old, it has a large and transient population drawn from some of London’s poorest boroughs, and its prisoners have amongst the highest incidence of mental ill health and substance abuse of any local prison in the country. […]Pentonville is amongst the most challenging local prisons in the country to run. Its ageing and crowded fabric offers limited scope for change or development, its population is not only transient but also hugely needy – and sometimes challenging – and resources are declining. Despite all this, managers and staff were working hard to make the prison a safer and more decent place. There was now a little more purposeful activity and some exciting, if nascent, ideas to work with local authorities to improve resettlement outcomes. It goes without saying that there is much more to do. Indeed the scale of the issues facing Pentonville means that it is also essential that the prison is supported by an effective London-wide strategy – but there is now at least a positive sense of direction.”

Source: The Guardian

The most overwhelming feeling even for someone who, like myself, knew perfectly well I’d be inside for no more than a couple of hours, is that, as you walk in, you lose control of what’s happening around you. The doors and gates rapidly being locked behind you, you realise that if – for any reason – you actually wanted to leave, you would not be able to do so without having someone able to let you out. Despite that, I actually came out feeling quite positive about the overall experience: seeing the prisoners so close-by, walking right next to them, reminded me that, even if many – if not most of them – have committed some serious crimes, they are humans. Some of them are there because they probably were unlucky enough to be born in the wrong place, to the wrong family or ended up mixing with the wrong crowds.

That is not to say that I feel sorry for them or that I would forgive the crimes they have committed and for the pain they’ve caused to others. Rather, it is to say that seeing a prison from inside has made even stronger, in my eyes, the case in favour of Article 6 (European Convention of Human Rights) rights. When you see with your own eyes what life in prison means, you understand why the criminal justice system must strive to secure convictions of the guilty and ensure acquittal of the innocent. Unfortunately, even in a perfectly well-oiled criminal justice machine, there are bound to be mistakes. This is why the importance of the right to a fair trial in full respect of the presumption of innocence, the equality of arms and the impartiality of the tribunal, must never be underestimated or taken for granted. The natural continuation of the right to a fair trial is the full compliance with human rights inside the prison, that is not to say to give unlimited privileges to prisoners but simply to remember that they are humans despite the inhumanity of some of their actions and – if we are to call ourselves a modern society – we must strive to respect their human dimension and, if possible, help them to rediscover it through rehabilitative and educational programmes.

Source: The Guardian

For anyone interested in more information on HMP Pentonville or the prison system in general, I have found this website very informative and useful: http://www.insidetime.org/info-regimes2.asp?nameofprison=HMP_PENTONVILLE.

The pictures in this post (except for the image of Jebb’s drawings of the prison plan) were all published by The Guardian online.

This is not a man


Questo non è un uomo

I have decided today to post the poem by Adriano Sofri, a prominent and controversial Italian political activist and critic, because of its depth and value. My English translation is posted just below the Italian original poem.

This poem is inspired by the famous poem ‘If this is a man’ (Se questo è un uomo) by Primo Levi, which was written by the well-known survivor of the Auschwitz concentration camp to convey the feeling of degradation and inhumanisation experienced by the people kept in the Nazi extermination camps.

Voi che vivete sicuri / You who live safely
Nelle vostre tiepide case / In your warm houses,
voi che trovate tornando a sera / You who find warm food
Il cibo caldo e visi amici / And friendly faces when you return home.

Considerate se questo è un uomo / Consider if this is a man
Che lavora nel fango / Who works in mud,
Che non conosce pace / Who knows no peace,
Che lotta per mezzo pane / Who fights for a crust of bread,
Che muore per un sì o per un no. / Who dies by a yes or a no.
 
Considerate se questa è una donna / Consider if this is a woman
Senza capelli e senza nome / Without hair, without a name,
Senza più forza di ricordare / With no longer the strength to remember,
Vuoti gli occhi e freddo il grembo / Vacant eyes, cold womb,
Come una rana d’inverno. / Like a frog in winter.

Meditate che questo è stato / Realise that this has happened.

Vi comando queste parole. / Remember these words.

Scolpitele nel vostro cuore / Engrave them in your hearts,
Stando in casa andando per via / When at home or in the street,
Coricandovi alzandovi / When going to bed, when getting up.
Ripetetele ai vostri figli./ Repeat them to your children.
O vi si sfaccia la casa / Or may your house be destroyed,
La malattia vi impedisca / Illness bar your way,
I vostri nati torcano il viso da voi / Your offspring turn away from you.

This poem, which is of extraordinary strength, focussed on the humiliation of the camps that sought not only to destroy people physically, but also – and especially – emotionally. People there were not to be people anymore. The key aim of the Nazis was to make these prisoners forget they were humans too, and, as such, had natural rights.

Sofri’s poem posted above is a serious cry for help – help for those black people in Southern Italy (Rosarno – in Calabria, region just North-East of Sicily) who this week (January 2010) have rebelled to the constant racism that reigns over their difficult and sad lives  They rebelled against the racism of the locals (e.g. spitting at them in streets, shouting insults at them) and against the slavery-like treatment reserved to them for years in the fields where oranges and other typical southern-Italian products are grown and collected. This market is under the control of the Mafia from many years and the immigrants, whether they are legal or not, are taken under what is real modern slavery. They earn 1 euro per hour or less, they live under what can hardly be called rooves, and they wash in the streets. These black men and women have been humiliated in the streets, attacked, hit and killed because they ‘disturb’ the town.

This has caused a very big debate amongst Italian politicians as to whether the local inhabitants are ‘racists’. Some politicians seem to think the key problem in this case is that there are far too many immigrants. The problem of uncontrolled immigrants is real and under everybody’s eyes. However, few people (and politicians) seem to have the courage to denounce what is the real problem: the Mafia, which encourages people from abroad, who live in appalling conditions and thus have nothing to lose, to migrate to Italy with the promise of a safe and honest job to help their families. These people abandon their families to go to the ‘promised land’ only to find themselves trapped in a condition of slavery and illegality, without the protection of law, since for the State they are ‘non-existant’ individuals hidden by the Mafia. Once their job is no more required, they are abandoned in their situation of desperately poor immigrants (60% of the immigrants involved in the situation in Rosarno were legal immigrants) and they are not accepted by the population that attributes their condition to their own lack of attempt to be follow the ‘welcoming country’s laws’.

The poem by Sofri wants to remind us all that no matter whether legal or illegal, an immigrant is a human being like any one else: someone who has a right to a dignified life and a right to be treated as equal to any other man or woman. Let us stop manipulating a reality which we, Italians, have greatly contributed to create and let us stop closing our eyes in front of the atrocities which are being committed against these poor people.

The Poem
…………………………………………………

In the Ghettos of Italy
This is not a Man

by Adriano Sofri

Once again, again consider
if this is a man,
like a toad in January,
who is on his way when it is dark and foggy
and returns when it is foggy and dark,
who collapses on the side of the road,
who
at Christmas smells of kiwi and oranges,
who knows three languages yet can speak none,
who fights his meals with mice,
who has two spare slippers,
an asilum request,
an engineering degree, one photograph,
and he hides them under cardboards,
and sleeps on the Rognetta cardboards,
under an asbestos roof,
or without a roof,
who lights a fire from the rubbish,
who stays in his own place,
in no place,
and comes out, after shooting,
“He got it wrong!”,
of course he got it wrong,
the Black Man
from the black misery,
of the black market, and from Milan,
after begging for attenuating circumstances
they write in big letters: BLACK,
discarded by a corporal,
spat in the eye by a miserable local man,
hit by his owners

chased after by their dogs,
what an envy for your dogs,
what an envy the jail
(a good place to hang oneself)
Who urinates with dogs,
who bites the dogs without owners,
who lives between one No and another No,
between a Police office for mafia
and a last welcome Immigrants Centre
and when he dies, an offer
of his brothers paid one euro per hour
sends him overseas, over the desert
to his land – “To whatever land!”
Meditate that this has been,
that this is now,
what a State this is,
Reread your essays on the Problem
you who adopt from a safety distance
in Congo, in Guatemala,
and you write in your warm homes,
neither here nor there,
neither goodness, something left to charity,
nor brutality, something left to internal affairs,
tepid, like a gun in the night,

and you move your eyes away from her

who is not a woman
from him, who is not a man
who has not got a woman
and his sons, if he has sons, are far
and prey again that your newborns
will not turn  their faces away from yours
in disgust.