The story of the Palermo protocol on trafficking

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Open Democracy

Open Democracy have added a new article to their Palermo 20th Anniversary Special, looking at the story of how ‘human trafficking’ got its definition, as told by someone who was there when it happened. Marjan Wijers is an experienced consultant, trainer and researcher in the field of human trafficking, violence against women, women’s rights, sex workers’ rights and human rights. She was in the room when the Palermo protocol on human trafficking was negotiated 20 years ago and Joel Quirk interviewed her for the Open Democracy feature.

We have pulled out some key quotes from Marjan below but you can read the full interview on the Open Democracy website. You can also read our article highlighting other Palermo 20th Anniversary Special articles that are of particular interest to sex workers.

“Let me say it like this: if we had known the history and the inherent flaws of the concept of trafficking back then, we never would have used it. What we should have done was talk about forced labour, including forced sexual services, slavery-like practices and servitude. We should have used concepts that describe the living and working conditions in which people find themselves. These are concepts that are defined in international human rights law, and they're kind of neutral. But at that time we weren't aware of all that, so we ended up falling back on the 19th-century Victorian concept of trafficking with its focus on the purity and victimhood of women and the protection of national borders. In doing so, we unwittingly imported a highly biased concept, dividing women into innocent victims in need of rescue and guilty ones who can be abused with impunity, but also with racist and nationalistic overtones.

Despite efforts to counter these flaws, this inheritance continues to define the debate on trafficking today, as exemplified by the distinction the UN Trafficking Protocol makes between so-called ‘sexual exploitation’ and ‘labour exploitation’ and its focus on recruitment and movement rather than working conditions. Historically, trafficking has been used to control women’s sexuality and mobility and to justify oppressive measures against sex workers and migrants, rather than protecting their human rights. Already in the 1990s it had become clear that this was what was happening. So when we started the negotiations on the trafficking protocol, we were very much aware of the problems of the concept. And we tried to address them.

Joel: You mentioned the harmful effects of singling out sexual exploitation as different from forced labour, slavery-like practices and servitude. What do you mean by that?

Marjan: The inclusion of exploitation of prostitution as a separate purpose from forced labour, etc. reinforced the historical obsession with prostitution and fed into the old conflation of trafficking and sex work and the preoccupation with the purity of women. It not only implies that sex work cannot be labour, but it also falsely suggests that forced labour cannot exist in the sex industry, consequently depriving sex workers of protection against the practice. The ILO had always considered forced prostitution as a form of forced labour, so separating it really is a step backwards.

Forced labour and slavery-like practices are not defined by the type of the work but by the forced and unfree working conditions. According to the definition in the protocol this should also apply to trafficking. Nobody would ever argue that a domestic worker cannot be a victim of trafficking simply because she knew she would do domestic work or had worked as a domestic worker before. But when it comes to sex work you see that in practice many states restrict force to refer only to forcing somebody into prostitution and not to forced working conditions.

The effect is that in many cases, instead of the offender standing trial, it is the victim who has to prove her ‘innocence’, thus shifting the focus from the acts of the trafficker to the morality of the victim. This distinction between ‘good’ women who deserve protection and ‘bad’ women who forfeited their right to protection against abuse is one of the major obstacles to combating trafficking. It not only implies that sex workers can be abused with impunity, but also that the right of women to be protected against violence and abuse is determined by their sexual purity or ‘honour’. This is not only harmful for sex workers, but for all women.

This sex work exceptionalism also paved the way to completely opposite strategies. Where everybody agrees that it's important to strengthen rights and support unionisation, organisation, etc. in order to combat forced labour or abusive labour conditions, the exact opposite strategies are promoted when it comes to combating trafficking in the sex industry. There further criminalisation is advocated, which adds to the stigma and leaves sex workers with less instead of more rights. This is reinforced by the article in the protocol that calls on states to “discourage the demand that fosters all forms of exploitation”. This of course is interpreted as solely applying to sex work and laid the foundation for the so-called ‘end demand’ campaigns that call for the criminalisation of clients of sex workers.

People tend to think the protocol is a human rights treaty, but very obviously it is not.

Joel: It seems people have done a lot of work to expand the definition of trafficking when it comes to sex work, but they’ve been reluctant to think more broadly in other areas. They’ve baulked at applying it to migrant workers, or workers in global supply chains, for example. Do you agree with that? Do people try and apply trafficking broadly when it comes to sex work, and then narrowly when it comes to migrant workers because it's otherwise just too politically inconvenient?

Marjan: Well, exploitation and the availability of cheap and exploitable labour is in fact the core of the capitalist system. If we would really want to address exploitation in other industries, it would touch our own interests in cheap services and products. We would have to pay more for our mobile phones, for our vegetables, for having our houses and offices cleaned, etc. It is therefore much more attractive to focus on sex work, which fits a moral rather than an economic agenda and is easy to separate from our daily lives and interests.

Addressing exploitation would require a social justice agenda. It would require improving the economic, social and legal position of migrants for example. Focusing on prostitution, on the contrary, makes it possible to reduce the issue to a crime and punishment framework. It stops short of trying to address the economic system. And, of course, rescuing innocent maidens is much more sexy. All this once again exposes how flawed the whole concept is. We spend millions to combat trafficking while the forced labour treaties, which already stem from the 1930s and 1950s, have never gotten such attention. That hasn’t happened by accident.

My conclusion is that it is much better to work on rights. I see two ways forward. One is to work on sex workers’ rights, migrants’ rights, etc. It's difficult and we live in repressive times. We are in a conservative, repressive period of history. It's not only sex work – it's sexual and reproductive rights in general. It's not only migrant workers – it's migrants, refugees, etc. All human rights are under pressure. But at least they used to be seen as something to strive for. Now the necessity of human rights as a whole is up for debate.