Abstract
Most post-conflict societies are defined by poverty, unemployment, social injustice and gender inequality, making them an ideal environment for trafficking in human beings (THB) to flourish. Against this backdrop, the necessity for transitional justice processes to address THB and its underlying causes has been recognised. Trafficking for sexual exploitation in particular has received global attention and has triggered heated debates, and while it has been met by significant policy reform at the global, regional and national levels such initiatives have often proven to have dangerous consequences for women’s rights. At the forefront of THB initiatives are the women who work in the sex industry. Using Cambodia and Myanmar as case studies, we demonstrate in this chapter how transitional justice mechanisms and processes can facilitate women’s empowerment by engaging better with counter-trafficking efforts. We call for the field of transitional justice to expand its mandate beyond formal mechanisms to encompass efforts that aim to achieve durable peace by addressing deep-rooted gender inequalities leading to widespread human rights abuses. Bringing THB within the transitional justice discourse can facilitate creating policy initiatives that do not occur at the expense of undermining the already fragile status and position of women in transitional societies.
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Notes
- 1.
Louise Arbour, “Economic and Social Justice for Societies in Transition” (Second Annual Transitional Justice Lecture hosted by the Center for Human Rights and Global Justice at New York University School of Law and by the International Center for Transitional Justice, New York, New York University School of Law, 25 October 2006) http://www.chrgj.org/docs/Arbour_25_October_2006.pdf
- 2.
See, for example, matters discussed and debated in Susanne Buckley-Zistel and Ruth Stanley ed., Gender in Transitional Justice (Basingstoke: Palgrave Macmillan, 2011).
- 3.
Both countries, along with Lao People’s Democratic Republic (PDR), are the Association of Southeast Asian Nations’ (ASEAN) least-development countries and with Vietnam they constitute the so-called CLMV (Cambodia, Lao PDR, Myanmar and Vietnam); they are recognized as a particular sub-region for the purpose of ASEAN, sharing similar features even though politically different and at different levels of economic recovery and growth.
- 4.
Roger Duthie, ed., Transitional Justice and Displacement (New York: Social Science Research Council, 2012).
- 5.
See especially Roger Duthie, “Contributing to Durable Solutions: Transitional Justice and the Integration and Reintegration of Displaced Persons,” in Ibid.
- 6.
As highlighted in Duthie, ed., Transitional Justice and Displacement.
- 7.
Sue Nelson, Jeannine Guthrie and Pamela Sumner Coffey, Literature Review and Analysis Related to Human Trafficking in Post-Conflict Situations (Washington, DC: US Agency for International Development, 2004), vii.
- 8.
As we argue in Chap. 10.
- 9.
The Conference was held on 11–12 October in Vienna, for more information on the Conference, including the agenda, concept note and presentations, see www.osce.org/event/alliance12, accessed 12 May 2014.
- 10.
See the Opening Address, as reported in “Combating Trafficking as Modern-Day Slavery: A Matter of Non-discrimination and Empowerment” (The 2012 Annual Report of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings, SEC.GAL/229/12, 30 November 2012), 43–44.
- 11.
Louis Arbour, “Economic and Social Justice for Societies in Transition,” International Law and Politics 40, no. 1 (2007): 5 (footnote 10).
- 12.
See, for example, the study done by the United Nations Development Fund for Women (UNIFEM), What Women Want. Planning and Financing for Gender-Responsive Peacebuilding (2010) showing that out of the examined post-conflict planning frameworks among 12 countries only 6 % of the total budget from the 394 Multi-Donor Trust Funds (MDTFs) involved in these instances was allocated directly to gender issues, quoted in United Nations Development Programme (UNDP), Price of Peace. Financing for Gender Equality in Post-conflict Reconstruction (New York, 2010) http://www.undp.org
- 13.
United Nations Development Fund for Women (UNIFEM) and the International Legal Assistance Consortium, “Peace Needs Women and Women Need Justice” (Report of the Conference on Gender Justice in Post Conflict Situations, 2004) quoted in Nelson, Guthrie and Coffey, Literature Review (updated 2006), 97.
- 14.
United National Development Fund for Women (UNIFEM), Gender Justice: Key to Achieving the Millennium Development Goals (2010). http://www.unifem.org/attachments/products/UNIFEM_MDG_Brief_2010.pdf
- 15.
In line with the readings of Richard Quinney’s work, see, for example, John F. Wozniak, Michael C. Braswell, Ronald E. Vogel, Kristie R. Blevins, Transformative Justice: Critical and Peacemaking Themes Influenced by Richard Quinney (Lexington Books, 2008).
- 16.
See, for example, the jurisprudence of the European Court of Human Rights, Rantsev v. Cyprus and Russia, Application No. 25965/04, (Jan 7, 2010), paras 200, 253 and 284; see also Opinion No 6/2010 of the Group of Experts on Trafficking in Human Beings of the European Commission (22 June 2010), para 9; further on this point see also Ryszard Piotrowicz, “‘States’ Obligations Under Human Rights Law Towards Victims of Trafficking in Human Beings: Positive Developments in Positive Obligations,” International Journal of Refugee Law 24 (2012): 181–201.
- 17.
See, for example, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v Kunarac, Kovac & Vukovic, Case No. IT-96-23-T & IT-96-23/1-T, Judgment (Feb 22, 2001), where the Tribunal referred to the Report of the Working Group on Contemporary Forms of Slavery on its 23rd session (E/CN.4/Sub.2/1998/14), recommendation 4, stating that ‘transborder trafficking of women and girls for sexual exploitation is a contemporary form of slavery’, at footnote 1323. For some discussion on why trafficking should not always be perceived as a form of slavery see, for example, Marjan Wijers and Lin Lap-Chew, Trafficking in Women Forced Labor and Slavery-Like Practices in Marriage, Domestic Labour and Prostitution (Netherlands: Foundation Against Trafficking in Women, 1997), who suggest looking at what happens in practice in some of the cases rather than analysing them from a purely legal point of view of the applicability of the relevant laws and regulations to trafficking cases.
- 18.
See for example Opening Statement of Pino Arlacchi, Under-Secretary-General Director General to the International Seminar on Trafficking in Human Beings, Brasilia, 28–29 November 2000, http://www.unodc.org/unodc/en/about-unodc/speeches/speech_2000-11-28_1.html; Madeleine K. Albright, Remarks at Trafficking in Women and Children Conference, Mumbai, India, 24 March 2000, http://www.badasf.org/slavery/modernslavery-albright-remark-1.htm
- 19.
United States Agency for International Development, Literature Review: Trafficking in Pos- Conflict Situations (2006) http://pdf.usaid.gov/pdf_docs/PNADK470.pdf
- 20.
Nelson, Guthrie and Coffey, Literature Review, 9.
- 21.
See for example International Organization for Migration (IOM), “Traffickers Make Money Through Humanitarian Crises,” Trafficking in Migrants 19 (1999); Alja Klopcic, “Trafficking in Human Beings in Transition and Post-Conflict Countries,” Human Security Perspectives 1, no. 1 (2004).
- 22.
Nelson, Guthrie and Coffey, Literature Review, v.
- 23.
Ibid.
- 24.
See for example, Laura Turquet et al., “Progress of the World’s Women: In Pursuit of Justice (2011–2012),” (UNIFEM) http://progress.unwomen.org/pdfs/EN-Report-Progress.pdf
- 25.
Sonja Wölte, Armed Conflict and Trafficking in Women, (Sector Project Against Trafficking in Women, Eschborn: Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH, 2004), 6.
- 26.
For a persuasive overview on the distinction, both conceptual and pragmatic, between treating THB as a crime to be dealt with under a criminal law framework and a human rights violation, see Ryszard Piotrowicz, “The Legal Nature of Trafficking in Human Beings,” Intercultural Human Rights Law Review 4 (2009).
- 27.
The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the UN Convention against Transitional Organised Crime, G.A. Res 55/25, U.N. Doc A/RES/55/25 (Nov. 15, 2000); Art 3(a) reads: ‘“Trafficking in Person” 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”.
- 28.
ILO, Global Estimates of Forced Labour: Research and Methodology (ILO, 2012), 13.
- 29.
Galma Jahic and James Finckenauer, “Representations and misrepresentations of human trafficking,” Trends in Organized Crime 8, No. 1 (2005).
- 30.
See for example Kathleen Barry, founder of CATW, asserting that all forms of sex-work, whether consented to or not, is a form of violation of the human being, and trafficking is simply the traditional form of procuring for prostitution, The Prostitution of Sexuality (New York/London: New York University Press, 1995), 23. Also Joyce Outshoorn, “The Political Debates on Prostitution and Trafficking of Women,” Social Politics 12, no. 1 (2005).
- 31.
Message from the UN High Commissioner for Human Rights, Mary Robinson, to the Ad Hoc Committee on the Elaboration of a Convention Against Organised Crime, Fourth session, Vienna, 28 June–9 July 1999.
- 32.
For a historical overview of the development of the anti-white slavery campaign, and the forming of the international abolitionist movement, identifying ‘legalised prostitution as an obstacle to moral reform’, see Donna J. Guy, White Slavery and Mothers Alive and Dead: The Troubled Meeting of Sex, Gender, Public Health, and Progress in Latin America (Engendering Latin America) (Lincoln: University of Nebraska, 2000), 23; see also Annuska Derks, “From White Slaves to Trafficking Survivors. Notes on the Trafficking Debate,” (Centre for Migration and Development Working Paper Series, Princeton University, May 2000).
- 33.
For example, UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949).
- 34.
Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, opened for signature 2 December 1949, 96 UNTS 271, (entered into force 25 July 1951).
- 35.
Article 1, Ibid.
- 36.
Some of the factors that have been identified to constitute ‘vulnerability’ in the context of trafficking include poverty, unemployment and lack of socio-economic opportunities, see, for example, United Nations Global Plan of Action to Combat Trafficking in Persons, UN Doc. A/RES/64/293 (August 12, 2010), Preamble para. 3.
- 37.
It must be noted that in some countries specific anti-trafficking legislation is still missing and not all of the national anti-trafficking legislations comply with the Trafficking Protocol. According to the United Nations Office on Drugs and Crime (UNODC) Report, as of 2012, 28 countries had no legislation or legislation only with partial criminalisation of trafficking in person, Global Report on Trafficking in Persons 2012, (United Nations publication, Sales No. E.13.IV.1), 83.
- 38.
Annuska Derks, Combating Trafficking in South-East Asia. A Review of Policy and Programme Responses (International Organization for Migration IOM, Geneva, 2000), 10.
- 39.
See, for example, Phil Marshall, Research Communications Group, Re-Thinking Trafficking Prevention. A Guide to Applying Behaviour Theory (UN Inter-Agency Project on Human Trafficking and Asian Development Bank, 2011).
- 40.
See, for example Priscilla Alexander, “Feminism, Sex Workers, and Human Rights,” in Whores and other feminists, ed. Jill Nagell (New York: Routledge, 1997).
- 41.
<http://www.lucciole.org>, see for example ‘Beyond Tolerance and Compassion for the Recognition of Rights,’ Manifesto—Comitato, http://resources.tampep.eu/documents/comitato_manifesto_text.pdf, which is part of a campaign about the civil rights of sex workers initiated by the organisation in 2000.
- 42.
The Sex Workers in Europe Manifesto (2005), http://resources.tampep.eu/documents/Manifesto_booklet_colour.pdf, 4.
- 43.
The declaration was endorsed by 120 sex workers and 80 allies from 30 countries at the European Conference on Sex Work, Human Rights, Labour and Migration (15–17 October 2005, Brussels, Belgium), http://resources.tampep.eu/documents/Declaration_booklet_colour.pdf
- 44.
- 45.
The Victims of Trafficking and Violence Protection Act (TVPA), Pub. L. No. 106-386, 114 Stat. 1464, passed into law in 2000, renewed in 2003, 2006, 2008 and in 2013 as an amendment to the Violence Against Women Act (VAWA), (Title IV, sec. 40001-40703 of the Violent Crime Control and Law Enforcement Act of 1994, H.R. 3355), Pub.L. 103–322.
- 46.
Some other work towards educating the wider public and policy makers has been undertaken in the form of a Glossary of Terms for Sex Work, prepared by the European Network for HIV/STI Prevention and Health Promotion among Migrant Sex Workers (TAMPEP), which is seeking to clarify the terminology and definitions to avoid stigmatisation and stereotyping relating to sex work, http://resources.tampep.eu/documents/sw_glossary_EN.pdf
- 47.
As reported in Derks, Combating Trafficking in South-East Asia, 45.
- 48.
APNSW Statement (Sept 2013) http://apnsw.files.wordpress.com/2013/09/apnsw-letter-sept-2013-update.pdf
- 49.
Sweden was the first country to introduce this model, which by many is seen as a success story in reducing the ‘visibility’ of sex work. For others the outcomes are less straightforward and raise the issue of many sex workers being forced underground with fewer protections in place. See, for example, the arguments presented by Don Kulick, “Sex in the New Europe: The Criminalisation of Clients and Swedish Fear of Penetration,” in Sex Work, Mobility and Health in Europe, ed. Sophie Day and Helen Ward (London: Kegal Paul Limited, 2004).
- 50.
APNSW Statement.
- 51.
Caroline S. Ruiz-Austria, “Conflicts and Interests: Trafficking in Filipino Women and the Philippine Government Policies on Migration and Trafficking,” in Trafficking the Global Sex Industry, ed. Karen D. Beeks and Delila Amir (Oxford: Lexington Books, 2006), 99.
- 52.
Ibid, 39.
- 53.
UNODC, Global Report on Trafficking in Persons 2012 (2012) 49.
- 54.
Ibid, 71.
- 55.
See for example Derks, Combating Trafficking in South-East Asia.
- 56.
See for example Kritaya Archavanitkul and Philip Guest, “Managing the Flow of Migration: Regional Approaches,” (presentation, the International Symposium on Migration: Towards Regional Cooperation on Irregular/Undocumented Migration, IPSR and IOM, Bangkok and Hua Hin, 1999).
- 57.
Adopted during the “International Symposium on Migration: Towards Regional Cooperation on Irregular/Undocumented Migration” (April 1999).
- 58.
To mention just some: the Asia Pacific Consultations (APC), Asian Regional Initiative Against Trafficking in Women and Children (ARIAT) (2000), Sexually Abused and Sexually Exploited Children and Youth in the Greater Mekong Sub-region (initiated by ESCAP in 1997), Reducing Labour Exploitation of Children and Women: Combating Trafficking in the Mekong Sub-region (by the ILO-IPEC (International Programme on the Elimination of Child Labour) and ILO-WOMEMP (International Programme on More and Better Jobs for Women), Return and Reintegration of Trafficked and Other Vulnerable Women and Children between Selected Countries in the Mekong Region (IOM).
- 59.
Cambodia Tribunal Monitor, http://www.cambodiatribunal.org.
- 60.
It is estimated that over 50 % of the Cambodian population are under 20 years of age, http://www.no-trafficking.org/cambodia.html.
- 61.
In relation to Thai society see Marjorie A. Muecke, “Mother Sold Food, Daughter Sells Her Body: The Cultural Continuity of Prostitution,” Social Science and Medicine 35, no. 7 (1992).
- 62.
More on the issue see, for example, Nakagawa Kasumi, More Than White Cloth? Women’s Rights in Cambodia (Phnom Penh: Cambodian Defender’s Project, 2006); on the relationship between the ‘power of jengjom’ and debt-bondage and child-labour see Eleanor Brown, The Ties that Bind: Migration and Trafficking of Women and Girls for Sexual Exploitation in Cambodia (International Organization for Migration (IOM) 42, 2007).
- 63.
Depicted in a local saying, ‘if the skirt is torn, do not tear it more’, see Kasumi, More Than White Cloth? Women’s Rights in Cambodia, 166.
- 64.
See for example Derks, “From White Slaves to Trafficking Survivors., 18.
- 65.
See, for example, Thomas G. Bauer and Bob McKercher, Sex and Tourism: Journeys of Romance, Love, and Lust (Haworth Press, 2003), 173.
- 66.
In particular in relation to the Vietnamese-Chinese border sex tourism see Yuk Wah Chan, “Cultural and Gender Politics in China-Vietnam Border Tourism” in Tourism in Southeast Asia. Challenges and New Directions, ed. M. Hitchcock, V., T. King and M. Parnwell (NIAS, 2008).
- 67.
The Law on the Suppression of Human Trafficking and Sexual Exploitation (Cambodia) NS/RKM/0208/005 of 2007 [UNICEF trans, The Law on the Suppression of Human Trafficking and Sexual Exploitation (2008)] (“LSHTSE”).
- 68.
Center for Health and Gender Equity (CHANGE) and Center for Human Rights and Humanitarian Law at American University Washington College of Law, ed., Human Trafficking, HIV/AIDS, and the Sex Sector: Human Rights for All (Washington, D.C.: Center for Gender Health and Equity (CHANGE) and Center for Human Rights and Humanitarian Law at American University Washington College of Law, 2010).
- 69.
Human Rights Watch, 9–10.
- 70.
We provide a further overview of the complex sex scene in Cambodia in Chap. 10.
- 71.
Prakas (Cambodia) 408 (7 March 2011) MFA-IC/LC2.
- 72.
As reported in the Phnom Penh Post, ‘New Restrictions Issued on Foreign Marriages’, 16 March 2011, www.phnompenhpost.com/national/new-restrictions-issued-foreign-marriages
- 73.
Constitution of the Kingdom of Cambodia (1993) art 45.
- 74.
See also Global Alliance Against Traffic in Women, “Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World” (Global Alliance Against Traffic in Women, 2007) 6.
- 75.
See, for example, “Hold fire, if not ceasefire,” The Economist, Oct 15, 2013, http://www.economist.com/blogs/banyan/2013/10/myanmar-s-ethnic-conflicts
- 76.
With it being reported that in the Katchin state the sale of women and children can reach up to 40,000 Yuan (approximately $6,500 USD) per person, Kachin Women’s Association of Thailand (KWAT), Push to the Brink. Conflict and Human Trafficking on the Kachin-China Border (June 2013), 5, http://www.burmalibrary.org/docs15/KWAT-pushed_to_the_brink-en-red.pdf; see also Gwen Robinson, “Myanmar violence fuels human trafficking,” The Financial Times, January 14, 2013.
- 77.
- 78.
See, for example, Luis CdeBaca, Ambassador-at-Large, “Remarks to the Media at the U.S. Embassy in Rangoon” Burma, Office To Monitor and Combat Trafficking in Persons, January 11, 2012, http://www.state.gov/j/tip/rls/rm/2012/181219.htm
- 79.
To that extent, a Five-Year National Plan of Action to Combat Human Trafficking (2007–2011) was approved, which aims to ‘undertake preventive interventions and has increased measures, step by step, in taking legal action, protecting trafficked victims and in building the capacities of key actors’, available at: http://myanmarhumantrafficking.gov.mm The main body established to coordinate efforts to combat THB, following the Anti Trafficking in Persons Law (2005), is the Central Body for Suppression of Trafficking in Persons (CBTIP), Ministry of Home Affairs, with three working groups, 14 State and Regional Anti-Trafficking in Persons bodies and other affiliated bodies and groups, see for more details: http://myanmarhumantrafficking.gov.mm/content/contact-us
- 80.
Equally it is not an issue that would be widely covered or reported by the local media due to their heavy government censorship.
- 81.
See the “SIREN Human Trafficking Datasheet for Myanmar” (2009), http://www.no-trafficking.org/reports_docs/myanmar/myanmar_siren_ds_march09.pdf, as well as “United Nations Inter-Agency Project on Human Trafficking (UNIAP): The Human Trafficking Situation in Myanmar,” http://www.no-trafficking.org/myanmar.html
- 82.
US State Department, The 2009 Country Report on Human Rights Practices: Burma, http://www.state.gov/g/drl/rls/hrrpt/2009/eap/135987.htm
- 83.
For example, the United Nations Committee on Discrimination Against Women (CEDAW) has expressed concerns over the constrains on the women’s civil society organisations to comment on and openly criticise the government policies, which is also of consequence for the anti-human trafficking policies and programmes, see CEDAW, Concluding Observations of the Committee on the Elimination of Discrimination against Women: Myanmar (New York: CEDAW/C/MMR/CO/3, 7 Nov 2008), 5.
- 84.
Supplemented by the Law Amending the Suppression of Prostitution Act (1998), both of which can be viewed on the UN Inter-Agency Project on Human Trafficking website: http://www.no-trafficking.org/myanmar_laws.html
- 85.
That was retracted in 2011 by a Directive by the Ministry of Home Affairs, but it still remains largely unknown fact by the public, as reported in IRIN “Push to decriminalize sex work, but stigma remains,” http://www.irinnews.org/report/99464/push-to-decriminalize-sex-work-but-stigma-remains
- 86.
On the cultural obstacles to the use of condoms in health prevention, and the social attitudes towards the use of condoms, those who carry them and general sex education see Htet Aung, “Selling Safer Sex in Conservative Burma,: The Irrawady 15, no. 9 (September 2007) http://www2.irrawaddy.org/article.php?art_id=8461
- 87.
Sue Gillieatt and Luke Talikowski, “Female sex work in Yangon, Myanmar,” Sexual Health 2, no. 3 (2005); See also the results of the more recent study by Lin A. Swe and Abdul Rashid, “HIV prevalence among the female sex workers in major cities in Myanmar and the risk behaviours associated with it,” HIV AIDS (Auckl) 5 (2003).
- 88.
See, for example, a film ‘Caused by Refraction: Sex Worker Resistance in Myanmar’, http://www.nswp.org/news-story/caused-refraction-sex-worker-resistance-myanmar
- 89.
See, for example, Phyo Wai Kyaw, “Sex Workers Struggle in Mandalay,” Myanmare Times, 11 Aug 2013, http://www.mmtimes.com/index.php/in-depth/7815-sex-workers-struggle-in-mandalay. html;Sanay Lin, “Rangoon’s Sex Workers Face Unscrupulous Police Force,” The IRRAWADDY Magazine, Nov 7, 2013, http://www.irrawaddy.org/burma/rangoons-sex-workers-face-unscrupulous- police-force.html
- 90.
- 91.
For example, in relation to infrastructure development and confiscations of land for the purposes of construction of a pipeline connecting China, Myanmar and the Indian Ocean see Nathan Willis, “Land Disputes and the Ongoing Development of the Substantive Rule of Law in Myanmar (Burma),” in Law & practice: critical analysis and legal reasoning, ed. Sylvia Kierkegaard (Denmark: International Association of IT Lawyers, 2013).
- 92.
See also Earth Rights International, “Mining, Gender, and the Environment in Burma - Mining: Addressing the Gender Gap”, (26 Nov. 2004), http://www.earthrights.org/burmareports/mining_gender_and_the_environment_in_burma_2.html
- 93.
In the case of Cambodia see, U.S Department of State, Trafficking in Persons Report: Country Narratives A- C” http://www.state.gov/documents/organization/210738.pdf
- 94.
Ronald Skeldon, “Trafficking: A Perspective from Asia.” International Migration 38, no. 3 (2000), 20.
- 95.
The Office of the High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add. 1, Guideline 1.
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Acknowledgement
We are very grateful for the helpful comments on an earlier draft of this chapter by Prof. Ryszard Piotrowicz, and would like to acknowledge the anonymous reviewers for their valuable suggestions and feedback; any errors and mistakes remain our own.
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Szablewska, N., Bradley, C. (2015). Social Justice Within Transitional Justice: The Case of Human Trafficking and Sex-Work in Cambodia and Myanmar. In: Szablewska, N., Bachmann, SD. (eds) Current Issues in Transitional Justice. Springer Series in Transitional Justice, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-09390-1_11
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