The master’s tools will never dismantle the master’s house: time to rethink the Palermo protocol

The governments who championed Palermo are never going to trade law enforcement for social justice and human rights. It needs to be taken down.

Searching for gold in Burkina Faso| Ollivier Girard/CIFOR/Flickr. Creative Commons (by-nc-nd)

Sam Okyere-18 December 2020

On 15 July 2020, the United Nations special rapporteur on trafficking in persons delivered her annual report to the UN Human Rights Council. Her report amplified numerous other calls for a shift in focus away from law enforcement and towards human rights and the protection of victims. More strikingly, her report also noted that a new international instrument may be required, since the Palermo protocol may not be sufficient or effective when it comes to realising these human rights goals. While this call is still presented in diplomatic language it isn’t that hard to read between the lines: the current anti-trafficking system isn’t working.

This piece takes this welcome intervention as its point of departure. It suggests that the Palermo protocol is irredeemably compromised and must be dismantled, rather than reformed. We instead need to strengthen existing international instruments focusing upon workers’ and migrants’ rights and protections. Any new instrument which is developed needs to avoid the trap of making crime fighting a primary goal.

Since its adoption in November 2000, the Palermo protocol has attracted widespread support. It has received an impressive number of ratifications by UN member states, provided a foundation for innumerable national and international NGOs, and helped to place ‘human trafficking’ at the centre of political conversations across the globe. It has been described by Stephen Biegun, the US deputy secretary of state, as proof of the tremendous achievements that can be realised when the international community comes together to combat human rights abuses and promote the rule of law.

Only a few hundred out of the purported 20 million people affected by trafficking have received support from states.

Supporters of the protocol acknowledge that it has imperfections and limitations, but passionately counter that any problems are outweighed by both its current contributions and, crucially, future potential. Despite the fact that it has now been around for two decades, supporters continue to maintain that any flaws should be regarded as ‘blips’ or ‘teething issues’. Instead of being treated as signs of failure, or as evidence of the need for a course correction, problems are instead presented as a reason to reform the system from within since this is the best path for accelerating and realising the protocol’s full potential.

A new dawn?

This continuing optimism is entirely misplaced. We now have twenty years of examples demonstrating that its design flaws and implementation failures are not blips or aberrations but are instead core features and functions. As the special rapporteur and other commentators lament, only a few hundred out of the purported 20 million people affected by trafficking have received support from states. While global estimates of trafficking are notoriously unreliable, not least because of basic definitional problems, the difference between tens of millions (seven zeros) and hundreds (two zeros) should give even the most ardent supporters pause. In theory, parties to the Palermo protocol are committed to protecting and respecting the rights of trafficking victims (Article 2b). In practice, this is little more than rhetorical fantasy.

The primary role of the Palermo protocol has been to provide legitimacy to oppressive immigration and mobility controls; a whitewash for anti-immigration programmes as the scholar Nandita Sharma observes. These include border externalisation measures by the European Union, United States and Australia, which are today conveniently tagged in humanitarian terms as measures to prevent trafficking. It has also helped justify questionable raids on brothels and other workplaces in the name of rescuing trafficking victims, and the creation of false boundaries between labour exploitation in the formal and informal sectors. The protocol frames trafficking as a subset of ‘illegal’ immigration or ‘informality’, and so anti-trafficking raids mainly target car wash bases, nail bars, brothels and other ‘informal’ spaces. The plight of migrant domestic workers, construction workers, and others who move through state-sanctioned sponsorship visas and other perfectly legal channels to work legally in the formal economy is rarely the focus of anti-trafficking campaigners’ advocacy. This is despite the evidence that many working under such formal or legal schemes are subjected to wholesale rights violations, including confinement, passport confiscation, non-payment of wages, and physical violence or its threat.

‘Saviourism’ and crass racialised practices have also become its hallmark. Campaigners evoke the memories and imageries of the transatlantic slave trade for antitrafficking advocacy while conveniently ignoring the deleterious legacies of the transatlantic slave trade, colonisation, imperialism, and other historical injustices which underpin the misery of many of those black and brown people deemed most susceptible to precarious migration, exploitative labour, and trafficking.

These problems are not accidental. References to rights and protections found in the Palermo protocol are little more than convenient fig leaves for the pursuit of anti-migration and anti-sex work interests which were the driving forces behind its creation. Punishment was always far more important than protection. The governments who championed the protocol are never going to break away from its focus on law enforcement and crime and instead embrace social justice and human rights protections. They have no incentive to take the leap, and this is not what they signed up for in the first place. They did not provide a tool that can be used to challenge them or to dismantle their house.

The perils of false consensus

The harmful consequences of clinging to the false hope of future reform is underscored by the findings of my research with working children over the last decade. For children in their late teens the Palermo protocol is especially problematic. The construction of child trafficking effectively denies them their agency and capacity to make relatively informed choices about entry into work, taking up apprenticeships and other opportunities erroneously labelled by some as ‘child trafficking’. Furthermore, the definition of child trafficking per the protocol’s parameters is an exercise in legal abstraction which has little or no connection to many working children’s lived experiences. Core elements such as ‘movement’, ‘harbouring’, ‘transfer’ ‘receipt’ and ‘exploitation’ are highly tenuous. What distance qualifies as ‘movement’, for example? A trip to the neighbour’s house? A trip to the next village or town? One which involves crossing regional or national borders? Where do we draw the line?

This lack of clarity coupled with the protocol’s dictate that anyone under the age of eighteen is incapable of consenting to their involvement in work means that what counts as ‘exploitation’ and ‘child trafficking’ is heavily reliant on the personal, cultural, political and other value judgements or interests of anti-trafficking NGOs and their staff. These are not objective assessments, but they can nonetheless have profound consequences. As discussed in a forthcoming paper and in fieldwork planning activities for the European Research Council-funded project Modern Marronage, this has been disastrous for indigenous communities living on and around Lake Volta in Ghana. Over the past five years these islanders have been repeatedly raided by anti-trafficking NGOs and state security personnel under the pretext of rescuing children allegedly trafficked for fishing in the waters surrounding the islands.

The Palermo protocol incentivises NGOs to cast islanders, parents, and fishermen as traffickers and enslavers of their children.

Residents present harrowing stories of brutality and trauma from these raids, which have resulted in what they describe as the abduction of their children by anti-trafficking NGOs and the police. These NGOs have been able to leverage their connections to the larger world to construct sensational stories about ‘rescuing child slaves’ on the lake, and thereby construct the terms of engagement in ways which ensure that the underlying issues remain poorly understood.

Few questions have been raised about the appropriateness of the NGOs interventions. So too has there been hardly any scrutiny of the accuracy of their claims, which include assertions that there are several thousand child trafficking victims in these communities. Some NGO staff privately acknowledge that the children working on the lake and elsewhere are not ‘child slaves’ or ‘child trafficking victims’, but rather child labourers or children driven by precarious socio-economic circumstances into work. But this is not something which they can raise in public without risking their access, audience, and resources.

And yet, anti-trafficking modalities driven by the Palermo protocol do not encourage household- and community-based social welfare programmes, micro-credit schemes, provision of educational facilities, or other measures that may provide alternatives to fishing for children and their families. Instead, the criminal justice approach driven by the Palermo protocol and the Ghana Human Trafficking Act modelled on it incentivises NGOs to cast the islanders, parents, and fishermen as traffickers and enslavers of their children. This framing provides justification for the raids and attracts funding for ‘rescue shelters’ and other facilities for children. The outcomes of all this are hardly all positive.

The Palermo protocol has been shockingly dismal as a human rights instrument for such children and their families. The same is true when it comes to sex workers subjected to mindless raids, migrants forced to undertake precarious journeys due to anti-trafficking related border controls, those ostensibly ‘rescued’ from traffickers but subsequently deported as immigration offenders, and many others. To paraphrase Audre Lorde, it may allow some gains and temporary victories, but it will never allow an unequivocal human rights-based approach to migration and labour exploitation given its interests in criminalising some forms of migration. On the occasion of its twentieth anniversary, it is time to admit that the protocol is irredeemably flawed and has to be dismantled. In its place, we need to strengthen existing international instruments focusing upon workers’ and migrants’ rights and protections. Better still, we need to develop a new instrument which completely avoids the trap of making of crime fighting a primary goal.